Telangana High Court
P.Narsimulu vs The State Of Telangana And 2 Others on 3 June, 2024
THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI
WRIT PETITION No.5147 of 2021
ORDER:
This Writ Petition is filed seeking a writ of mandamus
declaring the action of respondent No.2 in promoting
respondent No.3 as Field Officer vide impugned memo
No.A2/126/2021 dated 04.02.2021 as highly illegal,
arbitrary and in gross violation of G.O.Ms.No.28,
Employment Generation and Youth Services (CA.II)
Department dated 19.03.1990 and consequently to set
aside the impugned memo dated 04.02.2021 with a further
direction to the respondent Nos.1 and 2 to consider the
petitioner's case for promotion as Field Officer as per
seniority and ratio with all consequential benefits and to
pass such other order or orders.
2. Brief facts leading to filing of the present writ petition
are that the petitioner is working as a Superintendent in
SBR Government College of Music and Dance,
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Secunderabad. The next post for promotion is the post of
Field Officer and it was to be filled by appointment by
transfer of Superintendents in A.P. Ministerial Service in
the Directorate of Culture and Colleges/Schools of Music
and Dance. It is submitted that as per G.O.Ms.No.28 dated
19.03.1990, the 1st vacancy and 2nd vacancy has to be filled
by the Superintendent of Directorate and the 3rd vacancy
has to be filled by the Superintendent in the Government
Institutions of Music and Dance. It is submitted that two
Field Officer posts have been filled up by the
Superintendents of Directorate of Culture and therefore the
3rd vacancy ought to have been filled up by the
Superintendent of Government Music and Dance
Colleges/Schools. Thus, the post of Field Officer that would
fall vacant after the promotion of Ch. Raghunandan, Field
Officer as Assistant Director was to be filled up by
Superintendent of Government Music and Dance
Colleges/Schools and the petitioner being the senior-most
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was eligible for the same. However on the ground that there
is bifurcation of the State of Andhra Pradesh into the States
of Andhra Pradesh and Telangana, the respondents have
started the roster afresh and have filled up the vacancy with
the Superintendent of Directorate i.e., respondent No.3
herein. Challenging the same, the present writ petition has
been filed.
3. The respondents have filed a counter affidavit stating
that after bifurcation of the State of Telangana from the
earlier State of Andhra Pradesh and in terms of orders
issued in G.O.Ms.Nos.45 and 46 dated 01.06.2016 by the
Law Department, the promotion of Superintendent as Field
Officer is taken afresh from the appointed date and also
from 1st June 2016. Therefore, the 1st vacancy was filled up
by Superintendent-Ch. Raghunandan on 14.10.2016 as
Field Officer and 2nd vacancy is filled up with respondent
No.3, R.Nagaraju, Superintendent on 30.01.2021 and the
3rd vacancy will be filled up by the Superintendent from
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Government Music colleges as per ratio mentioned in
G.O.Ms.No.28, Employment Generation and Youth Services
(CA.II) Department dated 19.03.1990. It is stated that the
petitioner being the senior-most Superintendent in the
Government College of Music and Dance is eligible for
promotion as the Field Officer in the upcoming 3rd vacancy
as per the Telangana Adaptations Laws Order 2016 of
G.O.Ms.Nos.45 and 46 dated 01.06.2016. It is submitted
that as per the said order, all the rules and G.Os. in the
new State of Telangana shall be applicable and
implemented afresh and therefore, the Writ Petition has no
merits and is liable to be dismissed.
4. This Court, vide order dated 23.09.2022, had required
the learned Government Pleader for Services to furnish the
list of officers, who have been promoted to the post of Field
Officers working in the Department of Language and
Culture from the year 2010 onwards, till the date of the
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order along with details of the feeder category of the officers,
who have been promoted.
5. The details of the same have been furnished vide letter
dated 17.10.2023. According the said information, the ratio
of 2:1 as per the Government orders issued in
G.O.Ms.No.28 dated 19.03.1990 has been followed and in
the year 2006-2009, Superintendents from Directorate of
Culture have been promoted as Field Officers in the 1st and
2nd vacancy and the Superintendent from Music College has
been promoted in the 3rd vacancy in the year 2013. 4th
vacancy has been filled up in the year 2013 from the
Directorate of Culture and after formation of the State of
Telangana, the first two vacancies have been filled up from
the Directorate of Culture.
6. Learned Government Pleader for Services has also filed
a copy of the circular memo No.1450-A/Ser.D/A1/2014-4
dated 27.05.2015 wherein the guidelines were issued for
making promotions/appointments by transfers involving
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promotions, purely on temporary/ad hoc basis to the posts
having State Cadre and also to the posts in Secretariat,
Heads of Departments, State Level Officers, etc., which fall
entirely in the State of Telangana, subject to the conditions
stipulated therein. Learned Government Pleader referred to
Para 2 (iv) of the said circular wherein it is provided that
roster points shall be commenced afresh in the State of
Telangana in respect of the posts, which come under the
purview of the process of allocation and roster points shall
be continued in respect of the posts, which do not come
under the purview of the process of allocation. Learned
Government Pleader also referred to the instructions dated
20.04.2023 wherein it is mentioned that the post of Field
Officer in the Department of Language and Culture is a
single post in the Directorate and it is State wide post not
zonal post. Therefore, according to him, the roster points
had to be implemented afresh.
