M.Poleswar Rao Vs The Commissioner

This petition was filed as O.A.No.3969 of 2016 before the A.P.Administrative Tribunal at Hyderabad and on its transfer to this Court, it was re-numbered as W.P.(A.T.) No.363 of 2021.

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The petitioner seeks to quash Government Memo No.7129/D2/ 2012-4, dated 19.11.2012 communicated by the respondent No.1 on 01.09.2016 and its connected seniority list of Junior Assistants in R.O.C.No.464/2007/C1, dated 11.08.2010, issued by the respondent No.1 and the proceeding vide Roc.No.464/2007/C-1, dated 07.04.2011 issued by the respondent No.1 and the proceeding vide Roc.No.5215/2011/C1, dated 11.05.2012 issued by the respondent No.1 and the proceeding vide Roc.No.10606/2013/C-1, dated 10.01.2014 issued by the respondent No.1 and consequently declare that the petitioner is entitled to be considered for promotion to the post of Senior Assistant with retrospective effect from the date of issuance of promotion orders to the respondents No.5 and 6 to the post of Senior Assistant on 07.04.2011 and consequently for further promotion to the post of superintendent according to the eligibility of the petitioner with all consequential benefits including seniority, pay and allowances etc.

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The case of the petitioner is briefly as follows:

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i. The petitioner was appointed as bill collector in the Guntur Municipal Corporation on 06.02.1992. He was promoted as Junior Assistant with effect from 12.02.2000. Later, he was further promoted to the post of Senior Assistant with effect from 16.08.2014. Since then, he has been working as such. He acquired requisite qualification for further promotion to the post of Superintendent etc.

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ii. The respondents No.5 and 6 are seniors to the petitioner in the cadre of Junior Assistant with serial Nos.17 and 18 in the seniority list dated 31.10.1998. Two posts of Junior Assistants in the Corporation were upgraded as Data Processing Operators (D.P.O.) in the time scale equivalent to that of Senior Assistants, vide proceedings dated 03.04.1999. The respondents No.5 and 6 were further promoted to the post of Superintendents in May, 2012 and subsequently to the post of Revenue Officers in January, 2014. This is irregular. According to the instructions in para No.2.12 (a) of G.O.Ms.No.10, Finance and Planning (PLG–WING-PS) Department, dated 04.02.1991, the non-technical computer personnel are under a separate category and will be converted into the equivalent category of posts in the Department / Corporation. The respondents No.5 and 6 were already in the equivalent cadre of Senior Assistants and as such, they are required to be converted as Senior Assistants in the same posts held by them. The Corporation communicated a seniority list of Senior Assistants vide RC.No.3283/2003-C1, dated 29.04.2003, in which the names of the respondents No.5 and 6 are at serial Nos.12(A) and 12(B). The seniority list of Junior Assistants working in the Corporation was communicated vide R.O.C.No.2526/2003-C1, dated 07.05.2003 in which the names of the respondents No.5 and 6 were not shown. Another seniority list of Junior Assistants was also communicated vide R.O.C.No.464/2007/C1, dated 29.11.2007 in which also the names of the respondents No.5 and 6 were not shown. Thus, it is obvious that they were treated as Senior Assistants for all purposes, though they were working against the post of Data Processing Operators (D.P.Os). The Corporation issued seniority list of Junior Assistants

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vide R.O.C.No.464/2007/C1, dated 11.08.2010 strangely showing the names of the respondents No.5 and 6 at serial Nos.1 and 2. It is clearly illegal, since the seniority list of the Junior Assistants was finalized in the year 2003 and there were no objections from the respondents No.5 and 6 against non-inclusion of their names.

