India Basavaiah, vs The State Of Telangana,
2023 Latest Caselaw 2610 Tel

 THE HONOURABLE SRI JUSTICE J.SREENIVAS RAO

             WRIT PETITION No.9952 of 2017

O R D E R:

This Writ Petition is filed seeking the following relief:

"......to issue a Writ, or Order more in the nature of Writ of Mandamus (a) by declaring the entire action of the respondents, particularly the entire action of the 2nd respondent in rejecting the genuine claim of the petitioner for promotion to the post of the Senior Assistant notionally on par with his juniors vide Impugned Memo Rc.No.A2 11663/2017 dated 28.11.2022 by mentioning certain untenable reasons is as highly illegal, arbitrary, unjust, contrary to Division Bench Judgment in W.P.No.35890 of 2013 dated 11.03.2014 r/w Orders issued in G.O.Ms.No.225 dated: 18.05.1999 and set aside or quash the same

b) and consequently to direct the respondents to forthwith consider the case of the petitioner for promotion to the post of Senior Assistant notionally on par with his juniors by treating that the petitioner is entitled for such promotion with all consequential benefits such as seniority, pay fixation and other allied benefits without reference to the present impugned Memo Rc.No.A2.11663/2017 dated: 28.11.2022 of the 2nd respondent without insisting for passing of Departmental tests in view of Orders issued by Division Bench Judgment in W.P.No.35890 of 2013 dated: 11.03.2014 r/w orders issued in G.O.Ms.No.225 dated: 18.05.1999 and also entitled for relaxation from successful completion of Revenue Survey Training for Six Weeks in view of not deputing the petitioner for such training by the authorities on their own and to pass such other order...."

02. Heard Sri Arvind Kumar Katta, learned counsel

for the petitioner and learned Assistant Government

Pleader for Services-II and perused the record.

03. Learned counsel for the petitioner submitted

that the petitioner while working as Junior Assistant in the

3rd respondent office, he was placed under suspension vide

proceedings No.A2/3902/01 dated 15.01.2002 issued by

respondent No.2 due to involvement in two criminal cases

vide Crime No.79 of 2001 and Crime No.89 of 2001

registered for the offences under Sections 147, 448, 324

and 326 read with Section 149 of Indian Penal Code on the

file of Station House Officer, Wyra Police Station.

Subsequently, the petitioner was reinstated into service on

24.08.2002, he retired from services on attaining the age of

superannuation on 31.08.2005.

3.1. He further submitted that the criminal case

filed against the petitioner was ended into acquittal and

learned Judicial Magistrate of First Class, Madhira passed

Judgment in C.C.No.205 of 2003 dated 23.08.2007. Later,

the petitioner made a representation to the respondents

requesting them to regularize his suspension period i.e.,

from 18.01.2002 to 26.08.2002 (221 days) in view of

acquittal in the criminal case. Respondent No.2 without

properly considering the representation issued proceedings

No.A2/3902/2001 dated 19.03.2008 regularizing the

suspension period by sanctioning eligible leave.

3.2. Questioning the above said Order, petitioner

filed O.A.No.10323 of 2008 before Andhra Pradesh

Administrative Tribunal at Hyderabad, (for short 'APAT') to

treat the suspension period as on-duty and grant all

consequential benefits including monetary relief and

promotion. The said OA was disposed of on 29.01.2011

directing the respondents to treat the suspension period as

on-duty and granting full pay and allowances along with

benefits like increments, pay revision etc., for the

suspension period. Pursuant to the Orders of the APAT,

respondent No.2 issued proceedings Dis.No.A2/3902/2001

dated 06.05.2011 regularizing the suspension period of the

petitioner as on duty.

3.3. Learned counsel for the petitioner contended

that during his service, the petitioner was not given

promotion to the post of Senior Assistant, though he is

entitled for notional promotion on par with his juniors, and

that the respondents have not granted promotion on the

alleged ground of pendency of criminal cases, though the

pendency of criminal case is not a bar for promotion as per

the Rule 5 of the Telangana State and Subordinate Service

Rules, 1996 (for short 'the Rules, 1996').

