IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE FOURTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION Nos. 35150 & 36367 of 1998 W.P.No.35150 of 1998 Between:
V.Pameela rani, W/o K.V.Gopal, Flat No.301, Abirama Aprt., Rajeev Nagar, Yousufguda, Hyd.
. PETITIONER AND
1 The AP State Housing Corpt. Ltd., Rep by its MD, Himayatnagar, Hyd.
2 The Dist.Collector & Executive Director, AP State Housing Corpt. Ltd., R.R.Dist.
3 The Dist.Manager, AP State Housing Corpt. Ltd., R.R.Dist., Himayatnagar, Hyd.
4 M.Satyanarayana Rao, AP State Housing Corpt. Ltd., Warangal.
5 P.Janardhan Reddy, AP State Housing Corpt. Ltd., Warangal.
6 M.Gangaram, AP State Housing Corpt. Ltd., Nizamabad.
7 AVSR Anjaneyulu, AP State Housing Corpt. Ltd., Head Office, Himayatnagar, Hyd.
8 B.Laxminarayana, AP State Housing Corpt. Ltd., Karimanagar
9 D.Saroja Devi, AP State Housing Corpt. Ltd., Head Office, Himayatnagar, Hyd.
10 L.Ajay Kumar, AP State Housing Corpt. Ltd., Vishakapatnam.
11 P.R.Narsinga Rao, AP State Housing Corpt. Ltd., Vishakapatnam.
12 M.Laxmikantham, AP State Housing Corpt. Ltd., Head Office, Himayatnagar, Hyd.
13 L.V.Sai Kumar, AP State Housing Corpt. Ltd., W.G.Dist.
14 Y.Saileela, AP State Housing Corpt. Ltd., Medak Dist.
15 Y.U.Bhaskar Rao, AP State Housing Corpt. Ltd., Head Office, Himayatnagar, Hyd.
16 A.Narsing Rao, AP State Housing Corpt. Ltd., R.R.Dist., Hyd.
17 Ch.Patap Rao, AP State Housing Corpt. Ltd., Head Office, Himayatnagar, Hyd.
18 S.V.Kameswari, AP State Housing Corpt. Ltd., Mahaboobnagar.
19 T.Mohan, AP State Housing Corpt. Ltd., Prakasam Dist., Ongole.
20 M.S.Prasad, AP State Housing Corpt. Ltd., Head Office, Himayatnagar, Hyd.
21 K.Kumar Ram Babu, AP State Housing Corpt. Ltd., Vishakapatnam.
22 A.Ramachandra Murthy, AP State Housing Corpt. Ltd., Medak, Sangareddy.
23 R.V.V.Satyanarayana, AP State Housing Corpt. Ltd., E.G.Dist.
24 N.Mohan Rao, AP State Housing Corpt. Ltd., Head Office, Himayatnagar, Hyd.
25 V.Shina Prasad Sarma, AP State Housing Corpt. Ltd., Prakasam Dist., Ongole.
26 P.V.Sagar, AP State Housing Corpt. Ltd., R.R.Dist., Hyd.
27 D.L.Jagadeswar, AP State Housing Corpt. Ltd., R.R.Dist., Hyd.
28 D.V.ratnam, AP State Housing Corpt. Ltd., Head Office, Himayatnagar, Hyd.
