Disposed

Dr. Kolli Prasanthi, v. The State of Andhra Pradesh

Andhra Pradesh HC14 Sept 2022WP/19976/2022

Case brief

AI extract

What is this about?

The court disposed of writ petitions challenging the arbitrary revision and withdrawal of a seniority list for Associate Professors. It held that a seniority list cannot be revised after six months without valid reason and directed the conduct of the DPC for the current panel year based on the original list.

What did the court decide?

Directed respondents to conduct DPC and finalize promotions as per the valid seniority list dated 08.02.2022 within six weeks; third and fourth respondents to be considered in next panel year.

Dr. Kolli Prasanthi, Vs The State of… — Pension and Retirement Benefits | Andhra Pradesh HC (2022)

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HON’BLE DR. JUSTICE K. MANMADHA RAO

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WRIT PETITION Nos.19976 and 24590 of 2022

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COMMON ORDER :

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As the issue involved in both the writ petitions is one and the same, these matters are taken up together for disposal by this Common Order.

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Heard learned counsel appearing for the petitioner and learned Government Pleader for Services-IV appearing for the respondents.

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The facts in these two writ petitions are similar and identical, therefore W.P.No.19976 of 2022 is taken as lead case and the facts therein are referred to for convenience

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The petitioner is presently working as Associate Professor in Microbiology, Siddhartha Medical College, Vijayawada. Initially she joined in the post of Civil Assistant Surgeon on 12.09.1996. Subsequently, the petitioner joined as an Assistant Professor of Microbiology on 17.3.2003 and got promoted as Assistant Professor on 31.8.2013 and during bifurcation, she got allotted to the State of Andhra Pradesh. It is further stated that the A.P. Medical Education

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Service Rules incorporated vide G.O.Ms.No.152 dated 4.5.2002 are the special service rules to deal various

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category of posts starting from Director of Medical Education. The general principles/procedure with regard to effecting promotions are governed by A.P. State and Subordinate Service Rules, 1996 (for short “the Rules”). The State of Andhra Pradesh undertook the process of promotions in the Medical Department for the panel year 2020-2021 and a final seniority list of Associate Professors was published, wherein the 3^rd and 4^th respondents were placed at S.No.2 and 3 and they were not eligible to be considered for promotion to the post of Professor. Subsequently, a Provisional Seniority List of Associate Professors of Microbiology was prepared for the Panel year 2021-22 by the 2^nd respondent bide Memo No.231121/ E1.B/Microbiology/2021, dated 4.2.2022 calling for objections if any, wherein the 3^rd and 4^th respondents were placed at S.No.2 and 3 and the petitioner was placed at S.No.8.

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It is further stated that the candidates at Seniority No.1 to 3 including the 3^rd and 4^th respondents are not

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eligible for promotion and have not submitted their proposals for considering them for promotion to the post of Professor in Microbiology from the post of the Associate Professor for the panel Year 2021-2022. The candidates at S.No.4 and 5 have also not submitted their proposals and in view of the same, the petitioner is at No.3 for consideration to the post of Professor. Accordingly, the Government vide Lr.Rc.No.231121/E.1B/ Microbiology/ 2021, dated 08.02.2022 has sent the proposals to the Departmental Promotion Committee (DPC) constituted for consideration for promotion to the post of Professor in Microbiology.

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It is further stated that in view of the common order of High Court of Telangana, Associate Professors in various departments got relieved and joined in the same cadre and were not considered for the panel year 2021-22 since the seniority list was already finalized and they were not eligible to be considered at the subsequent point of time. Further, the promotion to the post of Professor in all specialties for the panel year 2021-22 is completed vide Rc.No.231121/E1AB/2021 dated 13.4.2022 as per the finalized seniority list

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without considering the associate professors who got subsequently relieved from the State of Telangana. However, the 2^nd respondent has kept the promotion in the department of Microbiology without any reason, just to facilitate the 3^rd and 4^th respondents to be included in the Seniority List for the panel year 2021-22 even though they are not eligible for promotion. Hence, present writ petition.

