Telangana High Court
K.Manohar Rao S/O Shankar Rao vs Andhra Pradesh State Road ... on 11 April, 2023
Bench: Surepalli Nanda
IN THE HIGH COURT OF TELANGANA AT HYDERABAD
W.P. NO. 22618 OF 2013
Between:
K.Manohar Rao and another
... Petitioners
And
TSRTC and others
... Respondents
JUDGMENT PRONOUNCED ON: 11.04.2023
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
1. Whether Reporters of Local newspapers : yes
may be allowed to see the Judgment?
2. Whether the copies of judgment may be
marked to Law Reporters/Journals? : yes
3. Whether Their Lordships wish to
see the fair copy of the Judgment? : yes
_________________
SUREPALLI NANDA, J
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THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. NO. 22618 OF 2013
% 11.04.2023
Between:
# K.Manohar Rao and another
... Petitioners
And
$ TSRTC and others
... Respondents
< Gist:
> Head Note:
! Counsel for the Petitioners : Mr. A.G.Satyanarayana Rao
^ Standing Counsel for TSRTC: Mr H.Venugopal
? Cases Referred:
1. 2022 LIC 1475 : 2021 (15) Scale 150
2. (1999)7 SCC 209
3. (1991) 2 SCC 295
4. (2014) 3 SCC 670
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HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. NO. 22618 OF 2013
ORDER:
Heard the learned counsel for the petitioners and
the learned Standing counsel for TSRTC.
2. The Writ Petition is filed to issue a Writ of Mandamus to
declare the office order No.E3/255(25)/2011-KRZ dated
17.06.2011 of the 3rd respondent to the extent of not
regularizing the services off the petitioners in the feeder post
of Dy. Superintendent (Audit) from the date of their initial
promotion under Reg.30 of APSRTC Employees (Retirement)
Regulation, 1966 from 2009 as unjust, illegal and contrary to
APSRTC Employees (Retirement) Regulation, 1966 and
contrary to Circular No.PD-47/2010 dated 09.09.2010 and
consequently direct the respondents to treat the date of
regular promotion of the petitioners to the post of Dy.
Superintendent (Audit) with effect from June 2010 when the
petitioners have become eligible for such promotion.
3. The case of the petitioners, in brief, is as follows:
a) The Petitioners were initially appointed as Conductors
and were later regularized in the post of Conductor. The 1st
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respondent office issued a directive vide
Lr.No.SA1/255(21)/09-PO.III dated 03.03.2009 directing the
3rd respondent to regularize the services of the petitioner from
28.01.2004 and to consider for the promotion as Dy.
Superintendent (Audit) against the sanctioned vacancies of
Dy. Superintendent (Audit).
b) Even though the said directive issued by the 1st
respondent is binding on 2nd and 3rd respondent, the
petitioners to the post of Dy. Superintendent (Audit) under
Reg.30 of APSRTC Employees (Retirement) Regulation, 1966
instead of regular promotion. The petitioners were working as
Dy. Superintendent (Audit) from 04.06.2009 and are entitled
to be regularized as Dy. Superintendent (Audit) from
04.06.2009.
c) The petitioners are seniors to the Respondents No. 4
and 5 in Finance Department due to delay in regularizing the
services of the petitioners in the post of Dy. Superintendent
(Audit) and have become juniors in the feeder post of
Superintendent (Audit).
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d) The petitioners have submitted representation to 3rd
respondent requesting to promote them to the post of
Dy.Superintendent (Audit) as several juniors to the petitioners
are promoted subsequent to the post of Dy.Superintendent
(Audit).
e) Though representation were given to the 3rd
respondent, no action had been taken to promote the
petitioner on regular basis as to the post of
Dy.Superintendent (Audit) and further the petitioners have
request to promote the post of Superintendent (Audit).
f) The respondents have purposefully delayed the
regularization of the petitioners in the posts
Dy.Superintendent and Superintendents (Finance) Wing and
in other departments.
g) The 3rd had further delayed the regularization of
petitioners as Dy. Superintendent even from the date of their
promotion under regulation 30 of APSRTC Employees
(Retirement) Regulation, 1966. The 3rd respondent issued an
office order vide office order No.E3/255(25)/2011-KRZ dated
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17.06.2011 regularizing the services of the petitioners with
effect from 17.06.2011.