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7. Learned counsel for the petitioner, on the other hand,
relied upon the following judgments in support of his
contentions that the roster points ought to have been
continued and the petitioner ought to have been considered
to the post of Field Officer as per his turn:
i. M.Shyam Sunder and others v. Government of
A.P. and others 1.
ii. Nirmal Chandra Bhattacharjee and others v.
Union of India and others2.
iii. D.S.Nakara and others v. Union of India 3.
iv. Direct Recruit Class II Engineering Officers'
Association v. State of Maharashtra and
others4.
v. Akhilesh Prasad v. Jharkhand Public Service
Commission and others 5.
2001 (6) ALD 87 (DB)
1991 Supp (2) SCC 363
(1983) 1 SCC 305
(1990) 2 SCC 715
2022 SCC ONLINE SC 510
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8. Having regard to the rival contentions and the
material on record, this Court finds that the only question
to be considered in this Writ Petition is whether the roster
points have to be commenced afresh after formation of the
State of Telangana or they ought to have been continued.
In the judgments relied upon by the learned counsel for the
petitioner following principles emerges.
i. In case of M.Shyam Sunder and others v.
Government of A.P. and others (supra 1), the
principles laid down by the erstwhile High Court of
Andhra Pradesh are that once the person is
regularized in service i.e., date of regularization
once fixed by the appointing authority cannot be
changed subsequently even by the reviewing
authority. The said date of regularization cannot be
ignored.
ii. In the case Nirmal Chandra Bhattacharjee and
others v. Union of India and others (supra 2),
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the Hon'ble Supreme Court held that service rules
cannot be made or cannot be changed to the
prejudice of an employee, who was in service prior
to the change as it would be in violation of Article
309 of the Constitution of India.
iii. In the case of D.S.Nakara and others v. Union of
India (supra 3), the Hon'ble Supreme Court held
that classification of category of employees must not
be arbitrary but must be rational, that is to say, it
must not only be based on some qualities or
characteristics which are to be found in all the
persons grouped together and not in others who left
out but those qualities or characteristics must have
a reasonable relation to the object of the legislation.
iv. In the case of Direct Recruit Class II Engineering
Officers' Association v. State of Maharashtra
and others (supra 4), the Hon'ble Supreme Court
held that it is not permissible to hold that the quota
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rule should be applied at the stage of appointment
and not at the stage of confirmation. It was held
that when the appointments are made from more
than one source, it is permissible to fix the ratio for
recruitment from the different sources and if rules
are framed in this regard, they must be ordinarily
followed strictly.
v. In the case of Akhilesh Prasad v. Jharkhand
Public Service Commission and others (supra 5),
the Hon'ble Supreme Court held that when there is
bifurcation of States, an obligation is cast on the
part of the Parliament to provide clarity about the
kind of protection, regarding the status of such
individuals forced to choose one among the newly
reorganized states and to ensure that they are not
worse off as a result of reorganization and that duty
to provide clarity and protection, generally speaking
has to be consistent i.e., in the case of one states'
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reorganization, the protection should not be greater
than in the case of reorganization of another state
and that would defeat the command of Articles 14
and 15 (1) of the Constitution of India. It was held
that duty stems from a co-joint reading of Part I
(Articles 1 to 4), Articles 14, 15(1), 341 and 342 of
the Constitution and the overarching concern that
the individual should not be worse off due to
disruption, not of her or his making, and the duty of
Parliament in such cases is a constitutional
obligation to ensure that no one individual or group
is disadvantaged.
9. Learned counsel for the petitioner had submitted that
due to bifurcation of the State, the petitioner could not be
put in disadvantageous position than he was in the
combined State of Andhra Pradesh.
10. Except for quoting the circular memo issued by the
Government of Telangana dated 27.05.2015, that roster
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point shall be commenced afresh in the State of Telangana
in respect of the post which come within the purview of the
process of allocation and roster points shall be continued in
respect of the posts which do not come under the purview
of the process of allocation, respondents have not stated as
to how the said circular is applicable to the present
department. From the details given in the letter dated
17.10.2023, it appears that there is no allocation in respect
of these posts and all the officers continued in the State of
Telangana. Therefore, the roster point should have been
continued in respect of the posts particularly in view of the
judgments relied upon by the learned counsel for the
petitioner that the service conditions of an employee cannot
be changed without his consent or without his role in the
same. In view of the same, the respondents are directed to
follow the roster points, which were prevalent prior to
bifurcation of the State and promote the petitioner to the
post of Field Officer with effect from the date on which
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respondent No.3 has been appointed. The respondents are
directed to pass consequential orders immediately.
11. Accordingly, the Writ Petition is allowed. There shall
be no order as to costs.
Miscellaneous petitions, if any, pending in this Writ
Petition, shall stand closed.
_____________________________
JUSTICE T.MADHAVI DEVI
Dated: 03.06.2024
PRN
