Allowed

Dr. Kumbha Brahmaiah v. The Union of India

Telangana HC20 Jul 2021WP/4288/2021

Case brief

AI extract

What is this about?

Writ petition by a ST Medical Officer challenging denial of promotion to Dy. Chief Medical Officer due to his Andhra Pradesh nativity. Court held that denying ST reservation benefits based on nativity violates Article 16(2) and directed consideration of his case.

What did the court decide?

Directed respondent companies to consider petitioner for promotion to Dy. Chief Medical Officer as per 2003 GO with consequential benefits.

Dr. Kumbha Brahmaiah Vs The Union of India — Pension and Retirement Benefits | Telangana HC (2021)

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HIGH COURT FOR THE 51 r'r.;,;i $lE,"oj^{j:h3)if,#fAr HyDERABAD}

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TUESDAY, THE TWENTIETH DAY OF JULY TWo THoUSAND AND rwer.rrv oNE'

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PRESENT

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THE HON'BLE SRI JUSTIC.E M.S. RAMACHANDRA RAO AND THE HON'BLE SRI JUSTICE T. VINOD KUMAR

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Between:

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WRIT PETITIONNO : 4288 OF 2021

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Dr. Kumbha Brahmaiah, S/o. Kumbha Kotaiah. aoed about 48 years, Occ. lVedical srngareni Collieries Company Godavarikhani,Karimnagai.Di6trict. s uperintendent, EC No. 004 1 s01, Limited:kh;;;;;nimi"r"'Jlli:r^"' iXrea, AreaDistrict, Hospital Dispensarv Rl/o. 8 lncline Cotony,R-2.

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...PETITIONER

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AND

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l The Union of rndia. Reo,by its secretary, Ministry of personner and pubric Grievances. New Delhi

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The Secretary to the Union of lndia. Ministry of Coal Mines, New Delhi.

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3, The State of Andhra pradesh, n;p. Oy ii."ihi'.Jf'S"elrerary, A.p. Secretariat, Velagapudi, Amaravathi, Guniur District-

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lh^e lrlncipal Secretary to Governmenl Social Welfare Department, Scate of _^{A,P., Vetagapudi, Amaiavathi,} Guntur Oistiiii^{" - '}

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The State of Telanagana, Rep, by its Chief Secretary, Telangana State Secretariat, Hyderadad.

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The Princioal Secretarv to Government, Energy Department, Terangana state Secretariai. Hvderabarl

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The Singareni'Collieries Company Ltd., Rep. by its Chairman and t,4anaging Director, Singareni Bhavan, Red Hills, Hydi:rabad

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B. The Director (P, A and W), Singareni Coilieries Co.Ltd., Kothagudem, Khammam District.

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The General lt/anager, (Personnel), RC, lR and^p[/, Singareni Collieries

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^{CompanyLtd-,Corporate Office, Singareni Bhavan,RedHills,Hyderabad.}

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10,The General lt4anager, (Personnel) EE, Singareni Collieries Conipany Ltd., Kothagudem, Bhadradri Kothagudem District.

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11.The General Manager, Ramagundam-ll Area, Singareni Collieries Company Ltd., Ramagundam' Karimnagar District

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...RES'.NDENTS

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Petition under Article 226 of lhe Constitution of lndia^praying that in tlle circumstances stated in the affidavit filed therewith, the High Court may be^{pleased to} issue a writ, order or direction, more^{particularlyone in the nature of Writ of} lMandamus, declaring that the action of the^{authoritiesof the respondents 5 to 8, in} not extending the benefit of^{Rute of Reservation to the employees belonging to the} Scheduled caste and scheduled^{Tribes hails from stateof Andhra Pradesh,in} respect of the^promotion to^{the post in Deputycivil tr/edicalofficer in E7 Grade,} pursuant to the Departmental Proceedings^{committee held in November,2020,as} illegal, improper, arbitrary,^{contrary to the provisions of the A.P. State Re organisation} . Acl, 2014, without application of mind, violative of Articles 14,^{16 and 21 of the} Constitution of lndia and^{set aside the same, consequently to direct the respondents} 5 to 8, to consider the^{case of the petitionerfor promotionto the post of Deputy} General Manager as^{per the orders issued in G.o. Ms. No.5, Social welfare} (SW.ROR.l) Department, daled^{141212003,with all consequential benefits'}

