Dismissed

T.Narsimha Reddy v. The Regional Joint Director of School Education

Telangana HC25 Aug 2014WP/18297/2001

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging a Tribunal's order that set aside the fixation of notional seniority. The Tribunal found the order violated natural justice by not issuing prior notice to affected parties. The Court held no grounds to interfere as this was not specifically disputed by the petitioner.

What did the court decide?

The Writ Petition is dismissed. No order as to costs.

T.Narsimha Reddy Vs The Regional Joint… — Pension and Retirement Benefits | Telangana HC (2014)

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THE HON'BLE SRI JUSTICE K.C.BHANU AND

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THE HON’BLE MRS JUSTICE ANIS

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WRIT PETITION NO.18297 OF 2001

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ORDER:- (per Hon’ble Sri Justice K.C.Bhanu)

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This Writ Petition, under Article 226 of the Constitution of India, is filed a) to declare the order, dated 04.04.2001, in Original Application No.53 of 2000 passed by the Andhra Pradesh Administrative Tribunal, Hyderabad (for short, ‘the Tribunal’) as arbitrary and illegal and consequently, declare the same as void by holding that the petitioner is senior to respondent Nos.5 to 7 in the category of Physical Director, Grade-II in view of the proceedings Rc.No.9464/B3/A2/99, dated 24.12.1999, with all consequential benefits; and b) to declare the proceedings Rc.No.2955/B1/2000/1, dated 18.05.2000, issued by respondent No.1 promoting respondent No.5, as Lecturer, in Physical Education (DIET) by treating him as Senior to the petitioner in the cadre of Physical Director, Grade-II as confirmed in Original Application No.2832 of 2000, dated 04.04.2001, as arbitrary and illegal holding that the petitioner is entitled to all further higher promotions available under the Rules prior to respondent Nos.5 to 7.

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2. The brief facts that are necessary for disposal of the present Writ Petition may be stated as follows:

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The unofficial respondents herein were originally appointed as Physical Educational Teachers (P.E.Ts) with effect from 28.09.1970 and subsequently their services were regularized. Whereas the petitioner herein was appointed as National Discipline Scheme (NDS) Instructor, Grade-II on 20.04.1964 under Central Scheme and his services were regularized with effect from 22.01.1969. The State

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Government absorbed the said employees with effect from 01.11.1975. Respondent No.2 herein issued proceedings, dated 24.11.1994, communicating provisional seniority list of P.E.Ts., wherein the unofficial respondents were shown at Sl.Nos.10, 11 and 13, whereas the petitioner herein was not included in the said list as he belongs to a distinct and separate entity. The unofficial respondents were promoted as Physical Directors, Grade-II in Category-2 of Class-IV of Andhra Pradesh School Educational Subordinate Services Rules, 1996 (for short, ‘the Rules’) by proceedings Rc.No.9464/A4/95, dated 19.06.1995. While the matter stood thus, respondent No.2 prepared a combined seniority list of P.E.T (National Fitness Course) and P.E.Ts on 21.03.1998 and the name of the petitioner was shown at Sl.No.9, whereas respondent No.7 herein was shown at Sl.No.25. Promotions to the unofficial respondents on 19.06.1995 by preparing combined seniority list, dated 21.03.1998, have to be reviewed in view of the final seniority list, dated 21.03.1998. Since the official respondents did not take up the said review, the petitioner having regard to his seniority over and above the unofficial respondents, filed Original Application No.6881 of 1998 before the Tribunal claiming promotion as Physical Director, Grade-II on par with his juniors. In the said Original Application, interim order was passed directing the official respondents to consider the case of the petitioner for promotion to the post of Physical Director, Grade-II. Pursuant to the said order, the official respondents considered the case of the petitioner and promoted as Physical Director, Grade-II on 12.07.1999. The said Original Application was finally disposed of on 06.09.1999 with a direction to consider the representation of the petitioner with regard to his claim for notional promotion with effect from 19.06.1995 on par with the unofficial respondents, in accordance with the Rules. Pursuant to the said order, respondent No.1 vide proceedings Rc.No.9464/B3/A2/99, dated 24.12.1999, fixed notional seniority of the petitioner with effect from 19.06.1995 in the Category of Physical Director, Grade-II.