3.4. As seen from the record, this Court on

12.10.2022 passed an interim direction directing the

respondents to consider the representation dated

17.04.2012 submitted by the petitioner duly taking into

consideration of proceedings in Rc.No.C/2118/2012 dated

19.07.2012 addressed by Tahsildar to the District

Collector, Khammam District and to pass appropriate

orders in accordance with law within four weeks.

3.5. Learned counsel for the petitioner contended

that respondent No.2 without properly considering the

representation, rejected the claim of the petitioner for

promotion to the post of Senior Assistant notionally vide

Memo in Rc.No.A2/1663/2017 dated 28.11.2022 on the

ground that the petitioner had not undergone Survey

training which is mandatory for promoting employee to the

category of Senior Assistant.

3.6. He vehemently contended that the respondents

have not sent the petitioner for Survey training, basing on

their mistake the respondents are not entitled to deny the

legitimate right of the petitioner for promotion to the post

of Senior Assistant notionally and impugned Memo in

Rc.No.A2/1663/2017 dated 28.11.2022 passed by

respondent No.2 is contrary to law. In support of his

contentions, he relied upon the Judgments:

Shailesh Kumar and others v. The State of Bihar and

others 1 and N.Vadivel and others v. Principal

Secretary/Commissioner of Revenue Administration

and others 2 contending that not sending the employee for

training which is the mistake on the part of the employer,

basing on the mistake of employer, the employer is not

Letters Patent Appeal No.1638 of 2015 in Civil Writ Jurisdiction Case No.5455 of 2015

2019 SCC OnLine Mad 10208

entitled to deny the service benefits in favour of the

employee.

04. Per contra, the learned Assistant Government

Pleader contended that pursuant to the Orders dated

29.01.2011 passed by APAT in O.A.No.10323 of 2008, the

respondents treated suspension period of the petitioner as

on-duty and extended all the benefits as per his

entitlement vide proceedings Dis.No.A2/3902/2001 dated

06.05.2011. He further submitted that petitioner while

discharging his duties as Junior Assistant, retired from the

service on attaining age of superannuation on 31.08.2005

and respondents have paid all the terminal benefits as per

his entitlement.

4.1. He further contended that petitioner filed the

present Writ Petition after his retirement by receiving all

the benefits. It is further submitted that pursuant to the

interim order of this Court dated 12.10.2022, the

respondent No.2 considered the representation of the

petitioner dated 17.04.2012 and passed impugned

proceedings dated 28.11.2022 by giving cogent reasons

holding that the petitioner is not entitled for promotion to

the post of Senior Assistant notionally and he is not eligible

for the same and Survey training is mandatory for

promotion to the post of Senior Assistant as per the

Telangana State Ministerial Service Rules, 1998 (for brevity

'the Rules, 1998') and there is no illegality or irregularity in

the impugned order passed by the respondent No.1.

05. Having considered the rival submissions made

by respective parties and after perusal of material available

on record, it reveals that the petitioner while discharging

his service as Junior Assistant in respondent No.2 office,

was placed under suspension on 18.01.2002 due to

involvement in two criminal cases vide Crime No.79 of

2001 and Crime No.89 of 2001, on the file of Wyra, Police

Station. Subsequently, petitioner was reinstated into

service on 24.08.2002 and retired from service on attaining

age of superannuation on 31.08.2005. It further reveals

that the learned Judicial Magistrate of First Class, Madhira

passed Judgment in C.C.No.205 of 2003 dated 23.08.2007,

wherein the petitioner was acquitted. Thereafter, petitioner

submitted a representation to the respondents seeking

regularization of suspension period in view of acquittal in

the criminal case. Pursuant to the same, respondent No.2

issued proceedings No.A2/3902/2001 dated 19.03.2008

regularizing the suspension period by sanctioning eligible

leave. Aggrieved by the same, the petitioner filed

O.A.No.10323 of 2008 before the APAT and the same was

disposed on 29.01.2011 directing the respondents to treat

the suspension period as 'on-duty' and to pay full pay and

allowances and he is entitled to all benefits like

increments, pay revision etc., for the period of suspension.