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iii. The Government issued instructions in a circular memo No.57759/Ser.A/2004-1, dated 20.05.2004 not to re-open the settled seniority after a period of three years. Apart from that, as per Rule 26(d) of the A.P. State and Subordinate Service Rules, 1996, no appeal for restoration of seniority or assignment of notional seniority on par with his junior shall be entertained by the appellate authority after a period of 90 days from the date on which junior was promoted. Therefore, inclusion of the names of the respondents No.5 and 6 in the seniority list of the Junior Assistants is against settled norms and instructions of the Government issued from time to time.

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iv. The name of the petitioner is shown at serial No.13 in the seniority list of the Junior Assistants dated 11.08.2010. If these respondents’ names are not included, the name of the petitioner would have been at serial No.11. Therefore, four posts of Senior Assistants are vacant in the year 2010. The petitioner would have been promoted to the post of Senior Assistant, if all the four vacancies are available.

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v. The petitioner submitted a detailed objection on 18.08.2010 to the respondent No.1 against the inclusion of the names of the respondents No. 5 and 6 in the seniority list of the Junior Assistants and requested to delete their names from that list. These respondents also submitted their objections on 18.08.2010 for including their names in the seniority list of Junior Assistants and requested to include their names in the seniority list of Senior

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Assistants. They again submitted a representation to the respondent No.1, on 24.12.2010 either to continue in the seniority list of Senior Assistants or to promote them to the posts of Senior Assistants with retrospective effect. Thus, the respondent No.1 issued proceedings R.O.C.No.464/2007/C-1, dated 07.04.2011, promoting the respondents No.5 and 6 as Senior Assistants with retrospective effect from 06.02.2002. It is illegal since they were already working against the post equivalent to Senior Assistant from 1999 and they were not brought to their original cadre of Junior Assistants. Due to their promotion to the post of Senior Assistant with effect from 06.02.2002, the petitioner lost chance of promotion to the post of Senior Assistant, though eligible.

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vi. Because of promotion given to the respondents No.5 and 6, the working strength of Senior Assistants became 24 as on 06.02.2002, as against the sanctioned strength of 22. The respondents No.5 and 6 were promoted as Superintendents on ad hoc basis during May, 2012. Again, without issuing regular promotion orders in the cadre of Superintendent, they were promoted to the next higher cadre, i.e., Revenue Officers, on ad hoc basis, contrary to the A.P. State and Subordinate Service Rules, 1996.

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vii. The respondent No.5 was sanctioned extraordinary leave for a period of 3 years from 16.09.2000 to 15.09.2003 with permission to take up job abroad (England) vide proceeding ROC.No.8279/2000/ C1, dated 15.09.2000 of the respondent No.1. Later, he re-joined duty on 10.03.2003, curtailing the leave. He was granted promotion retrospectively to the cadre of Senior Assistant with effect from 06.02.2002, while he was pursuing job in England. It is irregular and

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contrary to Rule 11(b) of the A.P. State and Sub-ordinate Service Rules, 1996, as he did not join as Senior Assistant within 15 days.

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viii. As per the Rules in G.O.Ms.No.1368, M.A., dated 28.12.1981 (Hyderabad Municipal Corporation Rules), which are followed by the respondent No.1, the appointing authority for the post of Senior Assistant is the Standing Committee. As such, the orders dated 07.04.2011, issued by the respondent No.1, promoting the respondents No.5 and 6 as Senior Assistants is not only illegal, but also without jurisdiction and opposed to all principles of natural justice. Therefore, the petitioner submitted appeals to the respondent No.2 on 29.06.2011, 19.09.2011, 19.10.2011 against the inclusion of the names of these respondents in the seniority list of Junior Assistants and against their promotion as Senior Assistants with retrospective effect. But there has been no response.

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ix. Meanwhile, as the period of punishment of Sri K.Nageshwara Rao, Junior Assistant at serial No.3 in the seniority list was over, he was promoted as Senior Assistant in July, 2011.

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x. As the appeals were not disposed of by the respondent No.2, the petitioner made appeals to the government on 30.11.2011, 29.02.2012 and 26.03.2012 there has been no response for them as well.