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il2ll

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ANO :'l o 20 1

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Petition under^{Section 15'1 CPiprayingthat in the circumstances stated in the} affidavit^{filed in support')f the petition,the High Court maybe pleased to directthe} respondents5to8,tocclnsiderthecaseofthepetitionerforpromotiontothepostof Deputy Civil^{Medical Officer in E7 Grade as per the orders issued in G O Ms No 5'} SocialWelfare(SW.Ro?'.1)Depadment'datedl4l2l2OO3,pendingdisposalofthe above writ^{petition and to pendingdisposal of the above writ petition'} Counsel for^{the Petitioner:SRI' CH' VENKAT RAMAN}

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Counsel forthe^{Respondent Nos'1 & 2: SRI NAMAVARAPU RAJESHWAR RAO'} ASSISTANT^{SOLICITOR GENERAL}

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Counsel for the^{Respondent Nos.3 & 4: SRI P' GOVIND REDDY'} SEPCIAL G.P.^FORA.P.

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CounselfortheRespondentNo.5:GPFoRGENERALADMINISTRATIoN

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Counsel for the Respondent^{No.6: GP FORENERGY}

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Counsel for the Respondent^{Nos.7to 11: SRI J. SREENIVASARAO,} SC FOR SINGARENI COLLIERIES

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The Court made the following:^ORDER

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HONOURABLE SRI JUSTICE M.S. RAMACHANDRA RAO

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AND

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HONOURABLE SRI JUSTICE T. VINOD KUMAR

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Writ Petition No.4288 of 2021

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ORDER: (Per Sri Justice M.S.Ramachandra Rao)

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Heard counsel for petitioner, and Sri J. Sreenivasa^{Rao, leamed} Standing Counsel for Singareni Collieries Company^Limited.

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The petitioner herein belongs to 'Schedule^{Tribe' community. He} joined in E-2 Grade in Singareni Collieries Company Limited^(for short' 'SCCL')^{(7'h respondeul) on 22.12.1999as MedicalOfficer under S.T.} reservation quota in tl.re then composite State of^{Andhra Pradesh'}

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The petitioner secured^promotion in^{E-3 Gradein 2003, furlher} promotion to E-4 Grade in 2007,^and to^{E-5 Grade as Dy. Medical} Superintendent and is currently^{workingas Medical Superintendent in} E-6 Grade w.e.f. 01.04.2012.

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Petitioner contends that^{he was due for promotion to E-7 Grade} post of Dy.Chief Medical Officer by applying^{Rule of Reservationfrom} the date of promotion of his Junior^{who was promoted in E-7 Gradeas} such.

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1'he contentio ns of rretitioner

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According to him,^{as per the said Ruleof Reservation, out of six} vacancies available in E-7^{Gradepost, one post is meant for 'S'T''}

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!P_4288_2ir2

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category, and only three^{persirns including petitionerare eligible to fill} this one vacancy, and^{four vacancieswere filled up rvith 'OC'} candidates. Petitioner contends^{that whenthe NationalCommissionfor} the Schedule Tribe was approached^{by him with a grievance application} regarding his promotion to E-7^Grade, it^{had written to the 5e} respondent: and that the Association of^{Employees alsomadea} representation to the Hon'bie Prime Minister of India^{for the injustice} done to SC and ST employees of Andhra nativity^{who joinedbeforethe} bifurcation of the then State of Andhra Pradesh in^{the 7'h respondent} Company in respect of implementation of^policy of^{Reservation in} promotions to higher categories.

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According to him, the then State of Andhra Pradesh issued G.O.Ms.No.5 Social Welfare^(SW.ROR.I) Department dt.14.02.2003 wherein Rule of Reservation in promotions in favour of S.C.s and S.T.s under Article l6(4-.4) of the Constitution of India was provided for, that the said G.O. was stilt in force, and the 7'h respondent-Company has also adopted the said G.O. and so it was bound to implement it.

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Petitioner further alleges that on the basis that petitioner herein is a native of the State of Andhra Pradesh discrimination cannot be shown to him by denying him promotion under the 'S.T.' quota when G.O.Ms.No.5 c1t.14.02.2003 is still in vogue.

