P Nageswarareddy vs The Government Of Andhra Pradesh
2023 Latest Caselaw 601 AP

       HON'BLE DR. JUSTICE K. MANMADHA RAO

            WRIT PETITION (AT) No.476 of 2021

ORDER :

This petition is filed under Article 226 of the

Constitution of India for the following relief:-

"...to (a) quash the impugned order in Memo No 235/A/A1/2015-2016, dated 20.02.2016 passed by the 1st respondent (b) direct the respondents to finalize year wise panels for promotion as deputy Director for the panel years 2008-09 and 2009-10 (c ) direct the respondents to promote the applicant as Deputy Director from the panel year 2008-09 (d) direct the respondents to fix the pay of applicant in the post of deputy Director and pay the arrears

(e) direct the respondents to submit revised pension proposals based on the pay fixed in the cadre of the Dy.Director and consequential terminal benefits such as encashment of earned leave, Gratuity and commutation of pension etc. (f) direct respondents to pay costs of the application to the petitioner and pass such other order or orders......."

2. Brief facts of the case are that initially the

petitioner was appointed as Typist and was promoted as

Superintendent and further to the post of Backward Classes

Welfare Officer. He was fully qualified for promotion as

Deputy Director, B.C. Welfare Department, but before he

was so promoted, he retired from service on the AN of

30.6.2010 as Special Officer, AP Commission for B.Cs,

Hyderabad, which is equivalent to the post of Deputy

Director, B.C. Welfare. The Government in G.O.Ms.No.106

SW (B) Department, dated 19.10.1983 bifurcated the Social

Welfare Department into three viz., (1) Social Welfare (2) B.C

Welfare and (3) Tribal Welfare. The employees were allotted

to the above three departments. The petitioner was allotted

to B.C. Welfare Department.

It is further stated that a DPC was held in B.C Welfare

Department for the promotion of D.B.C.WOs as Dy.

Directors during the panel year 2007-2008. The name of

the petitioner was approved in that DPC for promotion as

Dy. Director in G.O.Ms.No.38 B.C. Welfare (A) Dept dated

7.8.2008. but due to personal and family reasons, the

petitioner was not in a position to accept the promotion and

requested to omit him from the promotion for the panel year

2007-2008. Accordingly, the petitioner's name was omitted.

No DPC was conducted during the panel year 2008-2009

stating that no vacancies were existed to fill up by

promotion. Thus the petitioner was denied an opportunity

of being promoted as Dy. Director for precious year.

Thereafter, the 2nd respondent has issued proposals for

conducting DPC for the panel year 2009-2010 and in the

said proposals, the petitioner name was mentioned.

However, no DPC was conducted till retirement of the

petitioner on 30.06.2010. It is further stated that before the

retirement of the petitioner fresh proposals were submitted

vide Rc.A/3468/2008, dated 11.06.2010 and

Rc.No.A3/5654/2007 dated 17.06.2010 including the name

of one Sri Y. Prabhakara Rao, a non-departmental employee

above the petitioner in the panel year was promoted as Dy.

Director.

While the matter stood thus, the petitioner has

submitted a representation dated 11.3.2011 stating that

though vacancies exited for the panel year 2008-09 but the

DPC was not conducted till his retirement and hence he was

wrongfully denied promotion as Dy. Director. Thereafter,

the 1st respondent issued Memo No.907/A2/2011-1 dated

14.3.2011 requested the 2nd respondent to submit his

remarks vide Rc.No.A3/3224/2011, dated 18.5.2011

contending that the petitioner has declined promotion

during the panel year 2007-08 that DPC during the panel

year 2008-09 could not be held, and that DPC for the panel

year 2009-10 was held in July 2010 in that Sri Y.Prabhakar

Rao was promoted who was below the petitioner. Even if he

was not retired from service at the time of DPC he will not

get his promotion as there was only one vacancy of

Dy.Director available then. Non conducting of DPC for

2008-09 even though vacancy exists cannot be attributed to

the petitioner. Viewed from any angle, the regularization of

Sri Y Prabhakara Rao in B.C Welfare Department and

placing him over and above het petitioner is illegal and

arbitrary. Hence the present writ petition has been filed.

3. The counter affidavit has been filed by the 1st

respondent denying all the allegations made in the petition

and contended that in fact the name of the petitioner was

approved in the DPC for the year 2007-08 for promotion as

Deputy Director in G.O.Ms.No.38 Backward Classes Welfare

(A) Department, dated 7.8.2008. But the petitioner has

declined his promotion due to his personal and family

reasons and also requested to omit his name from the

promotion list for the panel year 2007-2008. Accordingly,

the Government ahs considered the request of the petitioner

for omitting his name from the approved panel year 2007-08

vide Memo No.3404/A/2007, Backward Classes Welfare (AT)

Department, dated 23.08.2008. it is further stated that on

examining the proposals, the Government have requested

the Director, BCW to furnish some more information

relating to DPC for 2008-09 and for which the required

information was submitted to Government. But due to

administrative reasons, the DPC for 208-09 could not be

conducted. It is also a fact that proposals were received vide

letter Rc.No.A/3468/2008, dated 11.6.2010 and

A3/5654/2007, dated 17.6.2010 duly including another

name of Sri Y. Prabhakar Rao who is senior to the

petitioner. Accordingly, the Government have conducted

DPC for 2009-10 and finalized promotions to the post of Dy.

