Andhra Pradesh High Court - Amravati
G V Rangaiah vs The State Of Ap on 23 August, 2024
1
APHC010493482022
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3310]
(Special Original Jurisdiction)
FRIDAY ,THE TWENTY THIRD DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE DR JUSTICE K MANMADHA RAO
WRIT PETITION NO: 30128 and 30317 OF 2022
WRIT PETITION NO: 30128 OF 2022
Between:
K.Naresh and Others ...PETITIONER(S)
AND
The State Of Andhra Pradesh and Others ...RESPONDENT(S)
Counsel for the Petitioner(S):
1. G V SHIVAJI
Counsel for the Respondent(S):
1. M. VIDYASAGAR, ( STANDING COUNSEL FOR APGENCO )
2. M VIDYASAGAR
The Court made the following:
COMMON ORDER:
-
W.P.No.30128 of 2022 is filed under Article 226 of the Constitution of
India for the following relief:
relief:-
"to issue an order direction or writ more particularly one in the nature of Writ of
Mandamus, declaring impugned action of respondents in not allowing the petitioners
for appointment by transfer to the post of Junior Engineer, only on the ground that the
petitioners
ioners are working in uniform services i.e Security/ Fireman as illegal, arbitrary
and violative of Article 14 and 16 of Constitution of India, consequently set aside the
said Memo CGM (Adm.IS& ERP)/EE(Adm)/Dy.EE(Adm-II)/AEE(A-1)/D.No.349/22,
dated 01.09.2022, imposing bar against the petitioners and pass such other order or
orders......."
W.P.No.30317 of 2022 is filed under Article 226 of the Constitution of
India for the following relief:-
"to issue an order direction or writ more particularly one in the nature of Writ of
Mandamus, declaring impugned action of respondents in not allowing the petitioners
for appointment by transfer to the post of Assistant Executive Chemist, notified
through Circular No. CGM (Adm.IS&ERP)/DS(Adm)/Dy.EE(Adm-I/F.No.05/2022,
dated 22.07.2022 only on the ground that the petitioners are working in uniform
services i.e Security/ Fireman and on basis of clause in Appointment Order imposing
bar for conversion up to 10 years, though no such condition was there in the
Notification dated 22.04.2013 as illegal, arbitrary and violative of Article 14 and 16 of
Constitution of India and pass such other order or orders......."
2. The precise case of the petitioners in W.P.No.30128 of 2022 is that
they are working as AP GENCo Constables and Fireman in AP GENCO. The
petitioners were recruited through public notification, issued by the 4th
respondent Corporation. The petitioners have six years of regular service. The
3rd respondent issued internal notification for filling up the posts of Junior
Engineer, by appointment of transfer vide Circular Memo dated 11.05.2022,
thereby calling for applications from in-service candidates. All of sudden
impugned Circular dated 01.09.2022 has been issued for considering the
qualification of B.Tech/B.E qualification in addition to Diploma Qualification.
Further imposing bar against Security, Fire and any other uniform services,
due to which the petitioners are being deprived of opportunity, in spite of
possessing requisite qualification that is B.Tech/BE/Diploma. In fact in the
appointment order dated 10.03.2016, wherein it was specifically stated at
Clause 4(d), 10 years bar has been imposed for Appointment by Transfer into
any post in AP GENCO, which is irrational and arbitrary. The petitioners have
successfully completed training even in 2016 itself and confirmed in-service
also. Therefore, imposing bar against the petitioner vide impugned Circular
dated 01.09.2022 is illegal and arbitrary. Hence the present writ petition came
to be filed.
3. The precise case of the petitioner in W.P.No.30317 of 2022 is that
they are appointed as Fireman and working in various Thermal Power Project
in Andhra Pradesh. When the notification was issued for security guards and
firemen vide Notification dated 22.04.2013, there was no condition in the
notification that once the candidates are appointed shall not be eligible for
other conversions for 10 years. However, while issuing proceedings of
appointments dated 10.03.2016 a rider was imposed in Clause 4(d), to the
effect that the candidates appointed in uniform services shall not be permitted
to convert for other services of AP GENCO, for a period of 10 years. The
petitioners have no option have been compelled to join and discharging duties
without any complaint from any quarter. The petitioners made applications to
the 3rd respondent dated 28.07.2022, 25.07.2022, 07.06.2022 and 30.07.2022
and the same were processed by the respondents 5 to 8, however all of
sudden impugned Circular dated 01.09.2022 has been issued in respect of
Junior Engineer imposing bar against Security, Fire and any other uniform
services, due to which the petitioners are being now sought to be deprived of
opportunity on the basis of such circular, in spite of possessing requisite
qualifications. The Divisional Fire Officer made an endorsement dated
08.08.2022 stating that exemption can be granted to such condition of 10
years of his service, contained in appointment orders. The petitioners have
successfully completed training even in 2016 itself and confirmed in-service
also. Therefore, imposing bar against the petitioners on the basis of clause
contained in appointment order is highly illegal and arbitrary. Hence the
present writ petition came to be filed.
