Telangana High Court
A. Balaji vs The State Of Telangana on 5 June, 2024
THE HON'BLE SMT. JUSTICE T. MADHAVI DEVI
WRIT PETITION (T.R) No.3187 of 2017
ORDER:
This writ petition is filed seeking the
following relief:
"......To issue writ order or order as this Hon'ble
Court may be pleased to issue a writ of mandamus
declaring the impugned action of the respondents in
denying the promotion of the 2nd petitioner, even
senior, to the post of Assistant Commissioner of
Endowments in the panel year 2016-17 under
revision even vacancy arisen in the month of
February, 2017 and no DPC was conducted for the
panel year 2017-18 while conducting D.P.C for the
panel year 2018-19 for the above post and denied
petitioner promotion on the pretext of ACB case
pendency despite no proceedings were pending
against the 2nd petitioner in the above panel year and
ignoring the panel year 2017-18 while conducting
DPC is illegal, unfair, unlawful and contrary to the
dicta laid down by Apex Court and violation of
Articles 14 and 16 of the Constitution of India and
consequently declare that the 2nd petitioner is entitled
for promotion to the post of Assistant Commissioner
of Endowments neither against retirement vacancy of
Feb 2017 under revision of panel year 2016-17 or in
the panel year 2017-18 in terms of G.O.Ms.No.5 dt.
05-01-2016 whenever D.P.C conducted with all
consequential benefits and further declare the 1st
petitioner promotion made as per rules and to pass
such other order or orders as this Hon'ble Court may
deem fit".
2. Brief facts leading to the filing of the present
writ petition are that the petitioners herein were
working as Executive Officers Grade-I in the temples
of Sri Peddamma Temple, Jublee Hills, Hyderabad
and Sri Karmanghat Hanuman Temple, Karmanghat
Village, Saroornagar Mandal, Ranga Reddy District
respectively. Both of them are entitled to be
promoted to the posts of Assistant Commissioners of
Endowments which comes under Category-5 of
Class-1 of the Andhra Pradesh Charitable and Hindu
Religious Institutions and Endowments Service
Rules. These rules have been promulgated through
G.O.Ms.No. 245, Revenue (Endowments. I)
Department, dated 08.05.2002.
3. Rule-3 of the said rules provided for filling up
of post of the Assistant Commissioner either i) by
direct recruitment; ii) by promotion from the category
of Superintendent or Special Category Stenographer
in Endowments Department; iii) by promotion of
Executive Officer Grade-I or iv) by transfer of a
person who has been holding an equivalent post of
Assistant Commissioner in any of the Charitable or
Hindu Religious Institutions and Endowments
published under Clause-A of Section-6 of the Andhra
Pradesh Charitable and Hindu Religious Institutions
and Endowments Act, 1987.
4. Note-2 provided a cyclic order apart from
fixing a ratio, as already submitted above, there are
essentially three (3) Feeder categories for the post of
Assistant Commissioner of Endowments. Note-3 also
provided that if no qualified candidate is available for
appointment from a particular category, the vacancy
shall be filled by a qualified candidate by rotation in
the same cycle.
5. The learned counsel for the petitioners
submitted that the State of united Andhra Pradesh
was divided into six zones and the region of
Telangana was carved out into Zones-V and VI. After
bifurcation of the state in the erstwhile Zones-V and
VI constituted under the Presidential Order, the total
cadre strength of Executive Officers Grade-I is 39 as
is explicit and evident from G.O.Ms.No.336, Finance
(SMPC-1) Department, dated 15.11.2010. Under the
caption in the Annexure E.O. Grade-I Zone-V was
shown as having cadre strength of 13 and Zone-VI
having cadre strength of 26, totaling to 39 posts in
the cadre.
6. In contrast, it is clear from the reading of
G.O.Ms.No.897, Revenue (SPF) Department, dated
03.08.1976, that the Superintendents in Zones-V
and VI is 6+ 3 totaling nine (9). Four more posts
were added such as (i) Superintendents in the office
of Regional Joint Commissioner, Multi Zone-III; (ii)
Deputy Commissioner, Warangal; (iii) Assistant
Commissioner, Adilabad; and (iv) Assistant
Commissioner, Secunderabad, thus totaling to 13 in
the cadre. According to the petitioners, total cadre
strength of Superintendents in Multi Zone-III
comprising of Zones-V and VI is 13 which is almost
1/3rd of the total cadre strength of Executive Officers
Grade-I and the cyclic order indicated in the rules
which are impugned shows the other way by
providing four for the Superintendents and three for
the Executive Officers Grade-I. Thus, according to
the petitioners, it is highly irrational, unrelated to the
facts and un-equals are being treated as equals and
un-equals were being given a lion's share.
7. It is further submitted that in the
endowments department, each unit is self contained
unit and inter transferability is not permissable and
therefore, for the purpose of appointment, seniority,
promotion etc., each unit is separate and therefore,
the Superintendents working in the office of the
Commissioner of Endowments cannot be promoted
to a zonal post of Assistant Commissioner, be it in
Zone-V or Zone-VI and the law is made clear by the
Apex Court in the case of V. Jagannadha Rao Vs.
