Andhra Pradesh High Court - Amravati

B. Srinu Babu vs The A.P.Transco on 5 May, 2023

     THE HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
                                     AND
             THE HON'BLE SRI JUSTICE V.SRINIVAS

                    WRIT APPEAL No.933 of 2022

JUDGMENT: (per Hon'ble Sri Justice D.V.S.S.Somayajulu)

          This Writ Appeal is filed questioning the order of the

learned single Judge in W.P.No.28275 of 2021, dated

02.11.2022. The said Writ Petition is filed for the following

relief:

             ".....to issue an appropriate Order, Direction or Writ
             more particularly one in the          nature of Writ of
             Mandamus,     to     declare   the   action   of   the   2nd
             Respondent    in     issuing   proceedings    vide   Memo

No.CGM(HR)/DS (Per) AS (HR)/PO (Reg)/197/12, dated 12.11.2021 is illegal, arbitrary and unjust and consequently direct the respondents to consider the last date of examination of B.Tech., as criteria for the conversion of AAE post to AE post instead of issue of provisional certificate of the B.Tech., Course or alternatively to cancel the conversion orders issued and treat the petitioners as AAE by extending all the benefits including seniority and pass such other orders or orders."

2. After hearing, the writ petition was dismissed on merits.

Questioning the same, this Writ Appeal has been filed.

3. This Court has heard Smt. Kavitha Gottipati, learned

counsel for the appellants and Sri Arup Koushik Karavadi,

learned standing counsel for the respondents.

4. According to Smt. Kavitha Gottipati, the learned single

Judge committed an error in passing the impugned order.

She submits that the learned single Judge has overlooked the

option form, which talks of the "last date for appearing the

examination", and that this option form is given by the

respondents themselves. It is also submitted that the

appellants, who applied for conversion of the post after getting

B.Tech., examination, agreed to forego their seniority only if

the conversion is given from the last date of examination. It is

admitted that both the appellants got their B.Tech., degrees

and submitted their provisional certificates immediately. It is

also stated that last date of examination is the criteria for

conversion and that if the interpretation accepted by the

respondents is viewed carefully, a person who passes an

examination later but gets a certificate earlier will be

considered as senior. She submits that this issue was raised

by the appellants but it was not looked into. She also

submits that the orders of conversion are provisional and that

the appellants were agitating for their rights by making

periodical representations. Therefore, according to her, the

settled seniority is not being upset. She also argues that the

regulations relied upon by the learned single Judge do not

apply to the issues at hand and that the learned single Judge

committed an error. The principal judgment relied upon by

her is State of Andhra Pradesh v V. Prasanna Rani and

another 1 . In addition, she relies upon the case of JVSP

Purnananda Rao and others v Commissioner and

Director of School Education, A.P., Hyderabad and

Others 2 ; J. Shivaji Yadav and another v G. Srinivasa

Murthy and Others 3 and the judgment of learned single

Judge of this Court in W.P.No.16954 of 2020.

5. In reply to this learned standing counsel argues that on

05.02.1992 itself the APTRANSCO clearly issued a Memo

stating that the date on which a provisional certificate is

2017 (5) ALT 413 (DB)

2006 (1) ALT 528 (DB)

2017 (2) ALT 116 (DB)

actually issued will be taken as critical date having passed

the examination. He points out that the appellants are fully

aware of this memo. Even the note in the APSEB service

regulations which permits Additional Assistant Engineers

who acquired Engineering Degree to be reckoned as Assistant

Engineers clearly states that it shall be from the date of

acquisition of the degree. He also points out that the

acquisition of a degree can only be established by a

provisional certificate, which is issued, which clarifies that

the candidate has actually passed the examination. It is also

pointed out by the learned standing counsel that the

appellants, who have opted to be counted as Assistant

Engineers, have willfully foregone their promotion, seniority

etc., and therefore, they cannot now turnaround and state

that in the alternative their prayer may be allowed. He also

relies upon the judgments reported in R. Muthukumar and

Others v Chairman and Managing Director, TANGEDCO

and Others4 and Indu Shekhar Singh and Others v State

2022 SCC OnLine SC 151

of U.P. and Others5. Therefore, he submits that the learned

single Judge did not commit any error.

COURT:

6. Both the learned counsel have filed list of events and

dates. The facts are not much in dispute. The petitioners

were appointed as AAE on 30.11.2009 and 23.10.2009

respectively. Thereafter they acquired the B.Tech., Degree.

Petitioner No.1 got his provisional certificate on 12.07.2011

and the petitioner No.2 got his provisional certificate on

06.08.2011 which enabled them to seek conversion. They

executed the option forms for conversion from AAE to AE.

Petitioner No.1 was given conversion on 13.07.2011 and

petitioner No.2 was given conversion on 07.08.2011. It is

only thereafter, they submitted the representations for

considering last date of exam as the critical date and both the

candidates signed their option forms.

