Andhra Pradesh High Court - Amravati
Kanuri Kiran Kumar vs Dr.Y.S.R. Horticultural University, on 15 November, 2024
1
APHC010067452020
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3310]
(Special Original Jurisdiction)
FRIDAY ,THE FIFTEENTH DAY OF NOVEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE DR JUSTICE K MANMADHA RAO
WRIT PETITION NO: 4049 OF 2020
Between:
Kanuri Kiran Kumar and Others ...PETITIONER(S)
AND
Dr Y S R Horticultural University and Others ...RESPONDENT(S)
Counsel for the Petitioner(S):
1. P V RAMANA
Counsel for the Respondent(S):
1. HARINATH REDDY SOMAGUTTA (SC FOR YSR HCU)
2. KAMALAKARA RAO BATHINA
3. GP FOR SERVICES II
4. GP FOR AGRICULTURE (AP)
5. N SRIRAM MURTHY
The Court made the following:
ORDER:
-
This Writ Petition is filed under Article 226 of the Constitution of India,
seeking the following relief:
".....to issue a Writ, Order or direction more particularly one in the nature of
Writ of mandamus declaring the impugned orders issued in Letter issued in
Lr.No. 6056/H&S/Horti/A1/2011, dated 04.02.2020 for maintaining combined
Seniority in the post of Senior Technical Assistants (Fin.) & (Admn) and
Senior Assistants from the date of commencement/ declaration of probation
for promotion to the post of Superintendent without there being any feeder
post in favour of STAs to the post of Office Superintendent and without there
being any provision of law as illegal, arbitrary and violative of Articles 14, 16
and 21 of Constitution of India and contrary to the decision of the government
earlier taken in their letter dated 01.03.2013 and consequently declare that al
the Superintendent posts are to be filled by the Senior Assistants from Feeder
category and pass such other orders...."
2. Heard Mr. P.V.Ramana, learned counsel for the petitioners and Mr.
Harinath Reddy Somagutta, learned Standing Counsel for the 1st respondent;
Ms. Sudeepti Potluri, learned Assistant Government Pleader, Services-II for
the 2nd respondent; Mr. B. Kamalakar Rao, learned counsel for the
respondents 3 and 4 and Mr. N. Sriram Murthy, learned counsel for the
respondents 5 and 6.
3. The precise case of the petitioners is that after bifurcation of the State
of Andhra Pradesh, A.P. Horticultural University (in short 'the University') has
issued G.O.Ms.No.64, dated 2007 for according sanction for creation of
teaching and non teaching posts in A.P.Horticulture University and its four
colleges and 53 Senior Assistants posts were sanctioned. In the said G.O,
there is no post in the name of Senior Technical Assistant (STA) (Fin) and
(Admn). In the absence of sanction of said posts, the University has passed
Resolution No.178, dated 24.10.2009 assuming future approval of the
government, converted 8 Senior Assistants posts to that of 4 Senior Technical
Assistants (Fin) and 4 Senior Technical Assistants (Admn) and issued
Recruitment Notification dated 10.12.2019. In the said notification, 5 posts of
Senior Assistants were notified based on sanction given by the Government in
the said G.O. On 19.08.2010 another advertisement was issued by the
University inviting applications for filling up 14 Senior Assistants Posts. These
19 Senior Assistant Posts are directed to be filled under two advertisements
by prescribing qualifications. Before constitution of Horticulture University in
2007, the Horticulture Wing is being looked after by the Acharya N.G.Ranga
Agricultural University at Hyderabad. Appointments and promotions to the
post of Senior Assistants and Superintendents were considered under the
A.P.Ministerial Service Rules issued in 1996. The said Rule continued by
University for the purpose of appointment and promotion to the post of higher
cadre i.e from Senior Assistants and Superintendents. As per provisions of
Horticulture University Act, Regulations are to be framed under Statutes for
Service conditions of non teaching employees by the Government and as on
this date Government not issued any regulations framing service conditions.
Non Teaching service staff Regulations were sent to the Government in 2011
for approval and as on the date there is no Rule or Service Regulation framed
by the Government treating the post of Senior Technical Assistants (Fin) and
Senior Technical Assistants (Admn) as a feeder category for the promotion to
the post of Superintendent or equivalent to Senior Assistant. The Audit while
verifying the appointments of Senior Technical Assistants (Fin) and Senior
Technical Assistants (Admn) found that there is no post of Senior Technical
Assistants (Fin) and Senior Technical Assistants (Admn) in the sanctioned
cadre and therefore has raised objections for even releasing salaries in the
year 2012.