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He also explains that 7th respondent-Company issued a list of candidates for promotion from E-6 to E-7 Grades andEJ to E.8 Grades for D.P.C. 2020 to 2021 vide Ref.No.CRP/PER/C13412301

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:;3::

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MSR,J & TVK.J wD 4288 )o) r

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dt'30'10'2020 showing a list of candidates for medical examination, that dates of medicar examination were fixed as 2nd to 4rh of Novemb er,2020, and in the said list, petitioner,s name was not shown, but two Juniors to petitioner by name L. Arvind and K. Ashok Kumar were shown with Serial Nos.79 and gl; and the only reason petitioner appears to have been excluded from the said list is because he is a native of residuarv Andhra Pradesh State.

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The stand of respondent no.s 7_l l

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9' counter-affidavit was filed on beharf of respondent nos.7 to r l opposing these contentions.

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According to respondent nos.7 to 11, there is no dispute that petitioner belongs to the 'S.T., Category, but they dispute that though he is a native ofthe state ofAndhra pradesh he is entitled to be considered as 'S.T.' for the Telangana State.

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I1. It is alleged that petitioner was considered in the^.unreserved category' for the purpose of promotion to Dy. Chief Medical Officer in the E.7 - Grade, and he did not come under the selection zone, and he would be called for medical test and interview. The respondents further contended that he was treated as a person in the unreserved category since he studied up to S.S.C. in the State of Andhra Pradesh and submitted the Caste Certificate from Andhra Pradesh at the time of initial appointment.

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, p-4288-i011^'

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12.^{Further, the respondents placedreliance on an amendmentto the} Recruitment^{Rule No.6(cxii) passed in the MinutesNo.529 : 5'25 of} Board^{of Directors meeting held on 26'03'2015at Hyderabadwhich} states^{as under:}

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Existin	Modified Rule6(c)(ii)^:
I	l4hilefilting^{non-executive Grade posls} otc,ntiv^{leirtby direct recruitmenlthe} irtt^{ZOUofrhipostsuitlbefilled from} 'ti:hecombiiedmiritlisrofrhe candidares aso\en^{category.hothlocalandnon'} locaicandidates^{ofTelungana 9ate)} basedon^{theiroverall meritand} communol^ro.\tcrPoint.^fheremaining 80%of^postswillbefilled^{only by local} candiiates^{baseclontheirmeritand} conmunal^roster

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The explanation^{to Recruitment Rule No'6(c)(ii)statesas under:}

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"5:25.4 The Board noted^that for^{executive Gradeposts'} candidales belonsins^{to otherthanStateof T'elanana v,illbe} consirlereLi!Lgg!1qglg!9wn^{and Rule of Reservation shallbe} applicabltz onl! to^{the cantlidates of Telangano Stateas petthe} existing practice."^{( emphasb supplied)}

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Thus, rLccording to this^{Rule, for executive Grade posts,} candidates belonging to other than^{the State of Telangana will be} considered in General Category, and^{Rule of Reservationis applicable} only to candid,ttes of Telangana State;^{and on the basisof this provision,} the respondents contended that since^{petitioner is a native of Andhra} Pradesh State, he will only be considered^{as personin General Category} and not in the reserved category

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MSR,J & TVK,J wp 4288_2021

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The question which arises for consideration is:

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Vlhether on the basis of nativity there could be any discrimination in the matter of giving promotion to an^'5.7.' category person by denying him the said status on the^ground his nativity is in the State of Andhra Pradesh?^"

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The consideration bv thc Court

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In Telangana Judges Association and another vs. Union^of lndia and othersr, the Supreme Court had categorically^heldthat nativity for public employment runs^{contrary to the fundamentalright} guaranteed under Article 16(2) of the Constitution of India^{except when} it is provided by a parliamentary law^{as per the exceptioncarvedout in} Article l6(3) of the Constitution of^India.

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It further clarified that in the Andhra Pradesh^{Re-organization} Act,2014 there is no provision which expressly^{providesfor allotment} of the State on the basis of place of birth^{or residence,, and allotmentof} employees cannot be solely on the basis^{of the criteria of their place of} birth or residence or nativity.

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When the^{petitionerherein joined service,he wastreated as a} person belonging to the 'S.T.' Community,^{on the basis of a Caste} Certificate issued on^{11.03.1999as belongingto the 'S.T.'Community} by the Mandal Revenue^{Officer, Nakrekal; and had got subsequent} promotions on the same basis^{up to E-6 Grade by 01.04'2012' Denying}

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petitioner now the benefit of reservation by way of amended Recruitment Rule No.6(c)(2) and confining the benefit of^reservation only to candidate:; of Telangana State, and^denying it to^candidates belonging to other than Telangana Sates, is per se arbitrary and violates Article 16(2) of the Constitution of India.

