Telangana High Court
K. Kesava Reddy vs Sri K. Raghunandan Rao, on 26 March, 2024
THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HON'BLE SRI JUSTICE SUJOY PAUL
WRIT PETITION Nos.10298 AND 2076 OF 2013
COMMON ORDER:
(per Hon'ble Sri Justice Sujoy Paul)
1. These petitions filed under Article 227 of the Constitution
impugn the order passed by the Andhra Pradesh Administrative
Tribunal at Hyderabad (hereinafter referred to as 'Tribunal') dated
04.01.2013 whereby O.A.Nos.1277 and 8196 of 2011 were decided
by passing a common order.
2. By filing O.A.No.1277 of 2011, the applicants (private
respondents herein) stated that they were working as Assistant
Commissioners of Endowments Department, which is a Category-
5 (Class-I) post of the Andhra Pradesh Charitable and Hindu
Religious Institutions and Endowments Service Rules. They were
so promoted as Assistant Commissioners from the post of
Executive Officer Grade-I. The post of Superintendent is a
Category-I of Class-A post as per Andhra Pradesh Ministerial
Service Rules, 1998. Senior Assistant is the feeder post for the
post of Superintendent.
3. It was specifically pleaded before the Tribunal that total
cadre strength of Superintendent in the Endowments Department
2 HC,J & SP,J
Wps_10298 & 2076_2013
sanctioned by the State was 46, out of these, 13 posts were
earmarked for the Head Office. The post of Executive Officer
Grade-I can be filled up through three modes viz;
i) Direct Recruitment
ii) Promotion
iii) Transfer from the category of Superintendents of
Andhra Pradesh Ministerial Service of Endowments
Department and Superintendents working in the
Institutions other than Regional Joint Commissioner
and Deputy Commissioner Cadre institutions.
4. The applicants further averred before the Tribunal that they
were promoted as Executive Officers Grade-I from Grade-II and
thereafter, promoted as Assistant Commissioners of Endowments.
5. The case of the applicants was that official respondents were
promoting Senior Assistants as Superintendents without there
being sanctioned posts and they were posted as Executive
Officers. 150 posts of Executive Officers Grade-I in different
religious institutions were being occupied by the Senior Assistants
by coming into the post of Executive Officer from non-existing post
of Superintendents. Such employees had right to continue as
Executive Officer Grade-I only and they could not have been
permitted to work on the posts of Superintendents to get further
promotions to the post of Assistant Commissioner of Endowments
from the direct feeder category of Superintendents. It was pointed
3 HC,J & SP,J
Wps_10298 & 2076_2013
out that as per the statutory rules, a cycle of 3:3:1 was prescribed
between Superintendents and Executive Officers Grade-I and
persons holding an equivalent post of Assistant Commissioner as
per Section 6(a) of the Endowments Act.
6. The applicants before the Tribunal further urged that the
Superintendents posted as Executive Officers Grade-I in various
temples were drawing salary from the office of concerned temple
and not from the treasury of the Government.
7. Considering the aforesaid, the Commissioner of Endowments
Department issued instruction through memo dated 07.01.2010
that services of all the Superintendents working in the Moffusil
should be regularized against a clear vacancy as per sanctioned
cadre strength. Their seniority should be counted from the date of
regularization.
8. It was strenuously contended before the Tribunal that this
memo dated 07.01.2010 is in conformity with the law laid down
by the Apex Court in the catena of judgments. The Government
issued another memo dated 27.11.2010 directing that the
seniority of a person must be counted from the date of promotion
and service rendered by departmental Superintendents on 'foreign
service' as Executive Officers Grade-I/Superintendents has to be
4 HC,J & SP,J
Wps_10298 & 2076_2013
counted for promotion to the higher category. All the 150 Senior
Assistants, who were transferred and posted as Superintendents
against the sanctioned cadre strength of 46 were entitled for
seniority or any other benefit, whatsoever. The case of the 3rd
respondent before the Tribunal was highlighted, who was working
as Senior Assistant in the office of Deputy Commissioner of
Endowments at Warangal and was promoted as Superintendent
without there being any post and posted as Superintendent in
Sammakka Saralamma Temple at Eturunagaram.
9. Subsequent to the filing of the said O.A., the Government
issued memo dated 27.11.2010 clarifying that the service
rendered on deputation on foreign service terms has to be counted
in the light of the Chapter XII of F.R. and Rule 9 of the Andhra
Pradesh State and Subordinate Service Rules. Admittedly, these
two memos dated 27.11.2010 and 28.09.2011 giving similar
benefits were challenged before the Tribunal by amending the O.A.
