B K Kiran Kumar Vs the State of Ap

B K KIRAN KUMAR, S/o. LATEB.KRISHNAIAH, AGE. 45, OCC: ASSISTANT T ECHNICIAN GRADE-I R/o. CHALICHEEMALA PALLI VILLA G E, RAMAPURAM POST, GUDIPA L AMANDAL, CHITTOOR DI S TRICT.

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M VIJAYKUM A R REDDY, S/o. M.SAMBASIVA R E DDY, AGE. 53, R/o. D .No.1-53, KUPUCHANDRAPETA VILLAGE, DURGASAMU D RAM POST, TIRUPATI RURAL, CHITTOOR DISTRICT.

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M.CHANDRASEKHAR REDDY, S/o. LATE M.MUNIKRISHNA REDDY, AGE. 60, OCC: ASSISTANT TECHNICI A N GRADE-I R/o. D.No.10 2 , MITTAPALYAM VILLAGE, CH A NDRAGIRI, CHITTOOR DI S TRICT.

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T.CHANDRA R EDDY, S/o. LATE T.VENKATA MUNIREDDY, AGE. 58, O C C: ASSISTANT TECHNICIAN G R ADE-I R/o. NENNUR(VIL) AND POST, R.C PURAM, TIRUPATI RURAL.

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P. SUBRAMA N YAM, S/o.P.SURYANARAYANA,AGE. 45, OCC: ASSISTANT TECHNICIAN GRADE-I R/o.D.No.20- 5 -13/E, 2ND FLOOR, SANJ A Y GANDHI COLONY, TIRUPATI.

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P.S.MURAGA REDDY, S/OLATE P.VENKAT REDDY, AGE. 55, OCC: ASSISTANT TECHNICIAN GRADE-II R/o.1-107, KALLURU VILLAGE, PERUMALAPALLI POST, TIRUPATI RURAL.

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M. KRISHNA MURTHY REDDY, S/o. LATE M.VENKATRAMA REDDY, AGE. 53, OCC: ASSISTANT TECHNICIAN GRADE-I R/O No. 41, GNB QUARTERS, DR MAHAL ROAD, TIRUPATI.

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B.YUVARAJA, S/o. LATE B.RAMACHANDRA NAIDU, AGE. 47, OCC. ASSISTANT TECHNICIAN GRADE-I R/o. 14-3-306/202, VENKATASAI RESIDENCY, NEAR GREEN PARK APARTMENTS, D.R MAHAL ROAD, TIRUPATI.

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T.NARAYANA REDDY, S/o. LATE T.VENUGOPAL REDDY, AGE. 50, OCC: ASSISTANT TECHNICIAN GRADE-I R/o. D.No. 10-1-81, AKUTHOTA STREET, TIRUPATI.

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P.RAMACHANDRA REDDY, S/o. LATE P.YARRAMA REDDY, AGE. 60, OCC: ASSISTANT TECHNICIAN GRADE-I R/o. D.No. 1-42B, KOPARAVANDLAPALLI VILLAGE, PERUMALAPALLI POST, WRIT PETITION IS DISMISSED AS WITHDRAWN IN SO FAR AS 5TH PETITIONER IS CONCERNED AS PER COURT ORDER DT.15-03-2024.

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...PETITIONER(S)

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AND

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THE STATE OF AP, REP. BY ITS PRINCIPAL SECRETARY, ENDOWMENTS DEPARTMENT, A.P. SECRETARIAT, VELAGAPUDI, AMARAVATHI, GUNTUR DISTRICT.

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TIRUMALATIRUPATIDEVASTHANAMS, REP. BY ITS EXECUTIVE OFFICER, TIRUPATI.

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THE JOINT EXECUTIVE OFFICER, TIRUMALA TIRUPATI DEVASTHANAMS, TIRUPATI.

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A S CHALAPATI, S/o. SRINIVASULU, AGED ABOUT 52 YEARS, OCC: ASSISTANT TECHNICIAN GRADE-II R/o. D.No.20-2559/A, MARUTHI NAGAR, KORLAGUTA, TIRUPATI

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...RESPONDENT(S):

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Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a Writ, Order or direction particularly one in the nature of Writ of Mandamus (i) declaring the action of the Respondents in absorbing the 4th Respondent in P.A wing of Radio and Broadcasting Department of 2nd respondent vide Proceedings Roc. No.TL8/10124/2010 dated 21/05/2019 instead of T.V wing as illegal, arbitrary and violative of Articles 14, 16 and further in violation of the Government instructions and consequently direct the Respondents to absorb the 4th respondent in the T.V wing in accordance with the service rules of the employees of the 2nd respondent and(ii) to declare the revised provisional seniority list dated 8-06-2020 vide Proceedings R.O.C No. TL8/3007/CE/2020 of issued by the 3rd respondent by blatantly rejecting the objections raised by the petitioners without just and proper reasons and consequently to set aside the said proceedings in R.O.C No. TL8/3007/CE/2020 dated 08-6-2020 and pass such other order or orders.