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Under Article 342 of the Constitution of India, the President may', with respect to an'/ State after consultation with the Govemor thereof, by public notification specifi the Tribes or Tribal Communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State.

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Under the said provision, the Constitution Schedule Tribes Order, 1950 had been issued. In the said order, as it originally stood, Yerukula Community to which the petitioner herein belongs was included at Serial No.33 in regard to the then composite State of Andhra Pradesh.

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Aiter passing of the Andhra Pradesh Re-Organization Act. 2014 certain amendments were brought to the Constitution (Schedule Tribes) Order, 1950 by Section 29 of the said Act in the VI Schedule ro the Andhra Pradesh Re-Organization Act, 2014.

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As per the said Schedule, Part No.24 was inserred in the Constitution (Schedule Tribes) Order, 1950 specially for the State of Telangana, and at Serial No.3 l, again Yerukula Community was mentioned.

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MSR,J & TVK,J wp_4288_2021

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Therefore, even in the new State of Telangana the petitioner continues to be belonging to 'S.T.' Category. Merely on the basis of petitioner's nativity, the respondent nos.7 to l1 cannot treat petitioner as a person belonging to the General Category and deny him the benefit of reservation in promotions to the E-7 Grade.

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23, The decision in Marri Chandra Shekhar Rao vs. Seth G.S. Medical College2, relied upon by the respondents merely lays down that the benefit available in the original State where a person was a 'S.C.' or 'S.T.'cannot be availed in other States in India in a situation where there is no such reservation in other States for the said communities.

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In the instant case, when the Yerukula Community is classihed as a 'Schedule Tribe' Community, both in the residuary State of Andhra Pradesh and also in the new State ofTelangana even after the bifurcation of the composite State of Andhra Pradesh, the said decision^has absolutely no application to the facts of the^{present case.}

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Accordingly, the Writ Petition^{is allowed;the respondentnos'7 to} 1 1 are directed to^pay costs^{of Rs.50,000/-within four (04) weeks, and} the action of respondent^{nos.7 to 11 in not extending the said benefit in} the D.P.C. 2020 to 2021 held^{in November, 2020 is declared as illegal,} improper, arbitrary and violative^{of Articles14 and 16 of the} Constitution of India;^{and they ar.e directed to consider the case of} petitioner for promotion^{to the post of Dy. Chief Medical Officer as per} orders issued in G.O.Ms.No.5^{SocialWelfare (SW'ROR'I) Depafiment}

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'?^{1990(3) S.C.C.130}

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;;o;;

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np 4288 2021

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dt.l4.O2.2OO3 with^{all consequentialbenefits withinlour (04) weeks}

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from to-day.

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As a sequel,^{miscellaneous petitions pending if any in this Writ}

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Petition, shall stand^closed,

! I I

W.P.No.4288 of 2021

Rs. Ps.

Cost Quantified by the Hon'ble Court (That the Respondent Nos.7 to 11 are directed to^pay costs of Rs.50,0001 (Rupees Fifty Thousand Only) to the^petitioner within four (04) weeks.

50,000 - 00

TOTAL

//TRUE COPYII

50,000 - 00

SD/-T.TIRUMALA DEVI ASSISTANZfl=GISTRAR

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SECTION OFFICER

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To,

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The Secretary, It/inistry of Personnel and Public Grievances, Union of lndia, New Delhi

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The Secretary tc the Union of lndia, Ministry of Coal Mines, New Delhi. 3 The Chief Secretary, State of Andhra Pradeish, A.p. Secretariat, Velagapudi, Amaravathi, Guntur District

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. lh5: f rjncipal Secretary to Government, Social Welfare Department, Scate of A.P., Velagapudi, Amaravathi, Guntur District

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1. The Chief Secretary, State of Telanagana, Telangana State Secretariat, Hyderabad.

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The Principal Secretary to Government, Energy Department, Telangana State Secretariat, Hyderabad

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The Chairman and l/anag ing. Director, Singareni Collieries Company Ltd., Singareni Bhavan, Red Hllls, