Telangana High Court

P. Srinivas S/O. Kistaiah, vs A.P.D.D.C. Ltd., on 26 September, 2022

Bench: Surepalli Nanda

     THE HON'BLE MRS JUSTICE SUREPALLI NANDA

                  W.P. No. 13211 of 2013


ORDER:

Heard learned counsel for the petitioner and learned

standing counsel for the respondents.

2. The petitioner filed this writ petition to issue a writ of

Mandamus declaring the action of the respondents in issuing

the impugned proceedings dated 05.03.2013 bearing Lr. No.

171/Personal 1/ 1B of 2009 in rejecting the representation of

the petitioner dated 26.12.2012 by not promoting the

petitioner to the post of Deputy Director of the Respondent

Organization, as illegal, contrary to law, judicial precedents

and constitutional rights and consequently, grant relief of re-

fixing the seniority of the petitioner from the seniority list of

the year 2007 in the Grade-II Manager over and above the

candidatures of respondents 2 to 5 by granting all the

consequential benefits including the post of the Deputy

Directorship in the 1st respondent organization.

3. The case of the petitioner, in brief, is as follows:

a) The petitioner was appointed to the post of Processing

Supervisor at Kartal in the year 1993, at that point of time, WP_13211_2013 2 SN,J

the appointment was direct with immediate regularization for

which there was no training period, however, the probation

period was available to be subjected on every appointment.

b) In the year 1995, the petitioner was transferred as

Processing Supervisor on 29.12.1995 to Gajwel, and while

working at Gajwel, the petitioner was subjected to a case of

liability for spoilage of milk amounting to 4,700 litres and the

respondent has fixed the liability to a tune of Rs. 29,756/-,

which was not a proper calculation, the liability so fixed was

challenged by the petitioner to the enquiry, which was

conducted only in the year 2005.

c) On several persuasion and the appeals of the petitioner

fixing the said liability the amounts were reduced to an

amount of Rs. 11,081/-, and the amounts so fixed as a

liability on the petitioner was recovered.

d) On the ground of spoilage, the respondents have

conducted regular enquiry and have imposed the punishment

of stoppage of one annual grade increment, vide proceedings

dated 07.06.2007. Since the punishment was only stoppage

of one annual grade increment, the promotional avenues as

well as the maintenance of the seniority right from the date of WP_13211_2013 3 SN,J

appointment in the cadre of Processing Supervisor had not

been disturbed nor altered. Based upon the seniority the

petitioner was promoted to the post of Grade-II Manager on

14.04.2001. However, thereafter, detrimental to the interest

of the petitioner, the seniority was altered without any notice

to the petitioner.

e) Again in the year 2010 the petitioner was finally

promoted to the post of Grade-I Manager and the next

promotional post is only Deputy Director in the respondent

organization. The promotional post to the cadre of the

Deputy Director is only from the feeder category i.e. the post

of grade -I Manager.

f) The petitioner who was appointed in the year 1993 and

the seniority has to be maintained right from the beginning

i.e. in the cadre of Processing Supervisor. Since there were

no impediments either in the service records nor any

proceedings of the respondents to alter the seniority list of

the petitioner in all the consequential cadres and the

respondent ought to have given the consequential

promotional post of the Deputy Director. As can be seen from

the records, the petitioner has been campaigning the cause to WP_13211_2013 4 SN,J

agitate the promotional list right from 2007 and the latest

being on 11.10.2011 and earlier one being on 24.04.2010,

explaining anguish and pain concerning the alteration of

seniority list.

g) The seniority list of grade I was published on 1st April,

2010 despite several representations by the petitioner, the

respondents have not altered the seniority list. Thereby, the

petitioner has been placed below the unofficial respondents.