h) The 1st petitioner has submitted a representation dated
15.03.2012 to 1st respondent to consider regularization in the
post of Dy.Superintendent from the date of promotion under
Regulation 30 of APSRTC Employees (Retirement) Regulation,
1966 i.e., 05.06.2209 but the representation of the 1st
petitioner had not been considered.
i) The Director (Vigilance & Security) upon the
representation of the 2nd petitioner had directed the 2nd
respondent to redress the grievance of the petitioner and to
report compliance vide letter No.Dir(V&S)/114(22)/11-KZ
dated 18.06.2011 but no action had been taken by 2nd and 3rd
respondent.
j) In view of the delayed regularization of the petitioners
to the post of Dy. Superintendents, the petitioner could be
promoted to the next higher post of Superintendent (Audit)
with effect from 30.06.2012. The 3rd respondent without
considering the representation of the petitioner to pre-pone
the regularization in the post of Dy.Superintendent had issued
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office order No.E3/255(31)/2013-KRZ dated 30.06.2012
promoting the petitioners to the post of Superintendent
(Audit) thereby making the petitioners junior to the
Superintendent (Finance) which directly affects the further
promotion of petitioners to the post of Assistant Manager
(Finance).
k) The action of the respondents in not proponing the
regularization of the petitioners in the post of Dy.
Superintendent is arbitrary and hence, the present writ
petition.
4. The counter affidavit filed by respondents, in
particular, paras 6, 7, 8 and 9, read as under:
6. It is to submit that separate seniority lists are
maintained each to Finance, Cash and Audit Wings. As
per service regulations, if an employee is willing to
relinquish the right of his seniority in the post held by
him in the seniority unit in which he is working and is
willing to join on transfer in another seniority unit at his
request, it shall be treated as a first appointment for
transferred employee for the purpose of seniority and
he will become junior most in the seniority unit to which
transferred on request. His seniority shall bereckoned
from the date of his joining on transfer in the later
seniority unit. The petitioners, on their willingness,
transferred from finance to audit unit of seniority.
7. The directive given in the letter
No.SA1/255(21)/2009-PO-III, dated 03.03.2009, is to
regularize the existing 7 Senior Assistants (Audit) from
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the date of their promotion under regulation 30, since
they were all selected by the Selection Committee and
consider them for promotion as Dy.Superintendent
(Audit)/Superintendent (Audit) as a one time measure
to overcome the shortage of Audit Supervisors. From
among the said 7, the petitioners were promoted as
Dy.Superintendent (Audit) under regulation 30 purely
on emergency basis without approval of the Selection
Committee.
8. The promotion under regulation 30 is temporary in
nature and the person promoted shall not be regarded
as probationer in the higher category or be entitled by
reason only of such promotion to any preferential claim
to future promotion to such higher category.
9. The representation of the petitioners is to
prepone the regularization of their services in the
existing 6 vacancies. Due to preoccupation of Dy
Chief Personnel Manager, Karimnagar Zone, (who
is one of the Selection Committee members and
responsible for organization of the entire selection
process), with the selection of shramiks,
mechanics and artisans through direct
recruitment, the Selection Committee, as sought
for by petitioners, could not be conducted.
However, the services of the petitioners were
regularized vide office order No. E3/255(4)/2009-
KRZ, dated 20.04.2009 from 28.01.2004 and
27.01.2005 respectively and their seniority will be
reckoned for promotion from the dates of their
regularization and no injustice was done to the
petitioners. However, their request to prepone
their regularization could not be fulfilled due to
administrative reasons."
5. The reply affidavit filed by the petitioners, in
particular, paras 5 and 6, read as under:
5. In reply to Para 7 and 8 of the counter affidavit it is
submitted that the petitioners are entitled to regular
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promotion to the post of Dy.Superintendent (Audit) with
effect from 28.01.2007 and 27.01.2008 respectively as
stated in para 6 and 7 of the Writ Affidavit. But the
Respondents instead of regularizing the services of the
petitioners in the post of Dy.Superintendent (Audit) with
effect from the date of their temporary promotion of
04.06.2009 have regularized the services of the
petitioner with effect from 17.06.2011 arbitrarily. Thus
the petitioners are deprived of their further promotion
to the post of Superintendent (Audit) and to the next
higher post of Assistant Manager (Finance) on par with
the similarly placed employees of the Finance Wing
including Respondents 4 and 5.
