Allowed

K.Surdarsanam S/ K.Thimmaiah v. The Managing Director

Andhra Pradesh HC10 Sept 2024WP/41811/2015

Case brief

AI extract

What is this about?

The High Court of Andhra Pradesh allowed a writ petition challenging the rejection of a petitioner's claim for SPP-I scale and promotion. The court held that the petitioner, an unqualified candidate, was entitled to the scale under the Automatic Advancement Scheme, setting aside the impugned order.

What did the court decide?

Writ petition allowed; impugned proceedings in Memo No. JS(P)/DS(E)/AS(E)/PO.PNT/431/2006 dated 02-11-2015 set aside; first respondent directed to sanction SPP-I scale w.e.f. 13.12.2008.

K.Surdarsanam S/ K.Thimmaiah Vs The… — Pension and Retirement Benefits | Andhra Pradesh HC (2024)

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APHC010207892015

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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(Special Original Jurisdiction)

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[3333]

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WEDNESDAY ,THE ELEVENTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SMT JUSTICE V.SUJATHA

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WRIT PETITION NO: 41811/2015

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Between:

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K.surdarsanam S/ K.thimmaiah and Others

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...PETITIONER(S)

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AND

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The Managing Director and Others

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...RESPONDENT(S)

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Counsel for the Petitioner(S):

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1.A BHASKARA CHARY

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Counsel for the Respondent(S):

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1.NAGARAJU NAGURU

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2.M. VIDYASAGAR, ( STANDING COUNSEL FOR APGENCO )

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The Court made the following:

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ORDER :

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This Writ Petition came to be filed under Article 226 of the Constitution of India, seeking the following relief:

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“to issue a Writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the Proceedings in Memo No.JS(P)/ DS(E)/AS(E)/PO.PNT/431/2006 dt.2.11.2015 of the 1^st respondent as illegal and arbitrary in violation of principles of natural justice and in violation of Board Proceedings and further direct the 1^st respondent to sanction SPP-I Scale to the Petitioner w. e. f. 13.12.2008 . . ..”

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The facts of the case of the petitioner, in brief, is that initially he was appointed as Typist, joined as Typist on 14-12-1992 and later promoted as L.D. Clerk in February 2000. After attaining the age of 45 years in June 2006, as the petitioner is eligible for promotion to the post of UDC under unqualified quota, the petitioner requested the 2^nd respondent to promote him to the post of UDC. Since the petitioner has completed 16 years of service in L.D. Clerk cadre, he is entitled for increment w.e.f.01-07-2009 i.e., SPP-I Scale and as such requested the 2^nd respondent to grant the SPP-I scale. The 2^nd respondent, having considered the eligibility of the petitioner, vide proceedings in Memo. No.CEE/O&M/ SLMW/ADM/ JAOI/U3/F.2 & 41/D.No.1506/09, Dt. 7-11-2009 granted SPP-I Scale to the petitioner, w.e.f.01-07-2009 and basing on the said proceedings the Superintending Engineer fixed the petitioner pay scale by order Dt.12-112009. Thereafter, as the petitioner is eligible for promotion to the post of UDC under unqualified quota, the 2^nd respondent issued proceedings in

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Memo. No. CEE/O&M/SLMW/ADM/JAO-I/F.41/D.No. 1586/09 Dt. 20-112009 promoting the petitioner as UDC along with another.

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Along with the promotion order, the 2^nd respondent issued another proceedings Dt. 20-11-2009, cancelling the SPP-I scale already granted to the petitioner, stating that by oversight said orders were issued to the petitioner. The grievance of the petitioner is that the said cancellation of the petitioner for SPP-I scale by the 2^nd respondent is without any notice and therefore, the said order is in violation of principles of natural justice and cannot stand to legal scrutiny. Though the petitioner submitted several representations to the higher authorities, the same were rejected without assigning any reasons and also without hearing the petitioner. Thereafter, the petitioner submitted a representation dt.11-03-2015 to the 1^st respondent/Managing Director, APGENCO, Hyderabad, but the 1^st respondent did not take any action. Hence, the petitioner was constrained to file W.P. No.19608 of 2015 on the file of this Court and this Court passed interim direction, directing the respondents to consider the representation dt.11-03-2015 submitted by the petitioner and pass appropriate orders within a period of eight weeks from the date of receipt of a copy of the said order. Thereafter, the 1^st respondent passed the proceedings in Memo.No.JS(P)/DS(E)/AS(E)/ PO.PNT/431/2006 dated 2- 11-2015 rejecting the petitioner’s request on the ground that he is not

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eligible for SPP-I scale. Challenging the said proceedings present Writ Petition is filed.

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Heard learned counsel for the petitioners and learned counsel appearing for the respondents.

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Learned counsel for the petitioner would submit that though the petitioner is not entitled for promotion under qualified quota, he is eligible for promotion under unqualified quota to the next higher post on completion of 45 years of age as on 01-07-2006, but the respondents have failed to consider the case of the petitioner on the ground that he was imposed with punishment while in service, even though the same has no bearing for promotion under unqualified quota. He further contends that though the 1^st respondent issued clarification dtd.01-10-2009 and directed the 2^nd respondent to consider the petitioner’s case for promotion in terms of B.P.Ms. No. 263, Dt.11-01-1999, the respondents did not consider his case.