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xi. The petitioner submitted objection to the respondent No.2 against inclusion of the name of Sri S.V.V.S. Madan Gopal, Typist, who is the respondent No.7 herein, at serial No.11 on 18.11.2011 since he had not acquired the qualification of Telugu Type Writing Higher Grade (evident from endorsement dated 14.09.2011). When the petitioner objected the inclusion of the name of Madan Gopal in the seniority list, the respondent No.1 informed that the seniority cannot be

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decided after a period of 3 years. The respondent No.1 applied different aspects from case to case. The respondent No.7 was appointed as Record Assistant in the year 1996 and promoted as Typist on 27.10.1999, without having minimum service of 5 years in the lower category and pre-requisite qualification of higher grade in Telugu Type Writing under Rule 6(4) of the A.P. Ministerial Service Rules, 1998. Thus, his promotion is irregular, yet he was promoted to the post of Senior Assistant without considering the objection of the petitioner. Against the endorsement of the respondent No.1 dated 14.09.2011 relating to Madan Gopal, the petitioner submitted further appeal to the respondent No.2 on 07.03.2012, but there is no response.

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xii. The Examiner of Accounts of State Audit Department addressed a note to the Guntur Municipal Corporation stating that in accordance with the clarification from the Director and Commissioner of School Education to the Principal Secretary to Government, Municipal Administration and Urban Development vide letter Rc.No.773/D2/2/ 2004, dated 07.04.2004, promotion with retrospective effect has to be given only on the basis of judgment of a Court under special circumstances and specific order from the Government. In such circumstances, the conversion of the D.P.Os, i.e., the respondents No.5 and 6, as Senior Assistants w.e.f. 06.02.2002 vide proceedings Roc.No.464/2007/C-1, dated 07.04.2011, is illegal and needs to be reviewed and further action shall be taken.

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xiii. For promotion to the post of Senior Assistant, the feeder category is Junior Assistant or its equivalent category and a pass in Accounts test. The petitioner is eligible to hold the post of Senior Assistant, but, his case was unjustly by-passed by including the names of the

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respondents No. 5 and 6 in the seniority list of Junior Assistants. Since the respondents No.5 and 6 were given appointment as D.P.Os in the year 1999 in the higher scale of pay equivalent to Senior Assistant, after a period of 3 years, the lien in the lower post of Junior Assistant would be lost. Hence, inclusion of their names in the seniority list of Junior Assistants after a period over 10 years is not tenable. Therefore, the petitioner filed O.A.No.3027 of 2012 challenging the seniority list of Junior Assistants dated 11.08.2010 and also its connected proceeding dated 07.04.2011. The Administrative Tribunal dismissed the said petition on 29.08.2016 holding that the Tribunal may not interfere with the same relief simultaneously, because the Tribunal and the appellate authority may differ and the petition is not maintainable before the Tribunal.

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xiv. After dismissal of O.A.No.3027 of 2012, a copy of the rejection order vide Government Memo No.7129/D2/2012-4, dated19.11.2012 was communicated to the petitioner by the office of the respondent No.1 on 01.09.2016, therefore, the petitioner is challenging the order dated 19.11.2012, along with the seniority list and promotion order of the respondents No.5 and 6. The appeal of the petitioner was rejected stating that the names of the respondents No.5 and 6 were included in the seniority list of the Senior Assistants, communicated on 29.11.2007 due to mistake and that they had rectified the mistake on 11.08.2010. It is illegal. When the seniority list of the Senior Assistants of 2003 was communicated, as the respondents No.5 and 6 have not objected for inclusion of their names in the list, the Government cannot say that the mistake is rectified 7 years after finality of the list.

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xv. Hence, for all the above reasons the petition was filed.

