A Sujathamma vs The State Of Andhra Pradesh
2023 Latest Caselaw 2020 AP

      THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI

               WRIT PETITION No.1075 of 2020

A. Sujathamma, D/o A. Jakaraiah, Hingu, aged about 43 years,
Occ: Senior Assistant (on diversion), O/o Chief Engineer,
Quality Control, Rayalasima Region, Near Koti Reddy Circle,
Kadapa YSR Kadapa District.
                                               ... Petitioner

                               Versus

The State of Andhra Pradesh, Rep. by its Principal Secretary,
Water Resources Department, Amaravathi Guntur District and
two others.
                                             ... Respondents


Counsel for the petitioner              : Sri T.C. Krishnan,

Counsel for respondents                 : Learned Government
                                          Pleader for Services-III

                               ORDER:

The above writ petition, under Article 226 of the

Constitution of India, is filed impugning Memo

No.AB/NTPA/Supdt./EC-2/P.4/03 GL, dated 03.01.2020

issued by respondent No.3, whereby petitioner was shown at

serial No.14 by reviewing and revising seniority list from 2006-

07 to 2018-19 and fixing tentative seniority list for the year,

2019-2020.

2. The facts, in brief, germane are that petitioner was

appointed as Typist vide Memo No.RC.A9-1760/99 dated

02.06.1999 under backlog vacancies. Petitioner was given Page 2 of 14 SRS,J W.P.No.1075 of 2020

posting in the office of Executive Engineer, GNSS Division,

Nandyala. Petitioner belonged to schedule caste community.

Subsequently, vide proceedings No.AB/S2/EC-3/E17/Vol-

3/579 M dated 11.08.2005, petitioner was given promotion as

Senior Assistant. Later petitioner was transferred to Kadapa and

presently, petitioner is working in the office of Chief Engineer,

Quality Control, Rayalasima Region, YSR Kadapa District.

3. Petitioner came to know that a clear existing vacancy is

going to be occurred for the post of Superintendent on

superannuation of C. Uma Shankar, SKDGNSS (P) Division,

Kadapa on 30.06.2019. Petitioner made representation, dated

12.06.2019 to respondent No.3 to consider her case for the post

of Superintendent being senior most. Respondent No.3, in reply

dated 20.06.2019 informed the petitioner, as if she got

promotion under ROR and that there are complaints about

seniority and, is waiting for orders from respondent No.2.

Petitioner approached respondent No.3 and gave representation

dated 24.05.2019. Provisional seniority list was prepared during

the year 2005-06 and no objections were received. In fact,

petitioner's name was shown at serial No.16. From 2005 to

2019 no individual came forward and opposed or complained

against the petitioner qua promotion as Senior Assistant from

the post of Typist. Respondent No.3 issued memo, dated Page 3 of 14 SRS,J W.P.No.1075 of 2020

03.01.2020, impugned in this writ petition, placing petitioner at

Sl.No.14 instead of serial No.1, basing on the instructions of

respondent No.2, to revise seniority list from 2006-07 to 2018-

19. Aggrieved by the same, the above writ petition is filed.

4. This Court, by order dated 20.01.2020 directed

respondents to maintain status quo for a period of two weeks.

The status quo is being extended from time to time. Later, by

order dated 28.04.2020, this Court directed respondents not to

give effect to memo dated 03.01.2020 for a period of eight weeks

and said order is being extended from time to time.

5. Counter affidavit, deposed by respondent No.3 was filed

on behalf of respondents. It was contended inter alia that

consequent upon receipt of petition of Sri N.C. Rajagopal, Senior

Assistant, SKDGNSSP Division No.1, Kadapa, leveling certain

allegations against wrong promotion in ROR quota to the

petitioner which was forwarded by respondent No.2 vide memo

No.DRC/ENC/K2AEE2/18042243/2018, dated 15.05.2018 and

requested respondent No.3 to submit detailed report.