Pursuant to the above said Order, respondents extended all

the benefits to the petitioner as per his entitlement and

issued proceedings dated 06.05.2011.

06. Thereafter, the petitioner filed the present Writ

Petition and this Court granted interim direction on

12.10.2022 directing the respondents to consider the

representation dated 17.04.2012 submitted by the

petitioner duly taking into consideration of proceedings in

Rc.No.C/2118/2012 dated 19.07.2012 addressed by

respondent No.3 to respondent No.2 and to pass

appropriate orders in accordance with law within four

weeks. Respondent No.2 passed impugned order, rejecting

the claim of the petitioner for promotion to the post of

Senior Assistant notionally vide Memo in

Rc.No.A2/1663/2017 dated 28.11.2022, wherein he stated

that petitioner had not undergone Survey training which is

mandatory for promoting employee to the category of

Senior Assistant.

07. The specific contention of the learned counsel

for the petitioner is that the petitioner was not sent to the

training, due to pendency of criminal case and that it is not

the mistake on the part of the petitioner and basing on the

said mistake committed by the respondents, the petitioner

cannot be denied of his promotion to the post of Senior

Assistant.

08. It is very much relevant to mention here that

the petitioner has not raised any dispute, during his

service, when the respondents sent his juniors for survey

training and issued promotion orders to them promoting to

the post of Senior Assistant. Admittedly, the petitioner

retired from service on 31.08.2005 on attaining the age of

superannuation and he filed the present Writ Petition

raised a dispute claiming promotion to the post of Senior

Assistant notionally, after his retirement, contending that

pendency of criminal case, is not a bar for granting

promotion and the same is not permissible under law and

he is not entitled to raise such a plea, after a lapse of 12

years.

09. The principles laid down in Shailesh Kumar

(supra1) and N.Vadivel's (supra2), cases are not applicable

to the facts and circumstances of this case, on the ground

that the petitioner earlier filed O.A.No.10323 of 2008 before

APAT questioning proceedings No.A2/3902/2001 dated

19.03.2008 issued by the respondent No.2 herein and

sought a direction to the respondents to treat the

suspension period as on-duty and grant all consequential

benefits including monetary relief and promotion. While

disposing of the above said case, APAT issued directions

directing the respondents to treat the suspension period as

"on-duty" and to pay full pay and allowances and the

petitioner is entitled to all benefits like increments, pay

revision etc., for the period of suspension. Pursuant to the

said Orders, the suspension period of the petitioner was

regularized as 'on-duty' and respondents have paid all the

benefits as per his entitlement vide proceedings

Dis.No.A2/3902/2001 dated 06.05.2011 and the above

said Order passed by APAT has become final.

10. It is pertinent to mention here that APAT has

not issued other relief sought for by the petitioner that he

is entitled for promotion to the post of Senior Assistant,

and the said Order has become final, and the petitioner is

not entitled to seek relief for promotion to the post of

Senior Assistant notionally in the present Writ Petition,

especially, he is not having required eligible criteria.

11. Viewed from any angle, there is no illegality,

irregularity or error in the impugned Order passed by the

respondent No.2 dated 28.11.2022, to invoke the

jurisdiction of this Court under Article 226 of the

Constitution of India and there are no merits in the Writ

Petition and the same is liable to be dismissed.

12. Accordingly, the Writ Petition is dismissed.

There shall be no order as to costs.

As a sequel, the miscellaneous petitions pending, if

any, shall stand closed.

______________________ J. SREENIVAS RAO, J Date: 22-SEP-2023 KHRM

THE HONOURABLE SRI JUSTICE J. SREENIVAS RAO

WRIT PETITION No.9952 of 2017 Date: 22-SEP-2023 KHRM