4. Pursuant to the said two Recruitment Notifications the petitioners
were subjected to selection process and they were appointed based on their
merit on 13.01.2011 up to 10th petitioner. The 11th petitioner was appointed as
Senior Assistant on 27.12.2011 and petitioners 11 and 12 came from Acharya
N.G.Ranga Agricultural University, exercising option after bifurcation of the
State and their probation was declared. After the Audit Objections the
University sent proposals for ratification of their resolution No.178 to
Government. Based on the University's letter, the Government has ratified the
resolution after lapse of 4 years converting 8 posts of Senior Assistants into
Senior Technical Assistants in G.O.Ms.No.418 A & C, dated 01.03.2013. As
per the said orders of the Government, 8 posts of Senior Assistants will be
reduced from its cadre strength to enable 8 Senior Technical Assistants to
continue. Except that there is nothing in the said Government Orders. Though
the vacancies of Superintendents are available from 2007 onwards the said
posts were not filled up with the Senior Assistants under A.P. Ministerial
Service Rules. The petitioners are all appointed as Direct Recruitee Senior
Assistants and in spite of completion of more than 9 and 10 years of service,
their cases were not considered for promotion, which is highly illegal and
arbitrary.
5. While the matter stood thus, the petitioners filed representations by
ventilating their objections for any amount of including the two categories in
the feeder category. As on date the orders issued by the Government dated
01.03.2013 are very clear treating Senior Technical Assistants as separate
and distinct for all purposes. The impugned order passed by the Government
vide letter dated 04.02.2020 is contrary to the earlier decision vide letter dated
01.03.2013, which is not even mentioned in the impugned order. Hence,
inaction of the respondents is questioned in this writ petition and requested to
allow the same.
5. Per contra, 1st respondent filed counter-affidavit denying all material
allegations made in the writ affidavit and mainly contended that the
Government had issued orders for promotions to the post of Superintendent in
the ratio of 1:4 in respect of Senior Technical Assistants and Senior Assistans
respectively. However, the Board of Management of 1st respondent University
once again has resolved vide Resolution No.625, dated 10.11.2018 for
promotions to the post of Superintendent in the ratio of 7:1 in respect of Senior
Assistants and Senior Technical Assistants instead of 1:4 in respect of Senior
Technical Assistants and Senior Assistants and again the proposal has been
sent to the Government for approval vide letter dated 31.01.2018. The
Government addressed a letter to the 1st respondent as per resolutions dated
13.01.2018 and 10.11.2018 directed to take necessary action to maintain the
combined seniority in respect of the posts of Senior Technical Assistants and
Senior Assistants from the date of commencement/ declaration of probation
for promotion to the post of Superintendent. Accordingly, the 1st respondent
has issued Circular Memo dated 28.02.2020 by which prepared the combined
tentative inter se Seniority List of Senior Technical Assistants (Administration
and Finance) and Senior Assistants working in the 1st respondent and
communicated to the concerned with a direction to submit their objections.
Further the University has not taken up promotions to the post of
Superintendent till date. During the audit of the audit party in the year 2012,
they raised certain objections; in respect of the recruitment of Senior
Technical Assistants as the ratification orders from the Government are
awaited. Subsequently, it was ratified by the Government vide G.O.Rt.No.418,
dated 01.03.2013. It is further contended that after bifurcation of the University
from Achayarya N.G.Ranga Agricultural University, this University has framed
separate Non- Teaching Employees Regulations during the year 2011,
indicating the both categories i.e Senior Technical Assistants (Finance &
Administration) and Senior Assistants under common category for promotions
to Superintendents and same was sent to the Government vide letter dated
31.07.2012, which is pending approval. Since the both the category i.e Senior
Technical Assistants and Senior Assistants were shown under common
category for Superintendent Promotions in the draft Service Regulations of
non-Teaching 2011 of Dr. YSRHU framed and sent to the Government during
the year 2011. The posts of Senior Assistants were converted into Senior
Technical Assistants (Administration & Finance) with same pay scales, comes
under the common category posts and the conversions are ratified by the
Government subsequently. It is also further contended that petitioners and
also the unofficial respondents were appointed to their respective posts i.e
Senior Assistants and Senior Technical Assistants in pursuance of the
notification issued in the year 2009 and 2010 by the 1st respondent. The
unofficial respondents were appointed prior to the petitioners, because a
litigation is pending before this Court with regard to appointment of Senior
Assistants are concerned. Therefore, the writ petition is liable to be dismissed.
6. The 2nd respondent filed counter-affidavit denying all material
averments made in the writ affidavit and mainly contended that the University
has constituted the High Power Committee to frame a policy to resolve the
issue of Senior Assistants and Senior Technical Assistants (Administration &
Finance) and to settle the anomaly between the existing (5 + 12) 17 Senior
Assistant (Directly Recruited) and 4 Senior Technical Assistants (Directly
Recruited, 3 in Dr. YSRHU and one opted from SKLTSH to Dr. YSRHU) and
proposed two options. Basing on the report submitted by the High Power
Committee, the Board of Management through Resolution 563 has resoleved
that "approved to submit proposals to Government in promoting Senior
Assistants and Senior Technical Assistants to the cadre of Superintendent in
the ratio of 7:1. With the consultation of the concerned Departments,
Government vide letter dated 04.02.2020, have requested the Registrar, Dr.