6. In reply to Para 9 of the counter affidavit it is
submitted that the Respondents have clearly
admitted that due to pre occupation of
Respondent No: 3 the Selection Committee could
not be convened. It is submitted that though the
Respondents have convened Selection Committees
for the promotion to the posts of
Dy.Superintendent (Finance) in the year 2009
itself and in case of petitioners the Selection
Committee was convened only on 16.06.2011and
petitioners were regularized with effect from
17.06.2011. Thus injustice is caused to the
petitioners as the petitioners were eligible for the
regular promotion to the post of Dy.
Superintendent (Audit) with effect from
04.06.2009 and the Selection Committee could
have considered regularization to the petitioners
in the post of Dy. Superintendent (Audit) from
04.06.2009.
6. The letter No.SA1/255/(21)/2009-PO-III, dated
03.03.2009 issued by the Office of Managing Director,
Mushirabad, Hyderabad to the 3rd respondent herein, is
extracted here under:
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"On examine the proposal made vide case cited, the
Competent Authority has accorded permission, for the
following:-
a) to regularize the existing 7 SA(Audis) from
the date of their promotion under Reg 30, since
they were all selected by the Selection Committee
and consider them for promotion & By Supur (dit)
again the vacancies of Dy.Supdt(Audit) and Supdt
(Audit) as a one time measure to overcome the
shortage of Audit Supervisors.
b) To fill the remaining vacancies of Supdt. (Audit) at
Supdt (Fin)/Dy.Supdt.(Fin), Action may therefore be
taken accordingly, Zonal level by transfer of
Supdt.(Fin)/Dy.Supdt.(Fin)"
7. The report No.J1/114(22)/2011- V&SO:KR, dated
03.04.2012 issued by the office of the Vigilance &
Security Officer, Karimnagar Zone, in particular, last
paras, are extracted here under:
"The contention of the petitioner is that his juniors were
promoted as Dy Supdt.(F) before him was not correct
since no junior to him in SA(A) got promotion as Dy.
Supdt.(A). Further the seniority list of SA(F) and SA(A)
are separately maintained and promotions are issued as
per the vacancies in the corresponding department.
It is not correct that, he was already promoted as Dy.
Supdt.(A) U/Reg.30 in the month of June-2009. But his
juniors in the category of SA(F) were promoted as Dy.
Supdt.(F) in the month of November-2010. In this case
he got financial benefits of Dy. Supdt.(A) from June-
2009 itself and the regular selections for Dy. Supdt. (F)
were conducted in Nov.-2010. The next selections for
Dy. Supdt. (A) and Dy. Supdt.(F) were held on 16-06-
2011 and 20-07-2011 and Sri K. Ravinder Rao, Sr.
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Asst.(A) who is working as Dy. Supdt (A) U/Reg.30 was
selected and his services in the post of Dy. Supdt. (A)
were regularized w.e.f.16-06-2011.
On going through the report of Dy. CPM/KRMR, it
is revealed that injustice is done to Sri K. Ravinder
Rao, E-303126, Dy. Supdt.(Audit) of Warangal
Region, since there were clear vacancies in audit
wing from June-2010. The Dy, CPM/KRZ has
conducted number of interviews for promotional posts
to all the categories except the post of Dy. Supdt.(A).
The selections for the post of Dy. Supdt.(Audit) were
held on 16-06-2011. The contention of the petitioner is
that if he was regularized to the post of Dy. Supdt. (A)
he could have become Supdt. (A).
8. The letter No.Dir.(V&S)/114(22)/11-KZ, dated
18.06.2012 issued by the Executive Director, APSRTC,
KRMR Zone, Karimnagar, is extracted here under:
"During the Vigilance enquiry, it has come to light that:
3. The Dy.CPM: KEMR Zone has stated that during the
year 2005, Karimnagar Zone is having shortage of
Supdt (Audt)/Dy Supdt (Audit) and there are no eligible
candidates for promotion to the post of Supdt (Audit).
Hence, Head Office authorities have permitted to fill-up
the vacancies of Supdt (Audit)/Dy. Supdt (Audit) with
SA (Audit) U/Reg.30 by promotion from the rank of SA
(F) according to seniority and their willingness. Sri
K.Ravinder Rao, E.303126,SA (F) had given willingness
for promotion to the post of Sr.Asst (Audit)).
Accordingly the was selected as SA(A) U/Reg.30 against
the vacancies of Supdt/Dy.Supdt (Audit) in the year
2005.