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Counter affidavits are filed in these two writ petitions taking the same stand and for convenience, the averments in the counter in first W.P.No.19976 of 2022 are stated as under:

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Counter affidavit is filed by the 2^nd respondent while denying all the allegations made in the petition contended that consequent to the preparation of seniority list dated 4.2.2022, this respondent sent proposals for the panel year 2021-2022. However, it was found that the particulars with regard to the ACRs and research publications in respect of Dr Jayalakshmi and Dr. Padma Priya N., the office did not communicate the proceedings dated 25.11.2021 to the concerned officer where the said individuals are working for submission of the above documents, which was

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communicated in respect of others. Hence, DPC also could not convene and after rectifying and obtaining the ACRs and research publications, a fresh provisional seniority list is prepared on 3.8.2022 and called for objections if any from the individuals.

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It is further stated that mere sending proposals for convening the DPC will not give absolute right of the petitioner claiming for promotions under Service Rules. It is stated that while communicating the provisional seniority list of Associate Professors of Micro Biology, this office directed to display the said seniority list on the notice board to the entire faculty from the Head of the Department for obtaining the objections, if any, on the said list on or before 7.2.2022 with the documentary evidence. As no objections were received by 7.2.2022, this office vide letter dated 8.2.2022 communicated to eligibility list to the DPC for its consideration. And later found the above said mistake and after rectifying the same, a fresh seniority list is published on 3.8.2022. As such there is illegality committed by this office in communicating the fresh seniority list by rectifying the mistakes. Hence, prayed to dismiss the writ petition.

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The other Counter affidavit in WP No.24590 of 2022 is filed by the 2^nd respondent while denying all the allegations made in the petition contended that before publishing the seniority list dated 4.2.2022 the 2^nd respondent has issued letter vide Rc.No.231121/E.1AB/2021 dated 25.11.2021 directed all the Heads of Institutions to furnish the information in order to prepare DPC proposals for effecting the posts of Associate Professors for the panel year 2021-22. However, the same could not be communicated to the concerned officer where the candidates at S.No.2 and 3 in the seniority list dated 4.2.2022 and no objections were received by 7.2.2022. Accordingly, the seniority list was prepared on 4.2.2022 placing the petitioner at S.No.8 and called for objections, if any, by 7.2.2022. As no objections were received by the said date, the 2^nd respondent, vide letter, dated 8.2.2022 sent proposals to the Government for convening the DPC. It is further stated that the petitioner is aggrieved by the seniority list published by this office dated 3.8.2022, a statutory appeal lies before the Government under Rule 26 of the A.P. State Subordinate Service Rules, 1996. The

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petitioner without exhausting the statutory alternative remedy available to her cannot challenge the said proceedings by invoking Article 226 of Constitution of India. Hence, the present writ itself is not maintainable and the same is liable to be dismissed in limine.

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On 5.8.2022, when the case has come up for hearing, learned Government Pleader for Services-IV appearing for the respondents No.1 and 2 has furnished a copy of Memo No.231121/E1.B/Microbiology/2021, dated 5.8.2022, withdrawing the seniority list of Associate Professors of Microbiology, which was published on 03.08.2022 and sought time for filing counter and at his request, the matter was directed to be posted to 17.08.2022 along with W.P.No.19976 of 2022. Later, on 20.08.2022, counter affidavit is filed and no where discussed about the above proceedings and opposed whatever the averments by the petitioner in the writ petition and while hearing the arguments, this Court has already raised an objection that already withdrawn the seniority list dated 3.8.2022, but why the respondents have contradicting the averments mentioned in the writ petition by filing the counter. For

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that, the learned Government Pleader sought time to pass over the matter for getting instructions from the respondents. Accordingly, the matter kept aside and later the matter was called at 2.15 PM, then, an additional counter affidavit has been filed by the 2^nd respondent in W.P.No.24590 of 2022, stating that, the 2^nd respondent filed counter affidavit on behalf of the 1^st respondent on 22.8.2022, in which, he did not brought to the notice of this Court about the proceedings dated 5.8.2022 issued by him, in which, the seniority list dated 3.8.2022 is withdrawn due to pending Court cases. In this connection, learned Government Pleader submits that he has issued the said proceedings dated 5.8.2022 with an intention that due to pendency of W.P.No.19976 of 2022 and challenging the said proceedings dated 3.8.2022 in the present writ petition.