The 1st respondent has not assigned any specific reason to

place the petitioner below the unofficial respondent for which

reason the petitioner now suffered a loss in terms of posting

of deputy directorship.

h) The petitioner when he was promoted to Grade-I

Manager on 22.04.2010, the respondents themselves has

given promotion expressing that his promotion is subject to

pending the appeal questioning the seniority list. However,

the respondent recently recommended for the promotion for

the unofficial respondents to the post of the Deputy Director

on dated 19-3-2012.

i) Consequent to the promotions affected by Respondent

No.1, the other unofficial respondents seems to have taken WP_13211_2013 5 SN,J

charge for the post of the Deputy Directorship, since there is

no punishment imposed by the management on the

petitioner, the respondent cannot deprive the post of deputy

directorship by subduing the candidature of the petitioner by

putting him below the candidature of unofficial respondents

from the feeder category of grade-I especially when the

representation of the petitioner was kept pending without any

justification.

j) Subsequently, W.P. No.18148 of 2012 was filed before

this court, wherein this Court on 10th December, 2012 has

directed to consider the representation of the petitioner dated

26.03.2012 as per the rules and regulations, the respondents

without considering the service conditions and rules which

were prevalent for the employees of A.P.D.D.C. dated

25.11.1986 have passed the impugned proceedings and as

such the same is challenged on the following as the rights of

the petitioner for livelihood an employment is curtailed

without any justification and as such challenged on the

following grounds

k) Hence, this writ petition.

                                                                    WP_13211_2013
                                     6                                      SN,J

4. The petitioner filed the present writ petition on

the following grounds:

a) The action of the respondent in placing the petitioner

below the candidature of the unofficial respondent in grade-II

Manager Seniority list and consequently, depriving the

promotional avenue of the Deputy Directorship in the 1st

Respondent organization is illegal, arbitrary, and contrary to

fundamental rights.

b) When there is no specific punishment orders, in

imposing the alteration of seniority list in the Grade I Manager

the respondent No.1 now cannot deny the post of Deputy

Directorship by rejecting the representation of the petitioner

dated 05.03.2013

c) The respondent's action of promoting the unofficial

respondents overlooking the claim of the petitioner's to the

post of Deputy Directorship in reference to the representation

dated 11.10.2010 and the proceedings bearing dated

26.03.2012 with regard to placement of Seniority Grade-II

Manager is totally unjustified and unreasonable as such the

prospective promotions, if any, made are illegal. Moreover,

the impugned order passed by respondent No.1 dated WP_13211_2013 7 SN,J

05.03.2013 is without any proper reasoning since the stand

taken by the respondent is unreasonable, malafide and

violative of principles of natural justice.

d) There is a discrimination when the case of the petitioner

is taken up in view of the fact that similarly placed persons

who are subjected to disciplinary proceedings and who are

undergoing various penalties under the disciplinary

proceedings are given promotion to the post of Deputy

Directorship in the respondent organization as such the

petitioner has been deprived of the legitimate right to the

accrued post.

e) Now the respondents under the impugned proceedings

have declined to consider the case of the promotion of the

petitioner to a higher post on the ground that the petitioner

was undergoing punishment for stoppage of annual grade

increment and therefore, he is not entitled to promotion in

view of the provisions contained in G.O.Ms.No. 342 dt.

04.08.1997 and in this regard the respondents have

deliberately suppressed the C.C.A. regulations applicable to

the employees, wherein the service Regulation under Rule WP_13211_2013 8 SN,J

27(1) and its explanation does not contemplate stoppage of

annual grade increment of any nature as a penalty.

f) Therefore, G.O.Ms.No. 342 is not applicable to the

employee of APDDC for a situation under Rule 27 of APDDC FL

(CDAR) Rules as such rejecting the claim of the petitioner

under the said G.O.Ms.342 of 1997 is only unjustified.