4. It was proposed to conduct the selections for
Dy.Supdt (A) and to regularize their services in
the month of December, 2010. Due to
Administrative reasons the selections were not
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conducted. Later the then Dy. CPM:KZ was busy in
recruitment of Shramiks, Mechanics and Artizans
in KRMR Zone, since he is a committee members
to all recruitments.
5. It is revealed that injustice is done to Sri
K.Ravinder Rao, E.303126, Dy. Supdt(Audit) of WL
Region, since there were clear vacancies in Audit
wing from June, 2010. The Dy. CPM:KRMR has
conducted number of interviews for promotional posts
to all the categories except the post of Dy.Supdt (A).
The selections for the post of Dy.Supdt (Audit) were
held on 16.06.01. The contention of the petitioner is
that if he was regularized to the post of Dy.Supdt (A) he
could have become Supdt.(A).
You are advised to redress the grievance of Sri
K.Ravinder Rao, E.303126, Dy. Supdt (Audit) of
Warangal Region and report compliance, immediately."
9. The Apex Court in the judgment in Ajay Kumar
Shukla and others v Arvind Rai and others's case
reported in 2022 LIC 1475 : 2021 (15) Scale 150, in
particular, paras 37, 38 and 39 observed as under:
37. This Court, time and again, has laid emphasis on
right to be considered for promotion to be a
fundamental right, as was held by K. Ramaswamy, J., in
the case of Director, Lift Irrigation Corporation Ltd. and
Others vs. Pravat Kiran Mohanty and Others6 in
paragraph 4 of the report which is reproduced below:
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"4... There is no fundamental right to
promotion, but an employee has only right to
be considered for promotion, when it arises,
in accordance with relevant rules. From this
perspective in our view the conclusion of the
High Court that the gradation list prepared
by the corporation is in violation of the right
of respondent/writ petitioner to equality
enshrined under Article 14 read with Article 16
of the Constitution, and the respondent/writ
petitioner was unjustly denied of the same is
obviously unjustified."
38. A Constitution Bench in case of Ajit Singh vs. State
of Punjab7, laying emphasis on Article 14 and Article
16(1) of the Constitution of India held that if a person
who satisfies the eligibility and the criteria for promotion
but still is not considered for promotion, then there will
be clear violation of his/her's fundamental right.
Jagannadha Rao,J. speaking for himself and (1991) 2
SCC 295 (1999) 7 SCC 209 Anand, CJI., Venkataswami,
Pattanaik, Kurdukar, JJ., observed the same as follows
in paragraphs 21 and 22 and 27:
"21: Articles 14 and 16(1): is right to be
considered for promotion a fundamental right 22:
Article 14 and Article 16(1) are closely connected.
They deal with individual rights of the person.
Article 14 demands that the "State shall not deny
to any person equality before the law or the equal
protection of the laws". Article 16(1) issues a
positive command that "there shall be equality of
opportunity for all citizens in matters relating to
employment or appointment to any office under
the State".
It has been held repeatedly by this Court that
clause (1) of Article 16 is a facet of Article 14 and
that it takes its roots from Article
14. The said clause particularises the generality in
Article 14 and identifies, in a constitutional sense
"equality of opportunity in matters of employment
and appointment to any office under the State.
The word "employment" being wider, there is no
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dispute that it takes within its fold, the aspect of
promotions to posts above the stage of initial level
of recruitment. Article 16(1) provides to every
employee otherwise eligible for promotion or who
comes within the zone of consideration, a
fundamental right to be "considered" for
promotion. Equal opportunity here means the
right to be "considered" for promotion. If a person
satisfies the eligibility and zone criteria but is not
considered for promotion, then there will be a
clear infraction of his fundamental right to be
"considered" for promotion, which is his personal
right.
"Promotion based on equal opportunity and
seniority attached to such promotion are facets of
fundamental right under Article 16(1)
27. In our opinion, the above view expressed in
Ashok Kumar Gupta and followed in Jagdish Lal
and other cases, if it is intended to lay down that
the right guarantee to employees for being
"considered" for promotion according to relevant
rules of recruitment by promotion (i.e. whether on
the basis of seniority or merit) is only a statutory
right and not a fundamental right, we cannot
accept the proposition. We have already stated
earlier that the right to equal opportunity in the
matter of promotion in the sense of a right to be
"considered" for promotion is indeed a
fundamental right guaranteed under Article 16(1)
and this has never been doubted in any other
case before Ashok Kumar Gupta right from 1950."
