Telangana High Court
K. Srinivasa Reddy, Hyderabad. vs The A.P.Power Gen.Corp.Ltd.,Rep.By ... on 26 March, 2025
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 32747 OF 2012
O R D E R:
Petitioner who was appointed as Lineman on
28.04.1989 in respondent - A.P. Power Generation Corporation
and promoted up to the rank of Divisional Engineer, claims to
be the senior-most eligible for promotion to the rank of
Superintending Engineer. It is stated, Regulation 19 of APSEB
Leave Regulations, adopted by AP TRANSCO via TOO Ms.No.8
dated 09-04-2001, provided employees the option to avail
Extraordinary Leave (EOL) up to five years to work abroad
under specific conditions. Relying on this, petitioner is stated to
have applied for EOL to take up employment in Canada. At the
relevant time, he was employed under AP TRANSCO and was
later, allotted to APGENCO during bifurcation. As per Memo,
dated 08-08-2001, employees availing EOL were entitled to a
period without pay and allowances, with the assurance that
period would count toward service benefits such as increments,
pay, and leave, and would not be treated as break in service. He
availed EOL from 14-08-2001 to 31-05-2006 and joined duties
within the stipulated time. He claims his position in the ADE
cadre before availing leave was at Sl. No. 227, just below Smt.
D. Umamaheswari and above Sri K. Venkateswarlu. During his
EOL period, many of his juniors were promoted as Des. in 2005.
According to petitioner, under TOO Ms.No.8, dated
09-04-2001, EOL period must not be treated as break in
service, and his seniority should have remained intact and the
said period should be considered as qualifying service. He
asserts that his rightful promotion to DE was denied, and
several of his juniors surpassed him in seniority due to the
period of EOL being treated as non-qualifying service. Petitioner
states that similar regulations were issued earlier, such as
BPMS No.34 dated 12-05-1997 by the erstwhile APSEB. He
reiterates that promotion to DE is seniority-based, and he was
unjustly excluded from promotion despite rejoining duties
within the stipulated EOL period. Though he submitted
representation to respondents regarding this issue, the same
have not been considered. It is also stated, in similar
circumstances, this Court ruled that EOL should be treated as
qualifying service for granting consequential benefits, including
promotions. He therefore, seeks similar relief requesting that his
seniority be restored and his promotion be granted on par with
his juniors, along with all consequential benefits.
2. The Chief General Manager (Administration) of
TSGENCO filed counter affidavit on behalf of Respondents 1 to
3. It is stated that the period of EOL taken for private purposes,
cannot be treated as qualifying service as per the applicable
regulations. The respondents emphasize that the promotion of
an Assistant Divisional Engineer to the Divisional Engineer
cadre is governed by the APSEB SR Part-III regulations. These
regulations stipulate that the completion of eight years of
service in the lower cadre is mandatory to qualify for promotion.
It is stated, after bifurcation of APSEB, petitioner
was allotted to AP GENCO; he assumed charge on promotion as
ADE on 09.07.1999 and proceeded on EOL with effect from
15.08.2001 to 31.05.2006; therefore, he completed only two
years service as on the date of proceeding on leave in the cadre
of ADE. It is stated, after completion of requisite service of five
years which is the pre-requisite prescribed for the post of D.E.,
his name was recommended by DPC and included in approved
list dated 20.09.2009; accordingly, he was promoted as
Divisional Engineer and posted at Srisailam Right Bank Power
Project.
It is also stated, petitioner was provisionally
allocated to AP GENCO as per A.P. Reorganization Act, 2014 as
he was working as DE (Elecl.) However, pursuant to the
concluding report given by the One Man Committee dated
20.06.2020, petitioner was allocated to TS GENCO as DE
(Elecl.) but not as SE (Elecl.) and TS GENCO issued posting
orders to petitioner in T.O.O.No. 109, dated 29.12.2020 duly
posting him under the control of Chief Engineer as DE (Elec.).
According to this respondent, bifurcation of employees between
AP GENCO and TS GENCO is on 'as is where is basis' and if the
status quo of the employees was not maintained in the cadre as
on 02.06.2014, there is every possibility of dispute in seniority
and also pay anomalies between employees who were holding
the similar cadre as on 01.06.2014; it is therefore, crystalized
that cadre and post held by the employees who have been finally
allocated from AP GENCO to TS GENCO should be reckoned as
on 01.06.2014 and hence, his seniority should be re-fixed on
par with employees working in TS GENCO in the cadre of DE
(Elecl.). Hence, the final allocation of employees between AP
and TS GENCO necessitated publication of seniority list as on
02.06.2014. It is stated further that the composite AP GENCO
prior to bifurcation, did not promote petitioner from the cadre of
ADE to DE in the relevant original DPCs. conducted as he lost
his original seniority on account of the fact that he proceeded on
EOL hence the period spent on such EOL was not considered
for promotion from the cadre of ADE to DE as one of the pre-
requisite conditions for promotion is that one must have
rendered five years of service in the cadre of ADE and should
have earned five annual appraisal reports to evaluate his
performance for promotion to the next higher cadre. As per the
original seniority list, in the cadre of ADE, petitioner stood at
Sl.No. 225 finding place below Smt. D. Uma Maheswri (Sl.N.