Further the petitioner submits the acts of the respondent No.1

in misinterpreting the said GO and not applying the relevant

rule under 27 of service rules of APDDC FL (CAR) Rules is

wholly unjustified and illegal.

g) As against the case of pilferage against the petitioner

and for non-consideration of the promotional avenues to the

petitioner to various posts in appeal in the said regard is

pending adjudication for imposing the said penalty of

stoppage of one annual grade increment and when the appeal

is pending there is no provision contemplating under the rules

to deny an employee from getting promotion. As such the

respondent ought not to have declined to consider the

representation of the petitioner dated 26.03.2012 in which

the petitioner claimed the relief. It is also stated that while

enclosing the orders of this Court in W.P. No. 18148 of 2012 WP_13211_2013 9 SN,J

dated 10.12.2012 a specific representation was also enclosed

highlighting the rule position, the respondent despite being

brought to the notice of rule position, declined to grant relief

and prayed to allow the writ petition.

5. The counter affidavit filed on behalf of the 1st

respondent is as follows:

a) There is no dispute with regard to the appointment of

the petitioner to the post of Processing Supervisor in the year

1993 and involved in a case of spoilage and that liability was

fixed on the petitioner besides punishment of stoppage of one

annual increment as the charges were proved in the

Departmental Enquiry.

b) As per G.O.Ms.No.342, dated 04.08.1997, the penalty

awarded to an employee shall debar his promotion

appointment by transfer to higher post during the period of

subsistence of penalty which shall be indicated in the order

subject to a minimum period of one year. Therefore, DPC has

not recommended the case of the petitioner.

c) The case of the petitioner was recommended by DPC for

promotion subject to final orders issued in disciplinary cases

pending against him. The personal committee/Board in its WP_13211_2013 10 SN,J

meeting held on 27.06.2009 and 22.07.2009 has resolved

and approved the recommendations of the DPC and the

resolved that the charges framed against the petitioner were

withdrawn with a warning to be careful in future vide

proceedings dated 05.12.2009 and 04.01.2012. Therefore,

the petitioner was considered for promotion as Manager

Grade I notionally i.e. from 11.09.2009 placing his seniority

over and above P.Chandrasekhar and M.Srinivas, who were

juniors to the petitioner and promoted during 09/2009.

Accordingly, the seniority list of Grade I Managers fixing the

seniority of the petitioner in Grade I cadre among the existing

Grade I Managers as on date i.e. over and above

P.Chandrasekhar, Grade I manager, presently working as

Grade I Manager was communicated to the individual.

d) The petitioner was promoted during the year 2010 as

Grade I Manager and the next promotion post is Deputy

Director and the feeder category is the post of Grade I

Manager. The seniority of the individual right from the cadre

of processing supervisors has been maintained as per rules

and there is no alternation of the seniority of the petitioner.

At the time of promotion to H.Kavitha, P.Mohan Murali and WP_13211_2013 11 SN,J

T.Srinivas Reddy to the post of the petitioner has been facing

charges/departmental enquiry as on January, 2007 and his

case was not recommended by the Departmental Promotional

Committee. As the petitioner was given punishment of

stoppage of one annual grade increment on 27.06.2007 in

disciplinary case, he was not eligible for promotion for a

period of one year as per rules and that his promotion was

given subsequently w.e.f. 11.09.2009 notionally on

31.03.2010 after the completion of the said period of one year

as per his eligibility.

e) As and when the vacancy arises, the petitioner will be

promoted to the post of the Deputy Director as per his

eligibility. In view of the above, the writ petition is liable to

be dismissed.

6. Main contentions putforth by learned counsel for

the petitioner are as under:

a) The petitioner is governed by the service regulations of

the federation, which is promulgated by the federation/by the

board till today, the same is not abrogated as such the State

Service CCCA Rules are not applicable to the federation.

