Allowed

K.Kanakaratnam, v. The State of Andhra Pradesh

Andhra Pradesh HC27 Sept 2022WP/721/2022

Case brief

AI extract

What is this about?

In a writ petition regarding promotion roster points for Health Educators, this Court directed the respondents to consider the petitioner's case for promotion to Deputy District Education and Mass Media Officer in an existing vacancy, disregarding objections regarding roster adjustments and lack of prior representation.

What did the court decide?

The respondents are directed to consider the petitioner's case for promotion to the post of Dy D.E.M.O. in existing vacancy and pass appropriate orders as per rules in force.

K.Kanakaratnam, 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 No.721 of 2022

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ORDER :

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This petition is filed under Article 226 of the

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Constitution of India for the following relief:-

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“…to issue a Writ Order or Direction more particularly one in the nature of Mandamus directing the respondents to fill up Roster Points 20 and 21 for promotion to the post of Dy.D.E.M.O by declaring the action of the respondents, as illegal, bad and arbitrary and pass such other order or orders … …. ”

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The case of the petitioner is that he was appointed

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as Multi-Purpose Health Assistant(M) on 06.10.1990 and was promoted as Health Educator on 09.11.1998 and presently working as Health Educator at Primary Health Centre, Athivaram, Ozili Mandal, SPSR Nellore District. It is stated that the promotions to the post of Deputy District Education and Mass Media Officer from the category of Health Educators was held on 13.04.2018 for five(5) posts.

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The starting roster point was 15 and ended with 19^th roster. It is stated that one Mr. N.Venkatesswarlu, even though attended the counselling, refused to join and relinquished. Therefore roster point ended at 18^th . The post was filled up

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immediately by one Mr. K. Dharmendra. Therefore, the 19^th roster was filled. The service particulars were called to fill up two(2) posts and it should be 20 and 21. However, the 3^rd respondent is proposing to fill up roster point 21 and 22 and the 22^nd roster point is reserved for SC category. Subsequently, the 3^rd respondent called for particulars of three OC category and three SC category candidates vide proceedings dated 21.12.2021. it is further stated that the said N.Venkateswarlu was shown at roster point No.19 and 21. Therefore, questioning the action of the 3^rd respondent, the present writ petition is filed.

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Counter affidavit is filed by the 3^rd respondent denying all the allegations made in the petition and inter alia contended that the promotion post of Deputy District Education and Mass Media Officer from the feeder category of Health Educators was held on 12.04.2018 for 5 members. The ROR starting point from 16 to 20. Mr. N.Venkateswarlu, Health Educator, CHNC, P.V. Palem, Guntur District is eligible for promotions against roster point 20 and he attended for counseling on 12.04.2018 noted in counselling register “unwilling for promotion”. In

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view of that the ROR point 20 taken into consideration as he eligible for promotion as per G.O.Ms.No.145 after one year. Due to that reason the next promotion candidate fixed in ROR point No.21 counseling held on 14.08.2018. it is also stated that as per ROR register, the ROR point exhausted in the previous counseling i.e., 14.8.2014 is 21. Hence, the present ROR point is starting from 22 (SC-W) and 23(OC). In view of the above, the case of the petitioner will also be considered as per his seniority and rules in force in the ensuing promotions as per the roster.

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Reply affidavit is filed by the petitioner while reiterating the contents made in the petition contended that the rules issued in G.O.Ms.No.285, dated 12.04.1978 were amended vide G.O.Ms.No.641, dated 6.11.2003. As per these rules only Health Educators are eligible for promotion as Dy. D.E.M.O. At that time some of the persons who are eligible as per the old rules and became ineligible as per the new rules approached the Tribunal by way of filing OA No.7749 of 2003 and 7756 of 2003 and the Tribunal vide its order dated 27.11.2003 granted interim direction directed the respondents therein to fill up the vacancies which were

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available prior to 6.11.2003 have to be filled in as per the old rules.

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It is stated that in the new roster Register, one Smt. R.Rajeswari who was promoted from the post of Public Health Nurse in terms of the old adhoc rules in the vacancy available prior to 6.11.2003 was shown at Roster point No.6 without any signatures of the officers. She is not eligible to be shown in the roster register relating to promotions from Health Educator to Dy. D.E.M.O. as she was not a health educator by only public health nurse. In view of the inclusion of her name in the present roster register, there is a change in the roster points. Had the name of R. Rajeswari was deleted from the present roster register, the persons from roster points from 7 to 20 will become 6 to 19. Therefore, the petitioner contended that the present roster point will start from 20 and ends at 21 will holds good.

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Additional counter affidavit is also filed by the 3^rd respondent while reiterating the contents made in the counter, contended that in respect of one R.Rajeswari, the file was under circulation from 06.11.2006 on account of her representation for considering her case for promotion

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and this office had found that the said R.Rajeswari was eligible for promotion in the vacancies available prior to 06.11.2003 and also as per the qualifications prescribed prior to amendment issued in G.O.Ms.No.641 dated 06.11.2003. hence considering the same the roster point 6 was filled up with R. Rajeswari. Admittedly, the issue with regard to promotion of R.Rajeswari is under circulation from 2005 onwards for filling up the said posts under old rules. In view of ROR came into force, even much prior to amendment rules issued in G.O.Ms.No.641 dated 6.11.2003, the then officers have applied the rule of reservation from 2006 onwards by effecting the promotions to the post of Deputy D.E.M.O from the category of Health Educators and also PHN (T).

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It is further stated that in the year 2018 the promotions were effected from the roster point 16 to 21 even at that point of time also the petitioner did not submit any representation or objection. To that extent only he is raising all these objections and hence without submitting any representation/appeal before the authorities he cannot straight away put forth his contentions through the reply

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affidavit which cannot be entertained and same is liable to be dismissed.

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Heard Mr. J.R. Manohar, learned counsel appearing for the petitioner and learned Government Pleader for Services-IV appearing for the respondents.

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On hearing, this Court observed that, as per G.O.Ms.No.154, Social Welfare (ROR1) Department, dated 30.07.2008, wherein it is mentioned that, the Government after careful examination of the matter, hereby decided to amend suitably to Paragaraph 5 of G.O.Ms.No.2 SW (ROR1) Department, dated 09.01.2004, so as to enable to take into consideration the vacancies which may arise in the panel year besides the existing vacancies of SC/ST candidates as on 1^st September. It is also mentioned that To Paragraph 5 of G.O.Ms.No.2 Social Welfare (ROR1) Department dated 09.01.2004, the following ‘Note’ shall be added namely :

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“While preparing panels for giving effect the rule of reservation in promotions, the existing vacancies of SC/ST candidates and those which may arise in the panel year shall also be taken into consideration for including those candidates in the panel for achieving their adequate representation. The rule 6(b), d(i) & (ii) (1)(2) and (e ) of the A.P. State & Subordinate Service Rules, 1996 shall be followed scrupulously.”

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It is pertinent to mention here that as per G.O.Ms.No.145, General Administration (Ser.D) Department, dated 15.06.2004, in the Amendment, it is mentioned that “In the said rules, in rule 11 for sub-rule (b) the following shall be substituted namely:

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“(b) Time to join a post on appointment/temporary appointment under rule 10 including appointments by transfer or by promotion otherwise than by direct recruitment.”

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Having regard to the facts and circumstances of the case and upon perusing the entire material available on record, this Court is of the considered opinion that, the respondents are directed to consider the case of the petitioner for promotion to the post of Dy D.E.M.O. in existing vacancy and pass appropriate orders as per rules in force.

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