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Challenging the said notional seniority, the unofficial respondents herein/applicants filed Original Application No.53 of 2000 to call for the records relating to the impugned proceedings, dated 24.12.1999, issued by respondent No.1 and quash the same as no notice has been issued prior to issuance of the said proceedings. The Tribunal, upon considering the material on record, allowed the Original Application holding that while giving retrospective promotion to the petitioner, no notice has been issued to the affected parties and on that ground alone the impugned proceedings, dated 24.12.1999, were set aside as they are violative of principles of natural justice.

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3. In fact, respondent No.1 by proceedings, dated 07.02.2000, kept the orders of notional seniority issued to the petitioner on 24.12.1999 in abeyance and has chosen to promote respondent No.5 herein as Lecturer in Physical Education in DIET. Aggrieved by the said abeyance order and the consequential proceedings Rc.No.2955/B1/2000/1, dated 18.05.2000, the petitioner filed Original Application No.2832 of 2000, which was heard along with Original Application No.53 of 2000 and dismissed the same on 04.04.2001.

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4. Learned counsel for the petitioner contended that as per the Rules, there is no requirement of giving notice to the affected parties; that both P.E.Ts and P.E.T (NFC) categories come under feeder category of Physical Director Grade-II; that retrospective promotion shall be given taking note of the fact that absorption was made in the year 1975 and hence, he prays to set aside the impugned order in Original Application No.53 of 2000.

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5. No specific plea has been taken in the affidavit filed in support of the petition to the effect that the finding i.e., violation of principles of natural justice recorded by the Tribunal is incorrect. In the first instance, the petitioner was appointed as Instructor, Grade-II on 20.04.1964 and thereafter, his services were regularized with effect

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from 22.01.1969. It is not in dispute that the petitioner was absorbed in the State Government on 01.11.1975, whereas the unofficial respondents were appointed as P.E.Ts with effect from 28.09.1970. Basing on the above, the unofficial respondents are seniors to the petitioner. The entire claim of the petitioner was based upon the Special Rules under G.O.Ms.No.40, dated 07.02.1992. In the said Rules, P.E.T (NFC) was included in Class –‘G’ and P.E.Ts., were included in Class –“F’. Later, the said G.O was kept under suspension by the Tribunal for want of amendments to the Rules. Subsequently, the Government issued Special Rules vide G.O.Ms.No.538, dated 20.11.1998, in supersession of the Service Rules issued in G.O.Ms.No.40, dated 07.02.1992. According to the said Rules, P.E.Ts (NFC) were included in Category-9 and 10 of Class-III. These Rules came into effect from 20.11.1998. By virtue of the proceedings, the petitioner was given retrospective promotion though there are no Rules for promoting him retrospectively. At best, promotion to the post of Physical Director, Grade-II can only be given with effect from 20.11.1998, on which date, the G.O.Ms.No.538, dated 20.11.1998 came into force. Retrospective promotion has given to the petitioner and thereby seniority of other persons have been affected. That is the reason why the Tribunal gave a categorical finding that while giving retrospective promotion to the petitioner, no notice has been issued to the affected parties and thereby the respondents have violated the principles of natural justice. That aspect of the case has not been specifically denied or disputed by the petitioner in the affidavit filed in support of the Writ Petition. Therefore, there are no grounds to interfere with the impugned order.

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6. Accordingly, the Writ Petition is dismissed. There shall be no order as to costs. Miscellaneous petitions, if any, shall stand closed.

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_____________________ JUSTICE K.C.BHANU

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______________

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JUSTICE ANIS

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AUGUST 25, 2014 YVL

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THE HON'BLE SRI JUSTICE K.C.BHANU AND