YSR Horticultural University to maintain the combined seniority in respect of
the posts of Senior Technical Assistants and Senior Assistants from the date
of commencement/ declaration of probation, for promotion to the post of
Superintendent. It is further contended that even final seniority list also, an
appeal provision is available as per A.P.State and Subordinate Service Rules/
A.P.Ministerial Service Rules and appeal lies before the Appellate Authority.
Therefore, the writ petition is liable to be dismissed.
7. The 5th unofficial respondent filed counter-affidavit and mainly
contended that the unofficial respondents appointments are made in the
month of October 2010 and three months prior to that of petitioners 1 to 10.
Till date promotions were issued based on the Service Regulations-2011 vide
proceedings dated 30.12.2011. It is relevant to note that promotions in
ANGRAU and Dr. YSRHU are different. For instance to have promotion in
case of Deputy Registrar to become Joint Registrar completion of three years
service is required in ANGRAU. In case of Dr. YSRHU, completion of two
years is sufficient and so also, in case of Assistant Registrar to Deputy
Registrar. Thus, service regulations pertaining to promotion in ANGRAU and
Dr. YSRHU differ. Pursuant to the Act 30 of 2007, Regulations were framed by
the 1st respondent in its proceedings dated 30.12.2011 i.e 'Non Teaching
Employees Regulations, 2011" and basing on those regulations promotions
were being made for all categories of non-teaching employees. The said
proceedings were conferred on the 1st respondent University as per Section
56(1) (a) and (b) of Dr. YSRHU Act, 2007 (Act 30 of 2007). As per
G.O.Rt.No.418, dated 01.03.2013, the Government has ratified the action
taken by the Board of Management of the 1st respondent in its meeting dated
24.10.2009 vide resolution No.178. G.O.Rt.No. 418, dated 01.03.2013 was
issued ratifying the posts of the respondents 3 to 6 inter aliea stating that
similar pay scale of senior assistants. Further, Service Regulations were
framed even in the year 2011 as treating the said posts as equivalent. Thus,
the Government has rightly issued order vide letter dated 04.02.2010. As the
impugned proceedings were issued in consonance with Advertisement dated
16.12.2009 punished in news paper on 17.12.2009 as "The Post of Senior
Assistants comes under the Common Category of Senior Assistants for all the
purposes", the same is legal and in consonance with service regulations of
2011. Thus, the petitioner cannot contend that the impugned proceedings are
erroneous in any manner. Hence, the writ petition is liable to be dismissed.
8. Perused the record.
9. On 11.03.2020 this court has passed interim direction directing "the
respondents shall not proceed further on the provisional seniority list which
was admittedly prepared by the respondents."
10. Learned counsel for petitioner would contends that, Government
of A.P. issued G.O.Ms.No. 64, Finance (SMPC) dated. 25.02.2009 for
according sanction for creation of teaching and non-teaching posts in A.P.
Horticulture University and its 4 colleges and by sanctioning 53 Senior
Assistant Posts and in the said G.O there is no post of Senior Technical
Assistant (STA) (Finance) and (Admin) in the year 2009 1st respondent
University passed a Resolution No.178 dated. 24.10.2009 anticipating the
approval from Respondent No.2 converted 8 No's of Senior Assistant Posts to
that 4 Senior Technical Assistants (Finance) and 4 Senior Technical
Assistants (Admin) and issued recruitment notification dated.10.12.2009 in the
absence of Sanction of posts of Senior Technical Assistants. In the very said
notification while notifying the Senior Technical Assistant Posts, 5 posts of
Senior Assistants are also notified which has sanctioned by Government vide
G.O.MS. No.64, dated. 25.02.2009 and another advertisement was issued by
the 1st Respondent/ University for recruitment 14 Senior Assistant Posts,
qualifications were notified separately for both the posts of Senior Technical
Assistants (Finance) and (Admin) and Senior Assistant Posts and directed to
filled up under two Advertisements and in pursuance of the said notifications
Senior Technical Assistants were appointed sometime in the month of
October 2010 and the petitioners who are Senior Assistants i.e. Petitioner No.
1 to 10 got appointed on 13.01.2011, Petitioner No.11 appointed on
27.12.2011 and Petitioner No.12 came from ANGRA University exercising
Option after bifurcation of the State, though the notification is one and the
same for both the posts Senior Technical Assistants were appointed in the
Month of October, 2010 and Senior Assistants were Appointed later i.e.
January, 2011due to an in-service Junior Assistant filed W.P.no.2292 of 2010
against notification for the recruitment of Senior Assistants and this Hon'ble
Court passed interim orders dated. 07.09.2010 staying appointments to the
post of Senior Assistants, Thereafter the said person was given promotion to
the post of Senior Assistant and Writ Petition was dismissed on 29.09.2010.
and also brought the attention of this Court to Ex. P9 Audit Objections and
Ex.P11 letter addressed by the Govt. to the Registrar of 1st Respondent/
University.