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Counsel for the Petitioner(S):

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1.P VIVEK

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Counsel for the Respondent(S):

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1.N ASHWANI KUMAR

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2.V,R.N PRASHANTH SC FOR TTD

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3.GP FOR ENDOWMENTS

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4.NVS PRASADA VARMA

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The Court made the following:

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THE HON’BLE SRI JUSTICE TARLADA RAJASEKHAR RAO WRIT PETITION No. 10559 of 2020

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ORDER:

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The present writ petition is filed under Article 226 of the Constitution of India to issue a Writ Order or direction particularly one in the nature of Writ of Mandamus:

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(i) to declare the action of the respondents in absorbing the 4^th respondent in P A wing of Radio and Broadcasting Department of 2nd respondent vide Proceedings Roc No TL8/10124/2010 dated 21/05/2019 instead of T.V. Wing as illegal arbitrary and violation of Articles 14, 16 and further in violation of the Government instructions and consequently direct the respondents to absorb the 4th respondent in T.V. Wing in accordance with the service rules of the employees of the 2nd respondent and

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(ii) to declare the revised provisional seniority list dated 08.06.2020 vide Proceedings Ro.C No. TL8/3007/CE/2020 issued by the 3rd respondent blatantly rejecting the objections raised by the petitioners without just and proper reasons and consequently to set aside the said proceedings in Ro.C No. TL8/3007/CE/2020 dated 08.06.2020.

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1. In the writ affidavit filed in support of the writ petition it is stated

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that The Tirumala Tirupati Devasthanams (TTD) has a radio and broadcasting system to air devotional content or programmes and it is bifurcated as Public Administrative Wing (P.A. Wing) and Television

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Wing (T.V. Wing) and the writ petitioners were appointed as helpers in (P.A. Wing) and they are eligible for appointment as Technicians Grade-II. Since any vacancy if any in the cadre of Assistant Technician Grade-II arose in the year 2001 as the petitioners have been working in feeder cadre since 1991 to 1995 and the proceeding in Roc.No. TL/48584/93 dated 03.04.1994 signifies the same, the 4th respondent cannot be appointed as Technicians Grade-II over and above the petitioners.

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And it is further stated that the 2^nd respondent has invited objections publishing the provisional seniority list in the cadre of the Assistant Technician, Grade II. The writ petitioners herein have submitted their objections that they are eligible to be appointed as Technicians Grade-II that the vacancy if any in the cadre of Assistant Technician Grade-II arose in the year 2001 as they should be appointed as they are discharging their duties in the feeder cadre from the years ranging from 1991 to 1995, the proceeding in Roc.No.TL/48584/93 dated 03.04.1994 signifies the same and the 4th respondent cannot be appointed as Technicians Grade-II over and above the petitioners.

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Furthermore, it is stated that the 2^nd respondent invited objections to the provisional seniority list in the cadre of the Assistant Technician Grade-II. The objection that raised to the provisional seniority list published by the 2^nd respondent is that the 4^th respondent should be

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appointed in the T.V. Wing rather than P.A. Wing. The 2^nd respondent answered the objection sating that the appointment of the 4^th respondent is in accordance with the directions in W.P. No. 19850 of 2011 and the request of the writ petitioners cannot be considered and rejected through proceedings in Ro.C No. TL8/3007/CE/2020 dated 08.06.2020. The said proceeding is under challenge in the present writ petition.

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The counsel for the 4^th respondent submitted that the 4^th respondent herein who filed W.P. No.19850 of 2011 before common High Court at Hyderabad, assailing the inaction of the authorities in considering the case of the 4^th respondent for absorption into the post of Assistant Technician, Grade-I or Grade-II in Radio and Broadcasting Section in T.T.D. Devastanam. He has sought a consequential direction to the authorities to absorb him into either of those categories in either P.A. Wing or T.V. Wing as per his eligibility.

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The objection raised against the provisional seniority list published by the respondent is that the fourth respondent should have been appointed to the T.V. Wing rather than the P.A. Wing. The second respondent addressed this objection by stating that the fourth respondent's appointment complies with the directions in W.P. No. 19850 of 2011; consequently, the writ petitioners' request was rejected

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via proceedings in Ro.C No. TL8/3007/CE/2020, dated June 8, 2020. That proceeding is now being challenged in the current writ petition.

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A learned judge of the common High Court taking into consideration of the note file of the T.T. Devastanam Board Resolution No. 760 issued vide proceedings No.E7/25204/2005 directed the respondents to consider the case of the petitioner to be observed into service on par with of 21 persons of class IV employees, who were appointed on compassionate grounds, have been revised and appointed to the posts of LDCs, since they have the requisite qualifications. Under this circumstance, the case of the 4th respondent was asked to be reconsidered.

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Accordingly, the writ petition was allowed and the respondent authorities were directed to absorb the 4^th respondent, as Assistant Technician Grade II in Radio & Broadcasting Section from the date of his eligibility, as has been done in the case of 21 persons referred to above, with notional seniority. The consequential benefits on such notional seniority shall be provided to the petitioner in terms of the policy of the respondent-Devasthanams in that regard.

