Telangana High Court
M Narsing Rao vs State Of Tg,Prl.Scy,Icomm,Hyd, ... on 6 January, 2023
Bench: Namavarapu Rajeshwar Rao
1 RRN,J
WP No.32841 of 2017
*THE HONOURABLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
+W.P. No.32841 OF 2017
% 06-01-2023
# M. Narsing Rao
....petitioner
Vs.
$ State of Telangana, rep. by its Principal Secretary, Industries & Commerce (IFN-
L&D) Department, Telangana Secretariat , Hyderabad and another
.... Respondents
!Counsel for the petitioner : K. Ramamohan appearing for learned Senior
counsel K.G. Krishna Moorthy
Counsel for the Respondents : P.V. Ravindra Kumar
<Gist :
>Head Note:
? Cases referred:
2 RRN,J
WP No.32841 of 2017
IN THE HIGH COURT FOR THE STATE OF TELANGANA
HYDERABAD
****
WP. No.32841 OF 2017
Between:
M. Narsing Rao
....petitioner
Vs.
State of Telangana, rep. by its Principal Secretary, Industries & Commerce (IFN-L&D)
Department, Telangana Secretariat , Hyderabad and another
... Respondents
ORDER PRONOUNCED ON: 06.01.2023
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? : Yes
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? : Yes
3. Whether His Lordship wishes to
see the fair copy of the Judgment? : Yes
_____________________________________
NAMAVARAPU RAJESHWAR RAO, J
3 RRN,J
WP No.32841 of 2017
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
WRIT PETITION No.32841 of 2017
ORDER:
The present Writ Petition is filed seeking a Writ of Mandamus
declaring the action of the respondents No.1 and 2 in not promoting the
petitioner as Assistant Manager and Deputy Manager w.e.f 01.03.2004
and 01.03.2009 with all consequential benefits including seniority and
monitory as illegal and violative of Article 14 and 16 (4A) of the
Constitution of India, and further direct respondents No.1 and 2 to
promote the petitioner notionally w.e.f. 01.03.2004 as Assistant Manager
and w.e.f. 01.03.2009 as Deputy Manager with all consequential benefits
including seniority, arrears of pay etc.
2. It has been contended by the petitioner that he belongs to the
ST community (Yerukala) and was appointed as Record Assistant by the
2nd respondent Corporation in the year 1987; at that time he was an
undergraduate and he acquired graduation in the year 2013. Later, he
was promoted from time to time and finally, to Assistant Manager in the
year 2012. The 2nd respondent Corporation promoted a number of
individuals who were undergraduates as Assistant Managers and Deputy
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WP No.32841 of 2017
Managers, but he was denied despite his seniority and rule of
reservation.
3. The petitioner further contended that he was entitled for
promotion under the rule of reservation under Article 16 (4A) of the
Constitution of India provides that the State Governments make a
provision for reservation in the matter of promotion with consequential
seniority in any class or classes of force in the services under the State
Government in favour of Scheduled Castes and Scheduled Tribes. The
erstwhile State of A.P. Government issued G.O.Ms.No.5 dated
14.02.2003 Social Welfare Department and issued G.O.Ms.No.2 dated
09.02.2004 providing rule of reservation for Scheduled Castes and
Scheduled Tribes in promotions. Under the above G.Os, the petitioner
made representation to the 2nd respondent Corporation to consider his
request for promotion as Assistant Manager w.e.f 01.03.2004 and Deputy
Manager w.e.f.01.03.2009. The eligibility for such promotion as notified
shall be that the employee ought to have completed 4 years of service
and must be a graduate. He was not a graduate until 2013. Keeping
this in view, the Board of Directors of the 2nd respondent corporation,
upon taking up this issue, clarified the 2nd respondent that the 2nd
respondent has the power including to relax the qualification criteria for
promotion to Assistant Manager and Deputy Manager. Subsequently, the
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WP No.32841 of 2017
2nd respondent approved the note and agreed in principles to relax the
qualification and effect promotions of the petitioner as Assistant Manager
w.e.f. 01.03.2004 and Deputy Manager w.e.f. 01.03.2009 with arrears
and interest and placed the matter before the D.P.C. along with other
employees.
3.1 The petitioner further contended that upon the resistance of
other employees vide representation dated 05.07.2012 opposing the
petitioner's retrospective promotion proposal, the 2nd respondent
addressed a letter to the 1st respondent on 23.02.2013 reserving one post
of Deputy Manager which is earmarked for Schedule Tribe at Roster
point no.8 is kept vacant as there is no eligible ST (W) candidate. As per
the Government instructions, when there is no woman candidate
available, the post can be converted to an eligible male candidate.