Subsequently, two more petitions were received on the same

subject, which were forwarded to respondent No.3 vide memo,

dated 14.06.2018 to conduct detailed enquiry and to submit

report. Respondent No.3 appointed Executive Engineer, GNSS

Division, Proddatur, as Enquiry Officer and directed him to Page 4 of 14 SRS,J W.P.No.1075 of 2020

conduct discreet enquiry on the allegations leveled against the

petitioner. The Enquiry Officer conducted a thorough enquiry

into allegations and submitted a detailed report along with

supported documents. After receipt of enquiry report,

respondent No.3, in turn, submitted report to respondent No.2,

vide letter, dated 31.01.2019. A perusal of enquiry report

submitted by respondent No.3, would indicate that Enquiry

Officer made certain observations against the petitioner, being

promoted under ROR quota, even when there is adequacy in the

promoted category. The Enquiry officer offered remarks duly

examining the case in the light of G.O.Ms.No.02 dated

09.01.2004. Promotion of the petitioner from Typist to Senior

Assistant is contrary to the law and invalid and hence, seniority

is revised. Petitioner's involvement by adopting malpractice for

getting promotion is not alleged. The Enquiry Officer opined that

revision of seniority is sufficient. Respondent No.2 vide memo

No.RC/ENC/K2/AEE2/18042243/2018 dated 19.08.2019

requested respondent No.3 to revise seniority of Circle Scale

Establishment without any discrepancies as the Superintending

Engineer is competent authority and to report compliance. In

obedience of instructions of respondent No.2, respondent No.3

revised seniority list and communicated to all individuals vide

proceedings impugned, calling for any objection on tentative Page 5 of 14 SRS,J W.P.No.1075 of 2020

seniority list of Senior Assistant. Petitioner raised objections,

dated 13.01.2020. Pending consideration of objections, the

petitioner filed writ petition. Respondents followed principles of

natural justice and there is no illegality in the proceedings

impugned. Thus, prayed to dismiss the writ petition.

6. Heard both sides.

7. Learned counsel for the petitioner would submit that

petitioner was promoted from Typist to Senior Assistant on

19.08.2005 and probation was declared on 18.08.2006. He

would also submit that in the seniority list, prepared from 2005

to 2019, no complaint was received from any person including

the person said to have made complaint at a later point of time.

He would submit that the Government, on its own motion or

otherwise can review any original order passed promoting a

member of service to higher post, if the said order was passed

by mistake. However, no order of review shall be passed unless

the person effected or likely to be affected has given an

opportunity for making representation against proposed review.

8. Learned Government Pleader, on the other hand, would

submit that petitioner was promoted from Typist to Senior

Assistant against rule of adequacy. Promotion was affected

illegally. When representations were received from N.C. Raja Page 6 of 14 SRS,J W.P.No.1075 of 2020

Gopal and two others, Superintending Engineer appointed

Enquiry Officer to conduct discrete enquiry and the said enquiry

officer submitted report dated 22.09.2018. Superintending

Engineer, in turn, sent report to respondent No.2 and upon

instructions of respondent No.2, seniority was reviewed and

revised from the years, 2006-07 to 2018-19. Tentative seniority

list for 2019-20 was prepared and the same was communicated

to all Senior Assistants. Petitioner, infact, submitted objections

and pending consideration of objections, petitioner filed present

writ petition. He would submit that against fixation of seniority

list, an appeal is available under Rule 26 of The Andhra Pradesh

State & Subordinate Service Rules, 1996 (for short 'the Rules')

and hence, this writ petition is not maintainable.

9. The point that arises for consideration is whether the

authorities can revise or review the seniority list without putting

the affected employee with notice and if so, such a procedure is

in consonance with Rule 25 of the Rules?

