Andhra Pradesh High Court - Amravati
Ch. Krishna vs The Government Of Andhra Pradesh on 4 October, 2024
APHC010272292010
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3470]
(Special Original Jurisdiction)
FRIDAY ,THE FOURTH DAY OF OCTOBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
WRIT PETITION NO: 32334/2010
Between:
Ch. Krishna ...PETITIONER
AND
The Government Of Andhra Pradesh and Others ...RESPONDENT(S)
Counsel for the Petitioner:
1. V SESHA KUMARI
Counsel for the Respondent(S):
1. G RONALD RAJU
2. GP FOR INDUSTRIES & COMMERCE
The Court made the following:
2
HONOURABLE SRI JUSTICE RAVI NATH TILHARI
AND
HONOURABLE SRI JUSTICE NYAPATHY VIJAY
WRIT PETITION NO.32334 of 2010
ORDER:
(per Hon'ble Sri Justice Nyapathy Vijay)
1. The present Writ Petition is filed questioning the Order dated
28.07.2010 of the A.P. Administrative Tribunal, Hyderabad in
O.A.No.9389 of 2009.
2. The facts leading to the present writ petition are as follows:
The Petitioner was initially appointed as Typist on 20.03.1989
through A.P.P.S.C. Subsequently, he was promoted as Senior Assistant
on 19.10.1993 and his probation was declared with effect from
29.09.2001. The Respondent Nos.3 and 4 herein were appointed as
Typists on 21.03.1989 and 20.03.1989 respectively. They were promoted
as Senior Assistants temporarily on 13.10.1992 and their services were
regularized with effect from 29.09.2001.
3. It is the grievance of the Petitioner that Respondent Nos.3 and 4
were promoted as Senior Assistants even though they had not passed
accounts test, which is a requirement for promotion to the post of Senior
Assistant. The Respondent No.3 was further promoted as Superintendent
on 05.02.2005 and Respondent No.4 was promoted 10.10.2006 since
they were senior in the category of Senior Assistant on the basis of
irregular promotion. It was further pleaded that Respondent Nos.3 and 4
belong to reserved category, but were considered for promotion even
though they follow Christianity from a long time.
4. The 3rd Respondent claimed promotion under S.C. category
though she is a Christian by faith. Subsequently, on 09.11.2004, the
Respondent No.2 called upon Respondent Nos.3 and 4 to produce the
latest caste certificates. Thereupon, Respondent No.3 and 4 produced
caste certificates from respective authorities. The grievance of the
Petitioner was that ignoring the seniority of the Petitioner as per the
allotment made by the A.P.P.S.C. and without considering the objections
of the Petitioner, promotions to the cadre of Senior Assistant and
Superintendent were effected.
5. The Petitioner also raised a plea that the service rules issued for
the Department of Sugar vide G.O.Ms.No.239 dated 10.07.1992
mandates that employees are required to pass the test prescribed
thereunder within a period of two years from the date of framing of service
Rules. However, the promotions of Respondent No.3 and 4 were not
reviewed even after the Rules were framed under G.O.Ms.No.376 dated
24.10.1992.
6. The Petitioner pleaded that he was representing the Department
with regard to the promotion of Respondent Nos.3 and 4,however, no
action was taken and hence, O.A. was filed to set aside the promotions of
Respondent Nos.3 and 4 to the post of Superintendent vide orders dated
05.02.2004 and 10.10.2006.
7. The Respondent Nos.1 and 2 had filed their counter denying the
claim of the Petitioner. It was pleaded that in the Sugar Subordinate
Service Rules issued on 24.10.1992 vide G.O.Ms.No.376, no
departmental tests were prescribed to the post of Senior Assistant. It was
pleaded in their counter that Respondent Nos.3 and 4 have passed the
departmental tests before being promoted to the cadre of Superintendent.
As regards the caste certificates, it was pleaded that both Respondent
Nos.3 and 4 had submitted their latest caste certificates issued by the
respective Mandal Revenue Officers before effecting their promotions in
the cadre of Superintendent.
8. As regards seniority, it was pleaded that at the time of allotment of
Petitioner and Respondent Nos.3 and 4 by A.P.P.S.C., the Petitioner was
not a graduate, while the RespondentNos.3 and 4 were having degree
qualification. It was pleaded that as per Rule 28-A of A.P.Ministerial
Service Rules, the Typists and Stenos in the Offices of Heads of
Departments and Directorates are not eligible for conversion as Junior
Assistants or for promotion as Senior Assistants unless they are having
degree qualification. It was also pleaded that as per Service Rules, the
non-graduate, Typists/Stenos after 31.10.1980 shall appear for special
G.E.T. of B.A. standard conducted by A.P.P.S.C. and pass the test to
become eligible for conversion as Junior Assistants or for promotion as
Senior Assistants.
9. It was admitted by the Respondent Nos.1 and 2 that the Petitioner
was shown at Sl.No.1 among the list of Typists/Stenos allotted by the
A.P.P.S.C. in 1989. Since, the Petitioner did not possess the basic
degree qualification for promotion to the post of Senior Assistant, his case
was not considered for the two posts of Senior Assistants in the year
1992. Those vacancies were filled up by promoting Respondent Nos.3
and 4 as they were having degree qualification.
10. The Petitioner acquired degree qualification in April, 1993 and his
case was considered for promotion to the cadre of Senior Assistant in the
immediate vacancy during October, 1993 vide proceedings 19.10.1993.
It was also pleaded that on the representation of the Petitioner, specific
remarks were called from Respondent No.3 regarding her marriage to
Christian pastor and conversion into Christianity. Thereupon, the
Respondent No.3 Smt.P.Mary Ratnam stated that though she got married
on 15.10.2003, she has not taken Christianity. It was also pleaded that
the District Scrutiny Committee examined the caste certificate of
Respondent No.3 and after thorough enquiry, confirmed that Respondent
No.3 belongs to S.C. community.
11. The Respondent Nos.3 and 4 also filed their counter supporting the
stand taken by Respondent Nos.1 and 2. It was also pleaded by them
that the caste certificates were issued after enquiry and as such, they are
belonging to S.C. community. However, on a reading of the counter
affidavit, there is no specific plea by Respondent Nos.3 and 4 that they
are not following Christianity faith.
12. The Tribunal, after considering the respective contentions, held that
the Respondent Nos.3 and 4 were promoted as Senior Assistants on
14.10.1992, while the Petitioner was promoted as Senior Assistant on
20.03.1993. In the cadre of Senior Assistants, the Respondent Nos.3 and
4 are senior and consequently their promotion as Superintendent is as
per the seniority in the cadre of Senior Assistants. The Tribunal also
held that the Respondent Nos.3 and 4 belong to S.C. community and
were duly promoted in the slots meant for S.C. category. The Tribunal
also held that the application of the Petitioner is hopelessly barred by time
and relied upon the constitutional judgment of Hon'ble Supreme Court
rendered in S.S.Rathor v. State of M.P.1. Hence, the present writ
petition is filed.
AIR 1990 SC 10
13. Heard Sri C.Raghu, learned senior counsel assisted by
Ms.V.Sesha Kumari, learned counsel for the Petitioner, learned
Government Pleader for Services for Respondent Nos.1 to 3, Ms.Amulya,
learned counsel representing Sri G.Ronald Raju, learned counsel for
Respondent No.4 and Sri V.Venugopala Rao, learned senior counsel
assisted by Sri V.Venkata Subbaiah and learned counsel representing Sri
E.Sambasiva Prasad, learned counsel or Respondent Nos.6 to 9. In the
course of arguments, it was informed to the Court by the Senior counsel
Sri C.Raghu that the plea as regards the Respondents No.3 and 4 being
Christians and not entitled for reservation in promotion is not being
pressed.
14. After hearing the respective counsel, the following issues arise for
consideration:
(a) Whether the promotion of Respondent No.3 and 4 to the
cadre of Senior Assistant and Superintendent in the Sugar
Department is in consonance with the Rules in vogue? and
if not, whether this Court should interfere with those
promotions at this length of time?
(b) Whether the application of the Petitioner is barred by
time/latches?
