Telangana High Court

S. Venkata Ramana Chary vs Northern Power Distribution Company Of ... on 16 February, 2024

            THE HON'BLE SRI JUSTICE PULLA KARTHIK

                   WRIT PETITION No.25903 of 2021
ORDER:

This Writ Petition is filed seeking the following relief:

"... declaring that the Petitioner is entitled to have his claim considered and be converted as Assistant Engineer by reckoning his date of acquiring of B. Tech qualification in the year 2009 and further be promoted as Assistant Divisional Engineer respectively on par with his juniors with benefits incidental thereto duly setting aside the rejection order issued by the 2nd Respondent vide Memo No.CMD/CGM(HRD)/ GM(S)/AS(Estt.)/PO-A/181-A3/2021 dated 30-06-2021 in so far as reckoning date of issuance of provisional certificate for purpose of conversion to the post of Assistant Engineer and Letter No.1109/HR- A1/2016 dated 16-02-2017 and Memo. No. Jt. Secy./DS (Per.II)/AS (IR&REG)/PO (Reg)/JPO (Reg)/302/15 dated 21-09-2017 issued by 2nd and 5th Respondent, as being arbitrary, illegal, erroneous, irrational, unjust and in violation of Articles 14 and 16 of the Constitution of India and to pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case."

2) The case of the petitioner, in brief, is that he was initially

appointed as Sub-Engineer on 23.12.1999 and thereafter promoted

as Additional Assistant Engineer on 01.09.2009. Further, he has

passed B.Tech (Electrical and Electronics Engineering) in the year

2009 and possess the requisite seniority, experience and

qualification to hold the posts of Assistant Engineer and Assistant

Divisional Engineer. Therefore, he made a representation claiming

conversion and appointment to the post of Assistant Engineer and

also for promotion to the post of Assistant Divisional Engineer, and

the same was rejected vide impugned Memo dated 30.06.2021.

Hence, the present Writ Petition.

3) Heard Sri D. Sudharshan, learned counsel appearing for the

petitioner, Sri Zakir Ali Danish, learned Standing Counsel,

appearing for respondents 1 to 4, and learned Government Pleader

for Services-IV for respondent No.5.

4) It has been contended by the learned counsel for the

petitioner that as per the Regulations notified vide B.P. Ms. No.199,

dated 04.03.1970, more particularly Note (2) thereof, the Additional

Assistant Engineer, who acquire the qualification of B.E./B.Tech./

AMIE (India), while in service, shall be entitled to be reckoned as

Assistant Engineer from the date of acquisition of the requisite

qualification and count 50% of their regular service rendered as

Additional Assistant Engineer prior to the date of conversion as

Assistant Engineer subject to maximum limit of four years, as if

such service has been rendered in the post of Assistant Engineer

for the purpose of fixation of seniority in the cadre of Assistant

Engineers at the appropriate place based on the length of service.

Therefore, the impugned memo dated 30.06.2021 is contrary to

Note (2) of B.P. Ms. No.199, dated 04.03.1970, which speaks of

acquisition of qualification as criteria. It is further contended that

the petitioner has acquired the requisite qualification as

contemplated under the Regulations way back in the year 2009

and any different interpretation as sought to be given by the

respondents would deny and take away the rights of the qualified

employee though he possess the requisite qualification since an

earlier date. Mere factum of issuance of provisional certificate

subsequently would not dis-entitle the employee to claim

consideration from the date of passing of the examination. In view

of the same, the letter dated 16.02.2017 and the Memo dated

21.09.2017 are erroneous and irrational and therefore liable to be

set aside. In support of his submissions, learned counsel has

relied on:

1) Order dated 03.01.2020 passed by the learned Single Judge of this Court in W.P.No.13079 of 2019 as confirmed by the Division Bench in Writ Appeal No.97 of 2020 dated 07.02.2020;

2) Order passed by the Division Bench of Andhra Pradesh High Court in W.P. No.33608 of 2013, dated 12.07.2022.