11. Learned counsel for the petitioner would contend that, though the
vacancies of Superintendents are available from 2007 onwards the said posts
were not filled up with the Senior Assistants and further contends that the post
of Superintendent available from to the said date are to be filled with the
available candidate, duly following A.P. State Ministerial Service Rules, 1998
read with Rule 6 of A.P. State and Subordinate Service Rules, 1996, as per
Rule 6 of A.P. State and Subordinate Rules, 1996, every year a panel is to be
prepared against available vacancies and to consider the cases of eligible
candidates, since the Petitioners/ Senior Assistants are the only feeder
category to the post of Superintendent as per Ministerial Service Rules, 1998,
their cases only to be considered for promotion to the post of Superintendent
and same was not followed since 2013 on the pretext of framing rules and
regulations to accommodate Senior Technical Assistants (Finance and
Administration) in the feeder category to the post of Superintendent,
respondents delayed the promotions. Petitioners are appointed as Direct
Recruitee Senior Assistants and in spite of completion of more than 9 and 10
years of service, petitioners cases were not considered and on 01.05.2017
final seniority list was drawn for the post of Senior Assistants indicating the
position of the petitioners, similarly separate Seniority List was also prepared
for Senior Technical Assistants (Finance and Administration) on 03.01.2017
treating two categories as distinct and separate posts as feeder category to
the post of Superintendent in absence of rules and regulations for the Senior
Technical Assistants (Finance and Administration) and as per the existing
rules which are being followed by all Universities including ANGRAU, Konda
laxman Telangana Horticulture University, Promotions to the post of
Superintendents are being affected from feeder category of Senior Assistants,
duly following A.P. Ministerial Service Rules 1998 read with Rule 6 of A.P.
State Subordinate Service Rules, 1996 and petitioners also filed recent
promotions orders affecting promotion Superintendents from feeder category
of Senior Assistants and also filed representations in the year 2017 and 2019
showing petitioners ventilating their grievances, hence counsel contends that
impugned orders passed by the Respondent No.2 Govt. vide Letter No.
6056/H&S/HORT/A1/2011 dated. 04.02.2020 is contrary to the A.P. Ministerial
Service Rules, 1998 read with Rule 6 of A.P. State and Subordinate Service
Rules, 1996 is contrary to the earlier decisions taken by the Government vide
letter dated. 01.03.2013, treating the Senior Assistants and Senior Technical
Assistants (Finance and Administration) as distinct and separate for all the
purposes and is also contrary to the earlier orders passed by the Government
for framing necessary service rules in respect of Senior Technical Assistants
(Finance) & (Admin.) and contends that it is only to favour the Senior
Technical Assistants (Finance) and (Admin.) the present impugned
letter/orders was issued by the Govt. without framing any service rules or
amending the rules to that effect, however pending this writ petition for the first
time Government framed Regulations i.e. Dr. Y.S.R. Horticultural University
Officers (Other than University Officers) Service Regulations 2023 vide
G.O.Ms.No.72 A&C dated. 22.12.2023 under the caption of Ministerial Service
Rules, the post of Superintendents is shown under the category of Category -
1. The said post can be filled up by promotion by Senior Assistant / Senior
Technical Assistant (Finance & Administration) from a common seniority list
and that the service regulations will apply prospectively.
12. Learned counsel for the petitioners relied on a decision of Hobn'ble
Supreme Court of India in "Anurag Sharma and Others v. State of
Himachal Pradesh and Others"1, wherein it was held as follows:-
"36. A review of the fifteen cases that have distinguished Rangaiah would
demonstrate that this Court has been consistently carving out exceptions to
the broad proposition formulated in Rangaiah. The findings in these
judgments, that have a direct bearing on the proposition formulated by
Rangaiah are as under:
1. There is no rule of universal application that vacancies must be necessarily
filled on the basis of the law which existed on the date when they arose,
Rangaiah's case must be understood in the context of the rules involved
therein. [Deepak Agarwal vs. State of U.P.
(2011) 6 SCC 725 and Union of India vs. Krishna Kumar. (2019) 4 SCC 319)
2. It is now a settled proposition of law that a candidate has a right to be
considered in the light of the existed rules, which implies the "rule in force" as
on the date consideration takes place. The right to be considered for
promotion occurs on the date of consideration of the eligible candidates.
[Deepak Agarwal vs. State of U.P. (2011) 6 SCC 725 and Union of India vs.
Krishna Kumar. (2019) 4 SCC 319)
3. The Government is entitled to take a conscious policy decision not to fill up
the vacancies arising prior to the amendment of the rules. The employee does
not acquire any vested right to being considered for promotion in accordance
with the repealed rules in view of the policy decision taken by the
2022 (0) Supreme (SC) 484
Government. [K. Ramulu vs. Suryaprakash Rao, (1997) 3 SCC 59, Shyam
Chandra Das vs. State of Orissa, (2003) 4 SCC 218, State of Punjab vs. Arun
Kumar Aggarwal,(2007) 10 SCC 402 and Deepak Agarwal vs. State of U.P.
