Waseem Kauser vs The State Of Telangana
2023 Latest Caselaw 2887 Tel

       HON'BLE SRI JUSTICE J. SREENIVAS RAO

          WRIT PETITION(TR) No.5211 of 2017

ORDER:

Petitioner filed O.A.No.6603 of 2015 before Andhra

Pradesh Administrative Tribunal('APAT' for brevity)

questioning the impugned proceedings

No.A1/5992/JD/PPO/2010-15, Dt.30.10.2015 issued by

3rd respondent in discharging the petitioner from service

for not fulfilling the requisite qualification on which she

was given conditional appointment as illegal, arbitrary,

discriminatory against the principles of Natural Justice

and the law laid down by this Court and in violation of

Article 14, 16 and 21 of the Constitution of India. It

appears from the records that while admitting the O.A.,

APAT granted interim order on 07.12.2015 suspending the

impugned proceedings vide RC.No.A1/5992/JD/PPO

/2010-15. By virtue of abolition of APAT, the case was

transferred to this Court and renumbered as

W.P.(TR).No.5211 of 2017.

2. Heard Sri Pasula Laxma Reddy, learned counsel for

the petitioner and learned Assistant Government Pleader

for Services-I.

3. Learned counsel for the petitioner submits that

petitioner was appointed as Junior Accountant under

compassionate appointment scheme on 12.03.2010 on the

ground that the petitioner's husband retired on Medical

invalidation on 28.03.2009. As per the appointment

order, the petitioner has to produce intermediate

qualification certificate within a period of three years from

the date of said appointment, as on date, the petitioner is

having only X class qualification. At the request of

petitioner, respondent No.3 issued proceedings on

13.06.2013 granting one year extension from 15.03.2013

and further extended another one year through

proceedings dated 30.06.2014, on 07.03.2015 he had

issued notice to the petitioner along with others informing

them to acquire the requisite qualifications within the

stipulated time. Thereafter, respondent No.3 issued

Memo vide No.A1/1234/JD/PPO/2015 dated 16.03.2015

stating that the petitioner has not acquired requisite

qualification as per the appointment order within a

stipulated period as per G.O.Ms.No.969 dated 27.10.1995

and directed the petitioner to submit her willingness to

take the lower post i.e., Attendar. Petitioner submitted

representation on 27.03.2015, stating that she could not

secure the requisite qualification due to the health

condition of her husband and also stated that she

procured B.A. Degree from Dr. B.R. Ambedkar University

except one paper and requested the respondents to drop

the proceedings and further requested for extension of one

year. Respondent No.3 forwarded the said representation

to respondent No.2 to take further action.

3.1. He further submits that petitioner filed O.A.No.1660

of 2015 questioning the notice dated 16.03.2015 issued

by respondent No.3 directing the petitioner to give her

willingness to take the lower post i.e., Attendar. On

24.03.2015, APAT passed the following order in

O.A.No.1660 of 2015:

The applicant's counsel attempted to put forward certain reasons like husband's illness for eight years resulting in his death and the applicant having two children. By the impugned notice, the applicant is not being sent out of service; and she was offered lower post to which she was eligible, as she is not eligible to hold the post of Junior Accountant, with her present qualifications.

The citations relied on by the applciant's counsel viz., H.C. Puttaswamy vs. Hon'ble Chief Justice of Karnataka High Court' and M.Bucha Reddy vs. V. Bhagyamma of our high court are not applicable herein.

In the result, the original application is dismissed."

3.2. In the meanwhile, the petitioner acquired academic

qualification i.e., B.A Degree in April 2015 i.e., after expiry

of 1 ½ months time as granted by the respondents as on

14.03.2015 and also she acquired Computer Course

Certificate in September 2015 and produced all the

certificates to the respondents. Respondent No.3, without

taking into consideration, the above said aspect issued the

impugned proceedings dated 30.10.2015, discharging the

petitioner from service for not fulfilling the requisite

qualification while accepting the conditional appointment.

3.3. Learned counsel vehemently contended that as per

G.O.Ms.No.201, dated 08.03.1963 and also T.S State

Subordinate Service Rules, 1966('Rules' for brevity)

intermediate qualification is not required for the post of

Junior Accountant and X class qualification is sufficient

and imposing condition of acquiring intermediate

qualification within stipulated time to the said post is

contrary to the Rules. He further contended that the

respondents issued appointment order imposing

conditions basing on the executive orders issued by

Government vide G.O.Ms.No.268 dated 27.10.2017 which

is contrary to law. In support of his contention he relied

upon the judgments of Hon'ble Apex Court in Employees'

State Insurance Corporation Vs. Union of India and

others 1 and Sarva Uttar Pradesh Gramin Bank and

others Vs. Manoj Kumar Chak 2.