10. The respondent No.1 filed counter before the Tribunal
justifying their action. It was stated that as per Rule 13 of
Fundamental Rules, the 'lien' of departmental Superintendents
posted on foreign service terms as an Executive Officer was
retained in the substantive post of Superintendent as per the
5 HC,J & SP,J
Wps_10298 & 2076_2013
Rules. The Department also urged that Senior Assistants of
Endowments Department were promoted as Superintendents only
against clear vacancy.
11. The Tribunal considered the rival contentions and framed
the following questions for its determination:-
(i) Whether the Applications are liable to be dismissed for
non- joinder of necessary parties?
(ii) Whether the Senior Assistants working in the
Endowments Department were promoted as
Superintendents in the non-existing vacancies and whether
they were posted as Executive Officers in the religious
institutions on foreign service?
(iii) Whether the Senior Assistants who were promoted as
Superintendents and posted as Executive Officers of the
religious institutions are entitled to get their seniority
counted for the purpose of promotion to the post of
Assistant Commissioner?
(iv) Whether the Senior Assistants who were promoted as
Superintendents in the non existing vacancies and posted
as Executive Officers of the religious institutions are not
entitled to come back as Superintendents in the
Endowments Department for the purpose of consideration
of their seniority for promotion to the post of Assistant
Commissioner of Endowments?
(v) Whether G.O.Rt.No.1165, Revenue(Endowments-I)
Department, dated 28.09.2011 and Memo
No.2950/Endts.(I)/2010, dated 27.11.2010 are liable to be
set aside?
(vi) Whether the applicants are entitled for the reliefs as
prayed for?
12. The Tribunal answered the said questions and came to hold
as under:-
6 HC,J & SP,J
Wps_10298 & 2076_2013
(i) The impugned orders covered by Memo
No.2950/Endts.(I)/2010, dated 27.11.2010 and 28.09.2011
issued by the 1st Respondent are set aside by holding that
they are contrary to A.P. State and Subordinate Service
Rules.
(ii) The promotee Superintendents are entitled to get the
benefit of seniority in the period of deputation from the date
of their regular appointment as Superintendent in the
department.
(iii) Respondents 1 and 2 are directed to examine the
promotions of the Superintendents promoted from the post
of Senior Assistants and count seniority from the date of
them accommodated in the clear regular vacancies.
(iv) The service rendered by the Superintendents can be
counted for the purpose of seniority in the category of
Superintendents of A.P. Ministerial Service Rules either for
the purpose of promotion or for the purpose of seniority
from the date of appointment of each individual in the
substantive vacancy after following the procedure
prescribed under A.P. State and Subordinate Service Rules.
(v) The contention of the applicants that Superintendents of
Endowments Department working as Executive Officers
Grade-I cannot be permitted to go back to the post of
Superintendent in A.P. Ministerial Service of Endowments
Department for the purpose of promotion as Assistant
Commissioner of Endowments is negatived.
(vi) Respondents 1 and 2 are also directed to consider
whether there is any appointment in violation of the
Presidential Order, if so, to rectify the same while complying
the directions as mentioned above. MA and VMA stand
closed.
13. Counsel for the petitioner firstly argued that all the persons
going to be affected were not impleaded by the original applicants
before the Tribunal and therefore, the O.A. should have been
dismissed by the Tribunal for non-joinder of necessary parties.
7 HC,J & SP,J
Wps_10298 & 2076_2013
14. Secondly, it was argued that the Tribunal has failed to see
that the present petitioners were holding 'lien' on their permanent
post. In this view of the matter, their promotion as
Superintendents was perfectly in order. The argument advanced
is that the Tribunal should not have interfered with the memos
dated 27.11.2010 and 28.09.2011.
15. The next limb of argument is that the promotions on the
post of Superintendents were in accordance with law. There was
no need to direct the official respondents to examine whether such
promotions were against clear regular vacancies. The directions
contained in Clauses 3 and 4 in Tribunal's order were criticized.
16. The counsel for private respondents, on the other hand
supported the impugned order of the Tribunal by contending that
the Tribunal rightly interfered with because posting of private
respondents as Superintendents was in excess to statutory quota
and such promotions cannot sustain judicial scrutiny. By placing
reliance on the judgment of the Apex Court in V. Sreenivasa
Reddy vs. Government of Andhra Pradesh 1, it is submitted that
the temporary/ad hoc promotion cannot result into the grant of
seniority. For this purpose, reliance is also placed on the
judgment of the Apex Court in V. Venkata Prasad vs. High Court
1995 Supp (1) SCC 572
8 HC,J & SP,J
Wps_10298 & 2076_2013
of Andhra Pradesh 2 and the Division Bench Judgment of this
Court in W.P.No.23856 of 2016 (K. Shailendra Moses vs. State
of Telangana).