15. Issue No.(a) : It was contended that as per G.O.Ms.No.239 dated
10.07.1992, the Respondent No.1 permitted the Director of Sugar and
Cane Commissioner, Hyderabad to fill up the posts of Senior Assistants
among other posts which were lying vacant for some time. The said G.O.
mentioned that Senior Assistants are required to pass certain tests
specified therein i.e. Agricultural Departmental Tests, Cooperative
Auditing, Banking and Bookkeeping conducted by the Central
Cooperative Institute, Hyderabad.
16. The learned senior counsel contended that the promotions to
Respondents No.3 and 4 were pursuant to the G.O.Ms No.239 and were
purely temporary and subject to the passing of departmental tests therein.
It was his contention that since Respondent Nos.3 and 4 had passed the
tests in November, 1993 and May, 2001 respectively, while the Petitioner
had passed those tests in the year 1996. Hence, the Respondent No.4
was to be considered as junior to the Petitioner as he had passed the
departmental tests later than the Petitioner.
17. The counsels for the State as well as unofficial Respondent No.4
opposed the said contention. The plea in the respective counters before
Tribunal was reiterated and it was contended that there was no
requirement for passing of the departmental tests for promotion to the
post of Senior Assistant.
18. The G.O.Ms.No.239 dated 10.07.1992 specifies that for Promotion
to the post of Superintendent, the Senior Assistants were called upon to
pass the departmental exams mentioned therein within two years of
promotion as Superintendent. The requirement to pass departmental
exams is when Senior Assistants are promoted to the vacant posts of
Superintendent. The GOMs.239 does not mention the requirement of
passing tests for promotion to the cadre of Senior Assistant. The
A.P.Sugar Subordinate Service Rules framed under Article 309 of the
Constitution of India vide G.O.Ms.No.376 dated 24.10.1992 is applicable
to certain category of posts specified in Rule 2 thereof. The post of
Senior Assistant is not traceable to A.P.Sugar Subordinate Rules,1992 as
it does not fall within the posts specified in Rule 2 thereof. The Rule 2
thereof is extracted below for ready reference:
2. Constitution:
The service shall consist of the following categories of posts in the AP.
Sugar Subordinate Service.
Category (1) : Cooperative Sub Registrar
Category (2) : Senior Inspector
Category (3) : Junior Inspector
Category (4) : Additional Assistant Engineer.
Category (5) : Statistical Assistant (including Section Officer)
Category (6) : Computers
19. The Rule 3 thereof specifies method of appointment and Appointing
Authority. The Note 3 prescribes the tests to be passed by persons in
feeder categories for promotion to the post of Superintendent. The Note
3 reads as under:
"Rule 3. The persons in the feeder Categories for promotion to the posts
of superintendents shall pass Departmental test covering among other things,
sugarcane laws and Cooperative Laws when it is prescribed in due course and
pending the prescription of such a departmental test, they shall be required to
pass the following tests for being eligible for promotion as Superintendent:-
(1) (2)
1. Senior Inspectors and Agricultural Department Test
Junior Inspector
2. Senior Assistants Agricultural Department test of the
Examination in Cooperation, Auditing,
Banking and book keeping conducted
by the Central Cooperative Institute,
Hyderabad.
3. Junior Assistants/
Senior Assistants Account tests Part I for Subordinate Officers
20. Therefore, the reference to G.O.Ms.No.239 as well as the
A.P.Sugar Subordinate Service Rules, 1992 are not relevant to decide the
question whether promotion to the post of Senior Assistant requires
departmental tests to be passed.
21. The requirement of passing departmental tests to the post of Senior
Assistant is specified at Annexure II of A.P.Ministerial Service Rules,
1998. As per the Annexure II, the tests prescribed for promotion to the
post of Senior Assistant in the Sugar Department is "Accounts tests for
Subordinate Officers part-1". However, the promotion of Respondent
Nos.3 and 4 was during the subsistence of A.P.Ministerial Service Rules,
1966, but the tests for promotion to the cadre of Upper Division Clerk (re-
designated as Senior Assistant) were prescribed in all the departments in
Annexure II thereof. Admittedly, the Respondent Nos.3 and 4 did not
pass in the departmental test, but were temporarily promoted as Senior
Assistants in the year 1992.