29 S.Ramathulasamma, AP State Housing Corpt. Ltd., Ananthapur.
30 K.N.Ganesh Babu, AP State Housing Corpt. Ltd., Chittoor.
31 V.Adilaxmi, AP State Housing Corpt. Ltd., Head Office, Himayatnagar, Hyd.
32 I.Ramadevi, AP State Housing Corpt. Ltd., Head Office, Himayatnagar, Hyd.
33 V.Vajraiah, AP State Housing Corpt. Ltd., Guntur.
34 K.Venugopal Reddy, AP State Housing Corpt. Ltd., Ananthapur.
35 T.Subramanya Sastry, AP State Housing Corpt. Ltd., Guntur.
36 P.Subba rao, AP State Housing Corpt. Ltd., Krishna Dist.
37 K.banoji Rao, AP State Housing Corpt. Ltd., Vizianagaram.
38 S.Ravinder, AP State Housing Corpt. Ltd., Karimanagar.
39 N.Srinivasa Rao, AP State Housing Corpt. Ltd., Krishna Dist.
40 Ch.Sathaiah, AP State Housing Corpt. Ltd., Karimanagar.
41 S.Srinivas, AP State Housing Corpt. Ltd., Karimanagar.
42 N.Annapurna, AP State Housing Corpt. Ltd., W.G.Dist.
43 K.Prasad, AP State Housing Corpt. Ltd., Cuddapah.
44 K.Somavathi, AP State Housing Corpt. Ltd., Head Office, Himayatnagar, Hyd.
45 T.Suresh, AP State Housing Corpt. Ltd., Anantapur.
. RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ, direction or order, more especially one in the nature of writ of mandamus, declaring the action of respondents No. 1 to 3 in showing the respondent No.4 to 45 as Senior to the petitioner as illegal, arbitrary and violative of Art.14 and 16 of the constitution of india and consequently place the petitioner after Mumtaj Begum in the final seniority list of Sr.Assistant Counsel for the Petitioner:MR.M.PANDURANGA RAO Counsel for the Respondent No.: .
W.P.No.36367 of 1998 Between:
1 M.Vidya Sagar, S/o. Varada Chary, R/o. Mahaboobnagar.
2 K.Chandrasekhar Rao, S/o. K.Varadarjulu, R/o. Mahaboobnagar.
3 K.Prabhakar, S/o. Sudersan, R/o. Nalgonda .
4 N.Gopal Rao, S/o. Hanumantha Rao, R/o. Hyderabad.
5 K.Venkateswara Rao, s/o. venkata Krishna Rao, R/o. Miryalaguda.
6 V.V.R.Murthy, S/o. Sita Ramaiah, R/o. Nalgonda .
7 Narayana Reddy, S/o. Raghava Reddy, R/o. Sangareddy, Medak District.
8 Mohammed Nazeeruddin, S/o. Hussanuddin, R/o. Siddipet, Medak District.
. PETITIONER(S) AND
1 The State Andhra Pradesh, Rep.by it's Secretary to Government ,Housing Department, Secretariat Buildings, Saifabad, Hyderabad.