                                                                  WP_13211_2013
                                   12                                     SN,J




b)      The penalty/punishment imposed by the respondent

was a minor penalty under Rule 27(1)(b), therefore, the

petitioner cannot be prevented from getting promoted to a

higher post during the pendency/continuous of punishment

period, in view of the escalation contemplated under Rule 27.

c) Under those standing orders i.e. the A.P. Diary

Development Cooperative Federation Limited, Conduct,

Discipline and Appeal Rules 1983 there is no such enabling

provision encompassed on the disciplinary authority to restrict

promotion in the said circumstances.

d) A bare perusal of the punishment order does not

indicate specifically that the petitioner is not eligible to the

said promotion post and therefore, the G.O.Ms.No.342, dated

04.08.1997 cannot be applied to the petitioner.

e) The order impugned is without proper reasons.

f) The order impugned is passed without application of

mind.

g) The respondents have deliberately suppressed the CCA

regulations applicable to the employees wherein the service

regulation under Rule 27(1) and its explanation does not WP_13211_2013 13 SN,J

contemplate stoppage of annual grade increment of any

nature as a penalty.

h) Petitioner is subjected to discrimination in view of the

fact that similarly placed person like the petitioner who are

subjected to disciplinary proceedings and who are under going

various penalties under the said disciplinary proceedings are

given promotion to the post of Deputy Directorship in the

respondent organisation, as such the petitioner has been

deprived of the legitimate right to the accrued post.

i) There is no provision contemplated in CDA Rules to

adopt the CCA Rules of State Government.

j) Multiple punishments are impermissible in law i.e. in

terms of amount recovery, prevention of promotion,

displacement of seniority.

k) Therefore, the writ petition is deserved to be allowed as

prayed for.

7. The main contentions put-forth by the learned

counsel for the respondents are as follows:

a) Learned counsel for the respondent placed reliance on

paras 7, 8 and 9 of the counter affidavit filed by the 1st

respondent and contends that in the disciplinary case the WP_13211_2013 14 SN,J

petitioner was given punishment of stoppage of one annual

grade increment on 27.06.2007 and as such he was not

eligible for promotion for a period of one year as per the rules

and his promotion was given subsequently w.e.f. 11.09.2009

notionally on 31.03.2010 after completion of the said period

of one year as per his eligibility.

b) The petitioners case could not be considered for

promotion since charges were pending against the petitioner

as on the said date.

c) There is no illegality in the order impugned and the writ

petition has to be dismissed.

8. Perused the record.

9. Paras 7 and 9 of the counter filed by the 1st respondent

read as under:

"7. I submit that in reply to para 6 of the affidavit it is submitted that the petitioner was awarded punishment for stoppage of one increment without cumulative effect besides recovery of the actual loss of Rs.11,081/-. Vide H.O.Procs No.6464/AdmnIV/DC-4/2006, dated 27.06.2007. It is submitted that as per the GO the punishment period of one year has completed by 26.06.2008 and even as on this date certain charges were pending against the petitioner. It is further submitted that the Department Promotional Committee which met on 27.06.2009 has recommended the case of the petitioner, subject to final order in the disciplinary WP_13211_2013 15 SN,J

case. His case could not be considered for promotional since other charges are still pending against him as on this date. However, the charges pending against him were withdrawn vide proceedings dated 15.12.2009 and 04.01.2009.

9. It is submitted that it is true that he was promoted ruing the year 2010 as Gr I Manager and the next promotion post is Deputy Director and the feeder category is the post of Gr I Manager. The seniority of the individual right from the cadre of processing supervisors has been maintained as per rules and there is no alternation of the seniority of the petitioner. It is submitted that at the time of promotion to Smt H.Kavitha, Sri P.Mohan Murali and Sri T.Srinivas Reddy to the post of Manager Gr.I the petitioner has been facing charges/departmental enquiry as on Jan.2007 and his case was not recommended by the Departmental Promotional Committee at that time. In the disciplinary case the petitioner was given the punishment of stoppage of one annual grade increment on 27.06.2007 and as such he was not eligible for promotion for a period of one year as per the rules and his promotion was given subsequently w.e.f. 11.09.009 notionally on 31.03.2010 after completion of the said period of one year as per his eligibility. In view of the position his junior in the lower cadre of Manager Gr.II who got promotions earlier to him as Manager Gr.I stood above the petitioner in the Grade I Cadre."

