S Narsing Das 2 Ors. vs Secy., Agrl. Ano.
2022 Latest Caselaw 3834 Tel

     THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI


               WRIT PETITION NO.6724 OF 2017


                              ORDER

This Writ Petition has been filed by the petitioners seeking a Writ

of Mandamus declaring that

(a) the petitioners are entitled to get their seniority fixed in terms

of orders issued in G.O.Ms.No.66, dated 18.02.2009;

(b) the action of the 1st and 2nd respondents in not fixing the

seniority of the petitioners in terms of the orders passed by the

A.P. Administrative Tribunal and in terms of the orders passed

by this Hon'ble Court, as illegal and arbitrary and therefore

violative of Articles 14 and 16 of the Constitution of India;

(c) the action of the respondents in not preparing year wise panels

of Horticulture officers from 1998-99 onwards is wholly

unjustified;

(d) the respondents are bound to prepare the year wise panels of

Horticulture officers from 1998-99 onwards and accordingly W.P.No.6724 of 2017

the petitioners are entitled for inclusion of their names for

further promotion as Assistant Directors of Horticulture;

and to pass such other order or orders as this Hon'ble Court may deem

fit and proper in the circumstances of the case.

2. Brief facts leading to the filing of the present Writ Petition are

that the petitioners had been appointed as Horticulture Officers in the

year 1990 by orders dt.06.05.1990, 14.05.1990 and 06.05.1990

respectively. As per the procedure, an employee who is on probation for

a period of two years within a continuous period of three years can be

considered for promotion to the next post and the petitioners have to

pass certain departmental tests before their probation can be declared.

The relevant examinations for the promotion to the next post of

Assistant Director of Horticulture were not conducted till the year 1994

and in view thereof, the respondents have issued orders in the year 1994

changing the date of commencement of the probation of the petitioners

from 1990 to 1994 and accordingly, declared the petitioners as

completing their probation in the year 1996 and their date of

appointment is also accordingly changed to 1994.

W.P.No.6724 of 2017

3. Challenging the same, the petitioners and others filed O.A.s

before the Administrative Tribunal and the A.P.Administrative Tribunal

directed that the order of appointment and the date of probation of the

applicants cannot be changed and that their seniority has to be counted

from the date of commencement of their probation and the date of

passing of tests cannot be a consideration for altering the seniority and

the date of commencement of probation unless their probation was

extended by the Government under Rule 47 (old rules). It was held that

if the applicants have passed the test within the prescribed period of two

years or extended period of probation or within one year of extended

period of probation, i.e., total period of three years, the date of

commencement of probation cannot be altered and as such, the seniority

of the applicants should be fixed accordingly. It was also directed that

the seniority of the unofficial respondents should also be fixed on the

same lines duly keeping in view the inter se seniority in different zones

as per the merit list prepared by the Selection Committee and that the

unofficial respondents therein are not entitled to have any advantage in

terms of seniority by sheer passing of the test during the period of their W.P.No.6724 of 2017

10 (a) (i) appointment, and that no advantage can be given to the

unofficial respondents. The O.A.s were accordingly disposed of.

4. The Department challenged the said order of the A.P.

Administrative Tribunal before the High Court and this High Court

dismissed the same and thereafter, petitioners 1 to 3 were treated as

regularised from the date of their initial appointment, i.e., 06.05.1990,

14.05.1990 and 06.05.1990 respectively. However, their probation was

declared in the year 1996 after they have passed the relevant tests.

5. Thereafter, when they were entitled to be considered for

promotion to the post of Assistant Director of Horticulture on

completion of three years, the name of the 1st petitioner was included in

the panel of Horticulture Officers for the year 2000-2001, the name of

the 2nd petitioner was included in the panel of Horticulture Officers for

the same panel year, i.e., 2000-2001 and the name of the 3rd petitioner

was included in the panel of Horticulture Officers for the panel year

2003-2004 for promotion to the post of Assistant Director of

Horticulture. However, due to pendency of a Writ Petition, the

promotions were not given to the petitioners and others. The

Departmental Promotion Committee (DPC) met on 20.06.2009 for W.P.No.6724 of 2017

considering the claims of the Horticulture Officers for promotion to the

post of Assistant Director of Horticulture. Accordingly, the petitioners

were promoted as Assistant Directors of Horticulture during the year

2009. Subsequently, the names of the petitioners were also cleared by

the Screening Committee in the year 2013 for promotion as Deputy

Directors of Horticulture.