5) Per contra, the learned Standing Counsel has contended that

though the petitioner has passed the final exams for acquiring

B.Tech qualification during June, 2009, but he failed to obtain the

provisional certificate and submit an application to the respondent-

Company for conversion of services as Assistant Engineer,

immediately. Instead, after more than ten years from the date of

passing of final exams, he obtained provisional certificate from

JNTU, Hyderabad, during December, 2019, and thereafter

submitted the application for conversion of his services as

Assistant Engineer. Therefore, the respondents are not in a

position to consider the case of the petitioner for such conversion

from the year 2009 as large number of Assistant Engineer

vacancies were filled through different modes and large number of

Assistant Engineers were also promoted as Assistant Divisional

Engineers. Therefore, the request of the petitioner for conversion

as Assistant Engineer w.e.f.2009 cannot be considered as it will

lead to reviewing the entire process of appointment of Assistant

Engineers, revision of their seniority, and subsequent promotions

as Assistant Divisional Engineers. It is further contended that as

per the Rules notified in B.P.Ms.No.235, dated 25.11.1997, it is

mandatory to obtain permission from the higher authorities to join

any college, to pursue any course. In the present case, the

petitioner did not sought any such permission to pursue his degree

i.e. B.Tech. Therefore, he was subjected to disciplinary

proceedings and was imposed the punishment of withholding of

one annual grade increment without cumulative effect vide

proceedings in Memo No.CGM(HRD)/GM (DC)/PO-C/F.No.3389-

C1/15-13, dated 17.01.2022. It is further contended that

according to Regulation-6, Note-II, an Additional Assistant

Engineer, who acquire B.Tech./B.E./AIME degree shall be entitled

to reckon as Assistant Engineer provided, he submits an

undertaking to forego his seniority in the cadre of Additional

Assistant Engineer after fixation of his seniority in the category of

Assistant Engineer and if they do not agree for fixation of seniority,

they shall be remained as Additional Assistant Engineer. Further,

in between 2009-2019, number of Additional Assistant Engineers,

who acquired qualification and submitted their acceptance along

with certificate for fixing seniority in terms of Regulation 6, Note

(2), were considered and converted as Assistant Engineers and

were further promoted as Assistant Divisional Engineers and those

persons were not made as party respondents in the present writ

petition, who would be the effected persons. It is further

contended that during the pendency of the writ petition, the

petitioner was also subjected to another disciplinary proceedings

and was imposed the punishment of stoppage of two annual grade

increments with cumulative effect. Hence, the learned Standing

Counsel has vehemently contended that the petitioner is not

entitled for conversion of his services with retrospective effect and

therefore prayed to dismiss the Writ Petition. In support of his

submissions, learned counsel has relied on the following

judgments:

1) B.S. Bajwa v. State of Punjab [Civil Appeal No.7605-

7610 of 1996 dated 11.12.1997];

2) R. Muthukumar v. Chairman and Managing Director TANGEDCO 1; and

3) Common order dated 13.03.2023 passed by the learned Single Judge of this Court in W.P.Nos.32321 of 2011 and 1964 of 2012.

6) This Court has taken note of the submissions made by the

respective parties.

7) A perusal of the record discloses that even though the

petitioner has obtained his B.Tech. Degree in the year 2009 from

JNTU, Hyderabad, admittedly, he has submitted the

representations only on 26.08.2020 and 16.04.2021 for conversion

and appointment to the post of Assistant Engineer w.e.f.2009

onwards, and the same was rejected by the respondents by way of

impugned memo dated 30.06.2021 stating that the case of the

petitioner would be considered for conversion as Assistant

Engineer w.e.f.11.12.2019 i.e. the date of issuance of B.Tech.

Provisional certificate, if he is otherwise eligible and his seniority in

the cadre of Assistant Engineer will be fixed accordingly. It is

further clarified that his seniority in the cadre of Assistant

Engineer will be fixed as per the Rules, his further promotion to

1 2022 SCC OnLine SC 151

the post of Assistant Divisional Engineer will be considered as per

his seniority in the cadre of Assistant Engineer after his conversion

as Assistant Engineer only.

8) For better appreciation of the matter, relevant portion of The

Andhra Pradesh State Electricity Board Regulations framed under

Section 79 (c) of the Indian Electricity (Supply) Act, 1948,

enunciated under B.P.Ms.No.199, dated 04.03.1970, issued by the

Andhra Pradesh State Electricity Board, is extracted hereunder:

Note (2) :- Addl. Asst. Engineers who acquire while in service the qualification of B.E/B.Tech/AMIL (India) shall be entitled to be reckoned as Asst. Engineers from the date of acquisition of the requisite qualification and count 50% of their regular service rendered as Addl.Asst.Engineer prior to the date of conversion as Asst.Engineer subject to a maximum limit of 4 (four) years, as if such service had been rendered in the post of Asst.Engineer for the purpose of fixation of seniority in the cadre of Asst.Engineers at the appropriate place based on the length of service and date arrived at on the principle set out above subject to the following conditions:-

(i) They should forego their seniority in the cadre of Addl.Asst.Engineers after fixation of seniority in the category of Asst.engineers as per the above principle.