17. The Government counsel reiterated his stand which was
taken before the administrative tribunal.
18. The parties confined their arguments to the extent indicated
above. We have bestowed our anxious consideration on rival
contentions and perused the record.
19. The first point raised by the learned counsel for the
petitioners was relating to non-joinder of all the parties who were
going to be affected by the decision of the Tribunal. As noticed
above, the applicants challenged two memos dated 27.11.2010
and 28.09.2011 before the Tribunal. On the strength of these two
memos, the department granted seniority to the present
petitioners/private respondents before the Tribunal. This is not in
dispute that original applicants impleaded respondent No.3, an
effected employee who contested the matter before the Tribunal by
engaging a counsel. This point raised is no more res integra.
20. The Hon'ble Apex Court way back in GM, South Central
Railway vs. A.V.R.Siddhanti 3, held as under:
(2016) 11 SCC 656
9 HC,J & SP,J
Wps_10298 & 2076_2013
"The respondents-petitioners are impeaching the validity of
those policy decisions on the ground of their being violative of
Articles 14 and 16 of the Constitution. The proceedings are
analogous to those in which the constitutionality of a statutory
rule regulating seniority of Government servant is assailed. In
such proceedings the necessary parties to be impleaded are
those against whom the relief is sought, and in whose absence
no effective decision can be rendered by the Court. In the
present case, the relief is claimed only against the Railway
which has been impleaded through its representative. No lost
or order fixing seniority of the petitioners vis-à-vis particular
individuals, pursuant to the impugned decisions, is being
challenged. The employees who were likely to be affected as a
result of the re-adjustment of the petitioner's seniority in
accordance with the principles laid down in the Board's
decision of October 16, 1952, were, at the most, proper parties
and not necessary parties, and their non-joinder could not be
fatal to the writ petition."
(Emphasis Supplied)
21. The principle laid down in this judgment was consistently
followed by the Supreme Court. In Sanjay Prakash vs. Union of
India 4, the Supreme Court opined that in a case of this nature,
where the policy decision was called in question, it was not
necessary to implead those against whom relief is sought for. At
the cost of repetition, since applicants before the tribunal
impleaded one effected party, who represented the interest of all
the persons concerned, it cannot be said that all such persons
going to be effected should have been impleaded. Thus, first
objection pales into insignificance.
22. The another ground was that the present petitioners were
rightly promoted and they were holding 'lien' in their parent
(1974) 4 SCC 335
(2021) 9 SCC 79
10 HC,J & SP,J
Wps_10298 & 2076_2013
department. The Tribunal, in our considered judgment, has
considered the definition of 'lien' and rightly opined that lien is a
title of Government Servant to hold a post on substantive basis.
One cannot have 'lien' on a post which he is not occupant legally
and on substantive basis. The Tribunal considering the number
of Superintendents occupying the posts qua the number of actual
sanctioned posts, issued direction to the department to examine
the promotions of Superintendents promoted from the post of
Senior Assistants and count seniority from the date each of them
accommodated in the clear regular vacancies.
23. In our considered opinion this direction of Tribunal is strictly
in consonance with the judgment of Supreme Court in Keshav
Chandra Joshi vs. Union of India 5. The dicta of this judgment
was recently followed in Malook Singh vs. State of Punjab6 and
in Rashi Mani Mishra vs. State of Uttar Pradesh 7. It was
poignantly held that the ad hoc/temporary promotions will not
fetch any seniority on the said post.
24. The affidavit of present petitioners shows that they worked
from different dates with different Ministers as Personal Assistants
(PA). Even assuming that all such postings were on deputation,
1992 Supp (1) SCC 272
2021 SCC Online SC 876
(2021) 17 SCC 399
11 HC,J & SP,J
Wps_10298 & 2076_2013
the present petitioners can hold 'lien' only on the post
substantively held by them. The seniority arising out of such post
held on substantive basis alone can be counted. We do not see
any flaw in the order of Tribunal, wherein Tribunal directed the
department to undertake a meticulous exercise of examining the
promotions of Superintendents in order to determine whether they
were working against sanctioned and vacant posts.
25. Since the Tribunal has taken a plausible view, we do not find
any reason to disturb the same. Resultantly, the Writ Petitions
fail and are hereby dismissed. There shall be no order as to costs.
Miscellaneous applications, if any, pending shall stand
closed.
_______________________
ALOK ARADHE, CJ
___________________
SUJOY PAUL, J
Date: 26.03.2024
TJMR