(2011) 6 SCC 725] There is no obligation for the Government to make
appointments as per the old rules in the event of restructuring of the cadre is
intended for efficient working of the unit. [G. Venkateshwara Rao vs. Union of
India, (1999) 8 SCC 455] The only requirement is that the policy decisions of
the Government must be fair and reasonable and must be justified on the
touchstone of Article 14. (Rajasthan Public Service Commission vs. Charan
Ram, (1998) 4 SCC 202 and K. Ramulu vs. Suryaprakash Rao, (1997) 3 SCC
59)
4. The principle in Rangaiah need not be applied merely because posts were
created, as it is not obligatory for the appointing authority to fill up the posts
immediately. [Delhi Judicial Services Association vs. Delhi High Court, (2001)
5 SCC 145)
5. When there is no statutory duty cast upon the State to consider
appointments to vacancies that existed prior to the amendment, the State
cannot be directed to consider the cases. (Deepak Agarwal vs. State of U.P.
(2011) 6 SCC 725)
13. And also relied on a decision of Allahabad High Court in "State of
U.P and Others v. Shiv Dutt Sharma (Shastri) and Another" wherein it was
held as follows:-
"8. This is how the matter has come up before us.
9. Learned Standing Counsel appearing on behalf of the appellants submits
that the appointment of respondent No. 1 being illegal, cannot be cured. He
points out that as respondent No. 1 did not possess the qualification required
for appointment as a Lecturer, his appointment is void ab initio and, therefore,
the authorities did not err in declining him the Lecturer's scale of pay. In
support of his submission, reliance has been placed on a Bench decision of
this Court in the case of Sushil Kumar Dwivedi v. Basic Shiksha Adhikari,
Banda and others, (2003) 2 UPLBEC 1216 and our attention has been drawn
to paragraph 12 thereof, which reads as follows :
"12. The submission of the Counsel for the appellant that since by
passage of time the appellant had acquired qualification, thus the said lack of
qualification cannot be made a ground for termination, is also to be
considered. Before proceeding further, it is relevant to note that the lack of
qualification of the appellant are both lack of minimum qualification as well as
lack of minimum prescribed age. Admittedly the appellant did not have three
years teaching experience in recognised school. The minimum age
prescribed for Head Master is 25 years. The date of birth of the appellant is
admittedly 5th June, 1973 and at the time of joining he was only 21 years and
six months. The minimum age of 25 years for the post of Head Master had a
specific purpose and to permit appointment of a person who was only 21
years 6 months on the post of Head Master, is wholly illegal. The learned
Single Judge has rightly referred to Rule 5 which is in negative form providing
that no person shall be appointed as Head Master or Assistant Teacher in
substantive capacity unless, he possesses the minimum qualification. It is
further to be noted that under the Rules there is no power of relaxation in
qualification or in age given to any authority including the Selection
Committee or the Basic Shiksha Adhikari. The requirement of qualification as
well as age was not relaxable. These facts clearly show that lack of
qualification and of age on the part of the appellant cannot be termed as mere
irregularity which can be said to have been cured by passage of time."
10.......
11. Having appreciated the rival submission, we do not have slightest
hesitation in accepting the submission of the learned counsel for the
appellants that an appointment, which is void initially cannot be cured, but
here in the present case, the appointment of respondent No. 1 has not yet
been declared to be void. Respondent No. 1 was appointed in the Lecturer's
scale of pay and thus, he shall be entitled for the scale of pay of the Lecturer
as revised from time to time."
14. Learned counsel for the petitioners vehemently argued that in the
light of decisions cited supra, the impugned order dated 04.02.2020 for
maintaining combined Seniority in the post of Senior Technical Assistants
(Finance and Administration) and Senior Assistants from the date of
commencement/ declaration of probation for promotion to the post of
Superintendent without there being any feeder post in favour of Senior
Technical Assistants to the post of Office Superintendent without there being
any provision of law. Hence, requested to declare the same as illegal and
arbitrary.
15. Respondent No.1 & 2 Contends that Government of Andhra
Pradesh has issued G.O. Ms. No. 64 Finance (SMPS) Dated. 25.02.2009 by
which sanctioned certain Teaching and Non-Teaching posts i.e. '53' Senior
Assistant Posts in the pay scale of Rs. 6195-13945 and the Board of
Management of the Respondent No.1 University passed resolution No.178
dated 24.10.2009 keeping in view of the strength of the University converted 8
Senior Assistant Posts in to Senior Technical Assistants, he further contends
that in pursuance of section 11 (1) and 56 (4) (xi) of the 1st Respondent /
University, Board of Management is competent to convert any post
accordingly it converted and fixed up the following qualifications i.e.
1. Degree in Master of business Administration (MBA).
2. Knowledge of Computer Applications Etc.
3. Account Test for Subordinate Officers Part - I conducted by APPSC.
Thereafter, the University issued notification Vide Advertisement No.