Subsequently, the 1st respondent addressed a letter to the 2nd respondent
dated 03.08.2015 requesting the 2nd respondent to consider the
petitioner's case for promotion as mentioned above. Since there was no
response from the 2nd respondent, the petitioner approached various
statutory authorities and they in turn addressed letters to the 2nd
respondent to consider the petitioner's promotion in the terms mentioned
above, yet, no action was taken.
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WP No.32841 of 2017
3.2 The petitioner further contended that some other employees
who had lesser qualifications than him, were promoted to Assistant
Manager in the year 2004 but the petitioner was discriminated against
and treated differently and at last he was promoted only in the years
2012 as Assistant Manager and in the year 2016 as Deputy Manager
respectively. Accordingly, prayed to allow the Writ Petition.
4. Counter has been filed by respondent No.2 denying all the material
averments of the petitioner, and contended that the 2nd respondent
Corporation extended their arms and promoted the petitioner as
Assistant Manager in the year 2012 by relaxing the qualification criteria
and the petitioner himself addressed a letter dt.21.05.2012 to the 2nd
respondent expressing his gratitude. The petitioner was promoted to
Senior Assistant on 10.03.1999, and as per the B & C employees
promotion policy 1991, the eligibility criteria for promotion from the post
of Senior Assistant to the post of Assistant Manager is graduation plus
four years of service as Senior Assistant. Since the petitioner was an
undergraduate and lacked the eligibility criteria, he was denied
promotion. However, he was promoted to the post of Assistant Manager
w.e.f. 08.05.2012 vide proceedings dt.10.05.2012 by relaxing the
condition of a holding of a degree.
7 RRN,J
WP No.32841 of 2017
4.1 It is further contended that the proceedings of the Board of
Directors show the fact that the power of relaxing the eligibility
conditions was stood delegated to the Managing Director of the
Corporation and that the individual cases need not be brought before
them. Further, following the act of relaxation of educational
qualification and promotion of the petitioner, he came out with a
representation dt. 18.06.2012 asking for considering his promotion with
a back date i.e. promotion as Assistant Manager w.e.f. 01.03.2004 and
Deputy Manager (Officer cadre) w.e.f. 01.03.2009 along with arrears and
interest etc. Thus, it opened up a pandora box and made the Vice
Chairman and Managing Director address letters to the Government
dated 17.07.2012 and 11.09.2012 seeking clarification upon that issue,
but neither a decision has been arrived at nor such circumstance
implemented. Thus, there was no change in the status of the said
employees who sought promotion with a back date.
4.2 It is further contended by the respondents that due to the
restructuring of the Corporation and implementation of VRS, no
promotions took place from 2001 to 2007. The petitioner was promoted
as Assistant Manager on 10.05.2012 by relaxing the rules in respect of
qualification i.e. graduation by the Corporation against roster point 8
which is earmarked for ST (W). The incidents of repeated unruly
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WP No.32841 of 2017
behaviour and unbecoming employee attitude of the petitioner,
particularly, about the letter dt.31.03.2017 of the Corporation, the 1st
respondent has constituted a three-member committee to enquire into
the same. However, though the enquiry is in process, the 2nd respondent
with all magnanimity paid the retirement benefits to the petitioner who
retired from service on 30.09.2017. The petitioner's claim for promotion
in a retrospective manner is not justified in any manner and is contrary
to the very same G.O. as only G.O. Ms No.5 dated 14.02.2003 provides
for the prospective promotion and only for fully qualified and eligible
candidates. Lastly, the petitioner filed the present writ petition just
before his retirement to gain monetary benefits with a mala fide
intention. Accordingly, prayed to dismiss the Writ Petition.
5. The petitioner filed a reply affidavit to the counter affidavit along
with additional material documents reiterating the contents of his
affidavit by denying the respondents' contentions and submitted that his
case for promotion as Assistant Manager w.e.f 01.03.2004 and Deputy
Manager w.e.f 01.03.2009 was not considered by the respondents and it
is false to contend that positive consideration in the past was purely
based on merit and eligibility and requirement of the administration and
that such cases cannot be compared with the circumstances of his case
9 RRN,J
WP No.32841 of 2017
as certain individuals have been promoted despite they being only
SSC/intermediate and filed documents to that effect.