State of A.P. 1 Therefore, according to the
petitioners, the provision made in Note-2 of Rule-3
assigning the 1st and 8th vacancies to the
Superintendent/Special Category Stenographer
working in the office of the Commissioner of
Endowments is violative of the Presidential Order
and the law declared by the Apex Court.
8. Even the A.P. Reorganisation Act, 2014
through Section-97, provided that for the application
of Article 371-D of the Constitution to the State of
(2001 (10) SCC 401)
Telangana also after bifurcation of the erstwhile
State of Andhra Pradesh, the cycle providing four
vacancies to the Superintendents inclusive of the
Superintendent/Special Category Stenographer
working in the office of the 3rd respondent is liable to
be struck down as being irrational and violative of
Articles 14 and 16 of the Constitution of India, apart
from the fact that providing for 1st and 8th vacancies
to the Superintendent/Special Category
Stenographer from the office of the 3rd respondent is
contrary to the Presidential Order and the law
declared by the Apex Court.
9. It is further submitted that almost all the
Superintendents of the Mufsill are those who were
sent on foreign service as Superintendents from the
posts of Senior Assistants and none of them have
had their services regularized in the cadre of
Superintendents and therefore, applying Rule-8 of
the A.P. State and Subordinate Service Rules is not
possible and none of the Superintendents now
working are entitled to be considered for promotion
to the posts of Assistant Commissioner of
Endowments.
10. The learned counsel for the petitioners
further referred to the Judgment of the Division
Bench of the Tribunal wherein the
O.A.No.1277/2011, vide orders dated 04.01.2013, it
was declared that unless and until the
Superintendents (Mufsills) services are regularized,
they cannot be considered for promotion and their
services can only be counted in the post of
Superintendent only from the date on which their
services are regularized against a vacancy available
to those persons. The Contempt Case, vide
C.A.No.614 of 2013, was also filed for not
implementing the order of the Division Bench of the
Tribunal. The petitioners are therefore seeking a
direction to implement the directions of the Tribunal.
11. There is also a reference made to the order of
the Division Bench of this Court dated 24.04.2014 in
W.V.M.P.No.329 and 330 of 2014 in
W.P.M.P.No.2697 of 2013 in W.P.No.2222 of 2013,
wherein, it was directed that such of those in the
feeder category who are approved probationers under
Rule-8 of the A.P. State and Subordinate Service
Rules alone are to be considered for the purpose of
promotion to the posts of Assistant Commissioners of
Endowments by the DPC.
12. It is submitted that the 2nd respondent has
constituted a DPC through G.O.Rt.No.223, Revenue
(Endowments.I) Department, dated 22.12.2014 for
consideration for promotion to the first level Gazetted
Post namely the post of Assistant Commissioner of
Endowments and that neither the 2nd respondent nor
the DPC convened by it can go by the cycle provided
under Note-2 of Rule- 3 of the A.P. Charitable &
Hindu Religious Endowments Act, 1987, as the same
is ultra vires of Para-5 of the Presidential Order and
the law declared by the Hon'ble Supreme Court in
the Jagannadha Rao's case in including
Superintendents/Special Category Stenographer
working in the office of the 3rd respondent in the list
of the employees eligible for consideration.
13. It is submitted that the rules will have to be
amended accordingly by excluding the above
Superintendents/Special Category Stenographer
working in the office of the 3rd respondent from the
cycle and also rationalizing the cycle by making it 3:1
between the Executive Officers Grade-I and
Superintendents in the offices of the Mufsill as Rule-
3, Note-2 is ultra vires of Articles 14 and 16 of the
Constitution of India, Article 371-D and the
Presidential Order.
14. However, this Court finds that after
amendment of prayer, the prayer of the petitioners is
only to challenge the action of the respondents in
denying the promotion to the 2nd petitioner (even
though he was entitiled for promotion) only on the
ground that the Anti Corruption Bureau (ACB) case
was pending against him.
15. The learned counsel for the respondents have
filed their counter affidavit and submitted that the
petitioners herein belong to the feeder category of
Executive Officer Grade-I and that in the year 2016,
the D.P.C. met on 17-09-2016 for selecting the
candidates to fill the posts of Assistant
Commissioner for the panel year, 2016-17. The cadre
strength of Assistant Commissioner is (27) and out of
(27) posts, (19) vacancies were there, out of which
(12) vacancies are earmarked for
promotion/appointment by transfer and remaining
(7) vacancies were meant for Direct Recruitment. On
proportioning the said (12) vacancies amongst (3)
feeder categories as per cycle prescribed vide
G.O.Ms.No.5, dated 05-01-2016, (8) vacancies were
earmarked for Executive Officers Grade-I while (2)
were earmarked for Superintendent (Mufsill) and (2)
for Assistant Executive Officers.