(ii) They should give option for acceptance or otherwise for such absorption and fixing of the seniority as detailed above in the cadre of Asst.Engineers. If

they do not agree for fixation of seniority as above, they shall remain as Addl.Asst.Engineers.

9) The above Rule provision clarifies that the individual should

forego their seniority in the cadre of Additional Assistant Engineer

and also they should give option for acceptance for absorption and

fixing of the seniority, which are mandatory requirements. In the

present case, admittedly, the petitioner has obtained his

provisional certificate on 11.12.2019 and has given his

undertaking/declaration on 17.06.2021. The record further

discloses that the petitioner has kept quiet for ten long years and

made an application for conversion and appointment to the post of

Assistant Engineer only in the year 2020. Therefore, there is a

delay of ten years on the part of the petitioner in making a request

before the authorities for conversion and promotion, which cannot

be countenanced.

10) As regards delay, a Full Bench of the erstwhile High Court of

Andhra Pradesh in P.V. Narayana v. APSRTC, Hyderabad 2, has

held as under:

"71. On the basis of the decisions of the Supreme Court referred to above, the relevant considerations that may be taken into account in determining the issue of delay and laches may be summarized thus:

2 2013 SCC Online AP 729

(1) Though no period of limitation is prescribed for the writ Courts to exercise their powers under Article 226 of the Constitution of India or to file a writ petition, a person aggrieved should approach the Court without loss of time. In appropriate cases, where there is delay and the same has properly been explained with cogent reasons, Court may condone the delay as an exception to meet the ends of justice. But, it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters.

(2) Courts have evolved rules of self-imposed restraints or fetters where the High Court may hot enquire into belated or stale claim and deny relief to a party if he is found guilty of laches. One who is tardy, not vigilant and does not seek intervention of the Court within a reasonable time from the date of accrual of cause of action or alleged violation of the constitutional, legal or other right, is not entitled to relief under Article 226.

(3) ......

(4) ......

(5) ......

(6) The principle on which the Court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because Court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners.

(7) Where there is remiss or negligence on the part of a party approaching the Court for relief after an inordinate and unexplained delay, in such cases, it would not be proper to enforce the fundamental right As a general rule if there has been unreasonable delay the Court ought not ordinarily to lend its aid to a party in exercise of the extraordinary power of mandamus.

(8) There is no waiver of fundamental right But while exercising discretionary jurisdiction Court can take into

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account delay and laches on the part of the applicant in approaching a writ Court

(9) ......

(10) ......

(11) If a person entitled to a relief chooses to remain silent for long, he thereby gives rise to a reasonable belief in the mind of others that he is not interested in claiming that relief. Courts have applied the rule of delay with greater rigor in service matters.

(12) The benefit of a judgment cannot be extended to a case automatically. The Court is entitled to take into consideration the fact as to whether the petitioner had chosen to sit over the matter and wake up after the decision of the Court If it is found that the petitioner approached the Court with unreasonable delay, the same may disentitle him to obtain a discretionary relief. Long Delay disentitles a party to the discretionary relief under Articles 32 and 226 and persons who had slept over their rights for long and elected to wake up when they had the impetus from the judgment of similarly placed persons.

(13) Where during the intervening period rights of third parties have crystallized, it would be inequitable to disturb those rights at the instance of a person who has approached the Court after long lapse of time and where there is no cogent explanation for the delay.

(14) ......

72. An analysis of the case law discussed above would amply make it clear that issue of a writ of a mandamus or certiorari is largely a matter of sound discretion and will not be granted if there is negligence or omission on the part of the person to assert his right as, taken in conjunction with the lapse of time and other circumstances, causes prejudice to the adverse party. Therefore, burden lies on the workman who has to establish that in spite of his best efforts and diligence he was prevented from approaching the authority within the period

