IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH FRIDAY, THE SIXTH DAY OF JUNE, TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION No.3508 of 2002 Between:
V.R.Balaji . PETITIONER And State of A.P., rep.by Principal Secretary to Government, Housing Department, Secretariat, Hyderabad and 3 others . RESPONDENTS The Court made the following:
THE HON’BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION No.3508 of 2002
ORDER:
This writ petition is filed seeking issuance of a writ of mandamus declaring the action of the respondents 1 to 3 in promoting the 4th respondent as Assistant Engineer on regular basis vide proceedings No.A10/5268/89, dated 03.01.2002 as arbitrary and illegal and quash the same and consequently direct the respondents 1 to 3 to consider the case of the petitioner for promotion to the post of Assistant Engineer on regular basis with effect from 13.11.1991 in terms of G.O.Rt.No.114, dated 19.04.1999.
I have heard Sri N.Aswarathe Narayana, learned counsel appearing for the petitioner and Sri Mohana Rami Reddy & Sri T.Sudhakar Reddy, learned standing counsel appearing for the respondents.
The brief averments made in the affidavit filed in support of the petition may be stated as follows:
The petitioner was initially appointed as Technical Work Inspector in A.P.State Housing Corporation Limited, Chittoor District on 11.02.1986. He was regularized as Technical Work Inspector with effect from 13.11.1991 in terms of G.O.Ms.No.182, dated 13.11.1991 vide orders dated 01.01.1992. He was placed incharge for the post of Assistant Engineer vide orders dated 06.01.1992. At the time of his initial appointment, the petitioner was possessing Diploma in Civil Engineering.
It is submitted by the petitioner that in 1994 he was reverted from the post of Assistant Engineer incharge to Work Inspector Technical though his juniors continued as Assistant Engineers on incharge basis. Feeling aggrieved, the petitioner approached this Court by filing W.P.No.15407/1994 and this Court passed an interim order on 26.08.1994 directing the respondents therein to continue him as Assistant Engineer on incharge basis pending further orders.
It is further submitted by the petitioner that the employees of the 2nd respondent Corporation are governed by the A.P.State Housing Corporation Limited General Service Rules with effect from 05.06.1998. The promotions in the Corporation have to be made on the basis of selection but not merely on seniority. The method of appointment to the post of Assistant Engineer is by way of direct recruitment as well as promotion in the ratio of 1:1. For the promotion one must possess minimum Diploma in Civil Engineering or Mechanical Engineering. The A.P.State Housing Corporation Limited Diploma Holders and Work Inspectors Association had made a representation to the State Government to clarify as to whether the I.T.I holders who have acquired diploma qualification subsequently are entitled to count the length of service rendered by them as a minimum service or the service rendered after acquiring diploma qualification for the purpose of considering their cases for promotion to the post of Assistant Engineer. The State Government vide its letter dated 10.02.1999 had clarified that the persons will be declared eligible for promotion to the post of Assistant Engineer only from the date of acquisition of diploma in Civil or Mechanical Engineering but not from the date of initial appointment with I.T.I qualification. The Corporation vide memo dated 23.02.1999 clarified to the A.P.State Housing Corporation Diploma Work Inspectors Association that the cases of persons who were appointed with I.T.I qualification as Technical Work Inspectors will be considered only from the date of acquisition of diploma in Civil or Mechanical Engineering but not from the date of their initial appointment in the Corporation.
According to the petitioner, the 4th respondent was initially appointed with I.T.I. qualification as Technical Work Inspector in 1985 but he acquired diploma in Civil Engineering only in 1990. Thus, the version of the petitioner is that when it comes to the promotion to the post of Assistant Engineer, the 4th respondent should be treated as junior to him because right from initial appointment he was diploma holder in Civil Engineering where the 4th respondent has acquired diploma qualification only in 1990. The eligibility of minimum service has to be counted only from the date of acquiring diploma qualification but not from the date of initial appointment.
The grievance of the petitioner is that the respondents 1 to 3 promoted the 4th respondent as Assistant Engineer with effect from 13.11.1991 and the monetary benefit was given from the date of G.O.Rt.No.114, dated 19.04.1999 vide proceedings dated 03.01.2002. The 4th respondent was also granted notional increments and the 3rd respondent gave posting orders to the 4th respondent vide proceedings dated 08.02.2002 promoting the 4th respondent as Assistant Engineer.
It is submitted by the petitioner that as per the A.P.State Housing Corporation Limited General Service Rules, the method of appointment for the post of Assistant Engineer is by way of direct recruitment and by promotion in the ratio of 1:1 and hence he was eligible to be promoted as Assistant Engineer by 1991 immediately after completion of 5 years as Work Inspector. Nextly, it is submitted by the petitioner that even though he was fully eligible for promotion as Assistant Engineer, he was overlooked and the 4th respondent was given promotion contrary to the Rules.