39. This Court in Major General H.M. Singh, VSM
vs. UOI and Another 8 , again reiterated the legal
position, i.e. right to be considered for promotion
as a fundamental right enshrined under Article 14
and Article 16 of the Constitution of India. The
relevant extract from paragraph 28 is reproduced
below:
"28. The question that arises for consideration is,
whether the non-consideration of the claim of the
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appellant would violate the fundamental rights
vested in him under Articles 14 and 16 of the
Constitution of India. The answer to the aforesaid
query would be in the affirmative, subject to the
condition that the respondents were desirous of
filling the vacancy of Lieutenant-General, when it
became available on 1-1-2007. The factual
position depicted in the counter-affidavit reveals
that the respondents indeed were desirous of
filling up the said vacancy. In the above view of
the matter, if the appellant was the senior most
serving Major-General eligible for consideration
(which he undoubtedly was), he most definitely
had the fundamental right of being considered
against the above vacancy, and also the
fundamental right of being promoted if he was
adjudged suitable. Failing which, he would be
deprived of his fundamental right of equality
before the law, and equal protection of the laws,
extended by Article 14 of the Constitution of
India. We are of the view that it was in order to
extend the benefit of the fundamental right
enshrined under Article 14 of the Constitution of
India, that he was allowed extension in service on
two occasions, firstly by the Presidential Order
dated 29-2-2008, and thereafter, by a further
Presidential Order dated 30-5-2008. The above
orders clearly depict that the aforesaid extension
in service was granted to the appellant for a
period of three months (and for a further period of
one month), or till the approval of the ACC,
whichever is earlier. By the aforesaid orders, the
respondents desired to treat the appellant justly,
so as to enable him to acquire the honour of
promotion to the rank of Lieutenant-General (in
case the recommendation made in his favour by
the Selection Board was approved by the
Appointments Committee of the Cabinet, stands
affirmed). The action of the authorities in
depriving the appellant due consideration for
promotion to the rank of the Lieutenant-
General would have resulted in violation of
his fundamental right under (2014) 3 SCC
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670 Article 14 of the Constitution of India.
Such an action at the hands of the
respondents would unquestionably have
been arbitrary."
10. The Apex Court in Ajit Singh and others (II) v
State of Punjab and others' case reported in (1999) 7
SCC 209, in particular, paras 21, 22, and 27 observed as
under:
21. We shall first deal with the fundamental rights under
Articles 14 and 16(1) and then with the nature of the
rights of the reserved candidates under Articles 16(4)
and 16(4A).
22. Articles 14 and 16(1): Is right to be considered for
promotion a fundamental right?
Article 14 and Article 16(1) are closely connected. They
deal with individual rights of the person. Article 14
demands that the "State shall not deny to any person
equality before the law or the equal protection of the
laws". Article 16(1) issues a positive command that
"there shall be equality of opportunity for all citizens in
the matters relating to employment or appointment to
any office under the State". It has been held repeatedly
by this Court that sub-clause (1) of Article 16 is a facet
of Article 14 and that it takes its roots from Article 14.
The said sub- clause particularizes the generality in
Article 14 and identifies, in a constitutional sense
"equality opportunity" in matters of employment and
appointment to any office under the State. The word
'employment' being wider, there is no dispute that it
takes within its fold, the aspect of promotions to posts
above the stage of initial level of recruitment. Article
16(1) provides to every employee otherwise eligible for
promotion or who comes within the zone of
consideration, a fundamental right to be "considered"
for promotion. Equal opportunity here means the right
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to be "considered" for promotion. If a person satisfies
the eligibility and zone criteria but is not considered for
promotion, then there will be a clear infraction of his
fundamental right to be "considered" for promotion,
which is his personal right. "Promotion" based on equal
opportunity and 'seniority' attached to such promotion
are facets of fundamental right under Article 16(1).
27. In our opinion, the above view expressed in
Ashok Kumar Gupta, and followed in Jagdish Lal
and other cases, if it is intended to lay down that
the right guaranteed to employees for being
"considered" for promotion according to relevant
rules of recruitment by promotion(i.e. whether on
basis of seniority or merit) is only a statutory
right and not a fundamental right, we cannot
accept the proposition. We have already stated
earlier that the right to equal opportunity in the
matter of promotion in the sense of a right to be
"considered" for promotion is indeed a
fundamental right guaranteed under Article 16(1)
and this has never been doubted in any other case
before Ashok Kumar Gupta, right from 1950.