4. Heard Mr. G.V.Shivaji, learned counsel for the petitioners and Mr. M.
Vidhya Sagar, learned Standing Counsel for respondents/ AP GENCO.
5. During hearing learned counsel for the petitioners reiterated the
contents urged in the writ affidavit the respondents issued Direct Recruitment
vide notifications duly defining the nature of works to be attended by the
respective candidates on appointment. The petitioners have appeared in
terms of the notification and got selected and were issued appointment orders.
Wherein as per Clause 4(c) and 4(d) of the appointment orders, the Security
Guard/ Fireman recruited shall serve anywhere in APGENCO according to the
exigencies of their services and shall not be permitted to convert to other
services of APGENCO for a period of 10 years as the post is in essential
uniformed services. Thus, it was made clear that the services are essential
and hence they were trained at Training Centre PTC, Anantapuram for a
period of 3 months. The petitioners have joined their duties duly observing the
conditions that were incorporated in the appointment orders without any
objection voluntarily. The petitioners were never compelled to join the
services; instead they have joined the organization with their willingness duly
accepting all conditions of the appointment orders. It is further contended that
internal notification/ circular was issued for considering in-service employees
by way of apopointment by transfer for the post of Junior Engineers from
services like Accounts, P&G, O& M etc., who are possessing diploma
qualification vide Circular Memo dated 11.05.2022 and 01.09.2022 have been
issued for considering in-service candidates, who are possessing requisite
qualification for appointment by transfer as Junior Engineers from in-service
employees other than uniform services in terms of contractual obligation
during appointment. The said Circular Memos are being issued as per the
requirement of the respondent corporation for filling up vacancies duly
adhering to the service regulations in vogue and there is no illegality in issuing
the same and the averment of the petitioners that they are being deprived of
opportunity in spite of possessing requisite qualification is not tenable as the
petitioners have joined in the uniform services duly accepting the condition in
the appointment order and as per Clause 4(d) in the said appointment orders,
the petitioners who are in essential uniform services shall not be permitted to
convert other services of AP GENCO for a period of 10 years. In fact the said
appointment orders were issued in the year 2016 and the petitioners have
accepted the said conditions without any objection and working in their
respective places of posting and now challenging the Circular Memo dated
01.09.2022 is illegal and the same is contrary to their own appointment orders
which were not challenged by anyone before any court of law. Therefore, the
writ petitions are liable to be dismissed.
6. Perused the record.
7. During hearing learned counsel for the petitioners placed on record
the decision of the Hon'ble Apex Court in "Somesh Thapliyal and Another v.
Vice Chancellor, H.N.B.Garhwal University and Another"1, wherein it was
stated as follows:-
"42. The submissions of the learned counsel for the respondents that
the appellants have accepted the terms and conditions contained in the letter
of appointment deserves rejection for the reason that it is not open for a
person appointed in public employment to ordinarily choose the terms and
conditions of which he is required to serve. It goes without saying that
employer is always in a dominating position and it is open to the employer to
dictate the terms of employment. The employee who is at the receiving end
can hardly complaint of arbitrariness in the terms and conditions of
employment. This Court can take judicial notice of the fact that if an employee
takes initiation in questioning the terms and conditions of employment, that
would cost his/ her job itself.
43. The bargaining power is vested with the employer itself and the
employee is left with no option but to accept the conditions dictated by the
authority. If that being the reason, it is open for the employee to challenge the
conditions if it is not being in conformity with the statutory requirement under
the law and he is not stopped from questioning at a stage where he finds
himself aggrieved."
8. And also, placed on record the decision of the Hon'ble Division
Bench of this Court in "K. Naresh and Others v. The State of A.P, rep., by
(2021) 10 SCC 116
its Principal Secretary, Energy Department, Guntur District" , wherein it 2
was discussed the case Somesh Thapliyal's cited supra and directed the
respondents to permit the petitioners therein for written examination subject
to their eligibility and qualifications as per APSEB Regulations. Learned
counsel for the petitioners requested this Court to pass similar order in this
writ petition, as the Hon'ble Division Bench rightly discussed the facts and
case law involved in the instant case.