224) and above Sri K. Venkateshwarlu (Sl.No. 226). As
petitioner was on EOL, his performance during panels drawn in
the cadre of ADE to DE in 2005-06, 2006-07, 2007-08 and
2008-09 could not be assessed and he lost the opportunity of
being promoted, as such D. Uma Maheswari, K.
Venkateshwarlu and Sri IVL Koteshwar Rao at Sl.Nos. 27, 28
and 29 were considered for promotion. After rendering required
period of five years of service in the cadre of ADE, which is pre-
requisite, in 2009, he was promoted, by which time, many
ADEs. were promoted as DEs.
This respondent states that AP GENCO suo motu
reviewed the seniority of petitioner in the cadre of ADE (Elecl.)
and DE (Elecl.) vide Memo dated 12.11.2019 who was in the
combined seniority list of employees working in both the
Corporations, without giving notice and affording an
opportunity to the affected employees working in TS GENCO as
on the date of such review to raise their objections against the
proposed revision of seniority, to which he is not entitled, as he
was on EOL for five years during which his performance cannot
be evaluated for promotion on par with the candidates on rolls
and in service of the composite AP GENCO. He was
consequently, promoted as SE vide GOO No. 269, dated
10.01.2020. It is stated, the orders in Memo dated 12.11.2019
and in G.O.O. dated 10.01.2020 have no role to play in the TS
GENCO much after bifurcation process attaining finality as the
seniority of employees who have been finally allocated from AP
GENCO to TS GENCO ought to be looked into in the
corresponding cadre and post which they were holding as on
02.06.2014. In any case, the said orders were subject to review
based on the result of final allocation of employees between AP
& TS power utilities. As such, a temporary promotions orders in
AP GENCO during the interim period of employee bifurcation
have no role to play in TS GENCO and also the temporary
promotions affected in TS GENCO after 02.06.2014 until
finalization of employee bifurcation have been cancelled and
reviewed in the corresponding cadre and post as on 01.06.2014.
Therefore, there is no injustice meted out to petitioner in
promotion from the cadre of DE to that of SE as alleged by him
upon his allotment from AP GENCO to TS GENCO.
3. Learned counsel for petitioner Sri K. Kiran Kumar
relies on the judgment dated 21.08.2009 of this Court in Writ
Petition No. 242 of 2004 and submits that his client is also
entitled to the same relief. He argues that denial of seniority
and promotional consideration for the EOL period is erroneous
and that petitioner would not have availed EOL had he been
aware of its adverse implications on his career. It is submitted
that EOL was sanctioned as per Memo dated 08.08.2001, which
explicitly states in Clause 2(iv) that "EOL shall be counted for
service benefits such as increments, pay, leave, etc." He
emphasizes that petitioner's name should have been included in
2005 Departmental Promotion Committee (DPC) list on
12.07.2005
4. Learned Standing Counsel for respondents Ms.
Uma Devi submits that during the period of EOL, petitioner is
not entitled to service benefits like pay, leave, annual grade
increments, etcetera, likewise, date of his annual grade
increment was also postponed; the period of EOL cannot be
treated as period 'spent on duty' and his performance during
this period cannot be evaluated which is a pre-requisite for
making him eligible for promotion. According to her, promotion
to the pot of Divisional Engineer is based on merit and
therefore, even assuming that petitioner is entitled to compute
EOL as eligibility qualifying service, unless he is subjected to
review by DPC, promotion cannot be automatically granted.
Learned Standing Counsel also submits that having accepted
employment abroad and enjoyed the benefit of such
employment cannot at the same time take a paradigm shift and
claim the service benefits in the Corporation. Rule 21 CCS
(Pension) Rules stipulates that EOL spent on private affairs does
not count for qualifying service. She relies on the judgment
dated 14.01.2011 in Civil Appeal No. 568 of 2011 between
Union of India v. Ashok Kumar Sharma wherein it was ruled
that if an employee availed EOL for private purpose, without
salary, then such period is to be excluded for the purpose of
computing qualifying service for grant of financial upgradation.
Learned Standing Counsel also submits that
petitioner filed Writ Petition No. 42537 of 2022 to declare the
action of the 2nd respondent in failing to publish the inter se
seniority list of DE (Elecl.) currently serving in the organization
and promoting immediate juniors of petitioner as SE without
considering his case. The said Writ Petition was dismissed as
infructuous, hence, seeks to dismiss this Writ Petition.
5. The central issue in this case is whether the period
of EOL availed by petitioner from 14-08-2001 to 31-05-2006
should be treated as qualifying service for promotion and
seniority, as per Memo dated 08.08.2001 and T.O.O. Ms. No. 08
dated 09-04-2001.