Articles 16(4) and 16(4A) do not confer any
fundamental right to reservation
DISCUSSION AND CONCLUSION :
11. A bare perusal of the content of letter
No.SA1/255(21)/09-PO.III, dated 03.03.2009 of the Personal
Officer-III addressed to the Deputy Chief Personnel Manager,
APSRTC, Karimnagar Zone clearly indicates that the
competent authority has accorded permission to regularize
the existing 7 SA (Audit) from the date of their promotion
under Regulation 30 since they were all selected by the
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Selection Committee and consider them for promotion as Dy.
Superintendent (Audit) against the vacancies of Dy.
Superintendent (Audit) and Superintendent (Audit) as a one
time measure to overcome the shortage of Audit Supervisors
and accordingly, as per the said letter the petitioners are
promoted under Regulation 30 of APSRTC Employees
(Recruitment) Regulations, 1966 as against the sanctions of
Superintendent (Audit) and Deputy Superintendent (Audit) in
Karimnagar Zone and accordingly vide proceedings dated
20.04.2009 the petitioners herein had been promoted under
Regulation 30 of APSRTC Employees (Recruitment)
Regulations, 1966. The 1st petitioner probation has been
declared w.e.f. 29.01.2005 in the post of Senior Assistant
(Audit) as having completed probation period satisfactorily
and further vide proceedings dated 04.06.2009 of the Deputy
Chief Personnel Manager, Karimnagar Zone, the petitioners
herein are promoted asDeputy Superintendent (Audit) under
Regulation No.30 of APSRTC Employees (Recruitment)
Regulations, 1966 on emergency basis in the scale of
Rs.6110-190-8390-210-10070-225-12770-240-15170 and
further vide proceedings dated 17.06.2011 on the
recommendations of Departmental Selection Committee,
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dated 16.06.2011, the petitioners are promoted as Deputy
Superintendent (Audit) as per APSRTC Employees
(Recruitment) Regulations, 1966.
12. It is borne on record that the individual representations,
dated 24.02.2012 and 15.03.2012 had been addressed by the
petitioners to the Vice Chairman and Managing Director,
APSRTC Bus Bhavan, Hyderabad explaining grievance with
regard to the delay in regularization despite availability of
clear vacancies for the post of Deputy Superintendent (Audit),
and the petitioners had pointed out in their representation
that there was clear vacancies in the Karimnagar Zone, but
however, the petitioners were not considered in the vacant
post despite the petitioners' representations and therefore,
the regularization or probation of the petitioners had been
delayed without any lawful or justifiable reason or cause.
Keeping in view of the large number of vacancies that fell
vacant in the post, the petitioners vide their respective
representations had sought promotion of Superintendent (A)
with retrospective effect.
13. A bare perusal of the contents of the letter dated
03.04.2012 of the Vigilance and Security Officer,
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Karimnagar Zone addressed to the Director (V&S)
APSRTC;, Bus Bhavan, Hyderabad clearly reveals the
admission that injustice has been done to the 2nd
petitioner herein and that there were clear vacancies in
audit Wing from June, 2010 and further the Deputy
CPN/KRZ has conducted number of interviews for
promotional posts to all the categories except the post
of Dy Supedt (A) and the selections for the post of Dy
Supdt. (Audit) were held on 16.06.2011 and further the
said letter clearly indicate the request made to the
Director (V&S), Hyderabad to advise the ED.KRMR zone
to redress the grievance of the 2nd petitioner herein of
Warangal Region.
14. A bare perusal of the contents of the letter dated
18.06.2012 of the Director (V&S) also clearly indicates
a clear observation that injustice had been done to the
2nd petitioner since there were clear vacancies in Audit
Wing from June, 2010. A bare perusal of the order
impugned dated 17.06.2011 clearly indicate that the
petitioners have been promoted from the post of Senior
Assistant, Audit to the Deputy Superintendent, Audit in
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Karimnagar Zone as per the selection committee dated
16.06.2011 vide proceedings dated 17.06.2011 and a
reference is made to the circular dated 09.09.2010, which is
promotion under Regulation 30 of APSRTC Employees
(Recruitment) Regulations, 1966.
15. A bare perusal of the contents of the letter
No.Dir(V and S)/114(22)/11-KZ, dated 18.06.2011 of
the Director (Vigilance and Security) filed as material
document clearly indicates that the 2nd respondent
being directed to redress the grievance of the petitioner
and to report compliance.