6. Learned counsel for the petitioner also submitted that the
petitioner retired from service on 30.09.2017 and prays this Hon'ble
Court to direct the respondents to grant notional promotion to the
petitioner as prayed for with monetary and seniority benefits to get
further service benefits.
7. Heard Sri K. Rama Mohan, learned Counsel appearing for the
petitioner and Sri P.V. Ravindra Kumar, learned Standing Counsel
appearing for respondent No.2. Perused the record.
8. This Court has considered the rival submissions made by the
parties and is of the view that the following facts and material are
required to be dealt with which are relied upon by the petitioner in
support of his contentions:
The relevant portion of the copy of the minutes of the meeting of
the respondent Corporation dated 03.07.2012 is necessary to be
extracted which is as hereunder:
238(4): The Board of Directors at their meeting held on
13.4.2012 adopted the G.Os relating to RoR from the date of
their issue. Though, the G.O relating to RoR was issued in
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WP No.32841 of 2017
2004, there were no promotions in the Corporation and the
promotions were taken up only in 2007. Sri M. nursing Rao
was promoted as Sr. Assistant on 1.3.1999 and he has fulfilled
the service criteria for promotion to the post of AM by 1.3.2004
but he does not possess the required qualification and hence he
was not promoted as AM.
238(5): The Corporation has considered his request and
promoted him as AM w.e.f 8.5.2012.
238(7): Further it is submitted that he is requesting promotion
to the post of DM w.e.f 1.3.2009. However the Corporation has
not conducted any DPC for promotion of AM to DMs in the year
2009 and the Corporation is taking up the promotions to the
post of DMs now only.
241: In view of the above, the file is circulated for orders of the
VC & MD (FAC) on the following.
a) whether to consider his promotion as Assistant
Manger w.e.f 1.3.2004 instead of 8.5.2012 and also
as AM to DM w.e.f 1.3.2009 with payment of arrears
and interest as requested by him.
or
b) whether to consider his promotion as AM w.e.f
1.3.2004 instead of 8.5.2012 with arrears and interest
and to call him to appear before the DPC for interactive
session for promotion to the post of DM along with the
other employees by relaxing qualification.
11 RRN,J
WP No.32841 of 2017
9. A perusal of the letter dated 03.08.2015 addressed by the Secretary
to the Government and CIP, Industries and Commerce Department,
Hyderabad to the 2nd respondent wherein, it was requested by the
Secretary to consider the petitioner's case for promotion as Deputy
Manager from the date of his acquired qualification and take necessary
action as per rules in force keeping in view the Rule of Reservation as
approved by the 2nd respondent in their note dated 03.07.2012 in terms
of G.O.Ms.No.2 dated 09.01.2004 of Social Welfare(RoR.1) Department
and also since the AP Industrial Corporation Board is competent to relax
rules of AP Industrial Development Corporation B & C Employees
promotion policy 1991, the Secretary requested the 2nd respondent to
intimate the action taken to the Government as the AP Industrial
Development Corporation has already taken a decision to promote the
individual as Deputy Manager by relaxing qualification by placing his
name before the DPC, as per their note dated 03.07.2012.
10. It is necessary to look into the G.O. which is the basis for the writ
petitioner's contentions. The relevant portion from the G.O. Ms No.5
dated 14.02.2003, Social Welfare (SW.ROR.1) Dept. is extracted and
produced hereunder:
4. The Government after careful consideration, have decided to
implement rule of reservation in promotion to ensure adequate
12 RRN,J
WP No.32841 of 2017
representation of the Scheduled Caste and Scheduled Tribe
employees, ie. 15% and 6% respectively in all categories of posts
in all departments. The government therefore direct that;
a) Reservation shall be implemented in favour of Scheduled
Castes and Scheduled Tribes in promotion in all categories of
posts in all State Government departments with immediate effect.
b) Reservation in promotion in favour of Scheduled Castes and
Scheduled Tribes is applicable to all categories or cadres whose
cadre strength is more than five.
c) The existing 100 point roster already prescribed in Rule 22 of
the Andhra Pradesh State and Subordinate Service Rules by the
State Government shall be followed in cases of promotion in all
the categories where reservation in promotion in favour of
Scheduled Castes and Scheduled Tribes is followed.
d) Reservation in promotion in favour of Scheduled Castes and
Scheduled Tribes shall be prospective and shall be made
applicable to the posts to be filled up. As on the date of issue of
these orders, the Panel year for 2002-2003 has already
commenced from 1st September, 2002 and therefore the panels
already prepared and given effect shall not be disturbed. The
Panels which are not yet prepared shall now be prepared based
on rule of reservation in promotion and Panels prepared and not
given effect to, shall be reviewed on the principle of reservation in
promotion in favour of Scheduled Castes and Scheduled Tribes .
e) Reservation in promotion in favour of Scheduled Castes and
Scheduled Tribes shall be applicable to those candidates who are
13 RRN,J
WP No.32841 of 2017
fully qualified and eligible to hold the post as per existing Rules
and guidelines.