2 The Managing Director, A.P.State Housing Corporation Ltd., Urdugally, Himayatnagar, Hyderabad.
3 Mumtaj Begum, Srikakulam. (Sl.No.12 in the final Seniority list).
4 A.V.S.R.Anjaneyulu, Hyderabad. (Sl.No.16 in the final Seniority list).
5 D.Sarojini Devi, Hyderabad. (Sl.No.18 in the final Seniority list).
6 N.Lakshmikantham, Hyderabad. (Sl.No.21 in the final Seniority list).
7 L.V.Saikumar, Eluru, West Godavari District, (Sl.No. 22 in the final Seniority list).
8 Y.V.Bhaskar Rao, Hyderabad. (Sl.No.24 in the final Seniority list).
9 S.V.Kameswari, Mahaboobnagar. (Sl.No.27 in the final Seniority list).
10 M.S.Prasad, Hyderabad. (Sl.No.29 in the final Seniority list).
11 N.Mohan Rao, Hyderabad. (Sl.No.33 in the final Seniority list).
12 D.L.Jagdiswar, Hyderabad. (Sl.No.36 in the final Seniority list).
13 D.V.Ratnam, Hyderabad. (Sl.No.37 in the final Seniority list).
14 V.Adilaxmi, Hyderabad. (Sl.No.40 in the final Seniority list).
15 I.Rama Devi, Hyderabad. (Sl.No.41 in the final Seniority list).
16 P.Subba Rao, Machilipatnam, Krishna District. (Sl.No.45 in the final Seniority list).
17 K.Bhanoji Rao, Vizianagaram, (Sl.No.46 in the final Seniority list).
18 N.Annapurna, Eluru,W.G.Disrtict. (Sl.No.51 in the final Seniority list).
19 K.Prasad, Cuddapah, (Sl.No.52in the final Seniority list).
20 K.Somavathi, Hyderabad, (Sl.No.53in the final Seniority list).
21 V.Prameela Rani, Hyderabad, (Sl.No.55in the final Seniority list).
22 P.Krishna Rao, Srikakulam. (Sl.No.64 in the final Seniority list).
23 D.Ramulu, Ranga Reddy , Hyderabad. (Sl.No.65 in the final Seniority list).
24 P.Gangabhvani, Eluru,W.G.Disrtict. (Sl.No.66 in the final Seniority list).
25 Md. Nazeerullah Khan, Nizamabad. (Sl.No.67 in the final Seniority list).
26 P.Prakash, Nizamabad. (Sl.No.68 in the final Seniority list).
27 B.V.Rmana Murthy, Vizianagaram, (Sl.No.7 in the final Seniority list).
28 Shaik Muqtar, Warangal, (Sl.No.8in the final Seniority list).
29 P.Venugopalaswamy, Khammam, (Sl.No.11 in the final Seniority list).
30 C.Thikkanna, Kurnool, (Sl.No.105 in the final Seniority list).
. RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a writ or direction more particularly one in the nature of Writ of Mandamus (a) declaring the action of the Respondent No.2 in placing juniors to the petitioners above them in the final seniority list of Senior Assistants published vide orders dt.29-7-98, as arbitrary, illegal and violative of Art.14 and 16 of Constitution of India. (b) direct the respondents to place the petitioners above the un-official respondents in the seniority list of Senior Assistants by duly taking in to account their actual date of promotion as Senior Assistant. (c) direct the respondents 1 and 2 consider the cases of the petitoners for promotion to the post fo Assistant Manager by duly taking in to account their actual dates of promotion as Senior Assistants by placing them above the un-official respondents in the seniority list of Senior Assistants and pass Counsel for the Petitioner:MR.ABHINAND KUMAR SHAVILI Counsel for the Respondent No. : MR.P.UDAYA BHASKARA RAO COMMON ORDER:
The final seniority list of Senior Assistants, published vide order dated 29-07-1998, is under challenge on different grounds in these two writ petitions. As such, the writ petitions were heard together and are now being disposed of by a common order.
The petitioners, and unofficial respondents, in these two writ petitions, are all employees of the A.P.State Housing Corporation Limited, a Company incorporated under the Companies Act, 1956. They were all appointed as Junior Assistants, the petitioners by way of direct recruitment and the unofficial respondents on their services, as daily wage employees, being regularized by the Government pursuant to G.O.Ms.No.271 dated 31-12-1984. While the petitioner in W.P.No.35150 of 1998 was appointed as a Junior Assistant, pursuant to a written examination held on 04-12-1984, vide proceedings dated 16-12-1984, a copy of the order which she claims to have received on 28-12-1984 and to have joined as Junior Assistant on 01-01-1985, the petitioners in W.P.No.36367 of 1998 were directly recruited as Junior Assistants during the period, July to December, 1985. The unofficial respondents, who were hitherto daily rated employees appointed by the Managing Director of the Corporation in exercise of the powers conferred under Rule 8 of the A.P.State Housing Corporation Limited Employees Service Rules, 1984, were regularized with effect from 01-01-1985 pursuant to G.O.Ms.No.271 dated 31-12-1984.