16. The Apex Court, time and again, has laid emphasis
on right to be considered for promotion to be a
fundamental right, as was held by K. Ramaswamy, J., in
the case of Director, Lift Irrigation Corporation Ltd. and
Others v. Pravat Kiran Mohanty and Others, (1991) 2
SCC 295 in paragraph 4 of the report which is
reproduced below:
4... There is no fundamental right to
promotion, but an employee has only right to be
considered for promotion, when it arises, in
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accordance with relevant rules. From this
perspective in our view the conclusion of the High
Court that the gradation list prepared by the
corporation is in violation of the right of
respondent/writ petitioner to equality enshrined
under Article 14 read with Article 16 of the
Constitution, and the respondent/writ petitioner
was unjustly denied of the same is obviously
unjustified."
17. The Constitution Bench in case of Ajit Singh v.
State of Punjab, (1999) 7 SCC 209, laying emphasis on
Article 14 and Article 16(1) of the Constitution of India
held that if a person who satisfies the eligibility and the
criteria for promotion but still is not considered for
promotion, then there will be clear violation of
his/her's fundamental right. Jagannadha Rao,J.
speaking for himself and Anand, CJI., Venkataswami,
Pattanaik, Kurdukar, JJ., observed the same as follows
in paragraphs 21 and 22 and 27 :
21. Articles 14 an 16(1) is right to be considered
for promotion a fundamental right.
22. Article 14 and Article 16(1) are closely
connected. They deal with individual rights of the
persons. Article 14 demands that the "State shall not
deny to person equality before the law or the equal
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23 Wp_22618_2013
protection of the laws" Article 16(1) issues a positive
command that "there shall be equality of opportunity for
all the citizens in matters relating to employment or
appointment to any office under the State".
It has been held repeatedly by this Court that
Clause (1) of Article 16 is a facet of Article 14 and that
it takes its roots from Article 14. The said clause
particularises the generality in Article 14 and identifies,
in a constitutional sense equality of opportunity to
matters of employment and appointment to any office
under the State. The word 'employment being wider,
there is no dispute that at takes within its fold, the
aspect of promotions to posts above the stage of initial
level of recruitment. Article 16(1) provides to every
employer otherwise eligible for promotion or who comes
within the zone of consideration, a fundamental right to
be "considered for promotion. Equal opportunity here
means the right to be considered for promotion. If a
person satisfies the eligibility and zone criteria but is not
considered for promotion, then there will be a clear
infraction of his fundamental right to be "considered for
promotion, which is his personal right.
"Promotion based on equal opportunity and
seniority attached to such promotion are facets of
fundamental right under Article 16(1)
27. In our opinion, the above view expressed in
Ashok Kumar Gupta and followed in Jagdish Lal and
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24 Wp_22618_2013
other cases, if it is intended to lay down that the right
guarantee to employees for being "considered for
promotion according to relevant rules of recruitment by
promotion (i.e, whether on the basis of seniority or
merit) is only a statutory right and not a fundamental
right, we cannot accept the proposition. We have
already stated earlier that the right to equal opportunity
in the matter of promotion in the sense of a right to be
"considered" for promotion is indeed a fundamental
right guaranteed under Article 16(1) and this has never
been doubted in any other case before Ashok Kumar
Gupta right from 1950.
18. The Apex Court in Major General H.M. Singh, VSM v.
UOI and Another, (2014) 3 SCC 670, again reiterated the
legal position, i.e. right to be considered for promotion as a
fundamental right enshrined under Article 14 and Article 16 of
the Constitution of India. The relevant extract from
paragraph 28 is reproduced below:
"28. The question that arises for consideration is,
whether the non-consideration of the claim of the
appellant would violate the fundamental rights vested in
him under Articles 14 and 16 of the Constitution of
India. The answer to the aforesaid query would be in
the affirmative, subject to the condition that the
respondents were desirous of filling the vacancy of
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25 Wp_22618_2013
Lieutenant-General, when it became available on 1-1-
2007. The factual position depicted in the counter-
affidavit reveals that the respondents indeed were
desirous of filling up the said vacancy. In the above
view of the matter, if the appellant was the senior most
serving Major-General eligible for consideration (which
he undoubtedly was), he most definitely had the
fundamental right of being considered against the above
vacancy, and also the fundamental right of being
promoted if he was adjudged suitable. Failing which, he
would be deprived of his fundamental right of equality
before the law, and equal protection of the laws,
extended by Article 14 of the Constitution of India. We
are of the view that it was in order to extend the benefit
of the fundamental right enshrined under Article 14 of
the Constitution of India, that he was allowed extension
in service on two occasions, firstly by the Presidential
Order dated 29-2-2008, and thereafter, by a further
Presidential Order dated 30-5-2008. The above orders
clearly depict that the aforesaid extension in service was
granted to the appellant for a period of three months
Cane for a further period of one month), or till the
approval of the ACC, whichever is earlier. By the
aforesaid orders, the respondents desired to treat the
appellant justly, so as to enable him to acquire the
honour of promotion to the rank of Lieutenant-General
(in case the recommendation made in his favour by the
Selection Board was approved by the Appointments
Committee of the Cabinet, stands affirmed). The action
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26 Wp_22618_2013
of the authorities in depriving the appellant due
consideration for promotion to the rank of the
Lieutenant-General would Save resulted in violation of
his fundamental right under Article 14 of the
Constitution of India. Such an action at the hands of the
respondents would unquestionably have been arbitrary".