6. It is submitted that in the meantime, the 2nd respondent has issued

a seniority list of Assistant Directors of Horticulture vide proceedings

dt.04.01.2013 and the name of the 1st petitioner figured at Sl.No.7,

whereas the names of the 2nd and 3rd petitioners figured at Sl.Nos.15 and

23 respectively. The petitioners submitted that if the directions of the

Administrative Tribunal in O.A.No.5274 of 2000 and batch and that of

the Hon'ble High Court in the judgment in W.P.No.3171 of 2006 dated

23.07.2008 are given effect to, the panel of all the officers eligible for

promotion to the next cadre will have to be prepared from the year

1998-99 onwards and therefore, G.O.Ms.No.66 dt.18.07.2009 was

issued by the Government to fix the seniority in the cadre of

Horticulture Officers with effect from their original date of

regularisation. The petitioners submit that the official respondents have W.P.No.6724 of 2017

not given effect to G.O.Ms.No.66 dt.18.07.2009 on the ground that the

issue was still under consideration of the Government. It is submitted

that there are vacancies of Joint Director and Additional Director

available in the Department and the petitioners are entitled for

promotion in the said vacancies, but the same was not done. Seeking

consideration of their case for promotion to the post of Joint Director

and Additional Director of Horticulture, the petitioners have filed the

present Writ Petition.

7. During the pendency of the Writ Petition, respondents 3 and 4

have filed an implead petition in W.P.M.P.No.11475 of 2017 stating that

they are the necessary parties as they would be affected if the Writ

Petition were to be allowed because they are the officers who are within

the zone of consideration for promotion to the post of Joint Director.

The implead petition was accordingly allowed on 27.04.2017.

8. At the time of admission, this Court has granted interim direction

as prayed for in W.P.M.P.No.8264 of 2017 on 27.04.2017, i.e., to

consider the petitioners for promotion to the post of Joint

Director/Additional Director in the available vacancies pending disposal

of the Writ Petition.

W.P.No.6724 of 2017

9. The implead petitioners/unofficial respondents 3 and 4 as well as

the official respondents 1 and 2 have filed their respective counter

affidavits and the official respondents have also filed stay vacate petition

in W.V.M.P.No.2905 of 2017.

10. Sri M. Surender Rao, learned Senior Counsel representing Sri

Srinivasa Rao Madiraju, learned counsel for the petitioners, submits that

the petitioners were appointed as Horticulture Officers and their services

were regularised in the year 1990 and immediately after completion of

three years of service, the petitioners were eligible to be considered for

the next promotion of Assistant Director of Horticulture. He submits

that due to administrative reasons, the relevant tests were not conducted

and it was only in the year 1994 that the probation of the petitioners was

ordered and tests were conducted thereafter. He submits that even if the

petitioners have passed the test in the year 1996, and thereafter, since

there were vacancies in the post of Assistant Director of Horticulture,

the petitioners were asked to perform the duties of higher post of

Assistant Director of Horticulture during the years 2002-2005 and since

then they have been discharging the duties of Assistant Directors of

Horticulture. It is submitted that respondents 3 and 4 are direct recruits W.P.No.6724 of 2017

who were recruited during August, 2007 to the post of Assistant

Director and after they had completed two years of probation, they were

promoted to the post of Deputy Director of Horticulture in the year

2009. Even the petitioners were given regular promotion of Assistant

Director of Horticulture in June and July, 2009.

