N.Siva Kumar, vs The State Of Telangana Rep. By Its ...
2023 Latest Caselaw 2943 Tel

        HON'BLE SRI JUSTICE J. SREENIVAS RAO

             WRIT PETITION No.5962 of 2017

ORDER:

This writ petition is filed seeking writ of Mandamus

or any other appropriate writ, order or direction by

directing the respondents to consider the case of the

petitioner for promotion/appointment by transfer to the

post of Deputy Executive Engineer taking into account the

seniority of the petitioner in the cadre of Assistant

Engineer w.e.f. 25.11.2003 in the quota meant for

Assistant Engineers and promote him as such with all

consequential benefits by declaring the proceedings of the

2nd respondent bearing Lr.No.RC/ENC/A2/16051793/16,

dated 28.06.2016, communicated by the 3rd respondent

vide Memo No.CE/GLIs/Wg1/S1/A1/SRSP-II/PRMNS/

1658/2016-02/1762, dt.22.07.2016 as illegal, arbitrary

and unconstitutional being violative of Articles 14 and 16

of Constitution of India and set aside the same.

2. Heard Sri S. Gopal Rao, learned counsel for the

petitioner and learned Assistant Government Pleader for

Services - II appearing for respondents.

3. Learned counsel for the petitioner submits that the

petitioner was appointed as tracer in July, 1996 and he

was promoted as Draftsman Grade - III on 19.08.1998

and subsequently he was appointed to the post of

Assistant Engineer by transfer vide Proceedings

No.RC/ENC/D4/27501/2003-95, dated 05.11.2003,

issued by respondent No.2 and his services were

regularized in the said category w.e.f. 24.11.2004.

Petitioner acquired B.E. (Mechanical) Engineering Degree

qualification while working in the Department through

distance mode. Subsequently, he was appointed as

Assistant Executive Engineer by transfer vide office

Proceedings No.Rc/ENC/D2/1133/2012, dated

13.07.2012 and he joined duty as A.E.E on 04.08.2012.

3.1 Learned counsel further submits that the

appointment by transfer as A.E.E. is purely temporary

basis and there is no change in duties and responsibilities

of Assistant Engineer and Assistant Executive Engineer,

only change in designation and there is no monetary

benefit like pay fixation, notional increments, etc., and the

petitioner was given Special Grade Post Scale under

Automatic Advancement Scheme, on completion of six

years service in the cadre of Assistant Executive Engineer.

He also submits that respondent No.2 issued final

seniority list of Assistant Engineers wherein the name of

the petitioner has been shown at Serial No.175 and the

petitioner submitted representation to the respondent

No.2 requesting them to rectify and consider his claim for

the post of Deputy Executive Engineer, taking into

consideration his seniority in the category of Assistant

Engineer by duly taking into consideration the similarly

situated employee namely Sri K. Eshwar Raju, Assistant

Engineer who was appointed by transfer as Assistant

Executive Engineer has been promoted as Deputy

Executive Engineer, taking into account his seniority in

the cadre of Assistant Engineer within their quota.

Respondent No.2 without properly considering the

representation of the petitioner, passed impugned order

dated 28.06.2016 rejecting the claim of the petitioner and

the same is clear discrimination and violation of Article 14

of Constitution of India. In support his contentions he

relied upon following Judgments:

1.State of W.B. v. Gitashree Dutta (Dey) 1

2. Rambhotla Ramanna v. Government of Andhra Pradesh 2

4. Per contra, learned Assistant Government Pleader

submits that the petitioner was appointed by transfer as

Assistant Executive Engineer vide proceedings dated

13.07.2012. In the said order, it is clearly mentioned that

the petitioner is not entitled to opt for reversion to the

category from which he was appointed as Executive

Engineer for claiming benefits of promotion in the lower

category. Once the petitioner accepted the terms and

conditions enumerated in the said order, the petitioner is

not entitled to claim the relief sought in the writ petition.

He further submits that as per the executive instructions

under FR 14 (a), where person in a lien against the post is

appointed substantially to another post, he acquires a lien

against the later and his lien against the former post

automatically comes to an end. Hence, the petitioner

cannot claim the seniority in the lower cadre at present.

5. He also contended that the seniority of Assistant

Engineer was finalized vide Circular Memo

2022 SCC OnLine SC 691

1970 SCC OnLine AP 205

No.RC/ENC/A1/37119/2015 dated 16.01.2016, the

petitioner submitted a representation on 27.04.2016

requesting for reversion to the post of Assistant Engineer,

respondents after considering the same issued impunged

proceeding dated 28.06.2016 rejecting the request of the

petitioner by giving cogent reasons and the same is in

accordance with law.