19. Taking into consideration the specific averment
made in particular at para 9 of the counter affidavit
filed by the Respondents that due to pre-occupation of
Deputy Chief Personnel Manager, Karimnagar Zone, the
selection committee could not be convened, this Court
opines that the regularisation of the services of the
Petitioners had been delayed and in view of the fact
that the Selection Committee had been convened only
on 16.06.2011 and the Petitioners were regularized
w.e.f. 17.06.2011, the Petitioners were denied regular
promotion to the post of Deputy Superintendent (Audit)
w.e.f. 04.06.2009. A bare perusal of the contents of the
letter No.SA1/255/(21)/2009-PO-III, dt. 03.03.2009
issued by the Office of the Managing Director,
Musheerabad, Hyderabad to the 3rd Respondent herein
clearly indicates that the competent authority had
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27 Wp_22618_2013
accorded permission to undertake the exercise of
promotion and to regularize the existing 7SA (Audis)
from the date of their promotion under Regulation 30
since they were all selected by the selection committee
and to further consider them for promotion as Deputy
Superintendent (Audit) and Superintendent (Audit) and
accordingly vide Office Order issued vide No.E3/255
(25)/2011-KRZ, dt. 17.06.2011 issued by the Office of
Dy. CPM/KRMR Zone, Karimnagar i.e., the 3rd
Respondent herein, the services of the Petitioners
herein were regularized w.e.f. 17.06.2011.
20. Taking into consideration of the contents of the
letter dated 03.04.2012 (extracted above) and
18.06.2012 (extracted above) it is every clear that an
observation has been brought on record by the Officers
concerned holding very clearly that injustice has been
done to the 2nd Petitioner since there were clear
vacancies in Audit Wing from June 2010, but however,
the same had been delayed and the only reason as per
the counter affidavit para 9 is the preoccupation of
Respondent No.3 due to which the selection committee
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28 Wp_22618_2013
could not be convened. This Court opines that the
Petitioners services had been regularized w.e.f.
17.06.2011 and had been delayed since 2009 and the
same though resulted in violation of Petitioners
Fundamental Rights of being considered for promotion
at the right time thereby the Petitioners had been
deprived of their Fundamental Right of Equality before
Law and equal protection of the Laws extended by
Article 14 of the Constitution of India and the said
action of the Respondents is manifestly arbitrary.
21. Taking into consideration of the above said facts
and circumstances and the contents of the letter dt.
03.03.2009, 03.04.2012 an 18.06.2012 referred to and
extracted above and also the law laid down by the
judgments of the Apex Court referred to and discussed
above, the Writ Petition is disposed of directing the
Respondents to consider the 1st Petitioner's
representation dt. 15.03.2012 addressed to the 1st
Respondent and the representations of the 2nd
Petitioner dt. 09.07.2009, 28.12.2009 and 13.05.2011
in accordance to law as per the letter No. Dir(V and
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29 Wp_22618_2013
S)/114(22)11-KZ, dated 18.06.2012 of the Director
(Vigilance and Security) and pass appropriate orders
within a period of 3 weeks from the date of receipt of
the copy of the order duly considering the law laid
down by the Apex Court referred to and discussed
above and communicate the said decisions to the
Petitioners herein. However, there shall be no order as
to costs.
Miscellaneous petitions if any, pending shall stand
closed.
______________________________
MRS JUSTICE SUREPALLI NANDA
Dated : 11.04.2023
Note : L.R. copy to be marked
b/o
kvrm