11. The learned counsel for the petitioner submits that in order to give

effect to the decisions of the Administrative Tribunal and the Hon'ble

High Court, G.O.Ms.No.66 dt.18.02.2009 was passed. However, the

said G.O. was not given effect to and vide Memo dt.30.04.2011, a fresh

seniority list was prepared. It is submitted that the direct recruits were

placed at Sl.Nos.1 to 11, whereas the petitioners were placed at

Sl.Nos.22, 25 and 27 respectively in the seniority list of Assistant

Directors of Horticulture. He submits that it was in the year 2011, vide

G.O.Ms.No.214 dt.29.08.2011 that petitioner No.1 was promoted as

Deputy Director and in the year 2015, proposals were prepared for

promotion to the post of Joint Director/Additional Director. He placed

reliance upon a decision of the Hon'ble Supreme Court in the case of

Union of India and another Vs. Hemraj Singh Chauhan and others1,

(2010) 4 SCC 290 W.P.No.6724 of 2017

for the proposition that panels of eligible candidates have to be prepared

every year and if the said judgment is followed, the petitioners would be

in the panel of eligible candidates for the year 1998-99 itself and they

would be placed senior to unofficial respondents 3 and 4. Therefore, the

learned counsel seeks implementation of G.O.Ms.No.66 dt.18.02.2009.

12. Learned Government Pleader for Services appearing for official

respondents submits that the Writ Petition itself is not maintainable. He

submits that G.O.Ms.No.66 dt.18.02.2009 was issued by the

Government of Andhra Pradesh and after bifurcation of the State and

formation of separate State of Telangana, respondents 1 and 2 have no

power or authority to implement G.O.Ms.No.66 dt.18.02.2009. It is

submitted that since the petitioners have not made the State of Andhra

Pradesh as party respondent to the Writ Petition, the Writ Petition is not

maintainable. It is also stated that seniority lists have been circulated

amongst the concerned officers from time to time, but the petitioners

have not chosen to challenge the same nor raised any objections against

them and therefore, the said seniority lists have become final. It is

further submitted that the posts of Assistant Director of Horticulture and

Deputy Director of Horticulture are State Cadre Posts and therefore, W.P.No.6724 of 2017

after bifurcation of the State, several meetings were conducted by

Kamalnathan Committee and thereafter, the Ministry of Personnel, PG

and Pensions, Department of Personnel and Training, Government of

India, New Delhi vide Order No.16(2)/2015 dt.15.12.2015 has

communicated the cadre-wise and seniority-wise final allocation of State

cadre employees of the Commissioner/Director of Horticulture,

Department of Agriculture and Cooperation in respect of the two

successor States and when objections were called for on the allocation

of the employees, no objections were raised by any of the petitioners

except for petitioner No.3 who also raised objection only with regard to

allocation and not about his seniority. Therefore, according to the

official respondents, the petitioners cannot challenge the seniority list at

this advanced stage when the posts of Additional Director/Joint Director

are to be filled up by way of promotion.

13. Learned counsel for the unofficial respondents 3 and 4, Sri M.

Subba Reddy, while supporting the stand of the official respondents,

submits that respondents 3 and 4 were appointed as Assistant Directors

of Horticulture by direct recruitment in the year 2007 and thereafter,

they were promoted to the post of Deputy Director of Horticulture W.P.No.6724 of 2017

after completing their probation period in 2009 and accordingly they

were placed as seniors to the petitioners. He submits that the writ

petitioners are seeking their promotion to post of Assistant Director of

Horticulture to be effective from the date from which they were

performing higher duties even though they were not promoted to the

said post. It is submitted that even if the allocation of duties of higher

cadre it is to be treated as promotion, it can only be treated as ad hoc

promotion, without any consequences. It is submitted that two years of

probation in a cadre is compulsory for promotion to the next cadre and

the petitioners have not completed the required period of probation for

consideration to the next promotion. It is submitted that the petitioners

have never challenged the seniority list, according to which, the

promotions to the posts of Assistant Director of Horticulture and Deputy

Director of Horticulture were made and therefore, they cannot seek re-

visiting of the entire exercise at this advanced stage. It is further pointed

out that after the bifurcation of the State of Andhra Pradesh, many of the

Officers have opted for State of Andhra Pradesh, while respondents 3

and 4 herein have opted for the State of Telangana and consequently,

seniority list has been prepared and therefore, the petitioners cannot now

ask for implementation of G.O.Ms.No.66 dt.18.02.2009, which would W.P.No.6724 of 2017

affect the employees of both the States, i.e., all of those who opted for

the State of Telangana as well as the State of Andhra Pradesh. It is

submitted that the promotion to the post of Assistant Director of

Horticulture was in the year 2009 and when it was never challenged, it

has become final and cannot now be raised at this point of time and the

settled position cannot be unsettled.