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The respondent No.1 filed two counter affidavits on 30.01.2017 and 04.12.2024 with the averments briefly as follows: The Commissioner and Director of Municipal Administration, A.P., Hyderabad submitted his report on 25.05.2012 in letter Roc.No.18777/2011/K1, informing that V.V.Ramaiah (respondent No.5) and S.Nageswara Prasad (respondent No.6), the Junior Assistants, were absorbed in the upgraded post of D.P.Os while retaining their seniority in the cadre of Junior Assistants. G.O.Ms.No.10, Finance and Planning (PLG-WING-PS) Department, dated 04.02.1991 is not applicable to the respondents No.5 and 6 as their posts were upgraded to D.P.Os, but their seniority in the cadre of Junior Assistants shall continue to exist. There was a mistake in not seeking option of the individuals for absorption to the post of D.P.O. and the mistake was rectified by including them in the seniority list of Junior Assistants on 11.08.2010. The respondents No.5 and 6 submitted applications dated 24.12.2010 to the respondent No.1 stating that they had worked in the feeder category of the Senior Assistants for a period of 12 years. After considering the objections, they were granted notional promotion as Senior Assistants w.e.f. 06.02.2002, vide proceedings Roc.No.464/2007/C-1, dated 07.04.2011. It is open for the appointing authority to re-draw the seniority list, if there is mistake by affording opportunity to the parties likely to be effected. Hence, inclusion of their names in the seniority list of Junior Assistants on 11.08.2010 is in order. Further, S.V.V.S. Madan Gopal (respondent No.7) was promoted as typist on 27.10.1999 and it cannot be challenged after long time. As per the circular Memo.No.57759/Ser.A/2004-1, General Administration (SER.A),

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Department, dated 20.05.2004, no request for revision of seniority for a period which is more than three years old shall be considered. As the seniority of the respondents No.5 and 6 in the cadre of Junior Assistants was continued in the proceedings itself, they did not file any objection at the time of preparation, publication and finalization of the seniority list. There is no seniority list in the category of D.P.Os. The respondents No.5 and 6 were at 1^st and 2^nd places and the petitioner was at 13^th place in the seniority list of the Junior Assistants. It is incorrect to contend that the post of D.P.O is equivalent to Senior Assistant. On the application of the respondents No.5 and 6, the respondent No.1 included their names in the subsequent seniority list of the Junior Assistants as per their eligibility. The petitioner filed objections to the seniority list of the Junior Assistants dated 18.08.2010, objecting the inclusion of the names of the respondents No.5 and 6. Whereas, the respondents No.5 and 6 submitted representation to the respondent No.1 on 24.12.2010 either to continue to show them in the seniority list of Senior Assistants or to promote them to the post of Senior Assistant. It is only after duly calling for objections, the seniority was re-fixed in the cadre of Junior Assistants. On receipt of the report from the Commissioner and the Director of Municipal Administration, the government rejected the request of the petitioner. The A.P. Administrative Tribunal dismissed O.A.No.3027 of 2012 leaving it open to the petitioner to question the rejection order dated 19.11.2012, before appropriate forum subject to period of limitation. The petitioner filed appeal before the Governor. Charges were framed against the petitioner by the office of the Governor vide G.O.Rt.No.1347, MA and UD (L2), Department, dated 09.10.2012 for violation of the A.P.(CC & A) Rules,1991. Thereafter, the petitioner filed this petition. A copy of the government Memo.No.7129/D2/2012-4, dated

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19.11.2012 was communicated to the petitioner on 01.09.2016. The delay in service of memo is due to the changes of the establishment clerks. After filing the remainder appeals to the government, lastly on 07.03.2012, the petitioner kept quite till the date of receipt of the government order dated 19.11.2012. The action taken by the respondent No.1 was examined by the competent authority and ratified by rejecting the appeal of the petitioner. The petition is not maintainable.