The several contentions raised by the petitioners reflect a total mishandling by the official respondents of the entire process of selection and promotion to higher posts in the A.P.State Housing Corporation for the past more than two decades. Without even finalizing the seniority list of Junior Assistants, promotions have been effected not only to the next higher post of Senior Assistants but also to higher posts above, of Assistant Managers and Managers respectively. The impugned proceedings dated 29-07-1998 is an order whereby the seniority list of Senior Assistants has been finalized without the seniority list of Junior Assistants having been finalized. As to how such a situation came to pass defies answer even by the Corporation itself and the feeble explanation put forth by Sri P.Udaya Bhaskara Rao, learned standing counsel for the Corporation, is that it was an insignificant error on the part of the Corporation. As to how promotions could have been effected to the post of Senior Assistants, without finalizing the seniority list of Junior Assistants which is at the base level and from which post candidates are entitled for promotion to the next higher post of Senior Assistants, and thereafter, from Senior Assistants to Assistant Managers and from Assistant Managers to Managers, is a blunder of monumental proportion and can, by no stretch of imagination, be oversimplified as being an insignificant lapse. To compound this blunder the Corporation, as is evident from the pleadings and submissions on record made by the counsel appearing both for petitioners and unofficial respondents, have picked up candidates at random for being conferred the benefit of promotion to higher posts giving a total go-bye to the rule of seniority.
The rules governing the field are the A.P.State Housing Corporation Limited Employees Service Rules, 1984 (for short ‘1984 Rules’) since the subsequent rules notified in G.O.Ms.No.33 came into force only with effect from 26-05-1998. Rule 3(c) of the 1984 Rules, defines “duty” to include joining time. Rule 3(d) defines “employee” to mean any person employed by the Corporation but does not include persons employed on daily wage basis, contract basis or on part time basis. Rule 3(f) defines “joining time” to mean the time allowed to an employee in which to join a new post or to travel to or from a station to which he is posted. Rule 7 relates to classification of permanent employees. Rule 7 was amended by the Board of Directors of the Corporation, in its meeting held on 25-05-1989, and the amendment provided that the A.P.State Housing Corporation Limited Employees Service Rules may be constituted for certain categories of posts which include at Sl.Nos.7 to 10, typists, Junior Steno, Junior Accountant, Junior Assistant and at Sl.No.14, Senior Assistant. It also provides that the appointment, qualifications and age for different categories shall be as shown in the annexure. It is not known, nor are counsel on either side in a position to clarify, as to whether the annexure to the 1984 Rules existed eversince the inception of the rules or whether they were brought into force pursuant to the amendment made on 25-05-1989. Rule 9 relates to the method of recruitment and, under sub-rule (a), the Board shall be competent to prescribe, from time to time, the number of posts in all categories, the cadre strength thereon, pay scales, age and other allowances as given in Annexure-
I. Sub-rule (d) thereunder provides that the Selection Committee would be constituted by the Board, from time to time, in respect of posts included in Class I & II, while in respect of class III, IV & V posts, the written test and interview are required to be conducted by the Managing Director. Rule 15 defines “Service” to include the period during which an employee is on duty as well as on leave duly authorized by the Managing Director. Rule 22 relates to seniority and, thereunder, an employee confirmed in the Corporation’s service shall rank for seniority in his grade according to his date of confirmation in the grade, and an employee on probation according to the length of his probationary service, provided that a person who in view of his qualifications and previous experience is granted initial increments in a grade at the time of his appointment may, at the discretion of the Managing Director, be granted seniority for a period upto one year for every two increments granted to him in the grade to which he is appointed. Rule 23 relates to promotion and under sub- rule (1), no employee shall be eligible for promotion from the category in which he was appointed to the service unless he has satisfactorily completed his probation in that category.