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This Court has granted interim direction that the 4^th respondent

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has been given notional seniority from the date of his appointment when the same not had been extended to other 21 persons, and as

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such, the extension of notional seniority of the 4^th respondent is itself not in accordance with direction of this Court in W.P.No.19850 of 2011.

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Learned counsel for the petitioner Sri M. Srikanth would submit that the post of Technician Grade-II is a promotional post from the cadre of Helper, for which an employee must work as a Helper not less than five (5) years. Therefore, appointing the 4^th respondent as Technicians Grade-II is contrary to the Tirumala Tirupathi Devasthanam Employee Service Rules 1989. Consequently, prayed to set aside the proceedings in ROC No. TL8/3007/CE/2020 dated 08.06.2020.

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Counsel for the 4^th respondent contends that the respondent's appointment was made pursuant to this Court’s direction in W.P. No. 19850 of 2011, which mandated the appointment of the 4^th respondent as an Assistant Technician Grade-II in the Radio & Broadcasting Section. Consequently, the 4th respondent was appointed to the P.A. Wing on 31.08.2001. The counsel argues that challenging a consequential order without challenging the underlying primary order is impermissible. The writ petitioner is now challenging this appointment after a lapse of 25 years, despite the fact that the respondents never challenged the original order of the common High Court in W.P. No. 19850 of 2011. The counsel referred the judgment of the Apex Court in

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Amarjeet Singh and others vs. Devi Ratan and others¹ , for the proposition that “Challenging the consequential order without challenging the basic order is not permissible.” The Apex Court also cited the judgment in Roshan Lal & ors. Vs. International Airport Authority of India & ors.² , the petitions were primarily confined to the seniority list and this Court held that challenge to appointment orders could not be entertained because of inordinate delay and in absence of the same, validity of consequential, seniority could not be examined. In such a case, a party is under a legal obligation to challenge the basic order and if and only if the same is found to be wrong, consequential orders may be examined.

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12) POINT FOR CONSIDERATION :

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According to the learned Counsel for the petitioner, no direction could be issued to appoint an employee contrary to the mandatory provisions of the statute, and any appointment given contrary to statutory provisions or rules or regulations cannot have sanction of law even though the employee may have continued for a long period of time. The nature of appointment would remain the same and would not change with lapse of time.

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1 (2010) 1 SCC 417

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2 AIR 1981 SC 597

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And it is further voiced that the writ petitioners are not parties to the writ petition filed by the 4^th respondent in W.P. No. 19850 of 2011 and the said finding is not binding on the petitioners.

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The Apex Court in the case of State of U.P. Vs. Neeraj Awasthi

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and others³ held that “a person who hold a post, not appointed in terms of the Act and rules framed there under, such appointment is illegal and void. It was further held he does not derive any legal right in relation thereto.” The principle that enunciated in several judgments that:

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"Appointments that made without following the procedure or services of some persons appointed have been regularised in past, in the opinion of this Court, cannot be said to be a normal mode which must receive the seal of the court.

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If illegality has been committed in the past, it is beyond comprehension as to how such illegality can be allowed to perpetuate. The State and the Board were bound to take steps in accordance with law. Even in this behalf Article 14 of the Constitution of India will have no application. Article 14 has a positive concept. No equality can be claimed in illegality is now well-settled. [See State of Bihar and others Vs. Kameshwar Prasad Singh and another [(2000) 9 SCC 94, para 30].

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In the light of the said contention it is imperative to look into the

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rule, for the benefit it is extracted hereunder:

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3 [ 2006 (1) SCC 667]

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38.	Assistant Technician Grade-II	By Promotion	By promotion from the cadre of Helper in Public Announcement Section of Broadcasting Department.
			(i) Must have passed SSC examination.
			(ii) Must have passed ITI certificate in Radio & Electronic course/Trade from a recognized Institution. (iii) Must have worked as helper for not less than five years in Public Announcement Section or Broadcasting Department.
39.	Helper	By Direct recruitment	(i) Must have passed SSC examination. (j) Must have passed ITI certificate in Radio or Electrician Course/Trade from a recognized institution”

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The rule clearly outlines that the post of Assistant Grade-II is promotional post. The feeder cadre is helper. The post of Assistant Grade-II shall be filled through promotion and it cannot be directly appointed. Even assuming that the 4th respondent has completed of 5 years this appointment was made directly rather than through promotion and such appointment is contrary to the rule referred above. As held by the Apex court in the referenced judgment that any appointment that contravenes the established law or rule is illegal and void and the appointee derive any right in relation thereto.

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The rules mandate that the post of Assistant Grade-II is promotional post. If any appointment is made contravenes the provisions of the statute the same would be void and the incumbent would not get any legal right, pursuant to the judgment of the Apex Court in State of U.P. Vs. Neeraj Awasthi (referred supra).

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Therefore, this Court set asides the order impugned in the writ petition in ROC No.TL8/3007/CE/2020 dated 08.06.2020 and remand back to the 2^nd respondent to consider afresh pursuant to the judgments of the Apex Court referred supra.

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