6. Having considered the rival submissions made by

respective parties and upon perusal of the material

available on record, it reveals that the petitioner was

initially appointed as tracer in July 1996 and he was

promoted to the post of Draftsman Grade II on

19.08.1998. Thereafter, he was appointed to the post of

Assistant Engineer by transfer through proceedings issued

by respondent No.2 dated 05.11.2003 and his services

were regularized in the said category w.e.f 24.11.2004,

and he acquired BE(Mechanical) Engineering Degree

qualification while working in the department through

distance mode. On 13.07.2012, he was appointed as

Assistant Executive Engineer by transfer subject to

conditions which are as follows:

i) His appointment by transfer as Assistant Executive Engineer is against the existing vacancy available purely on temporary basis

ii) He is liable to be reverted to the lower post of Assistant Engineer without assigning any reason and without any notice thereon.

iii) He should give an undertaking stating that he will not claim the benefits of the lower post, consequent on his appointment by transfer as AEE and he will not opt for reversion to the lower post from which he was appointed to claiming the benefits of such lower post

iv) He should join duty within 15 days from the date of receipt of reposting orders from the Unit/Circle offices to which he was posted, failing which or evades to join duty by proceeding on leave, shall lose his promotion offer for the current panel year and the name of the candidate shall be placed before the next Departmental Promotion Committee, subject to availability of vacancy. His appointment by transfer as Assistant Executive Engineer is stands cancelled without any further notice thereon as per GOMs No. 145, GA (Ser D) Department, dated 15-6-2004.

v) He is also informed that on appointment by transfer from the category of Assistant Engineer to Assistant Executive Engineer, there is no change in duties and responsibilities of A.Es./A.E.Es., and therefore he is eligible to get his pay fixed as per F.R. 22 (a) (ii) only. As per F.R.22(a)(i) a Government Servant holding a substantive post is appointed to a new post which does not involve assumption of duties and responsibilities of greater importance than those attached to the old post, his pay in the new post will be fixed at the stage of time-scale which is equal to his substantive pay in the old post. The date of next increment shall be the one on which he would have got an increment had he continued in the old post.

7. The petitioner had accepted the above said terms

and conditions of the order and he joined duty on

04.08.2012 without any protest. After rendering more

than five years of service he made a representation to

respondents requesting them to revert him to the post of

Assistant Engineer for the purpose of promotion and also

consider for promotion to the post of Deputy Executive

Engineer by duly taking into account his seniority in the

cadre of Assistant Engineer w.e.f 25.11.2003, in the quota

meant for Assistant Engineers with all consequential

benefits. Respondent no.3 rightly passed the impugned

impugned order dated 28.06.2016, rejecting the claim of

the petitioner, stating that the petitioner accepted the

conditions mentioned in the order dated 13-07-2012 and

he is not entitled to claim reversion to post of Assistant

Engineer for the promotion.

8. In State of W.B (1 supra) the Hon'ble Apex Court

held that the government's duty to act fairly and in the

public interest, and it reaffirmed that estoppel cannot be

invoked against statutory provisions.

9. In Rambhotla Ramanna (2 supra) the Honb'le

Court held that estoppel cannot be applied against the

law. In other words, if a government or any party acts

beyond its legal authority, it cannot use estoppel to

prevent the correction of that unlawful action. In this

specific case, the Minister for Forests acted improperly by

issuing an order that was beyond his jurisdiction, and the

government had the right to rectify this mistake, despite

any prior inconsistent positions it had taken.

Hence, the principle laid down in the judgments

relied upon by the petitioner is not applicable to the

present facts and circumstances of the case.

10. In case on hand, the petitioner accepted the terms

and conditions mentioned in the order dated 13-07-2012

by continuing in the post of Assistant Executive Engineer

from 04.08.2012 and availed the benefits and after

rendering more than five years of service in the cadre of

Assistant Executive Engineer, petitioner does not have any

lien in the category of Assistant Engineer as per FR 14(a)

and he acquired lien in the category of Assistant Executive

Engineer. It is already stated 'supra' that the petitioner

accepted all the conditions stipulated in the appointment

order dated 13.07.2012. As per the terms and conditions

mentioned in the said order the petitioner is not entitled to

claim reversion to the lower post of Assistant Engineer

and the respondent No.3 has rightly passed the impugned

order dated 28.06.2016.

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

any illegality or irregularity in the said order to invoke the

jurisdiction of this Court under Article 226 of Constitution

of India and there is no merit in the writ petition and

same is liable to be dismissed.

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

As a sequel, miscellaneous petitions, pending if any,

shall stand closed.

_____________________________ JUSTICE J. SREENIVAS RAO 06th October, 2023 PSW