It is evident, on a conjoint reading of Rule 9(d) and Rule 23(ii) of the 1984 Rules, that promotion to higher post is by way of selection comprising of a written test and interview and not merely on the basis of seniority. Seniority, no doubt, is also one of the considerations for promotion to higher post but is not the sole consideration. The annexure to the rules prescribes the method of recruitment, qualification and age for different posts. While the method of recruitment to the post of Junior Assistant etc. is by direct recruitment and deputation, the qualification prescribed is a minimum of graduation with certain additional qualifications to some of these posts. The method of recruitment/appointment to the post of Senior Assistant is both by promotion and by direct recruitment in the ratio of 1:1. While promotion to the post of Senior Assistant is from the feeder category of typist/Junior Steno/Junior Assistant/Junior Accountant, and no age limit or qualification is prescribed for promotion to the post of Senior Assistant, for direct recruitment as a Senior Assistant the qualification prescribed is a degree with first class and not more than 28 years of age and relaxable in the case of SCs/STs & BCs by five years. As noted above, it is not even known whether the annexure to the rules forms part of the original rules made in 1984 or were pursuant to an amendment to the rules, made with effect from 25-05-1989. This information has a bearing on the fixation of seniority in as much as if the annexure is held to form part of the original rules, then appointment/regularization of persons, who do not possess the qualification of graduation, could not have been made to the post of Junior Assistants in the absence of any power conferred on the Corporation to relax the rules. The fact, however, remains that the annexure to the rules is silent with regards the age and qualifications required to be satisfied by the Junior Assistants for being promoted as Senior Assistants.
While it may not be necessary for this Court to make a detailed analysis of the several contentions raised, it is, however, essential that a brief reference be made to the points in controversy. Sri M.Panduranga Rao, learned counsel for the petitioner in W.P.No.35150 of 1998, would contend that Rule 14, which requires the service to be deemed to have commenced from the date on which an employee reports for duty does not apply to cases where the service rules itself provide otherwise. Learned counsel would contend, placing reliance on the definition of “duty” under Rule 3(c) and “joining time” under Rule 3(f) of the 1984 Rules, that since the petitioner was appointed on 16-12-1984, a copy of which she received on 28-12-1984 and she was permitted to join duty on 01-01-1985, the period from 16-12-1984 to 01-01-1985 is the joining time provided for under Rule 3(f) read with Rule 3(c) and, since this period is also required to be reckoned as on duty, the petitioner must be held to have been appointed, and to have her service reckoned, from 16-12- 1984 onwards. Learned counsel would further contend that the unofficial respondents, who were appointed on daily wage basis, under Rule 8 of the 1984 Rules, were not entitled even for regularization since the Government has no power either under the Articles of Association, or under any other law applicable to employees of the Housing Corporation, to regularize their services. Learned counsel would place reliance on Mahboob Deepak v. Nagar
[1]
Panchayat Gajraula to contend that any appointment made contrary to the rules is a nullity and, since the very appointment of the unofficial respondents is illegal and must be held to be null and void, the unofficial respondents, in no event, can be held to be seniors to the petitioner.
Sri P.Udaya Bhaskara Rao, learned standing counsel for the Corporation and Sri Y.S.Venkat Rao, learned counsel appearing for the unofficial respondents, would, on the other hand, vehemently contend, not without justification, that since the unofficial respondents were regularized pursuant to G.O.Ms.No.271 dated 31-12-1984, which order has not even been questioned in these writ petitions, the petitioners cannot be heard to now contend that, in a writ petition filed 13 years after their appointment on a regular basis, their very appointment is arbitrary or illegal or a nullity. Both counsel would submit that the Corporation has acted well within its powers in regularizing the services of these daily rated employees, who have been working for several years with the Corporation, and, since these employees are entitled to have their seniority reckoned from the date on which G.O.Ms.No.271 dated 31-12-1984 came into force, they being seniors to both the petitioners in W.P.Nos.35150 & 36367 of 1998 are entitled to be promoted first to higher posts.
Sri Abhinand Kumar Shavili, learned counsel for the petitioners in W.P.No.36367 of 1998, would contend that the Corporation had understood, atleast till the year 1993, that the Presidential Order applied to employees of the Corporation and, while the petitioners were appointed and were working in districts, the unofficial respondents, who were working in head office, were treated as a separate unit and promoted in the year 1990 directly on the basis of merit. Learned counsel would point out, rightly so, that promotion to the post of Senior Assistant under Rule 9(d) and Rule 23(ii) of the 1984 Rules, is on the basis of merit and, while seniority is also a relevant consideration, promotions cannot be effected solely on the basis of seniority. Learned counsel would submit that the unofficial respondents are not even graduates and, under the rules (annexure to the rules), they could not have been appointed/absorbed in the first place as Junior Assistants. Learned counsel would read the requirement of a qualification of graduation even for promotion to the post of Senior Assistants contending that if the qualification of graduation is considered to be the prerequisite for appointment as a Junior Assistant, it would not stand to reason that a person promoted as Senior Assistant can be a non-graduate. Sri Y.S.Venkat Rao, learned counsel for the unofficial respondents, would point out that, except for the five employees for whom the Board had relaxed the requirement of the qualification of graduation, all the other unofficial respondents were graduates.
