HON’BLE SRI JUSTICE L. NARASIMHA REDDY AND HON’BLE SRI JUSTICE CHALLA KODANDA RAM WRIT APPEAL No. 2250 OF 2005 04-09-2014 BETWEEN The Secretary, A.P. Residential Educational Institutions Society, Hyderabad and another …Appellants And M. Kesava Reddy and another …..Respondents HON’BLE SRI JUSTICE L. NARASIMHA REDDY AND HON’BLE SRI JUSTICE CHALLA KODANDA RAM WRIT APPEAL No. 2250 OF 2005
JUDGMENT: (per the Hon'ble Sri Justice L. Narasimha Reddy)
Respondent Nos. 1 and 2 in Writ Petition No. 519 of 2004 filed this writ appeal feeling aggrieved by the order dated 14-02- 2005 passed by the learned single Judge.
The 1st respondent in this appeal (for short, ‘the respondent’) was appointed as a Record Assistant on 11-06-1993 in the 1st appellant – organisation and was working in the 2nd appellant – school. The 2nd appellant – institution has a library which was being maintained by a Librarian. One Mr. G. Venkata Narayana, Record Assistant was assigned the duties to work in the library. The Librarian retired in February, 1994. On 30-09- 1994, the Head of the institution directed change of certain arrangements. The respondent who was attending the duties of admissions and examinations, was directed to attend the duties of Record Assistant in the school library, in the place of Sri G. Venkata Narayana. In a way, the duties of Venkata Narayana and the respondent were interchanged.
The respondent started attending to the duties in the library. The post of the Librarian remained vacant. The petitioner submitted a representation dated 12-07-1995 to the appellants with a request to convert his post of Record Assistant to that of School Librarian. He pleaded that after his being appointed as Record Assistant, he acquired the qualifications prescribed for the post of Librarian. Similar representations are said to have been made on several occasions. Through a communication dated 13-10-2003, the respondent was informed that the recruitment rules of the society do not provide for promotion to the post of Librarian, that too from the post of Record Assistant, and accordingly, his representations cannot be considered. Feeling aggrieved by that, he filed the writ petition with a prayer to declare the action of the appellants in not regularising his services in the post of Librarian with effect from 1995 as illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India. The respondent pleaded that he has been discharging the functions of Librarian since 1994 and he has also acquired the requisite qualification and thereby, entitled to be regularised as Librarian.
The appellants filed a counter affidavit opposing the writ petition. They pleaded that once the substantive appointment of the respondent is to the post of Record Assistant, the question of his being regularised as Librarian does not arise. It was pleaded that till the year 2004, there was no avenue of promotion to the post of Librarian and even after the rules were amended providing for promotion to the post of Librarian, Record Assistant is not a feeder category for it.
The learned single Judge allowed the writ petition through the order under appeal.
Sri K. Durga Prasad, learned counsel for the appellants submits that the mere fact that the respondent was required to discharge the duties in the library as Record Assistant cannot constitute the basis to claim promotion or regularisation as Librarian. He contends that when the respondent was not posted even on ad hoc basis, as Librarian, the question of his being regularised in that post does not arise. He submits that the learned single Judge has misinterpreted the rules, and misread the facts; and granted the relief.
Smt. Chaya Devi, learned counsel for the respondent submits that though no specific orders, posting the respondent as Librarian were issued, he has been performing all the functions of Librarian ever since the post became vacant, and he ought to have been upgraded to the post. She contends that once the library was being maintained for more than a decade by the respondent exclusively, valuable rights accrue to him, particularly when he has possessed the qualification for the post of Librarian.
It is not in dispute that the appointment of the respondent in the appellant’s organisation was as Record Assistant. On his being appointed, he was entrusted the duties of attending to the admissions and examination section. One Sri G. Venkata Narayana was functioning in the Library, as Record Assistant. It is during his tenure that the Librarian retired from service. Venkata Narayana himself was looking after the library, may be under the direct supervision of the Principal. A few months thereafter, the duties of the respondent on the one hand and Venkata Narayana on the other hand, were interchanged. The proceedings dated 13-09-1994 in this behalf read as under:
“Sri K. Kesava Reddy, Record Assistant attending the duties of Admissions and Examination section is now ordered to attend to the duties of Record Assistant for school Library vide G. Venkatanarayana, Record Assistant transferred. Sri M. Kesava Reddy, RA ordered to take charge of School Library from Sri G. Venkatanarayana, RA vide reference 3rd cited. He is herewith further ordered to hand over the complete charge of Admissions and examination section to Sri C. Satyanarayana Setty, Typist of this Institution.”
One does not find even the traces of any entrustment of the duties of Librarian to the respondent. It was clearly mentioned that he shall function as Record Assistant, in the library. However, the respondent gained an impression that he is officiating the post of Librarian and the qualifications held by him are sufficient for that post. The rules which were in force at the relevant point of time did not provide for promotion to the post of Librarian. It was in the year 2004, when the writ petition was pending, that the rules were amended, providing for promotion to the post of Librarian. One of the feeder categories is LDC. The post of Record Assistant is a feeder category to the post of LDC and it is two layers below the post of Librarian.
The prayer in the writ petition is for regularisation of the services of the respondent against the post of Librarian. The question of regularisation against a post arises only when a person has been appointed on ad hoc or temporary basis, to that post. When there is no order appointing the respondent as Librarian on any such basis, the question of his seeking relief of regularisation does not arise.
It is not uncommon, particularly in the institutions maintained by the Government that the vacancies are not filled immediately. Where the institutions are run by societies like the 1st appellant, several factors such as financial conditions, the work load become important. Obviously, because the size of the library in the school is relatively smaller and it was being looked after by the Principal with the assistance of a Record Assistant, the appellants did not take steps for filling up the vacancy of the post of Librarian. On account of such delay or lapse, a person who is looking after the works in the institution does not get any right. It is just unimaginable as to how the respondent who did not hold any post for the feeder category for the post of Librarian can think of getting promoted to, let alone regularised in that post. It is stated that in the recent past, the respondent has been promoted as Junior Assistant i.e., LDC. He has to take his turn in accordance with the Rules for, promotion to the post of Librarian. The mere fact that he worked in the library at a time when the post of Librarian remained vacant does not constitute any basis for his claim. If that is so, Sri Venkata Narayana, the Record Assistant who functioned as Record Assistant in the library, after the Librarian retired would acquire rights in preference to the respondent.
Viewed from any angle, the order of the learned single Judge cannot be sustained. The writ appeal is accordingly allowed and the order in the writ petition is set aside.
The miscellaneous petitions pending in this appeal shall also stand disposed of. There shall be no order as to costs.
L. NARASIMHA REDDY, J CHALLA KODANDA RAM, J 04-09-2014 ks Note:
LR copy to be marked.
B/O ks