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of limitation provided for or the writ Court within a reasonable period of time. If the workman is not able to satisfactorily explain with cogent reasons for the delay he is not entitled to seek for condonation of the delay. It is true that the punishment imposed cannot be sustained in law because of the illegality crept in it in not conducting a prior enquiry. But, still the workman is under a statutory obligation to challenge the same within the time provided by the statutory rules or regulations or within a reasonable period of time before the writ Court If delay of 5 to 18 years is condoned, for no reason or fault on the part of the authority, the proceedings which had attained finality are to be set aside. Setting aside of such order at a belated stage and allowing of a stale claim, may, as rightly held by the Division Bench in Esa Ali's case (supra), inspire the workman to seek for consequential benefits of promotion as well, in which event, the rights of the third parties would adversely be affected for no fault of theirs. A workman who is tardy and not diligent for years in availing a statutory remedy or in approaching the Court of law, in our view, cannot be encouraged or permitted to contend that in view of the decision of the Supreme Court the punishment cannot be sustained in law, therefore, delay to any extent is to be condoned automatically in exercise of the power conferred on the appellate or revisional authorities or by the writ Courts in exercise of the discretionary powers under Article 226 of the Constitution of India. Courts can come to the aid of a person who is diligent and vigilant but unable to approach the authority or Court of law for redressal of his grievance in spite of his best efforts and reasons beyond his control but not to a person who is tardy and negligent or slept over the matter in availing the statutory or legal remedies.

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73. No doubt in the present cases the punishment awarded cannot be sustained in law in view of the law laid down by the Supreme Court in Kulwant Singh Gill's case (supra) and in the light of the Regulations, but, a specific period having been prescribed in the Regulations of the Corporation, as stated earlier, the same need to be adhered to. The proviso under Regulation 23 empowers the appellate authority to entertain an appeal even after expiry of the period of limitation provided if it is satisfied that the appellant had sufficient cause for not submitting the appeal in time. A similar power may also be exercised under Regulation 29. If the authority is not satisfied with the explanation offered by the workman in challenging the orders of punishment, this Court, in exercise of the jurisdiction under Article 226, cannot interfere unless the conclusion arrived at by the authority that the explanation offered by the workman is not justified or germane or no prudent person would have come to such a conclusion. In appropriate cases where the appeal or revision is filed within a reasonable period of delay, it is always open to the appellate or revisional authority to condone the delay on valid explanation putforth by the workman in not approaching the authorities within the time specified, in which event, the writ Court should not interfere with the order. In our opinion, when Regulations provided a period of two months for filing an appeal and six months for a revision, delay of 5 to 18 years in approaching the authority would certainly be fatal to the case of a workman unless properly explained with cogent reasons.

74. It is true that in some cases where the delay is five years or so the Supreme Court inclined to condone the

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delay but under different circumstances. When the fundamental rights are violated or where the delay is not directly attributable to the party seeking the relief or where the rights of the third parties are not intervened or in matters where seniority of employees is not finalized, the Court, would be justified to grant the relief; but not as a general rule of practice. Therefore, in our considered opinion, Kulwant Singh Gilll's case (supra), does not confer or clothe an automatic right with the employee to challenge the order of the authority at any time or whenever he wishes. The principles laid down by the Apex Court governing the condonation of delay will certainly and equally have application even in cases where challenge is made to an order imposing the punishment contrary to the Regulations or the ratio in Kulwant Singh Gill's case (supra), where the employee had slept over the matter and had not chosen to challenge it within a reasonable period of time. It may also be noticed that in service matters, the Courts have applied the rule of delay with greater rigor."

11) Relying on the above proposition of law, a Division Bench of

this Court had dismissed Writ Appeal Nos.1660 of 2018 and 593 of

2016 vide common judgment dated 13.12.2021 holding that there

was an inordinate delay in approaching the Court and the said

ratio was followed by a learned Single Judge of this Court in

W.P. Nos.32321 of 2011 and 1964 of 2012 dated 13.03.02023.

12) In the case on hand also the petitioner had slept over the

issue for ten years, which inordinate delay cannot be

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countenanced in the absence of any plausible explanation from the

petitioner in this regard.

13) That apart, the consideration of request of the petitioner

would considerably affects the rights of other employees, who were

promoted in between 2009-2019, who are, admittedly, not parties

to the present writ petition. Hence, the writ petition is also liable

to be dismissed for non-joinder of necessary parties.

14) In similar circumstances, the Hon'ble Apex Court in

B.S. Bajwa case (referred supra) has held as under:

" 3. ........ However, it was only in the year 1984 that B.S. Bajwa and B.D. Kapoor filed the aforesaid writ petition in the High Court claiming a much earlier date of appointment in the department. The learned single Judge allowed the writ petition which led to Letters Patent Appeal No.424/86 being filed by B.L. Bansal, Nirmal Singh, G.R. Chaudhary, D.P. Bajaj and Jagir Singh before a Division Bench of the High Court.

4. .....

5. It is significant that the Division Bench in the LPA, while dealing with the question of laches in filing the writ petition, came to the following conclusion:

"It is not disputed that in the confirmation list of P.W.D. (B and R) Branch published from time to time, the writ petitioners were shown junior than the appellants herein. No document has been produced on the record to show that they had ever objected to their position in the

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gradation list or prayed for the grant of the benefits claimed by them in the present writ petitions filed in this Court.

It is also cannot be denied that the acceptance of the writ petition would adversely affect the service conditions of the in service employees like the appellants by altering their seniority and putting them to disadvantageous position. Administrative instructions or the Rules could not be altered to their disadvantage. The intention of the Rule making authority is not so clear as to unambiguously hold the intention for conferment of the benefits in favour of the writ petitioners."

6. ....

7. Having heard both sides were are satisfied that the writ petition was wrongly entertained and allowed by the single Judge and, therefore, the Judgments of the single Judge and the Division Bench have both to be set aside. The undisputed facts appearing from the record are alone sufficient to dismiss the writ petition on the ground of laches because the grievance made by B.S. Bajwa and B.D. Kapoor only in 1984 which was long after thy had entered the department in 1971-72. During this entire period of more than a decade they were all along treated as junior to the other aforesaid persons and the rights inter se had crystallized which ought not to have been re-opened after the lapse of such a long period. At every stage the others were promoted before B.S. Bajwa and B.D. Kapoor and this position was known to B.S. Bajwa and B.D. Kapoor right from the beginning as found by the Division Bench itself. It is well settled that in service matters the question of seniority should not be re- opened in such situations after the lapse of a reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for

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making such a grievance. This alone was sufficient to decline interference under Article 226 and to reject the writ petition."

15) Similarly, in Muthukumar's case (referred supra), the

Hon'ble Supreme Court has held as under:

"13. After the compromise order, several other unsuccessful candidates approached the High Court, claiming parity with the petitioners and appellants, who were parties to, and had benefited from the order. A single judge dismissed several of those writ order. In another set of writ petitions, however, the single judge allowed the claims; this led to TANGEDCO's appeal before the Division Bench. By its common judgment and order dated 02.08.2018 (the first set of appeals herein) the candidates' appeals were dismissed and TANGEDCO's appeals were allowed. The first set of appeals by aggrieved candidates is directed against that common order. The second set of appeals, by TANGEDCO, is directed against the order which required it to offer employment to similarly placed candidates who had not approached the court earlier, but filed writ petitions in 2016, 2017 and 2018.

Contentions of the aggrieved appellants

14. On behalf of the aggrieved appellants, Mr. Goutam Narayan, and Mr. T.B. Sivakumar, learned counsels urged that TANGEDCO acted unfairly and in a discriminatory manner, in refusing to employ those who were not parties in the proceedings that led to the compromise order. It was highlighted that in terms of performance, the aggrieved candidates might well have secured better ranking than those 84 unsuccessful candidates whowere offered employment, by the compromise order.

27. It is thus, evident that in Aravind Kumar Srivastava (supra) the previous orders of the tribunal and the court were based on merits adjudication, and not based on concession; certainly not based on compromise. It was in the background of such facts that denial of relief to similarly situated claims, was held to be unjustified. Most

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importantly, for the purpose of this case, the court carved out an exception : that subsequent litigants, wishing to benefit from orders made in others' cases, had to approach the courst in time, without delay or laches. In the facts of this case, there is no question of any finality to the compromise order : it cannot be treated, by any stretch of the imagination, as an order in rem, or as a binding precedent. Also, the aggrieved appellants, and the contesting candidates (in TANGEDCO's appeal) did not approach the court in time. They woke up after the compromise order, claiming parity, and filed petitions in the court. Clearly, therefore, they cannot claim any benefit from the compromise order.

28. A principle, axiomatic in this country's constitutional lore is that there is no negative equality. In other words, if there has been a benefit or advantage conferred on one or a set of people, without legal basis or justification, that benefit cannot multiply, or be relied upon as a principle of parity or equality. In Basawaraj v. Special Land Acquisition Officer, this court ruled that:

"8. It is settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated."

16) In view of the above settled principle of law, the present writ

petition, filed by the petitioner without making the aggrieved

parties as party respondents to the present writ petition, is liable to

be dismissed for non-joinder of necessary parties also.

17) Coming to the judgments relied by the learned counsel for

the petitioner are concerned, they are distinguishable on facts of

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the present case. In the said cases, the delay in submission of

certificate before the authorities was only in months that too on the

part of the Institution in issuing the certificate. But, in the case on

hand, the delay is on the part of the petitioner in obtaining the

provisional certificate from the College/institution. Hence, the said