16. It is submitted that the candidates including
the petitioner No.1 herein have been considered and
recommended for promotion to the post of Assistant
Commissioner. However, the petitioner No.2 herein
could not be considered, since (2) candidate's junior
to him namely, Smt. Ramala Sunitha and Smt.
Anneparthi Sulochana, were considered, under Rule
of Reservation for promotion to the post of Assistant
Commissioner. It is submitted that though the
petitioner was under the zone of consideration, he
could not be considered for promotion to the post of
Assistant Commissioner for want of vacancy.
17. It is submitted that the petitioner No.2, while
working as Executive Officer of Sri Peddamma
Temple, Jubilee Hills, Hyderabad, was trapped by the
officials of Anti-Corruption Bureau on 07-05-2019
A.N., when he demanded and accepted a bribe
amount of Rs.1,00,000/- from the complainant, Sri
Pragya Anjaneyulu Sharma, S/o. Late P.Narasimha
Rama Sharma, R/o. Secunderabad. A case was
registered against him by the Anti-Corruption
Bureau in Crime No.14/RCT-CR-1/2019 of A.C.B.,
City Range-I, Hyderabad Under Section 7(a) of the
Prevention of Corruption Act, 1988 and he was
arrested on 07.05.2019 and was remanded to
judicial custody vide proceedings dated 10.05.2019
and subsequently, the prosecution sanction order
was recorded by the Government and Director
General of Anti-Corruption Bureau filed charge sheet
in the said crime number vide C.C.No.65 of 2021 and
the matter is pending before the Anti-Corruption
Bureau.
18. It is submitted that the Government, after
reviewing the suspension order, issued the orders to
reinstate him into service without prejudice to the
disciplinary/criminal proceedings pending against
him. The orders of reinstatement were passed vide
proceedings dated 27.07.2022.
19. It is submitted that, when certain vacancies
in the cadre of Assistant Commissioner of
Endowments have arisen, the DPC meeting was
again convened on 29.06.2019, to fill up the
vacancies, but since there was criminal proceedings
against him, therefore, he could not be considered
for promotion.
20. Learned counsel for the respondents,
therefore, prayed for the dismissal of the writ
petition.
21. The learned counsel for the petitioners filed
reply statement of the petitioner No.2 stating that the
petitioner No.2 ought to have been considered for
promotion in the panel year 2016-17 itself when
there were two clear vacancies in the panel year
2017-18, due to retirement of Sri P. Ashok and Sri
A.V. Ramanamurty, and yet, he was not promoted.
He submitted that though the ACB case was
registered against the petitioner No.2 in the year
2019, the non-consideration of his case for the panel
year 2017-18 itself is bad in law.
22. It is submitted that, in the case of similarly
placed person like one Smt. K. Seshu Bharati, the
respondents have overlooked the punishment and
granted her promotion to the post of Assistant
Commissioner of Endowment and not considering
the case of the petitioner No.2 for the panel year
2017-18 inspite of there being no criminal case
against him is bad in law.
23. Having regard to the rival contentions and
the material on record, this Court finds that the DPC
was convened for consideration of eligible candidates
for the post of Assistant Commissioner of
Endowments for the panel year 2016-17 and the
name of the petitioner No.2 was also considered, but
he could not be promoted for want of vacancy, as two
of his juniors who belonged to ST Community have
been promoted. The Hon'ble Supreme Court in the
case of Union of India Vs. K.V. Jankiraman 2 held
that where the disciplinary or criminal proceedings
are pending against an employee, his case can be
considered for promotion by the DPC by following the
(1991) 4 SCC 109
procedure of sealed cover for future reference
subsequently. In the case of N. Shankar Prasad
Vs. State of Andhra Pradesh also, it was held that
the pendency of criminal case or the departmental
proceedings is not a ground to deny promotion to the
writ petitioner in terms of G.O.Ms.No.257, General
Administration (SER.C) Department, dated
10.06.1999. Therefore, the respondents ought to
have considered the case of the petitioner No.2 for
promotion and the proceedings of the DPC with
regard to the petitioner No.2 ought to be put in a
sealed cover for future reference. Further, whenever
the vacancies have arisen in the panel year 2017-18,
the case of the eligible candidates including the
petitioner No.2 herein ought to have been considered
by the respondents.
24. Admittedly, the ACB case against the
petitioner No.2 was in the panel year 2019-20 and
hence, the case of the petitioner No.2 should have
been considered for promotion during the panel
years 2017-18 and 2018-19. Therefore, the
respondents are directed to reconsider the request of
the petitioner No.2 and if the vacancy had arisen
before the said dates, then the respondents are
directed to reconstitute the DPC for consideration of
promotion to the petitioner No.2 for the panel years
2017-18 and 2018-19.
25. Accordingly, this Writ Petition is disposed of
with the above directions. There shall be no order as
to costs.
Miscellaneous applications, if any pending,
shall also stand closed.
____________________________
JUSTICE T.MADHAVI DEVI
Date: 05.06.2024
TU