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On the other hand, the respondents filed counter stating that as per disciplinary case, the petitioner was eligible for promotion to the next post under unqualified quota, after attaining the age of 45 years and the punishment period of 03 years. The respondents herein have informed the petitioner that he is not entitled for the promotion to the post of UDC though he has attained 45 years of age on 01-07-2006. As per the orders

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in disciplinary case, the punishment comes into the force after attainting the age of 45 years to the petitioner. Hence, the name of the petitioner was not considered for the promotion. As per the B.P.263 dtd.11.01.1999 and B.P.Ms.No.328, Dt.13.09.1993 read with B.P.Ms.No.360, Dt.21.06.1996 the promotion under unqualified quota and sanction of SPP-I scale is as per eligibility. But the petitioner is entitled for promotion after completion of disciplinary action. The then the 2^nd respondent has initiated disciplinary proceeding as against the petitioner vide Memo No.CEE/O&M/ SLMUnit/Adm/C1/Dkt.D/1/10/95, Dt.09.01.1997. As per the said proceedings, the next promotion will be with held for a period of three (03) years with effect from the date of acquiring the requisite qualification, for such promotion to the next higher cadre, duly affecting his seniority for further promotion also. As such the petitioner is eligible for promotion to the next post under unqualified quota, after 03 years of attaining the age of 45 years. During the period of punishment an employee cannot claim SPPI, as the employee is not entitled to get any increments. It is further submitted that the C.E., O&M, Srisailam Dam West vide Memo. No.CEE/O&M/SI MW/ADM/JAO -I/U3 F,41/F2/D.NO.1586/04, dated 2011-2009 informing the petitioner that he is entitled promotion to the post of UDC and requested him to join on promotion as UDC at the place of posting.

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It is further submitted in the counter that when the petitioner was promoted to UDC post immediately after completion of punishment period, the consideration for SPP-I does not arise. Accordingly, the petitioner herein was promoted vide orders Memo

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No.CEE/O&M/SLMW/Adm/JAO.I/U3/F.2&41/D.No.1583/09, dt.20.11.2009. It is further submitted that the respondents herein has not violated any of the Statutory rules laid down as per the service regulations and not violated any of principles of natural justice. Therefore, prayed to dismiss the present Writ Petition.

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Pending the Writ Petition, the petitioner died on 28.04.2018 and the L.Rs. of the petitioner are brought on record vide docket order dated 11.07.2024 vide I.A.No.02 of 2023.

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Heard learned counsel for the petitioner and learned counsel appearing for the respondents.

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A perusal of the of B.P.Ms. No. 263, Dt. 11-01-1999, para 7 (ii) reads as under:

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“ii) The unqualified candidates already exempted for purpose of S.P.P. appointment in terms of B.P.(P&G.Per)Ms.No.328, dt.13.09.93 read with B.P.(P&G.Per) Ms.No.360, dt.21.06.96 shall also be considered for promotion to the next higher cadre. In accordance with B.P.(P&G.Per)Ms.No.39, dt.19.5.97 against the slot provided for unqualified candidates as per seniority and subject to satisfying all other requirements.”

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On a perusal of the impugned Memo dated 02.11.2015, @ para 5, it is stated that the petitioner, UDC was appointed as Helper in O & M Service and subsequently, appointed by transfer as Typist, accordingly he has joined on 14.12.1992. Subsequently, the said post was converted as LDC, now it is Junior Assistant. The petitioner has completed 16 years of service in the cadre of LDC on 13.12.2008. Therefore, B.P.(P&G-per) Ms.No.378, dated 29.10.2008 is applicable to him, vide Memo.No.CE/O&M/ SLMUNIT/Adm/CI/DKT.D.1/20/96, dated 09.01.1997, he was awarded the punishment of withholding of punishment for a period of 3 years, with effect from the date of acquiring all the requisite qualifications for promotion to the next higher cadre for submitting bogus/forged pass certificate of Account Test for Sub-ordinate Officers Part-I conducted by the APPSC. It is also mentioned that SPP-I scale under Automatic Advancement Scheme can be sanctioned to the employees who are qualified and eligible for promotion to the next higher post but could not be considered for promotion due to nonavailability of vacancies.

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The case of the petitioner is that as stated @para No.4 of the impugned order, dated 02.11.2015 Automatic Advancement Scheme applies without insisting on the qualification stipulated and therefore, the scheme applies to unqualified also and as the petitioner is unqualified, he is eligible under the Scheme, as he did not acquire the requisite qualification.

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Further learned Standing Counsel has placed reliance on the G.O.O.No.255/JS(Per)/2011 dated 13.09.2011, issued for implementation of Automatic Advancement Scheme in respect of workmen and other than Workmen, modified orders , wherein it is stated as under:

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“that in case the date of increment varies due to sanction of pre-mature increment such as pre-ponement of date of increment or stepping up pay, the date to be reckoned for counting the service for Automatic Advancement Scheme would be the date on which he/she would have completed the stipulated number of years had his/her pay not been preponed or stepped up.”

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However, clause (ii) of para 7 provided in B.P.Ms. No. 263, Dt.11-01-1999 clearly states that the unqualified candidates, already exempted for purpose of S.P.P. appointment in terms of B.P.(P&G.Per) Ms.No.328, dt.13.09.93 read with B.P.(P&G. Per) Ms.No.360, dt.21.06.96 , shall also be considered for promotion to the next higher cadre, as such the petitioner being unqualified candidate, is entitled for the promotion Scale. Though the learned Standing Counsel relied on the subsequent G.O. dated 13.09.2011, it cannot be implemented with retrospective effect. Therefore, this Court is of the opinion that the impugned orders are liable to be set aside.

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In view of the same, the Writ Petition is allowed, setting aside the proceedings in Memo No.JS(P)/ DS(E)/AS(E)/PO.PNT/431/2006 dt.2.11.2015 of the 1^st respondent and directing the 1^st respondent to

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consider the case of the petitioner for sanctioning SPP-I scale w.e.f.

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13.12.2008.

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Miscellaneous petitions pending, if any, in this Petition shall stand closed.

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_______________________

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Dated 11.09.2024 Pnr