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It is further stated in the counter the fact remains that the ACRs could not be obtained in respect of the candidates working in the State of Telangana before publishing the provisional seniority list dated 4.2.2022. However the same was forwarded for consideration by the DPC and for fixing a date for the DPC proceedings. The DPC

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could be convened in respect of the present specialty because of ACRs with regard to the candidates included in the seniority list were not received, as this office could not communicate to the concerned officers where the unofficial respondents are working for submission of their ACRs and other particulars. However, they also reported to the State of AP and joined on 29.3.2022 and further in view of creation of new posts on the same specialty also the DPC could not convene the DPC and hence taking into consideration all these aspects published provisional seniority list dated 3.8.2022. It is also stated that only because of adding of new posts and reporting by the Associate Professors from Telangana, a fresh seniority list is prepared. It is further stated that the 2^nd respondent intended to issue a fresh seniority list and send proposals for convening the DPC for the panel year 2021-22 and the case of the petitioner as well as the unofficial respondents along with others would be considered as per the same for the panel year 2021-2022 and it is stated that once again tender his unconditional apology for not brining kind notice of the proceedings dated 5.8.2022 in the counter filed by

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him which is neither willful nor wanton. It is further stated that this Court may be pleased to permit this 2^nd respondent to finalize the seniority list afresh in view of the creation of new posts and also the candidates reported before the State of A.P. before convening the DPC and finalize the same for the panel year 2021-2022 and pass such other orders.

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Reply affidavit is filed by the petitioner in W.P.No.24590 of 2022 reiterating all the averments made in the petition and denying all the allegations made in the counter affidavits filed by the 2^nd respondent and contended that the 3^rd and 4^th respondents were not communicated for the Panel year 2020-21 and thereby promotions were finalized and one Dr K.Parameswari who was junior to 3^rd and 4^th respondents got promoted. However, without considering these aspects, the 2^nd respondent arbitrarily revised the seniority list on 03.08.2022 without any valid reason, giving undue preference to the 3^rd and 4^th respondents. After filing of this writ petition, the 2^nd respondent vide Memo dated 5.8.2022 rightly withdrawn the revised seniority list. Surprisingly the said fact has not been

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averred in the counter affidavit filed by the 2^nd respondent. That being the case, the action of the 2^nd respondent in justifying the Revised Seniority List which got withdrawn and which is not in force is very unusual and unknown to law. The 2^nd respondent having rightly withdrawn the Revised Seniority List considering its illegality, cannot further substantiate the same and stall the process of promotion. Therefore the action of the 2^nd respondent in not finalizing the promotion based on the existing seniority list dated 8.2.2022 is illegal, unconstitutional, arbitrary and unsustainable.

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Learned counsel for the petitioner argued that the eligible candidates are directed to submit their proposals as per the proforma provided by the 2^nd respondent wherein the candidate should have completed 3 years of teaching experience, published 4 research publications, enclosed ACR for the last five years from 2016-17 and Annual Property Report (APR) for the last four years from 2017. She further argued that the 3^rd and 4^th respondents did not submit their proposals when the proposals are called from all the eligible candidates. Moreover, the 2^nd respondent

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cannot revise the seniority list without there being any good or sufficient reason for doing so after lapse of six months. Hence, the action of the 2^nd respondent in revising the seniority list is contrary to the procedure contemplated under Rule 24 of the Rules wherein the affected persons or the persons who is likely to be affected shall be given an opportunity of making his/her representation against the proposed revision.

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On the other hand, learned Government Pleader also reiterated the averments made in the counter and submits that according to the present seniority list dated 3.8.2022 the petitioner will also get promotion as per her seniority. But because of filing the present writ petition even without submitting any objections or filing appeal, the 2^nd respondent could not be sent for approval of DPC resulting to further delay of promotions in respect of the post of Professors of Microbiology. The petitioner herself is the reason for the delay for getting promotions and the petitioner is responsible due to filing of the present writ petition. Hence, there is no illegality committed by the 2^nd

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respondent in issuing the present seniority list dated 03.08.2022.