Director and issued orders vide G.O.Ms.No.22, dated

25.8.2010 to (1) Sri Y Prabhakar Rao, Smt S.K. Annapurna

and Sri K. Sanjay Prabhakar.

It is further stated that as on the date of issue of

Government Orders with regard to DPC for 2009-10, the

petitioner was already retired from Government service on

30.06.2010. The Government vide Memo No.907/A2/2011-

3, dated 25.8.2011 has informed that as per the

instructions issued in Circular Memo No.10445/Ser-

D/2011, G.A (Ser.D) Department, dated 1.6.2011 it was

clarified that as per rule 11(b) of A.P. State and Subordinate

Service Rules, 1996 as amended vide G.O.Ms.No.145 G.A.

(Ser.D) Department, dated 15.6.2004.

4. Heard Mr.Santhapur Satyanarayana Rao, learned

counsel appearing for the petitioner and learned

Government Pleader for Services-II appearing for the

respondents.

5. During hearing, learned counsel for the petitioner

while reiterating the averments made in the petition

contended that though vacancies existed, DPC was not

conducted during the panel year 2009-10 till the retirement

of the petitioner he was wrongfully denied promotion as Dy.

Director. He also stated that the Central Administrative

Tribunal while disposing of A No.2480/2009 held that "right

to be considered for promotion on fair and equitable basis

has been ruled to be a fundamental right guaranteed to a

Government servant by the Hon'ble Supreme Court reported

in Gopichand Vishnoi Versus State of Uttar Pradesh 1,

wherein the Apex Court ruled that where promotion was

wrongly denied to a Government servant who retired on

superannuation, the same has to be operated retrospectively

post retirement and requested to promote the petitioner as

Dy. Director in the panel year 2008-09 with consequential

benefits and revised pensioanry benefits with arrears as

ordered by the CAT in OA No.2480/2009.

6. He further submitted that in fact Sri Y Prabhakar

Rao is not an employee of B.C Welfare department. He was

working on deputation only in BC Welfare department. His

name does not find a place in any of the seniority lists of

BCW Department in any cadre. He further submitted that

Rule 35 of A.P. State and Subordinate Service Rules 1996

governs the field of fixing seniority in case of request

transfer or on administrative grounds from one unit of

appoint to other. Adverting to that Rule, the seniority of a

person who is transferred on administrative grounds shall

be determined with reference to date of seniority in the

former unit and at request from the date of joining duty in

(2006) 9 SCC 694

the later unit of appointment. So, the transfer of Sri Y

Prabhakara Rao can be termed as administrative grounds as

he was not allotted to BC Welfare department by

Trifurcation Committee. Even if he is taken to the BCWD

his seniority has to be fixed from the date of his joining i.e.,

3.6.2010 or placed after approved departmental candidate in

the cadre. By no stretch of imagination, Sri Y Prabhakar

Rao cannot be placed above the petitioner. He also argued

that when the seniority of an employee is likely to be

affected, a notice shall be issued to him affording an

opportunity to submit his objections if any, contrary to it the

respondents in fast haste included the name of Sri Y

Prabhakar Rao by satisfying themselves by giving

information over cell phone/e mail. It clearly amplifies the

undue interest shown by the respondents towards non-

departmental employee i.e, Sri Y. Prabhakara Rao in

regularizing his services and fixing his seniority.

7. On the other hand, learned Government Pleader

while reiterating the averments made in the counter,

contended that in the instant case, the petitioner

relinquished his promotion for the panel year 2007-08, and

panel for the next panel year i.e., 2008-09 was not prepared

since the post of Assistant Secretary, A.P. Commission for

BCs does not fall within the sanctioned cadre strength of

Deputy Directors of Backward Classes Welfare Department

and also administrative reasons and therefore, the question

of denying promotion does not arise. However, in 2009-10

panel year DPC was held in July 2010 and Sri Y.

Prabhakara Rao's name came first in seniority and the

petitioner was placed below. Since there was only one

vacancy Sri Y. Prabhakara Rao was promoted. However, the

petitioner had retired one month before conducting of the

DPC. Even if the petitioner was not retired from service at

the time of the DPC, he could not be get his promotion as

there was only one vacancy of Deputy Director. Therefore,

the request of the petitioner for promotion to the cadre of

Deputy Director in the panel year 2008-09 has been

examined in detailed and rejected his claim vide Memo

No.907/A2/2011-3, dated 25.8.2011 and vide Govt. Memo

No.235/A/A1/2015-2, dated 20.02.2016.