10. A bare perusal of the order impugned dated 05.03.2013

clearly indicates that the two reasons for not considering the

case of the petitioner for promotion to the post of Deputy WP_13211_2013 16 SN,J

Director are firstly that charges are pending against the

petitioner as on 27.06.2009 when the departmental

committee met and secondly that as per G.O.Ms.No.342,

dated 04.08.1997, the petitioner is not eligible for promotion

for a period of one year during the subsistence period of

punishment of one annual grade increment.

11. A bare perusal of proceedings No.6464

(A)/Admin.IV/DC-4/2005, dated 27.06.2007 clearly indicates

that the petitioner is awarded the punishment of stoppage of

one annual grade increment without cumulative effect besides

recovery of Rs.11081/- towards the actual loss sustained by

the federation in six monthly instalments from his salary.

12. CONCLUSION:

13. The order of punishment imposed against the petitioner

vide proceedings No.6464/(a)/Admin.IV /DC-4/2005, dated

27.06.2007, however, does not comply with the requirement

as mentioned in Clause 3, Sub-clause iv(b) of G.O.Ms.No.342,

dated 04.08.1997. The said relevant instructions are

extracted hereunder:

WP_13211_2013 17 SN,J

PENALTY EFFECT

(iv)WITHHOLDING OF INCREMENTS OF PAY

(b)WITHOUT UMULATIVE This penalty awarded to the EFFECT Government Employee shall debar him/her for promotion/appointment by transfer to a higher post during the period of subsistence of penalty which shall be indicated in the order subject to a minimum period of one year, both for selection and non selection posts.

14. A bare perusal of the seniority list of Grade I Managers

(Degree Holders) as on 01.04.2010 clearly indicates the

petitioner's name at S.No.8 and the tentative seniority list of

Grade II Managers (Degree holders) for the year 2007 also

reflects the petitioner's name at S.No.8 and the names of Smt

H.Kavitha, Sri P.Mohan Murali and T.Srinivas Reddy are in

fact, below the name of the petitioner, and as borne on

record, the said persons are juniors to the petitioner herein.

15. Having regard to the facts and circumstances of

the case, the question that arises for consideration is

whether respondents could have deferred the

promotion of the petitioner. In fact, as borne on record,

the Department Promotion Committee which met on WP_13211_2013 18 SN,J

27.06.2009 has recommended the case of the

petitioner, subject to final order in the Disciplinary case

as stated by the 1st respondent at para 7 of the counter

affidavit filed by him and extracted above.

16. This Court opines that the 1st respondent is not justified

in passing the order impugned dated 05.03.2013 vide letter

No.171/PER.I/B1/2009. The Apex Court in its judgment

dated 27.04.2007 in Appeal (Civil) 3691 of 2005 in Union of

India and others v Sangram Keshari Nayak1 observed

as under:

'Promotion is not a fundamental right. Right to be considered for promotion, however, is a fundamental right. Such a right brings within its purview an effective, purposeful and meaningful consideration. Suitability or otherwise of the candidate concerned, however, must be left at the hands of the DPC, but the same has to be determined in terms of the rules applicable therefor. Indisputably, the DPC recommended the case of the respondent for promotion. On the day on which, it is accepted at the bar, the DPC held its meeting, no vigilance enquiry was pending. No decision was also taken by the employer that a departmental proceeding should be initiated against him.' 'Terms and conditions of an employee working under the Central Government are governed by the rules framed

(2007) 6 SCC 704 WP_13211_2013 19 SN,J

under the proviso appended to Article 309 of the Constitution of India or under a statute. The right to be promoted to a next higher post can, thus, be curtailed only by reason of valid rules. Such a rule again, however, cannot be construed in a manner so as to curtail the right of promotion more than what was contemplated by law.'