6/RC/2009 dated 16.12.2009 and Advertisement No.3/RC/2010 dated
19.08.2010. Accordingly Senior Technical Assistants and Senior Assistants
were appointed and regularized and further contended that said conversion
was also ratified by the Government i.e. 2nd respondent vide G.O.Rt.No. 418
dated. 01.03.2013 in pursuance of the letters addressed by the 1st respondent
dated 23.05.2011, 23.11.2011, 09.04.2012 & 16.07.2012 and vide letter
directed the 1st respondent/ University to frame necessary service rules for the
post of Senior Technical Assistants (Finance and Senior Technical Assistant
(Administration) with regard to service matters and further directed to send the
same for approval of the Government.
16. The Respondent No. 1 and 2 further contends that 1st respondent/
University formed after bifurcation of the Acharya N. G. Ranga Agricultural
University (ANGRAU) and the ANGRAU has its own Non- Teaching employee
regulations approved by the Government of Andhra Pradesh and there is no
posts of Senior Technical Assistants existed in ANGRAU and therefore only
Senior Assistants are considered for promotion to the post of Superintendent.
However, after bifurcation of the University from ANGRAU, Respondent No.1
University has framed separated Non-Teaching Employee Regulations during
the year 2011, indicating the both Categories i.e. Senior Technical Assistants
(Finance and Administration) and Senior Assistants under common category
for promotions to Superintendents and same was sent to the Government of
Andhra Pradesh Vide Lr. No. 9543/Ser(NT)/2012, dated. 31.07.2012 of the
Registrar Dr. YSRHU for approval and waiting for orders. Till now, the
regulations, framed based on the A.P. Ministerial Service Rules 1998, are
being followed by the University effecting promotions to certain categories
duly relaxing the minimum service which is pre-requisite for being considered
for further promotion. In pursuance of the draft regulations (Service Rules) two
separate seniority lists were prepared on 03.01.2017 and 01.05.2017
respectively. The 1st respondent/University constituted High Power Committee
by its resolution No.534 of Board of Management to frame a policy to resolve
the issue of Senior Assistants and Senior Technical Assistants (Finance and
Admin.) and committed submits its report and the said report was placed
before the 47th Board of Management meeting of 1st respondent University
held on 13.01.2018 and the Board of Management passed Resolution No. 563
to submit the proposals to the Government in promoting the Senior Assistants
and Senior Technical Assistants to the cadre of Superintendent in the ration of
7:1 and the same was also sent to the Government vide letter dated.
30.01.2018 by the Vice-Chancellor of the University, on such Ex-Officio
Secretary to Govt. (H&S) Agriculture & Cooperation Department requested the
University to furnish the revised draft rules duly incorporating the ration of 1:4
between Senior Technical Assistants and Senior Assistants for promotion to
the post of Superintendent and furnish the same to the Govt. for finalizing the
Service Regulations of the Respondent No.1 through its letter dated
12.07.2018. In view of the above, matter was placed before the Board of
Management and resolved vide its Resolution No. 625 & 639 to submit the
proposals once again to the Government in the ratio of 7:1 with detailed
justification as to why 7:1 need to be approved, accordingly Letter No.
1055/Ser (NT)/2017, dated. 26.01.2019 is addressed to The Commissioner of
Horticulture and Ex-Officio Secretary to Government of (H&S) Agriculture &
Cooperation Department by the Vice Chancellor of the University requesting
to approve the ration of 7:1, having considered the letter dated. 26.01.2019
Respondent No.2 issued Letter No. 6056/H&S/HORT/A1/2011, dated.
04.02.2020 to maintain the combined seniority in respect of the post of Senior
Technical Assistants and Senior Assistants from the date of
commencement/declaration of probation for promotion to the post of
Superintendent and it is also contended that pending writ petition Government
issued further contends that pending W.P. Govt. framed Regulations i.e., Dr.
Y.S.R. Horticultural University Officers (Other than University Officers) Service
Regulations-2023 vide G.O. Ms. No. 72 A&C dated. 22.12.2023 under the
caption of Ministerial Service Rules, the post of Superintendents is shown
under the category of 'Category -1'. Hence both the respondents pray to
dismiss the writ petition in view of the contentions raised in the counter and
the rules framed by them.
17. The respondents 3 to 6 are the Unofficial Respondents who are
working as Senior Technical Assistants(Finance & Administration) filed their
counter denying all the averment in the affidavit filed in support of writ petition
and also filed Vacate Stay Petition and contends that, they were appointed on
04.10.2010 with respect to the notification dated 16.12.2009 as Senior
Technical Assistants (Finance & Administration) i.e., prior to the appointment
of the Writ Petitioners and they contend that it is clearly mentioned in the
notification and subsequent corrigendum, that both the posts come under the
same category of Senior Assistant for all the purposes and the job chart and
the scale of pay for both the posts is one and the same, apart from that
amended roaster was also followed and further contends that respondents
have additional qualification than the Writ Petitioners, hence, it cannot be said
both the posts are distinct and separate. They also contend that by following
the Service Regulations of the year 2011, respondent university also effected
promotions in certain categories and prays to vacate the interim orders
passed on 11.03.2020 and requested to dismiss the writ petition.