8. In a case of Vinod Kumar Sangal vs Union of

India and others2 , wherein the Hon'ble Supreme Court

held that:

where the DPC is unable to meet on regular intervals for reasons beyond control the first DPC that meets thereafter shall determine the actual number of regular vacancies that arose in each of the previous year/years and the actual number of regular vacancies proposed to be filled in the current year separately and consider in respect of each of the years those officers only who would be within the field of choice with reference to the vacancies of each year starting with the earliest year onwards and prepare a selection list for each of the years starting with the earliest year onwards and on that basis prepare a consolidated select list by placing the select list of the earlier year above the one for the next and so on.

In another judgement reported in Hemraj Singh

Chauhan and others vs. Union of India3 , wherein the

Hon'ble Apex Court held that :

the Selection Committee shall meet at an interval not exceeding one year and prepare a list of members who are eligible for promotion under the list. The Court held that this was mandatory in nature. Further, it clearly held that unless there is a very good reason for not doing so, the Selection Committee shall meet every year for making selection. And also held that the employees cannot be made in any way responsible for the delay in conducting the DPCs.

(1995) 4 SCC 246

Civil Appeal No.2651-52 of 2010 dated 23.3.2010

In para-38 and 47 of the above judgment, it was held

that :

38. It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution.

47. ".......since preparation of the select list is the foundation for promotion and its omission impinges upon the legitimate expectation of promotee officers for consideration of their claim for promotion as IPS officers, the preparation of the select list must be construed to be mandatory. The Committee should, therefore, meet every year and prepare the select list and be reviewed and revised from time to time as exigencies demand."

9. This Court observed that as per decision of Hon'ble

Supreme Court reported in Gopichand Vishnoi's case

(supra 1), has ruled that if the promotion has been denied

wrongly to a Government servant, who retired on

superannuation, the same has to be operated retrospectively

post-retirement. It is also observed in a decision of Hon'ble

Apex Court reported in P.N Premachandran Vs state of

Kerala and others4, wherein it was held that "promotion has

Civil appeal No.4100/1998, dated 6.11.2003

to be accrued to a person from the date the vacancy has

accrued for which no DPC has been held is not a fault

attributable to them and this has been denied to the

petitioners without a proper opportunity to be considered

fairly at the right time before retirement, deprivation of

promotion is a denial of their fundamental right".

10. On perusing the material available on record, this

court further observed that the Government or the

appointing authority may order for the review of the

proceedings of the DPC on account of some mistake or error

apparent on the face of the record, or on account of a factual

error substantially affecting the decision of the DPC or for

any other sufficient reasons i.e., change in seniority, wrong

determination of vacancies, or where adverse entries in the

Confidential reports of an individual are expunged or toned

down or a punishment inflicted on him has to be set aside

or reduced. Hence, viewed from any angle, the action of the

respondents in not preparing year-wise panels for the

purpose of promotion to the posts of Deputy Directors in the

existing vacancies of respective panel years as illegal.

11. Therefore, in view of the foregoing discussion,

this Court is of the considered opinion that, while declaring

the impugned proceedings issued by the respondents vide

Memo No.907/A2/2011-3, dated 25.8.2011 and vide Govt.

Memo No.235/A/A1/2015-2, dated 20.02.2016 as illegal,

directing the respondents, if the juniors to the petitioners

were promoted and if they extended notional seniority in

respective panel years during which they are entitled to be

promoted in the existing vacancies, the petitioner shall be

extended the same benefit of extending monetary benefit int

eh pension by refixing the same.

12. Accordingly, the impugned proceedings issued by

the respondents vide Memo No.907/A2/2011-3, dated

25.8.2011 and vide Govt. Memo No.235/A/A1/2015-2,

dated 20.02.2016 are hereby set aside. Further the

respondents are directed to finalize the year wise panels for

promotion as Deputy Director for the panel years 2008-09

and 2009-10 and directed to promote the respondents as

Dy. Director form the panel year 2008-09 and fix the pay of

petitioner in the same post and also pay the consequential

benefits such as gratuity and commutation of pension etc.

The entire exercise shall be completed within eight (08)

weeks from the date of receipt of a copy of this order.

13. With the above direction, the Writ Petition is

disposed of. There shall be no order as to costs.

As a sequel, all the pending miscellaneous

applications shall stand closed.

______________________________ DR. K. MANMADHA RAO, J.

Date : 03 -02-2023 Gvl

HON'BLE DR. JUSTICE K. MANMADHA RAO

WRIT PETITION (AT) No.476 of 2021

Date : 03.02.2023

Gvl