17. This Court opines that G.O.Ms.No.342, dated

04.08.1997 cannot be said to have been applied to the

petitioner in view of the simple fact that the order of

punishment imposed against the petitioner vide

proceedings No.6464/(a)/Admin.IV/DC-4/2005, dated

27.06.2007, does not comply with the requirement as

mentioned in Clause 3, Sub-clause iv(b) of

G.O.Ms.No.342, dated 04.08.1997 and the said order

does not specify that the petitioner is not eligible to the

promotional post which is in fact, mandatory as per

Clause 3, Sub-clause iv(b) of G.O.Ms.No.342, dated

04.08.1997.

18. This Court opines that as per the regulations in

force governing the employees of Milk product, Lalapet,

Hyderabad, the penalty/punishment imposed by the 1st

respondent was minor penalty under Rule 27(1)(b), WP_13211_2013 20 SN,J

therefore, the petitioner cannot be prevented from

getting promoted to a higher post during the

pendency/continuance of punishment pleaded in view

of the explanation contemplated under Rule 27 which is

as follows:

"Explanation:

The following shall not amount to a penalty within the meaning of this rule:

(i) withholding of increment of an employee on account of his work being found unsatisfactory or not being of the required standard, or for failure to pass a prescribed test or examination.

(ii) Stoppage of an employee at the efficiency bar in a time scale, on the ground of his unfitness to cross the bar;

(iii) non-promotion, whether in an officiating capacity or otherwise of an employee, to a higher post for which he may be eligible for consideration but for which he is found unsuitable after consideration of his case.

(iv) reversion to a lower grade or post, of an employee officiating in a higher grade or post, on the ground that he is considered, after trial, to be unsuitable for such higher grade or post or on administrative grounds unconnected with his conduct;

(v) reversion to his previous grade or post of an employee appointed on probation to another grade or post, during or at the end of the period of probation, in accordance with the terms of his appointment;

(vI) Termination of service:

WP_13211_2013 21 SN,J

(a) of an employee appointed on probation during or at the end of the period of probation, in accordance with the terms of his appointment;

(b) of an employee appointed in a temporary capacity otherwise than under a contract or agreement, on the expiration of the period for which he was appointed, or earlier in accordance with the terms of his appointment;

(c) or an employee appointed under a contract or agreement, in accordance with the terms of such contract or agreement; and

(d) of any employee on reduction of establishment.

19. A bare perusal of para 5 of counter affidavit filed by

Respondent No.1 extracted below clearly indicates that the

Petitioner is governed under the Conduct, Discipline and

Appeals Rules of the Respondent Federation and it is even

admitted so by the Respondent herein at para 5 and when

admittedly the Service Rules/Regulations of the Federation

contemplates that stoppage of annual grade increment does

not amount to penalty, the Petitioner herein cannot be

deprived of his legitimate right to promotion.

Para 5 :

"It is submitted that as per the rules on the subject and as per the procedure in the Respondent Federation there is no provision for promotion to the higher cadre when charges are pending against any employee. Further it is submitted that the Petitioner is in the Grade-I cadre and is governed under the Conduct, Discipline and Appeals Rules of the Respondent WP_13211_2013 22 SN,J

Federation. It is submitted that the Respondent is a Co- operative body registered under Co-operative Societies Act. As such the CCA Rules are not applicable to the Petitioner as stated by him. Hence, denied."

20. The Andhra Pradesh Dairy Development Co-

operative Federation Limited Conduct, Discipline and

Appeal Rules 1983 clearly indicate that there is no

provision in the said Rules to restrict promotion in the

circumstances of stoppage of Annual Grade Increment,

nor there is any stipulation in the said rules indicating

that there is no provision for promotion to the higher

cadre when charges are pending against any employee.

21. Under these circumstances when the Respondent

Authority itself fails to trace its own power as per its

own Rules and Regulations in passing the order

impugned in the present Writ Petition the same cannot