4. Per contra, learned Assistant Government Pleader

submits that the petitioner was appointed as Junior

Accountant in Pension Payment Unit under Dependant

Employment Scheme subject to condition that the

petitioner should acquire intermediate qualification within

a period of three years from the date of joining and the

petitioner failed to acquire the requisite qualification

within time and basing upon her request the respondents

have extended time on 13.06.2013 and 30.06.2014

respectively for period of two years in spite of the same,

she could not secure qualification. Respondent No.3

issued notice on 07.03.2015, informing the petitioner that

time of fulfilling the conditions is nearing and she shall

pass the prescribed test within stipulated time failing

which she has to face either termination or reversion to

the lower post. Thereafter, issued another notice on

16.03.2015 directing the petitioner to give her willingness

for appointment to the lower post as per the appointment

2022 11 SCC 392

2013 6 SCC 287

order dated 27.10.1995. The petitioner submitted

representations on 16.03.2015 and 30.03.2015 requesting

the respondent to grant further extension and the said

application was forwarded to the Government.

4.1 Thereafter, petitioner made a representation stating

that she acquired B.A. Degree from Dr.B.R.Ambedkar

University in April 2015 and requested them to consider

the said qualification by enclosing a copy of the

Certificate. The respondents after considering the said

representation condoned the delay of two months beyond

the prescribed period in acquiring the requisite

qualifications including technical qualification of Office

Automation and regularized her services in the category of

Junior Accountant from the date of acquisition of

qualifications i.e., 11.12.2015 and the grievance of the

petitioner is resolved and no further adjudication is

required in this case.

5. Learned counsel for the petitioner by way of reply

submits that the petitioner is entitled for regularization of

her services from date of her initial appointment i.e.,

12.03.2010 as Junior Accountant and not extending the

said benefit is contrary to law.

6. Having considered the rival submissions made by

respective parties and upon perusal of the material

available on record, it clearly reveals that the petitioner

was appointed as a Junior Accountant on 12.03.2010

subject to the following conditions:

1. She shall acquire Intermediate qualification within a period of 3 years from the date of joining as Junior Accountant,

2. She should pass any one of the following certificate courses examination conducted by the Board of Technical Education and Training, AP, Hyderabad:

a) Office Automation

d) PC Maintenance and Trouble Shooting

e) Web designing

(or)

Must hold a degree in Bachelor of Computer Application (BCA) or BSc (Comp) or B.Com (Comp) or B.A. (Comp) or equivalent examination or above, recognized by any University in India established or incorporated by or under Central Act, Provincial Act or a State Act or an Institution recognized by the UGC within a period of (18) months from the date of her joining failing which she shall be discharged from service.

7. The petitioner had accepted the terms and

conditions of the above said appointment order and joined

in the services and she could not secure the qualification

within a stipulated period of three years and basing on her

request, respondent No.3 granted one year extension from

15.03.2013 and also granted extension of another year,

through proceedings dated 30.06.2014. Even after expiry

of five years the petitioner has not acquired the requisite

qualification. Pursuant to the conditional appointment

order dated 12.03.2010, respondent No.3 issued notice on

07.03.2015 vide Memo No.A1/1234/JD/PPO/2015

informing the petitioner that she has not fulfilled the

condition and the time granted by the respondent is going

to be expired and further informed that before expiry of

the said period she has to secure requisite qualification

otherwise she has to face either termination or reversion

to the lower post after expiry of time limit i.e., on

14.03.2015. Respondent No.3 had issued memo on

16.03.2015 directing the petitioner to give her willingness

for appointing her to the lower post. Respondent No.3

issued the impugned proceedings dated 30.10.2015,

discharging her from services as Junior Accountant for

not acquiring the requisite qualification as per the

conditions made in the appointment order. Questioning

the same, petitioner filed O.A.No.6603 of 2015 before

APAT, wherein APAT granted interim order dated

07.12.2015 suspending the proceedings dated 30.10.2015

and by virtue of the same the petitioner is continuing in

the post of Junior Accountant.

8. During the pendency of this case, the petitioner

acquired the degree qualification from Dr.B.R.Ambedkar

University in April/May 2015 and technical qualification

of Office Automation test with delay of two months.