18. On the other hand, learned counsel for the 5th respondent relied on
a decision of Hon'ble Apex Court in "HAV (OFC) RWMW Borgoyary and
Others v. Union of India and Others"2, wherein it was held as follows:-
" 11. We have examined the submissions made by the learned counsel and
we are of the considered opinion that the appellants are not entitled to the
relief claimed. There is no merit in the submission made by the learned
counsel for the appellants that Army Orders Nos. 84 and 85 issued on
12.10.1974 have to be followed and the Instructions issued on 17-1-2007
should be ignored. The Instructions issued on 17-1-2007 are in addition to the
Instructions dated 12.10.1974. More over, the appellants had applied and
participated in the selection conducted for the posts of Record Officer and
TEOs cannot be permitted to challenge the Instructions of 2007. There is no
dispute that the appellants were aware of the Instructions of 2007. It is also
not disputed that the appellants were considered for the post of Record
Officers and were not selected due to lack of merit. No objection was raised
by the appellants during the process of selection."
19. In the case of "Government of A.P v. U.Shobha Rani and
Others"3, wherein the Hon'ble Division Bench of High Court for the State of
Telangana held as follows:-
(2020) 15 SCC 456
2022 (3) ALD 527 (TS) (DB)
"9......It is permissible for employer to treat two posts of similar nature having
same eligibility criteria and suitability, to treat differently. It is for the employer
to restrict consideration for elevation to a particular post only from a category
of post excluding another category of post. Be that as it may, it is not for the
Court or the Tribunal to amend the rules or direct to amend the rules in a
particular manner."
20. In "Aman Kumar v. State of Himachal Pradesh and Others"4,
wherein Hon'ble Division Bench of Himachal Pradesh High Court held as
follows:-
"5(b).....(iii) those who consciously take part in the selection process cannot
thereafter turn around the question the method of selection and its outcome;
conduct of such persons disentitle them from questioning the selection
process; (iv) after participating in the selection process, challenge to the same
after declaration of result cannot be allowed. The candidates cannot
approbate and reprobate at the same time."
21. Therefore, in the light to decisions cited supra, the petitioners are
not entitled to claim any relief in this writ petition and requested to dismiss the
same.
22. Both the counsel have painstakingly taken this Court through
records of the case and presented their respective points of view very ably.
23. Admittedly, Government of Andhra Pradesh i.e., 2nd respondent
issued G.O. Ms. No. 64 Finance (SMPS) Dated. 25.02.2009 sanctioning
certain Teaching and Non-Teaching posts i.e., '53' Senior Assistant Posts in
the pay scale of Rs. 6195-13945 and the Board of Management of the 1st
respondent/ University passed resolution No.178 dated 24.10.2009 keeping in
AIR 2020 Himachal Pradesh 187
view of the strength of the University converted 8 Senior Assistant Posts in to
Senior Technical Assistants, he further contends that in pursuance of section
11 (1) and 56 (4) (Xi) of the 1st respondent/ University, Board of Management
is competent to convert any post, accordingly, it converted and fixed up the
following qualifications i.e.,1. Degree in Master of business Administration
(MBA); 2. Knowledge of Computer Applications etc., 3. Account Test for
Subordinate Officers Part - I conducted by APPSC. Thereafter, the University
issued notification Vide Advt. No. 6/RC/2009 dated. 16.12.2009 and
Advertisement No.3/RC/2010 dated. 19.08.2010. Accordingly Senior
Technical Assistants i.e., respondent No. 3 to 6 were appointed on 04.10.2010
and thereafter Senior Assistants i.e., Writ Petitioners are appointed on
13.01.2011 and both services were regularized.
24. It is also admitted fact that, 1st respondent/ University proceeded
with conversion of Sanctioned Posts of Senior Assistants to Senior Technical
Assistants of 8 in numbers i.e., 4 post of Senior Technical Assistants
(Finance) and 4 Posts of Senior Technical Assistants (Administration) without
the approval of the Government of Andhra Pradesh i.e., the 1st Respondent
and same was ratified vide G.O. Rt. No. 418 dated. 01.03.2013 after 2 years
of the said recruitment of Senior Technical Assistants i.e., the unofficial
Respondents 3 to 6 and Ex. P9 clearly shows there was an Audit Objections
which is "Audit Objections" shows that there is no sanction for Senior
Technical Assistant Posts which were advertised vide advertised
No.6/RC/2009 dated. 16.12.2009 & Corrigendum dated. 16.03.2010 and after
the recruitment the 1st respondent requested for ratification from the 2nd
respondent and it is also observed that as per University Acts and Rules after
the approval of Board of Management the same has to be get concurrence
from the Government, after that notification to be published in the
newspapers, which was not followed by the Registrar. The audit objections
further denotes that, in the absence of above sanction for the above Senior
Technical Assistant Posts pay and allowances drawn and paid is not
admissible in audit and would need recovery, further, audit also found that the
duties of the Senior Technical Assistants in A.P. Universities and the duties of
the Senior Technical Assistants of A.P. Horticultural University are not one
and the same and it also found there are not Senior Technical Assistant Posts
exist for administration and Finance in the Universities in Andhra Pradesh and
the letter dated 01.03. 2013 addressed by the Government i.e., 2nd
respondent to the University i.e. 1st respondent with a direction to keep the 4
post of Senior Technical Assistants (Finance) and 4 Posts of Senior Technical
Assistants (Administration) and requested to frame necessary service rules for
the post of Senior Technical Assistants (Finance and Senior Technical
Assistant (Administration) with regard to service matters and further directed
to send the same for approval of the Government and pending writ petition for
the first time Government of Andhra Pradesh framed the Regulations i.e., Dr.