10. Undisputed facts, as per record are that petitioner was

selected provisionally for the post of Typist against backlog

posts and petitioner joined as Typist on 13.07.1999. Petitioner

passed departmental tests and probation was declared as Typist

on 03.07.1999 and 02.07.2001 respectively. The petitioner was

given promotion from Typist to Senior Assistant, and she joined Page 7 of 14 SRS,J W.P.No.1075 of 2020

in the said post on 19.08.2005. Probation as Senior Assistant

was declared on 18.08.2006. Petitioner was promoted under

ROR quota. As per seniority list of Senior Assistants working in

SKDGNSSP Circle, Kadapa, name of the petitioner is shown at

serial Nos. 19, 17, and 14 for the panel years, 2016-17, 2017-18

and 2018-19 respectively. In the remarks, it is shown that an

enquiry conducted by Executive Engineer be noted. Name of

N.C. Rajagopal, who made complaint, is shown at serial No.5, 3

and 2 for the panel years, 2016-17, 2017-18 and 2018-19

respectively.

11. A perusal of the proceedings impugned in the writ petition

would manifest that respondent No.3 without resorting the

procedure contemplated under Rule 25 of the Rules, reviewed

the seniority list from 2006-07 to 2018-19. After review and

revision of seniority list for the period from 2006-07 to 2018-19,

tentative seniority list was prepared for the year, 2019-20 and

objections were called for by communicating the same to all

Senior Assistants.

12. Rule 24 of the Rules enables State Governments to

exercise power of revision in case of approval of panel for

appointment, for transfer or promotion, etc., If a panel is

prepared by an authority subordinate to a Head of Department

in exercise of powers conferred on them, State Government or Page 8 of 14 SRS,J W.P.No.1075 of 2020

Head of Department, on their own motion, at any time, or an

application made by the aggrieved person, within a period of six

months from the date of the order of appointment or promotion

of a person junior to the aggrieved person can revise the same.

The time limit of six months can be waived for the reasons

mentioned or recorded in writing by the State Government. If,

by revision any person is being affected, an opportunity shall be

given to that person.

13. Rule 25 of the Rules contemplates Review. State

Government may by its own motion or otherwise review any

original order passed by them, promoting a member of a service

or class, to a higher post or approving panel of candidates for

appointment or promotion to any category, class or service,

prepared by them, or any order of revision passed by them

under Rule 24, if it was passed under any mistake, whether of

fact or of law, or in ignorance of any material fact or for any

other sufficient reason. However, no order of review shall be

passed unless the person affected or likely to be affected thereby

is given an opportunity of making his representation against the

proposed review.

14. In the case on hand, petitioner was promoted as Senior

Assistant on 19.08.2005 and probation was declared on

18.08.2006. As seen from the material papers filed along with Page 9 of 14 SRS,J W.P.No.1075 of 2020

writ petition, in revised final seniority list of Senior Assistants

for the panel years 2016-17 and 2017-18, petitioner was shown

at serial No.19 and 17 respectively. The petitioner specifically

pleaded in the affidavit that from the date of promotion of

petitioner as Senior Assistant, nobody complained against

promotion and, also preparation of seniority list. As can be seen

from the enquiry report, filed along with the counter affidavit,

based on representation made by N.C. Raj Gopal and two

others, discrete enquiry was ordered.

15. The Enquiry Officer recorded finding that case was

examined with respect to G.O.Ms.No.2 dated 09.01.2004 issued

by Social Welfare Department. Once the adequacy is achieved to

the required percentage of 15% in respect of schedule castes

and 6% in respect of Scheduled Tribes in a category, application

of rule of reservation in promotions shall be stopped and

promotions shall be affected based on merit cum seniority.

Thus, the Enquiry Officer opined that giving promotion to the

petitioner from Typist to Senior Assistant is contrary to

G.O.No.2, dated 09.01.2004 and hence, seniority needs to be

revised. The Enquiry Officer also recorded a finding that there is

no misconduct or malpractice on the part of the petitioner.

16. The second allegation regarding payment of certain

amount was negatived by the Enquiry Officer. The report of Page 10 of 14 SRS,J W.P.No.1075 of 2020

Enquiry Officer is being forwarded by respondent No.3 to

respondent No.2 on 31.01.2019. Respondent No.2, by memo

dated 19.08.2019 requested respondent No.3 to revise seniority

of Circle Scale Establishment without any discrepancies as

respondent No.3 is the competent authority and directed him to

report compliance.