7. In paragraph 1 of the option form of the petitioners it is

clearly mentioned that if the request for absorption as AE

from the date of acquiring B.Tech., qualification is complied

with they will forego their seniority as mentioned in the said

(2006) 8 SCC 129

form. In the later half of the form petitioner No.1 states that

his services were regularized from 29.11.2009 and the 2nd

petitioner states that the services are regularized with effect

from 23.10.2009.

8. The argument advanced is that their services are to be

regularized from the last date of the examination. Petitioner

No.1's last date of examination is 16.08.2010, whereas

petitioner No.2's last date of examination is 09.03.2011. The

later half of the option form is, therefore, not in accordance

with the prayer. Even otherwise this Court notices that on

05.02.1992 itself a memo was issued by the State Electricity

Board, (the predecessor), which clearly states that the date of

the provisional certificate is the date on which the degree is

deemed to have been obtained. Even in the note from the

APSEB Service Regulations also it is clarified that the

Additional Assistant Engineers, who acquired the certificate of

B.E. Degree, while in the service, shall be entitled to be

reckoned as Assistant Engineers from the date of acquisition

of the requisite qualification. This interpretation also stands

to reason. If a person acquires the requisite qualification for

being regularization, promotion etc., the date of acquisition of

qualification is the relevant date. This date of acquisition is

reflected in the provisional certificate, which in turn

clarifies/certifies that the candidate has passed the requisite

examination. Therefore, in the opinion of this Court, it is the

date of acquisition of the qualification alone that is critical for

this reclassification.

9. A perusal of the documents filed show that B. Srinu

Babu, the 1st petitioner, addressed a letter dated 10.04.2013.

In this he clearly mentioned that examination was completed

in August, 2010, but due to his personal problems and being

busy in official work he could only apply for certificate in May,

2011. The letter addressed by the 2nd petitioner clearly states

that the last date of examination was 09.03.2011 and the

provisional certificate was issued on 06.08.2011. In the case

laws cited by the learned counsel for the appellants, is the

Prasanna Rani's case, which relies upon the judgment of

JVSP Purnananda Rao case. In the JVSP Purnananda

Rao case it was noticed that although the test was conducted

in 1987, the results were not published by the APPSC till

06.10.1988, and for such laches on the part of APPSC, it was

held that the 3rd respondent could not be penalized. This was

followed in the case of Prasanna Rani.

10. Hence these cases are not strictly applicable to the delay

in these writs is not due to the university. In addition, this

Court notices that the relevant rule clearly states that the

petitioner shall be entitled to be considered from the date of

acquisition of the requisite qualification. In the opinion of

this Court, the date of "acquisition" of the requisite

qualification would be the date on which the provisional

certificate is given. Since that would be the proof of the fact

that the petitioner has acquired the requisite qualification. In

the cases of gross delay etc., where the others are promoted,

sympathetic consideration can arise, but in the case of this

nature where the 1st appellant himself has delayed in getting

his certificate, he cannot turnaround and state that the date

of examination should be considered as the date of relevant

date. It is also possible that in an examination having

multiple subjects a person can fail in one or two subjects and

pass in other subjects. Thereafter, he can appear in

supplementary examinations for the failed subjects. If he

passed in the supplementary examinations he will be deemed

to have been qualified only when he clears all the subjects.

Therefore, it can only be said that he has acquired the

requisite qualification when he has cleared the supplementary

examination. Thus, the date of acquisition of qualification, in

the opinion of this Court, is the date on which the candidate

is declared to have been passed. Therefore, for all the above

reasons this Court finds no fault in the order passed by the

learned single Judge.

11. As far as the 2nd issue is concerned viz., to cancel the

conversion orders and to treat the appellants as AAE only

with consequential benefits, this Court is of the opinion that

the appellants cannot approbate and reprobate. They have

exercised their option. The said option was accepted. They

secured an entry and the date of conversion in the case of the

1st appellant is 13.07.2011 and for the 2nd appellant it is

07.08.2011. Therefore, having exercised their option they

cannot now turn back and claim retrospective benefits. The

law on the subject is clear. The case law cited by the

respondents are applicable to the facts and circumstances of

the case. The rule on the basis of which they have exercised

their option is also very clear. Sub-clause in the Note-2

clearly state as follows:

"(i) They should forego their seniority in the cadre of Addl.Asst.Engineers after fixation of seniority in the category of Asst.Engineers as per the above principle.

(ii) They should give option for acceptance or otherwise for such absorption and fixing of the seniority as detailed above in the cadre of Asst.Engineers. If they do not agree for fixation of seniority as above, they shall remain as Addl.Asst.Engineers."

12. In that view of the matter, as the writ petitioners-

appellants exercised their option, foregone their regular

service, they cannot in the year 2021 seek a review of this

entire exercise. As mentioned earlier their conversion took

place more than a decade prior to the filing of the writ. Merely

making representation will not come to their aid. Therefore,

after this passage of time, they cannot turnaround and

request that the alternative relief should be granted.

13. In the conclusion this Court holds that the Learned

Single Judge's order does not suffer from any infirmity.

Accordingly, the Writ Appeal is dismissed. No order as to

costs.