Y.S.R. Horticultural University Officers (Other than University Officers) Service
Regulations 2023 vide G.O.Ms.No.72 A&C, dated 22.12.2023 under the
caption of Ministerial Service Rules, the post of Superintendents is shown
under the category of "Category -1". The said post can be filled up by
promotion by Senior Assistant / Senior Technical Assistant (Finance &
Administration) from a common seniority list.
25. Learned Counsel for the petitioner also drawn the attention of this
Court to unnumbered Para No.4 of Letter vide Lr.No.1055/Ser (NT) 2017,
dated 26.01.2019 where in a letter vide Lr.No.6056/Hort./A1/2011, dated.
12.07.2018 of the Government requested the University by rejecting earlier
proposal dated. 30.01.2018 (Ex. A10), requested to furnish the revised draft
service rules duly incorporating the ratio of 1:4 between Senior Technical
Assistants and Senior Assistants for promotion to the post of Superintendent
and furnish the same to the Government for finalizing the Service Regulations
of the Respondent No.1 University. Having, directed the University to frame
the rules, issuing impugned proceedings vide Letter No.6056/H&S/HORT/ A1/
2011, dated. 04.02.2020 directing to take necessary action to maintain the
combined seniority in respect of the posts of Senior Technical Assistants and
Senior Assistants from the date of commencement/declaration of probation,
for promotion to the post of Superintendent, in absence rules and regulation at
the behest of the 1st respondent to favour the unofficial Respondents No.3 to 6
is illegal, arbitrary and same is hereby set aside.
26. The contention of the respondents that Senior Technical Assistants
(Finance and Administration) i.e., Unofficial Respondents 3 to 6 are appointed
much prior to the Writ Petitioners i.e. the Senior Assistants, the posts of
Senior Technical Assistants (Finance and Administration) are converted posts
of Senior Assistants and the said conversion was ratified by the Government,
the job chart issued by the University for both the posts is similar and scale of
pay for both the posts is same and thereby not distinct, one and the same
holds no water in view of the admitted facts and above discussion.
27. In view of the settled position of law that the "rule in force" is to be
considered for the promotion to the post of Superintendent from the cadre of
Senior Assistants and the post of Senior Assistant is only feeder category to
the post of Superintendent as the A.P. Ministerial Service Rules 1998 read
with Rule 6 of A.P. State and Subordinate Service Rules, 1996 from the date
of seniority list i.e,.01.05.2017. Rule 6 of A.P.State and Subordinate Service
mandates that every year a panel is to be prepared against available
vacancies and to consider the cases of eligible candidates as on that date.
Since petitioners are the Senior Assistants are only the feeder category
personnel under A.P.Ministerial service rules, 1998, they are only personnel to
be considered for promotion to the post of Superintendents as per their
Seniority in the Cadre of Senior Assistants, accordingly the case of the Writ
Petitioners is considered.
28. It is also brought to the notice of this court by the Respondents
that, there are about 20 posts of Superintendents are vacant and available
with the 1st Respondent/ University, hence, in that view of the matter, this
Court is of view dispose the matter with a direction to the Respondents No.1 &
2 to fill the post of Superintendents with the available Senior Assistants
considering the date the seniority list dated 01.05.2017 as directed above.
With respect to the unofficial Respondents No. 3 to 6, since the rules were
issued for the first time in 2023 for including the post of Senior Technical
Assistant in the feeder category for promotion to the post of Superintendent,
their cases may be considered if any left-over vacancies are available, the
cases of the unofficial respondents are to be considered applying
new/amended rules framed in 2023 i.e., Dr.Y.S.R. Horticultural University
Officers (Other than University Officers) Service Regulations 2023 vide G.O.
Ms. No. 72 A&C dated. 22.12.2023 prospectively.
29. With the above direction, the Writ Petition is disposed. There shall
be no order as to costs.
30. The miscellaneous applications pending, if any, shall also stand
closed.
______________________________
DR. JUSTICE K. MANMADHA RAO
Date: 15.11.2024.
KK