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On hearing, this Court observed that, as seen from the counters filed by the respondents, they intended to give undue preference to the 3^rd and 4^th respondents. If at all, they have already prepared the seniority list on 05.08.2022 nowhere submitted that the seniority list of Associate Professors of Microbiology, which was published on 03.08.2022 is withdrawn. So it appears that the seniority list dated 08.02.2022 is in live as per Rule 6 of A.P. State and Subordinate Service Rules. So, as seen from this, it is quietly observed that the 2^nd respondent is giving undue preference to the 3^rd and 4^th respondents and filed additional counter stating that they are going to issue fresh seniority list and sending proposals for convening DPC for the panel year 2021-2022 and the case of the petitioner as well as the un-official respondents along with others would be considered as per the same for the panel year 2021-2022. So, it is very clear that the 2^nd respondent is responsible for the delay in finalizing the promotion basing on the seniority list prepared on 08.02.2022. It is an admitted fact that the

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respondents have submitted in their counter that the ACRs of the 3^rd and 4^th respondents are not available while preparing the seniority list dated 08.2.2022. Moreover, by that time, new posts were not added. In such a case, it seems that the respondents are stating that on one hand they prepared seniority list for the panel year 2021-2022 by 8.2.2022 and on the other hand they are saying that due to addition of new posts and reporting by the Associate Professors from Telangana, a fresh seniority list is prepared. So, it clearly established that once the panel as per the procedure laid down in Rule 6 of A.P. State and Subordinate Services Rules (for short “the A.P. Rules”). Rule 6 of the A.P. Rules, as under:

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Rule 6: Method of Preparation of Panels in respect of selection posts.

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The appointing authority prepares in consultation with DPC/SC.

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Panel year : 1^st September to 31st August of succeeding year.

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Currency of panel : 1^st September to 31st December of succeeding year or date of approval of panel for next year. Vacancies arising from 1^st September to 31st August. The zone of consideration : 1:3.

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The Panel can be reviewed after a period of 6 months after its approval to consider unqualified candidates who become qualified subsequently.

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The seniority list for the panel year 2021-2022 is prepared by the respondents by 8.2.2022 is still live and the same is prepared within the stipulated procedure laid down under Rule 6 of the Rules. The respondents are prepared the seniority list by taking advantage and giving undue preference after finalizing the list and on the one hand the respondents are saying that they are withdrawing the proceedings dated 3.8.2022 and tendered unconditional apology as they are not bringing to the notice of this Court about the list dated 8.2.2022 by way of filing an additional counter which is not permissible under law. Therefore, if the respondent authority wants to consider the case of the 3^rd and 4^th respondents, they have to consider their case in the next panel year as per Rule 6 of the Rules.

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In view of the above facts and circumstances of the case and in view of the submissions made by both the learned counsels, this Court deems fit to dispose of these writ petitions directing the respondents to conduct DPC and finalize the promotions as per the DPC for the panel year

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2021-2022 and if they want to consider the case of the 3^rd and 4^th respondents, they have to consider in the next panel year, as per Rule 6 of the A.P. State and Subordinate Service Rules, as the respondents have already admitted in their counter that the ACRs of both 3^rd and 4^th respondents are not available while preparing the seniority list dated 08.2.2022. The entire exercise shall be completed within six (06) weeks from the date of receipt of a copy of this order.

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With the above direction, the Writ Petitions are

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disposed of. There shall be no order as to costs.

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As a sequel, all the pending miscellaneous

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applications shall stand closed.

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______________________________ DR. K. MANMADHA RAO, J.

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Date : 14 -09-2022 Gvl

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HON’BLE DR. JUSTICE K. MANMADHA RAO

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WRIT PETITION Nos.19976 and 24590 of 2022

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Date : 14 .09.2022

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Gvl

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Dr. Kolli Prasanthi, v. The State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

Dr. Kolli Prasanthi, v. The State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

What the court decided

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