9. No doubt, learned Standing Counsel for the respondents vehemently
contended that having agreed to work for a period of six years of regular
service in the categories of Firemen and Security Guards and in view of the
specific condition in the appointment order dated 10.03.2016, the writ
petitioners are stopped from claiming the subject posts. It is the contention of
the respondents that as per Clause 4(d) of the Appointment Orders which
stipulates in the following manner
"4......
a).....
b)....
c)....
d) The post of Firemen/ Security Guard is an essential uniformed services of
APGENCO. Therefore, the candidates appointed in uniformed services shall
not be permitted to convert other services of APGENCO for a period of 10
years".
10. While referring the above Clause the appointment order, it is
submitted by the learned counsel for the petitioners that the imposition of
such a condition and consequent refusal to consider the case of the
W.A.Nos. 854 and 855 of 2022, dated 10.11.2022
petitioners for the subject posts is contrary to the amendment issued by
APGENCO to the APSEB Service Regulations vide G.O.O.No.
74/JS(Per)/2008, dated 17.05.2008 which reads as follows:
AMENDMENT
The existing provisions for the post of Sub-Engineer against appointment by
transfer shall be omitted.
The following shall be added in Column (3) against the post of Sub- Engineer
under appointment by transfer, in Annexure-III of APSEB SRs-Part-III.
(a) Any in service candidate working in any service such as Accounts, P & G,
Security Service etc.,
(b) A pass in Diploma in any discipline, such as Electrical, Mechanical, Civil,
Telecommunications, Instrumentation, Computer Sciences, Architecture,
Mining etc.,
(c) Must pass in the screening test to be conducted by the department once
in a year.
(d) Appointment by transfer to the post of Sub-Engineer shall be subject to
availability of posts.
(e) Must be an approved probationer in the cadre from which the appointment
by transfer is being made.
11. In view of the same, the petitioners in the instant case also eligible
for appointment by transfer to the post of Junior Engineer and also to the post
of Assistant Executive Chemist notified by the respondents. Therefore,
following the decisions cited supra, the impugned orders issued by the
respondents dated 22.07.2022 and 01.09.2022 imposing bar against the
petitioners are declaring as illegal and arbitrary and same is liable to be set
aside.
12. During pendency of this Writ Petition, the respondents have issued
Circular Memo No. CGM (Adm, IS&ERP)/GM (HR-Adm)/EE(Adm)/Dy.EE
(Adm-II)/AEE (A-I) D.No.349/24, dated 28.06.2024 issued for filling up the
posts or Junior Engineers by way of Appointment by transfer. Therefore, the
petitioner has filed I.A.No.1 of 2024 to grant interim suspension of the said
Circular Memo dated 28.06.2024. Accordingly, this Court granted interim
suspension till this day vide order dated 20.07.2024.
13. However, the respondents issued Circular Memo dated 28.06.2024
and the petitioners are eligible and qualified, but in view of the impugned
action of the respondents, the petitioners are sought to be deprived of
opportunity of selection as contended by the petitioners. The petitioners were
permitted to writ examination held on 11.11.2022 as per Judgment of the
Division Bench of this Court in W.A.No. 854 of 2022, but result of the
petitioners have not been declared on the ground of pendency of the writ
petition, while issuing the appointment orders appointing all other candidates.
14. In view of the aforementioned circumstances, this Court feels that
the petitioners are eligible and qualified for the proposed posts by way of
appointment by transfer vide vide Circular Memo dated 28.06.2024. Hence,
the respondents are directed to consider the case of the respective petitioners
in W.P.No. 30128 of 2022 for the posts of 'Junior Engineer' and for the
petitioners in W.P.No.30317 of 2022 for the posts of 'Assistant Executive
Chemist' in the proposed filling up the posts vide Circular Memo No.CGM
(Adm, IS&ERP)/GM (HR-Adm)/EE(Adm)/Dy.EE (Adm-II)/AEE (A-I) D.No.
349/24, dated 28.06.2024 and issue appropriate orders in favour of the
petitioners.
15. With the above direction, the Writ Petitions are allowed, while
declaring the impugned order issued by the respondents dated 22.07.2022
and 01.09.2022 imposing bar against the petitioners as illegal, arbitrary and
same is hereby set aside. There shall be no order as to costs.
The miscellaneous applications pending, if any, shall also stand closed.
______________________________
DR. JUSTICE K. MANMADHA RAO
Date: 23.08.2024
KK