Basing on the representation made by petitioner, the

Government condoned the delay of two months in

acquiring technical qualification and basing on her

educational qualification, her services were regularized

from the date of acquisition of the certificate

i.e., 11.12.2015 in the post of Junior Accountant, in

pursuance to the orders issued in G.O.Ms.No.151,

G.A.(Ser.C) Dept., dated 22.06.2004. Hence the petitioner

is estopped to contend that intermediate qualification as

well as the technical qualification is not required for the

post of Junior Accountant.

9. It is also relevant to mention here that after

acquiring B.A. Degree in April 2015 from Dr.B.R.

Ambedkar University in Distance mode and technical

qualification of Office Automation in September, 2015, the

petitioner submitted representation to respondent

authorities requesting them to continue her in the same

post as Junior Accountant basing on the qualification

acquired by her. After considering the representation,

respondent No.1 issued G.O.Rt.No.598 (Finance and

Planning)Admn.I Dept dated 17.03.2016, G.O.Rt.No.1083,

(Finance and Planning)Admn.I Dept., dated 24.07.2017

relaxing the Rule 12 R/w Rule 31 of Rules and ordered for

regularization of her service in the category of Junior

Accountant from the date of acquisition of qualification

i.e.,11.12.2015 and also condoned the gap period from the

date of termination to date of reappointment into service

to be treated as leave. During the course of hearing

learned Assistant Government Pleader, basing on

instructions, submitted that the petitioner's services were

regularized in the category of Junior Accountant on

05.04.2016 and she got promotion to the post of Senior

Accountant on 26.09.2019 and her probation was also

declared in the category of Senior Accountant.

10. In Sarva U.P. Gramin Bank v. Manoj Kumar Chak

(supra) the Hon'ble Apex Court held that statutory rules

governing promotions cannot be substituted by circulars

or supplementary guidelines; they can only be

supplemented but not replaced. It emphasizes the

distinction between eligibility and minimum merit for

promotions, with the Departmental Promotion Committee

(DPC) responsible for assessing minimum merit, not the

management. While misconduct or disciplinary actions

can affect eligibility, there must be a clear provision in

statutory rules to enforce such exclusions. Circulars or

guidelines that conflict with statutory rules are considered

invalid. Furthermore, the judgment underscores the

principle of seniority in promotions, regardless of the

superior performance of junior candidates in written tests,

interviews, or performance evaluations. The court rejected

appeals against the High Court's decision, affirming these

principles.

11. In ESI Corpn. v. Union of India(supra) the Hon'ble

Apex Court held that statutory regulations, such as the

ESIC Recruitment Regulations of 2015, hold greater legal

weight than administrative schemes like DACP when it

comes to matters of promotion. The Court emphasized

that concessions made by legal counsel do not bind a

party in matters of law. Therefore, the DACP scheme

cannot be applied if it contradicts statutory law, as

established by the ESIC Recruitment Regulations.

Furthermore, with regard to the principle of estoppel, the

judgment clarified that estoppel does not apply when it

conflicts with statutory regulations or law. In other words,

even if certain representations or statements were made in

the past, if they are in conflict with statutory regulations,

they cannot be enforced. The Court upheld the ESIC

Recruitment Regulations of 2015 as the prevailing

standard for promotions and rejected the application of

the DACP scheme, providing clear legal guidance on the

matter.

12. In case on hand, the petitioner accepted the

conditions mentioned in appointment order, thereafter at

the request of the petitioner the respondents have

extended the time period for acquiring the required

qualifications as mentioned in the appointment order.

When the petitioner failed to obtain the requisite

qualification, respondent No.3 issued the impugned

proceedings dated 30.10.2015, discharging her from services.

During the pendency of this case, petitioner acquired

degree from Dr. B.R. Ambekar Open university and basing

the same, respondents regularized the services of the

petitioner. In view of the same, the petitioner is not

entitled to seek relief to consider her services for

regularization from the date of initial appointment as

petitioner was not qualified at that time of appointment.

and is not entitled to contend that the qualification

mentioned in the appointment order dated 12.03.2010 are

not required for the post of Junior Assistant having been

accepted the terms and conditions made therein and after

serving at length in the said post. Hence, the judgments,

relied by the learned counsel for the petitioner as

mentioned above, are not applicable to the facts and

circumstances of the case.

13. For the foregoing reasons, this Court does not find

any merit in the writ petition to invoke the jurisdiction

under Article 226 of Constitution of India and the

petitioner is not entitled for regularization of her services

in the post of Junior Accountant from the date of initial

appointment.

14. Accordingly, the writ petition is dismissed. No costs.

As a sequel, miscellaneous petitions, pending if any,

shall stand closed.

_____________________________ JUSTICE J. SREENIVAS RAO 05th October, 2023 PSW