The 2nd respondent filed counter affidavit contending as under:
The Statewide seniority list of Technical Work Inspectors was prepared treating the entire state as a unit and taking the date of entry into the Corporation as criteria. The serial number of the petitioner is 501, whereas the serial number of the 4th respondent is 208 in the said seniority list. The fact that the 4th respondent has acquired diploma in Civil Engineering on 28.02.1990 is admitted. But according to the 2nd respondent, the date of entry into service was taken as criteria for preparing the seniority list but not the date of acquiring the diploma in Civil Engineering. The 4th respondent was appointed on 18.02.1985 and he is senior to the petitioner who was appointed on 11.02.1986. It is also admitted by the 2nd respondent that the Government vide its letter dated 10.02.1999 clarified that the persons will be declared to be eligible for the post of Assistant Engineer(H) only from the date of acquisition of diploma in Civil or Mechanical Engineering, but not from the date of initial appointment with I.T.I qualification. It is also admitted that the 4th respondent was initially appointed with I.T.I qualification as Technical Work Inspector (H) on 18.02.1985 and acquired diploma in Civil Engineering on 28.02.1990. The version of the 2nd respondent is that the 4th respondent was considered by the Government for the appointment of regular Assistant Engineer (H) with effect from 13.11.1991 as he is senior to the petitioner in the district in the cadre of Work Inspector (T) and possessed requisite qualification to the post of Assistant Engineer (H) as on 02.04.1990.
The learned counsel appearing for the petitioner submits that despite the fact the petitioner’s initial appointment as Work Inspector was subsequent to the appointment of the 4th respondent, the petitioner has to be considered as senior for the promotion since he possessed the requisite qualification of diploma in Civil Engineering even at the time of his initial appointment, whereas the 4th respondent acquired the said qualification on 28.02.1990.
On the other hand, it is contended by the learned counsel appearing for the respondents that since on the date of consideration for promotion the 4th respondent also acquired requisite qualification of diploma in Civil Engineering, he being the senior he was rightly considered for the promotion in advance to the petitioner. The learned counsel appearing for the respondents further submitted that the petitioner was also promoted as Assistant Engineer in the year 2008 and therefore, the question setting aside the promotion of the 4th respondent does not arise in the present writ petition.
In the letter addressed by the Government of Andhra Pradesh, Housing (RH1) Department, dated 10.02.1999, it is mentioned at paragraph No.3 as under:
“It is clear that Diploma in Civil or Mechanical Engineering is the minimum qualification. The person is eligible to be considered for promotion to the cadre of Assistant Engineer only from the date of acquisition of the Diploma in Civil or Mechanical Engineering. Therefore, in respect of Draughtsman (Civil) and Work Inspector (Tech.) who are initially ‘ITI’ Certificate holders and who later acquire LCE/LME qualification shall be considered eligible for promotion to the post of Assistant Engineer only from the date of acquiring such diplomas not from the date of joining the Corporation as the Draughtsman (Civil) or Work Inspector (Tech.) with ITI Qualification.”
The aforesaid rule position has been reiterated in the Memo issued by the Government dated 23.02.1999.
The version of the petitioner is that seniority of the 4th respondent was placed at Sl.No.208 in the seniority list assuming that he was regular employee diploma holder by mistake without considering the fact that he did not possess the diploma in Civil Engineering or Mechanical Engineering at the time of his initial appointment. Therefore, he seeks to revise his seniority as regular diploma holder in preference to the 4th respondent who acquired diploma only in the year 1990. The petitioner made several representations but his request was not considered, and aggrieved thereby, he filed the present writ petition.
It seems that the original seniority list was prepared basing on the entry into service of the 4th respondent which is prior to the petitioner. As per the afore-referred letter and memo issued by the Government and also the A.P.State Housing Corporation Limited General Service Rules, the seniority for the purpose of considering for promotion to the post of the Assistant Engineer has to be reckoned from the date of acquisition of diploma in Civil or Mechanical Engineering but not from the date of initial appointment.
As obviously the petitioner possessed the requisite qualification of diploma in Civil Engineering even on the date of his initial appointment, his case ought to have been considered by the respondents 1 to 3 for promotion in preference to the 4th respondent. However, the petitioner was also promoted in the year 2008. Under these circumstances, it would not be appropriate for this Court to set aside the order whereunder the 4th respondent was given promotion as Assistant Engineer. However, as the grievance of the petitioner is genuine and he is entitled for promotion even before the 4th respondent, his prayer for considering his promotion to the post of Assistant Engineer on regular basis with effect from 13.11.1991 in terms of G.O.Rt.No.114, dated 19.04.1999 can be considered.
For the foregoing observations, the Writ Petition is allowed. The respondents 1 to 3 are directed to give effect to the promotion of the petitioner as Assistant Engineer with effect from 13.11.1991 in terms of G.O.Rt.No.114, dated 19.04.1999 with all attendant benefits as was given to the 4th respondent and place him in the seniority list of Assistant Engineers above the 4th respondent. In the circumstances, there shall be no order as to costs.
Pending miscellaneous petitions, if any, shall stand closed in consequence.
R.KANTHA RAO,J Date: 06.06.2014 Dsr