11. A perusal of G.O.Ms No.2 dated 09.01.2004, Social Welfare
(SW.ROR1) Department reveals at para no.12 as hereunder:
"12. Conversion of rosterpoint of Women: In case there are no
qualified women candidates available, the following procedure shall
be followed. (a) If no eligible women candidate is available to fill up
the roster point earmarked for Schedule Caste (Woman), the vacancy
shall be filled up with male candidate. However while filling the said
vacancy, the roster point shall be filled up with the same group of
Scheduled Caste male candidate as that of Scheduled Caste
(Woman), to which it was originally earmarked. If no male candidate
is available then the same shall be filled up with other Scheduled
Castes candidates following in the same order. Note: In the case of
roster points fixed for Scheduled Caste (woman), if Scheduled Caste-
A (Woman) is not available, the vacancy may be filled up by a
Scheduled Caste-B(woman) and so on. If Scheduled Caste (A,B,C,D)
woman candidate is not available, the vacancy may be filled up by
Scheduled Caste (A,B,C,D) Male candidate in that order. If the roster
point is earmarked for Scheduled Caste-B woman candidate and no
Scheduled Caste woman candidate is available, the roster point
shall be filled up with male candidate belonging to Scheduled Caste-
B category. If no Scheduled Caste-B male candidate is available, the
roster point shall be filled up with Scheduled Caste-C male
candidate and so on and so forth. (b) In respect of Schedule Tribes, if
Scheduled Tribe (Woman) candidate is not available, for promotion to
fill in the roster point earmarked for Scheduled Tribe (Woman), the
vacancy shall be filled up by a Scheduled Tribe Male candidate."
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12. A perusal of the list of promotional candidates appended to the list
of final seniority of Assistant Managers dated 29.12.2011 goes to show
that one D. Shashikala was promoted as Deputy Manager in the year
2007 even though her qualification was SSC which would mean that the
eligibility criteria was relaxed in her case. An analogy can be drawn in
favour of the petitioner that he was denied promotion in terms of G.O
Ms. No.5 (supra) as the 2nd respondent did not relax the eligibility criteria
of the petitioner any sooner than the year 2012, whereas, in the matter
of D. Shashikala, her eligibility criteria was relaxed in the year 2007 itself
by promoting her to the post of Deputy Manager, which would, in turn
mean that she was promoted to the post of Assistant Manager way prior
in time by relaxing her eligibility criteria on an earlier occasion as well.
The above event clearly shows that the petitioner was discriminated
against despite various efforts and requests and the same is not
acceptable. The petitioner on the above grounds and inter-alia has
satisfied this Court to lean towards him in granting favourable relief.
However, upon careful examination, it is noticed that the petitioner had
shown his gratitude to the 2nd respondent upon his qualification criteria
being relaxed and had accepted the promotion in the year 2012 without
protest, but has resorted to demanding retrospective promotion
immediately after one month of his promotion to the post of Assistant
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Manager but has filed the present writ petition only after a lapse of (5)
years that too at the fag end of his service. Also, the burden which would
be put on the state exchequer if the petitioner's relief as sought is
granted would be very high and unwarranted. In these circumstances, it
would be justified if the petitioner is notionally promoted as Assistant
Manager w.e.f 01.03.2004 without any consequential benefits and as
Deputy Manager w.e.f 01.03.2009 instead of 20.10.2016 with
consequential benefits.
13. Accordingly, this writ petition is partly allowed. The respondents
are directed to notionally promote the petitioner as Assistant Manager
w.e.f 01.03.2004 without any consequential benefits, and as Deputy
Manager w.e.f. 01.03.2009 with consequential benefits and revise the
retirement benefits and pay all benefits in accordance with the law. It is
made clear that the petitioner shall not be entitled to claim any difference
amount and consequential benefits for the period pertaining to the years
2004 to 2009. No order as to costs.
As a sequel, miscellaneous petitions, if any, pending in this Writ
Petition shall stand closed.
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WP No.32841 of 2017
____________________________________
NAMAVARAPU RAJESHWAR RAO, J
6th day of January, 2023
BDR
