IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH WEDNESDAY THIS THE TWENTY SEVENTH DAY OF AUGUST TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION No.23975 of 2000 Between:
B.Madurai Kumar and 2 others . PETITIONERS And The Chief Engineer (SC), Southern Comman, Pune and 4 others . RESPONDENTS The Court made the following:
THE HON’BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION No.23975 of 2000
ORDER:
I have heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondents.
The petitioners were working in the Grade of High Scale-II (HS- II) and they are due for promotion to the Grade of HS-I. It is submitted that for the purpose of awarding the Grade of HS-I, the respondents adopted the method of conducting trade test apart from seniority.
Accordingly, in the month of May, 1999 the respondents conducted a trade test, the qualifying service for appearing the trade test is 3 years and out of total marks fixed for trade test, 35 marks have been prescribed as qualifying marks for candidates belonging to the Scheduled Caste and Scheduled Tribe. All the petitioners belong to Scheduled Caste. They claim that they have secured more than 35 marks prescribed as qualifying marks for promotion to the Grade of HS-I. In spite of their securing the prescribed qualifying marks, they were not promoted to Grade of HS-I. It is submitted by the petitioners that subsequently the respondents adopted a new policy without there being any notice of any of the employees that whoever got 50% in each discipline of trade test will be considered for promotion to the Grade of HS-I.
Nextly, it is submitted that there were 28 vacancies of HS-I which were put to for effecting promotions but only 17 posts were filled up. It is further submitted that the posts were created in the cadre in the year 1993, but were kept vacant all through. According to the petitioners, the said posts have to be filled as per the qualifications prescribed for the same at the time when they were created on the cadre. The version of the petitioners is that the relaxation etc., in favour of Scheduled Caste and Scheduled Tribe candidates as prescribed in the policy existing at the time of creation of the aforesaid posts has to be applied and in such an event, the petitioners ought to have been selected. It is further submitted that if at all there is policy decision the same has to be applied in respect of all the individuals appeared for the trade test for the post of HS-I. According to the petitioners, the candidates working in Air Force which is also under the same control of the 1st respondent have been given relaxation as per the earlier policy but coming to the candidates appearing from Army have been deprived of the relaxation in the guise of new policy even though no such distinction is existing in the terms of the policy.
It is further submitted that the respondents never conducted trade test and all through the promotions to the post of HS-I in other centers was only on the basis of seniority and no trade test was conducted but for the first time the 1st respondent has introduced conducting of trade test that too in respect of the petitioners circle only which is also illegal and arbitrary.
In the aforesaid circumstances, the petitioners have filed the present writ petition seeking writ of mandamus declaring the action of the respondents in not considering the petitioners for the post of HS-I by applying relaxation in qualifying marks, as illegal, arbitrary and violative of Article 14 of the Constitution of India and consequently, direct the respondents to consider the petitioners for promotion to the post of HS-I by applying relaxation in qualifying marks as per the earlier policy with all attendant benefits.
In the counter affidavit filed by respondents No.s1 to 3, it is contended that the trade test for HS categories of Industrial personnel was held on 25th May 1999. As regards standards of declaring a candidate pass in the trade test, no separate standard evaluation is to be given to SC/ST candidates and they too have to obtain and qualify with 50% marks in aggregate with 30% marks in each discipline unilaterally on par with other candidates who too need to qualify with 50% marks vide letter of the Chief Engineer (Fy) Hyderabad No.100156/3109/E1B(NB-I) dated 12th April 2000. It is further contended that it is incorrect to state that the respondents 1 to 3 never conducted trade test and all through the promotions to the post of HS-I in other centers was only on the basis of seniority. The trade test is being conducted at all levels where and when it is due as per schedule. It is further contended that the previous policy is not the essence of existing policy, since the policies are formed and ought to be changed based upon prevailing circumstances and therefore, the contention of the petitioners is hypothetical and without any basis. Contending as above, the respondents 1 to 3 sought to dismiss the writ petition.
Respondents Nos.4 & 5 filed separate counter stating that they are not concerned with the process of promotion relating to the petitioners, they were unnecessarily made as parties to the writ petition, the petitioners did not make out any case against them and the writ petition therefore is liable to be dismissed against them.
There is no denial to the fact that the petitioners are eligible for promotion to the Grade of HS-I and they appeared for the trade test conducted by the respondents 1 to 3 in the month of May 1999. The respondents 1 to 3 have not specifically denied the fact that the minimum qualifying marks in the trade test for the scheduled caste and scheduled tribe candidates are 35 as per the guidelines issued at the time of conducting the trade test i.e. as on May, 1999. Thus, the relaxation in respect of the minimum marks have to be obtained by the candidates belonging to the scheduled caste and scheduled tribe as on May 1999 is not disputed by the respondents 1 to 3. Their only contention is that they adopted a new policy subsequent to the conducting of the trade test i.e. in the year 2000 according to which whoever got 50% in each discipline of trade test is only eligible for promotion to the Grade of HS-I.
The only question therefore arises for consideration in the present writ petition is whether the contention of the respondents 1 to 3 that by introducing a new policy they can change the eligibility criteria for the trade test which was already conducted.
Similar question fall for consideration before the Hon’ble Supreme Court of India in Y.V.Rangaiah v. J.Sreenivasa Rao[1] wherein it was held as under:
“Having heard the counsel for the parties, we find no force in either of the two candidates. Under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Registrar Grade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than respondents 3 to 15 would not have been deprived of their right of being considered for promotion. The vacancies which occurred prior t the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the State-wide basis and, therefore there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules.”
In view of the ratio laid down by the Hon’ble Supreme Court in the aforesaid judgment, the respondents 1 to 3 are not supposed to change the eligibility criteria which has been prescribed while conducting the trade test for the petitioners and others in May 1999. Obviously, the new policy prescribing minimum qualifying marks at 50% was introduced in the year 2000 i.e. after conducting the trade test. The new policy takes away the right of relaxation to the petitioners belonging to the scheduled caste which was accrued to them under the old policy. The respondents 1 to 3 have to promote the petitioners basing on the earlier policy, but not according to the new policy. Therefore, absolutely there is no substance in the contentions urged on behalf of the respondents 1 to 3.
Consequently, the impugned action of the respondents 1 to 3 in not considering the petitioners to the Grade of HS-I by applying relaxation in qualifying marks as per the earlier policy is considered as arbitrary and illegal and the respondents 1 to 3 are directed to consider the petitioners for promotion to the Grade of HS-I by applying the relaxation in the qualifying marks in the trade test as per the earlier policy with all attendant benefits.
The writ petition thus succeeds and the same is allowed without any order as to costs.
Pending miscellaneous petitions, if any, shall stand closed in consequence.
R.KANTHA RAO,J Date: 27.08.2014 Dsr
Note:
Furnish copy in three days B/o Dsr
[1] (1983) 3 SCC 284