J Gowtam Naidu Vs the State of Ap

J GOWTAM NAIDU, S/O.LATE CHIDAMBARA RAO, AGED ABOUT 35 YEARS, OCC. SENIOR ASSISTANT, OFFICE OF ADI KAVI NANNAYA UNIVERSITY, RAJAMAHENDRAVARAM, RAJAMAHENDRAVARAM DISTRICT.

¶10

...PETITIONER

¶11

AND

¶12

THE STATE OF AP, REPRESENTED BY ITS PRINCIPAL SECRETARY, HIGHER EDUCATION DEPARTMENT, A.P. SECRETARIAT, VELAGAPUDI, AMARAVATI, GUNTUR DISTRICT.

¶13

ADI KAVI NANNAYA UNIVERSITY, RAJAMAHENDRAVARAM, RAJAMAHENDRAVARAM DISTRICT, REP. BY ITS REGISTRAR.

¶14

THE ASSISTANT REGISTRAR, ADI KAX.I NANNAYA UNIVERSITY, RAJAMAHENDRAVARAM, RAJAMAHENDRAVARAM DISTRICT.

¶15

...RESPONDENT(S):

¶16

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, more particularly one in the nature of Writ of Mandamus, declaring the action of the 2^nd respondent in issuing the impugned Proceedings vide No.AKNU/Estt.III-45 NTS-SCN/2022-3, dt.05.01.2023, as illegal, arbitrary, violation of principles of natural justice and also violative of Articles 14 and 21 of the Constitution of India, and consequently set-aside the same and pass

¶17

IA NO: 1 OF 2023

¶18

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to direct the respondents to continue the petitioner as a Senior Assistant in 2nd respondent University, by suspending the operation of the impugned Proceedings vide No.AKNU/Estt.III-45 NTS-SCN/2022-3, dt.05.01.2023, issued by the 2nd respondent, pending disposal of the writ petition, and pass

¶19

IA NO: 1 OF 2025

¶20

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant leave for filing counter affidavit in the writ petition No.1881 of 2023 pending before this Honourable court

¶21

Counsel for the Petitioner:

¶22

1.P NARASIMHULU

¶23

Counsel for the Respondent(S):

¶24

1.GADDE KOTI NAGULU SC For Adikavi nannaya University

¶25

2.GP FOR HIGHER EDUCATION

¶26

THE HONOURABLE SRI JUSTICE D RAMESH

¶27

ORDER:

¶28

This Writ Petition is filed under Article 226 of the Constitution of India seeking the following relief:

¶29

“…to issue a Writ, Order or direction, more particularly one in the nature of Writ of Mandamus, declaring the action of the 2^nd respondent in issuing the impugned Proceedings vide No.AKNU/Estt.III-45 NTS-SCN/2022-3, dt.05.01.2023, as illegal, arbitrary, violation of principles of natural justice and also violative of Articles 14 and 21 of the Constitution of India, and consequently set-aside the same and pass…”

¶30

This Writ Petition is filed declaring the action of the 2^nd respondent in issuing the impugned proceedings dated 05.01.2023 as illegal, arbitrary and violation of principles of natural justice and contrary to the observations made by the Hon’ble Apex Court in State of Punjab Vs. Rafiq Masih¹ . The petitioner was initially appointed as Lab Helper on 29.01.2009 in 2^nd respondent university at Vizag and later he was promoted on 01.08.2013 as Junior Assistant and subsequently, the 2^nd respondent has been established and the petitioner was absorbed in the 2^nd respondent university on 31.05.2017 and since then, the petitioner has been working as Junior Assistant in the said university. Based on the seniority and eligibility, the 2^nd respondent university has conducted internal examination on 27.08.2020 and issued a certificate to that effect. After the detailed enquiry and based on the eligibility, the petitioner was promoted as Senior Assistant through proceedings dated 29.09.2020. Thereafter, he was

¶31

1 AIR 2015 SC696

¶32

transferred and posted at P.G. Examination Section on 21.11.2020.

¶33

While working in the said post, after lapse of nearly three years, the respondents have issued a show cause notice dated 26.09.2022 calling explanation from the petitioner for furnishing documents pertaining to passing a departmental test. The petitioner in turn, furnished the documents and submitted his explanation. However, it is brought to the notice of the respondent authorities that the petitioner has not completed the said required test. Based on the same, the present impugned orders have been passed on 05.01.2023 reverting the petitioner from the post of Senior Assistant to Junior Assistant with effect from 29.09.2020 and also directed for recovery of salary amount with 20 equal installments. Aggrieved by the same, the present Writ Petition has been filed.

¶34

Learned counsel for the petitioner has stated that now the petitioner has fulfilled all the required tests. He further submits that as the petitioner has been participated and passed the said departmental/internal tests i.e., account tests for subordinate officers Part-I and II on 29.08.2023 and 11.01.2023 respectively and accordingly, the petitioner is now fully eligible and qualified to hold the post of Senior Assistant. Hence, the petitioner case may be considered for promotion to the post of Senior Assistant. He further stated that there is no involvement of the petitioner for effecting promotion but the respondents have considered and effected the promotion and the petitioner has discharged his duties as Senior Assistant with no complaints.

¶35

As there is no involvement of the petitioner for promotion, the respondents ought not have issued the recovery orders, which is contrary to the observations of the Hon’ble Apex Court in State of Punjab Vs. Rafiq Masih² Judgment.

¶36

Learned Standing Counsel appearing on behalf of respondents submits that as per the Stipulations and Rules of the University, one should have completed the departmental test and then only they are eligible for promotion to the post of Senior Assistant. In the instant case since the petitioner has not completed the said test and the same was not brought to the notice of the authorities and hence after noticing the same, the respondents have passed the impugned order after providing an opportunity of hearing. In fact, the petitioner has also explained that the petitioner is not having requisite qualification as on the date of promotion. Once the petitioner is not eligible and entitled for promotion, whatever emoluments paid to him is to be recovered by the University. Hence, the impugned orders are in conformity with the Rules.

¶37

Considering the submissions made by the learned counsel on both sides and upon perusal of the record, it is evident that the petitioner has completed the departmental examinations. Upon completion of the departmental examinations, his case may be considered for promotion, subject to availability of vacancies and in accordance with his seniority.

¶38

2 AIR 2015 SC 696

¶39

Insofar as the issue of recovery is concerned, the University has not established that the promotion was granted on the basis of any false information furnished by the petitioner. In the absence of any misrepresentation on the part of the petitioner, and since he discharged his duties as Senior Assistant pursuant to the promotion, the respondent authorities cannot initiate recovery of the salary paid to him during the period he held the promotional post.

¶40