It is wholly unnecessary for this Court to examine all these aspects since both the writ petitions are required to be allowed on the short ground that the seniority list of Junior Assistants has not as yet been finalized. While it is no doubt true that promotion, to the higher posts of Senior Assistant and above, is on the basis of selection and, no employee has the right to claim that he be promoted, it is well settled law that every employee has a fundamental right, under Articles 14 and 16 of the Constitution of India, to be considered for promotion and, while the selection committee may, for just and valid reasons, hold that an employee is not entitled to be promoted to a higher post, it cannot deny consideration of the case of a senior while considering the case of a junior for promotion. The Selection Committed has necessarily to consider candidates for promotion to the post of Senior Assistants in the order of seniority for which the basic requisite would be finalization of the seniority list of Junior Assistants. Since the entire edifice of appointment to higher posts, from Senior Assistants and above, is built on the foundation of finalization of the seniority list of Junior Assistants, any promotions effected to the post of Senior Assistants and above without even finalizing the seniority list of Junior Assistants would, undoubtedly, be illegal. The impugned proceedings dated 29-07-1998 is a proceeding whereby the seniority list of Senior Assistants was finalized. It needs no reiteration that, without finalizing the seniority list of Junior Assistants, the seniority list of Senior Assistants could not have been finalized. As such, the impugned proceedings dated 29-07-1998 is liable to be set aside.
The question which remains is as to what should happen to the promotions already effected. I see no reason to uphold the validity of the promotions already made since that would amount to this Court giving its seal of approval to the continuous illegal acts on the part of the Corporation in effecting promotions contrary to the rules, more particularly the 1984 Rules which govern the field. Ends of justice would be met if the Corporation were directed to invite objections to the provisional seniority list of Junior Assistants prepared in the year 1994, fixing the time limit of one month from the date of receipt of a copy of this order for submission of objections and, thereafter, consider the objections and finalize the seniority list of Junior Assistants within two months thereafter. Subsequently, on the basis of the finalized seniority list of Junior Assistants, promotions already effected from the post of Junior Assistants to that of Senior Assistants, Senior Assistants to Assistant Managers and Assistant Managers to Manages shall all be reviewed strictly in accordance with the 1984 Rules and the amendments made thereto, if any, prior to 1994. This exercise, of reviewing the promotions made earlier, shall be completed within three months from the date the seniority list of Junior Assistants is finalized and, on such exercise of review being completed, necessary consequential orders shall be issued to the candidates who are entitled for promotion. Setting aside all appointments made earlier would cause inconvenience to the Corporation since persons who now hold posts from the cadre of Senior Assistants to Managers would all require to be reverted leaving the Corporation with no officers to man these posts. I consider it appropriate, therefore, to direct maintenance of status quo with regards promotions already effected to the post of Senior Assistants and above for a period of six months from the date of receipt of a copy of this order.
Both the writ petitions are allowed with costs quantified at Rs.5,000/- each (rupees five thousand only) and the impugned proceedings dated 29-07-1998 is set aside.
RAMESH RANGANATHAN,J Dt.09.04.2008 usd To
1 The AP State Housing Corpt. Ltd., Rep by its MD, Himayatnagar, Hyd.
2 The Dist.Collector & Executive Director, AP State Housing Corpt. Ltd., R.R.Dist.
3 The Dist.Manager, AP State Housing Corpt. Ltd., R.R.Dist., Himayatnagar, Hyd.
[1] 2008(1) SCC 575