17. Respondent No.3 being Head of the Department, before

reviewing or revision seniority list of yesteryears, should have

followed the procedure mandated either in Rules 24 or 25 the

Rules. However, as can be seen from the impugned memo,

dated 03.01.2020, respondent No.3 reviewed and revised

seniority from 2006-07 to 2018-19 and prepared tentative

seniority list for the year 2019-2020. The revised final seniority

list and tentative seniority list of 2019-2020 were prepared and

communicated to all Senior Assistants enabling them to submit

objections, if any. The Procedure adopted by respondent No.3 in

reviewing or revising the seniority list from 2006-07 to 2018-19,

in the opinion of this Court, is contrary to Rules 24 and 25. As

discussed supra, no notice was issued to the petitioner before

resorting to the procedure.

 Page 11 of 14                                            SRS,J
                                                         W.P.No.1075 of 2020

18. In B.S. Bajwa and Ors. vs. State of Punjab and Ors. 1,

the Hon'ble Supreme Court held as under:

"The undisputed facts appearing from the record are alone sufficient to dismiss the writ petition on the ground of latches because the grievance made by B.S. Banwa and B.D. Gupta only in 1984 which was long after they had entered the department in 1971-72. During this entire period of more than a decade they were all long treated as junior to the other aforesaid persons and the rights inter se had crystalised which ought not to have been re-opened after the lapse of such a long period. At every stage the others were promoted before B.S. Bajwa and B.D. Gupta and this position was known to B.S. Bajwa and B.D. Gupta right from the beginning as found by the Division Bench itself. It is well settled that in service matters, the question of seniority should not be re-opened in such situations after the lapse of a reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance. This alone was sufficient to decline interference under Article 226 and to reject the writ petition.

19. The Hon'ble Apex Court, in State of Orissa v. Dr. (Miss)

Binapani Dei2, held as under:

"It is true that the order is administrative in character, but even as administrative order which involves Civil Consequences as already stated must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidence in support

1998 (2) SCC 523

1967 SLR 465 Page 12 of 14 SRS,J W.P.No.1075 of 2020

thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence. No such steps were admittedly taken, the High Court was, in our judgment, right in setting aside the order of the State."

20. As per the material placed before the Court, in the case on

hand, in the seniority list prepared for the panel years 2006-07,

2008-09, 2009-10, 2010-11, 2011-12, 2012-13, 2016-17, 2017-

18 and 2018-19 petitioner was shown at serial Nos.16, 11, 10,

10, 9, 6, 4, 2 and 1 respectively. However, by virtue of revision

of seniority list from 2006-07 to 2018 -19, petitioner is being

shown at serial No.14 vide proceedings impugned. Thus, before

making such a revision, respondent No.3, the competent

authority, ought to have adhered to the Rules and procedure

contemplated under Rules 24 and 25. Even the authorities

failed to follow principles of natural justice.

21. As discussed supra, since proceedings impugned in the

writ petition are contrary to Rules 24 and 25 of the Rules and

Principles of natural justice, this Court is inclined to set aside

the impugned memo.

22. Accordingly, this writ petition is allowed setting aside

Memo No.AB/NTPA/Supdt./EC-2/P.4/03 GL, dated 03.01.2020

issued by respondent No.3. The matter is remitted back to

respondent No.3. Respondent No.3 shall follow procedure Page 13 of 14 SRS,J W.P.No.1075 of 2020

contemplated under Rules, 24 and 25 of the Rules and consider

the objections submitted by the petitioner objectively keeping in

view the pronouncements of Hon'ble Apex Court regarding lapse

of long period in revising inter se seniority list and pass

appropriate orders within three months from the date of receipt

of a copy of this order. No costs.

As a sequel, all the pending miscellaneous petitions shall

stand closed.

                                          _________________________
                                          SUBBA REDDY SATTI, J
Date : 18.04.2023
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                                           W.P.No.1075 of 2020




        THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI




                WRIT PETITION No.1075 of 2020

                       Date : 18.04.2023


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