14. The learned Senior Counsel appearing for the petitioners, in

rebuttal, placed reliance upon Rule 6(a) and (b) of the State and

Subordinate Service Rules, 1996 for the proposition that panel of

eligible candidates has to be prepared every year and since

G.O.Ms.No.66 dt.18.02.2009 has not been implemented, it has to be

considered and implemented from 1998-99 onwards and if the same is

implemented, the petitioners would be seniors to the unofficial

respondents 3 and 4 and the petitioners would come within the zone of

consideration for next promotion to the post of Joint Director/Additional

Director.

15. Having regard to the rival contentions and the material on record,

it is noticed that stay vacate petition was filed by the official respondents

in the year 2017 raising an objection that G.O.Ms.No.66 dt.18.02.2009 W.P.No.6724 of 2017

has to be implemented by the Government of Andhra Pradesh and not

the Government of Telangana. However, the petitioners have not chosen

to file any application to implead State of Andhra Pradesh as party

respondent to this Writ Petition. As rightly pointed out by the learned

counsel for the official respondents, it is the Government of Andhra

Pradesh which would have to implement or give effect to G.O.Ms.No.66

dt.18.02.2009. As none of the State Cadre employees have expressed

any objection on the seniority list prepared by the Department of

Personnel and Training, Government of India dt.15.12.2015 and have

not brought to the notice of the General Administration (HR)

Department about the applicability or otherwise of G.O.Ms.No.66,

Agriculture and Cooperation (Horti.) Department, dt.18.02.2009, it

cannot now be challenged at this late hour, i.e., after allocation of the

officers to the respective States. The cadre-wise and seniority-wise final

allocation lists of State Cadre employees to the successor States were

given in the proceedings dt.15.12.2015. Thereafter also, the seniority

lists of Deputy Directors of Horticulture and the Assistant Directors of

Horticulture, the State Cadre posts, were communicated vide Memo

No.Estt.(1) 191/2015-1 dt.25.01.2016 and Memo No.Esst.(1) 191/2015-

2 dt.25.01.2016 respectively. The DPC proposal for promotion of W.P.No.6724 of 2017

Assistant Director of Horticulture to the post of Deputy Director of

Horticulture for the panel year 2015-16 was also submitted to the

Government and there was no objection raised to the said panel. As

rightly pointed out by the learned counsel for the respondens,

respondents 3 and 4 were promoted as Deputy Directors of Horticulture

from the post of Assistant Director of Horticulture for the panel year

2010-11 vide G.O.Ms.No.214, Agriculture and Cooperation (Hort.)

Department, dt.29.08.2011, whereas petitioner No.1 was also promoted

as such vide the same orders dt.29.08.2011, while petitioners 2 and 3

were promoted vide orders in G.O.Ms.No.54, Agriculture and

Cooperation (Horti.) Department, dt.03.05.2013. Respondents 3 and 4

being appointed as Assistant Directors of Horticulture in the year 2007,

i.e., prior to the petitioners who were promoted in the year 2009, were

seniors to the petitioners herein and therefore, the petitioners cannot

now challenge the seniority list at the time of promotion to higher post,

i.e., to the post of Joint Director/Additional Director. In view of the

same, this Court does not find any merit in the Writ Petition.

16. The Writ Petition is accordingly dismissed. No order as to costs.

W.P.No.6724 of 2017

17. Pending miscellaneous petitions, if any, in this Writ Petition shall

also stand dismissed.

___________________________ JUSTICE P. MADHAVI DEVI Date: 22.07.2022 Svv