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The learned counsel for the petitioner submitted that the seniority cannot be altered three years after its finalization and that if the respondents No.5 and 6 are continued to be in the seniority list of Senior Assistants, the petitioner would have been promoted as Senior Assistant, particularly as the respondents No.5 and 6 did not raise objections in the year 2003 for non-inclusion of their names in the seniority list of Junior Assistants dated 07.05.2003 and subsequently till their names are included. He further submitted that since the memo dated 19.11.2012 was communicated to the petitioner on 01.09.2016, the claim of the petitioner is not barred by limitation.

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Sri J.V.Phaniduth, learned counsel representing the learned Standing Counsel for the respondent No.1 submitted that the petitioner while pursuing the matter in appeal, filed O.A.No.3027 of 2012 and therefore, the Tribunal directed the petitioner to pursue the rejection order dated 19.11.2012, subject to the period of limitation and that repeated submission of representations would not extend the period of limitation and therefore, the petitioner cannot challenge the rejection order dated 19.11.2012. He further submitted that the respondents No.5 and 6 being seniors to the petitioner throughout his service, he cannot contend that he should be promoted ignoring the seniority of the

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respondents No.5 and 6. He further submitted that since the category of D.P.Os is not in the category of Senior Assistants, but a separate category and moreover, it is not in the feeder category to the post of Senior Assistant, the seniority of the respondents No.5 and 6 in the category of Junior Assistants was protected at the time of absorption of the respondents No.5 and 6 from the category of Junior Assistants as D.P.Os.

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There is no dispute that the petitioner was far junior to the respondents No.5 and 6 in the list of seniority of the Junior Assistants. The petitioner does not dispute the fact that the seniority of the respondents No.5 and 6 in the cadre of Junior Assistants was protected at the time of their absorption as D.P.Os. Admittedly, the category of D.P.Os is not merged with the category of Senior Assistants. As such, merely because the names of the respondents No.5 and 6 were wrongly shown in the seniority list of Senior Assistants, for however long period, they cannot be conferred with the status of Senior Assistants. As the post of D.P.O. is not in the feeder category, for the purpose of promotion to the post of the Senior Assistant, it is necessitated to continue the respondents No.5 and 6 in the seniority list of Junior Assistants for the purpose of promotion.

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If at all, the contention of the petitioner that the respondents No.5 and 6 were already Senior Assistants is accepted, there cannot be four vacancies which are shown in the list of available vacancies for promotion to the category of Senior Assistants, as their names shall be included in the sanctioned strength of Senior Assistants. When there can be only two vacancies, but not four vacancies in the event of continuing the names of the respondents No.5 and 6 in the category of Senior

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Assistants, there is no scope for the petitioner to seek promotion without vacancy as the other two available vacancies shall be filled by candidates senior to him in the existing list of seniority of the Junior Assistants. Therefore, it is practically and logically not possible to accept the contention of the petitioner that the respondents No.5 and 6 shall be continued to be considered in the list of Senior Assistants and shall not be shown in the list of Junior Assistants.

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The liberty given by the Administrative Tribunal while passing the order in O.A.No.3027 of 2012 is subject to limitation and therefore, the petitioner cannot submit that his relief is not barred by limitation by virtue of the liberty. Insofar as the delay in service of copy of the rejection memo is concerned, the learned Standing Counsel for the respondent No.1 submitted that had the petitioner been vigilant in pursuing the appeal before the government, the order of rejection of the appeal would have been known to the petitioner, but by approaching the Tribunal simultaneously with the appeal, the petitioner was not vigilant and therefore, his negligence would not come to his rescue to save period of limitation as he cannot take advantage of his own wrong.

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At this juncture, it is relevant to refer the circular Memo.No.57759/Ser.A/2004-1, General Administration (SER.A), Department, dated 20.05.2004, by virtue of which the government directed that in dealing with the cases for revising the seniority, no request shall be considered for a period more than three years. Therefore, the relief claimed by the petitioner is barred by limitation as fixed in the circular memo and the same cannot be saved by the conditional liberty given by the Tribunal.

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