6. It is not in dispute that petitioner was sanctioned
EOL by Memo dated 08.08.2001, clause 2(iv) of which says that
EOL shall be counted for service benefits such as increments,
pay, leave etcetera. May be a clerical error. It should be read as
' EOL shall not be counted for service benefits'. In this regard,
it is apt to note that Transmission Corporation AP Limited
issued T.O.O. No. 8, dated 09.04.2001, which shows that vide
G.O.Ms.No. 214, dated 03.09.1996, the Government of Andhra
Pradesh issued orders permitting their employees to secure and
accept jobs abroad without applying voluntary retirement or
resignation from service. It has been decided to grant EOL to the
employees of TRANSCO of A.P. Ltd. and DISCOM for a period of
five years to take up employment abroad. Clause 4(ii) of the
said G.O. states that period of absence during employment
abroad will be treated as extraordinary leave without allowances
but such period of absence will not be construed as break in
service. It will not be counted for service benefits such as
increment, pay, leave, etcetera. Subsequently, vide Circular
Memo dated 15.04.2006, the Government of Andhra Pradesh in
its Finance (FR1) Department, clarified that there is no bar to
consider the employees, on any kind of leave, for promotion to
the next higher category. An employee on leave should furnish
the leave address for communication. The employee granted
leave for private employment abroad in terms of G.O.Ms.No. 214
shall be considered in normal course for promotion to the next
higher category. The order of promotion shall be communicated
to the address given by the employee. Such employee should
join as per the time limit as per Rule 11(b) of A.P. State &
Subordinate Service Rules, 1996. Hence, for all practical
purposes, an employee, who avails EOL for undertaking
employment abroad in terms of the said Circular, TOO and
G.O., is deemed to have continued in service of the Board. It is
therefore, clear from the above that EOL applied by petitioner
shall not be a bar to consider his case for promotion on par with
other employees. Hence, petitioner's case ought to have been
considered for promotion in 2005 DPC. The judgment relied on
by learned counsel for petitioner in Writ Appeal No 242 of 2004
also supports the case of petitioner. Though learned Standing
Counsel contends that in the said order, the employee availed
EOL in terms of B.P.Ms.No.34, which was subsequently,
cancelled in 1998, the same cannot be accepted as B.P.Ms.No.
34 is in pari materia with TOO Ms.No.8. Further, the judgment
relied on by learned Standing Counsel in Ashok Kumar
Sharma's case has no bearing to the present facts and
circumstances. In the said case, employee availed unsanctioned
leave and it was later regularized on specific terms and
conditions, but, here, in the case, petitioner availed pre-
approved sanctioned leave in terms of the rules and regulations
in vogue then.
7. The further contention raised by learned Standing
Counsel that petitioner was allocated to TS GENCO from AP
GENCO under Section 82 of the AP Reorganization Act, 2014 as
per the modalities finalized by the OMC and bifurcation of
employees between AP GENCO and TS GENCO is on 'as is
where is basis' and if status quo of the employees was not
maintained in the cadre as on 02.06.20914, there is every
possibility of dispute in seniority and also pay anomalies.
Hence, promotions due, if any in respect of the employees who
have been allocated from AP GENCO to TS GENCO as on
02.06.2014 are required to be considered on par with the
employees working in TS GENCO on the basis of inter se
seniority fixed as on 02.06.23014. In this regard, it is to be
seen that AP GENCO is the parent organization until formation
of TS GENCO on 02.06.2014 and both AP and TS GENCO follow
APSEB Service Regulations only, hence, TS GENCO cannot deny
the memo dated 12.11.2019 issued by AP GENCO correcting the
error that was committed in 2005 and rectified his seniority
duly giving notional promotion as DE from 2005. In view of the
same, the contention of respondents is untenable. The leave is a
sanctioned leave in terms of policy of the then APSEB, hence the
lien and seniority of petitioner should not be affected as during
the EOL period, he is deemed to have been continued in the
service. In view of the same, respondents ought to have
considered physical service rendered by petitioner and count the
period spent on EOL as on duty in accordance with
T.O.O.Ms.No. 8, to consider his case for promotion which shall
be made on merit-cum-seniority and ACRS of preceding five
years have to be considered for promotion from ADE to DE as
per Regulation 9(A) & (B) of TS GENCO Service Regulations
Part-III. When once respondents permitted petitioner to go on
EOL, now, they cannot take a stand that having accepted
employment abroad and enjoyed the benefit of such
employment cannot at the same time take a paradigm shift and
claim the service benefits in the Corporation.
8. It is also to be noted that petitioner filed Writ
Petition No. 42537 of 2022 to declare the action of the 2nd
respondent in failing to publish inter-se seniority list of DE. The
said Writ Petition was dismissed as infructuous as respondents
released the seniority list. Taking the totality of circumstances
into account, this Court is of the opinion that petitioner is
entitled to the relief sought in the Writ Petition.
9. The Writ Petition is therefore, allowed directing
respondents to restore petitioner's seniority in the cadre of DE
duly treating the period of EOL from 14.08.2001 to 31.05.2006
as qualifying service and grant all other consequential benefits
such as promotion to the cadre of DE on part with his juniors.
10. Consequently, miscellaneous Applications, if any
shall stand closed.
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NAGESH BHEEMAPAKA, J
26th March 2025
ksld