22. Though the Respondent Nos.3 and 4 were promoted without
passing the departmental tests, they had passed the departmental test
subsequently. It is interesting to note here that even the petitioner was
promoted as Senior Assistant without passing the departmental test in the
year 1993. The petitioner had qualified in the departmental test only in
1996. The Respondent No.2 vide proceedings dated 29.9.2001 declared
satisfactory completion of probation of the Respondent No.3 and 4 along
with the petitioner with effect from 10.11.1993, 14.10.1993 and
20.11.1994 respectively. Once, the Respondent No.2 declared the
probation of Respondent No.3 and 4 with effect from the dates mentioned
above, the promotions of Respondent No.3 and 4 have been validated
with effect from the dates mentioned.
23. Further, in the seniority list issued for the cadre of Senior Assistant,
the petitioner was shown junior to the Respondents No.3 and 4. There,
never was a challenge to the promotion and seniority of Respondent
Nos.3 and 4 neither in this O.A nor in any case prior to this case. This
Court is of the opinion that at this length of time of more than 15 years, it
is not proper for the petitioner to agitate these issues by filing O.A.
24. Even otherwise, the seniority being only a consequence of
promotion cannot be questioned by the Petitioner without challenging the
promotion. As per Rule 15 of the A.P Ministerial Service Rules, 1998,
the seniority is based on the length of service rendered in that post. The
Rule 15 reads as under:
Rule 15: (1) Service rendered in a post or group of posts
bearing a distinct designation and included in a category as
constituted by rule (2). shall count for seniority in such category
post or group of posts irrespective of the Department or Office in
which such service was rendered:
25. The Respondent Nos.3 and 4 were senior to the Petitioner in the
cadre of Senior Assistant as they had rendered longer service in the post
from a date prior to the promotion of the Petitioner and had qualified in
the required departmental tests. Consequently, their promotion to the
cadre of Superintendent ahead of the petitioner under A.P.Sugar
Subordinate Service Rules cannot be faulted with. The Issue No.(a) is
answered against the Petitioner.
26. Issue (b): The promotion of Respondent Nos.3 and 4 to the post of
Senior Assistant was in the year 1992 and promotion to the post of
Superintendent was in the year 2005 and 2006 respectively. The
Petitioner filed O.A. in August, 2009. The challenge to promotions should
be within a reasonable time and they cannot be challenged by taking the
plea of pending representation with the department. The Section 21(1)
(b) of the Administrative Tribunal Act, 1985 prescribes that cause of
action to file O.A arises after expiry of period of (6) months after giving
representation and O.A should be filed within a time limit of one year from
that date.
27. In the present case, the grievance of the Petitioner is traceable to
1992 i.e. the year in which the Respondent Nos.3 and 4 were promoted
as Senior Assistants and the consequential promotion in the year 2005
and 2006 as Superintendents. Unless the Petitioner challenges the
promotions to the post of Senior Assistant, the plea against promotion to
the post of Superintendent cannot be entertained as it is a consequence
of seniority in the cadre of Senior Assistant. The Petitioner, though
aware of this aspect, camouflaged the relief and under the guise of
challenge to the promotion to the cadre of Superintendent, was in fact
challenging the promotion to the cadre of Senior Assistant. Therefore,
this Court is of the opinion that the claim of the Petitioner is hopelessly
barred by time vis-a-vis Section 21 of the Administrative Tribunals Act,
1985.
28. The plea that the petitioner was representing to the department is
no consequence as the same would not extend the period of limitation.
The Hon'ble Supreme Court in Union of India v. C. Girija2, at paragraph
(2019) 15 SCC 633
19 held that period of limitation cannot be arrested by a mere
representation. The para 19 thereof is extracted below
"19. From the aforesaid authorities it is clear as crystal that
even if the court or tribunal directs for consideration of
representations relating to a stale claim or dead grievance it
does not give rise to a fresh cause of action. The dead cause
of action cannot rise like a phoenix. Similarly, a mere
submission of representation to the competent authority does
not arrest time."
Therefore, the issue (b) is held against the Petitioner.
29. The writ petition is therefore dismissed with costs throughout. As a
sequel, pending applications, if any, shall stand closed.
____________________
RAVI NATH TILHARI, J
__________________
NYAPATHY VIJAY, J
Date: 04.10.2024
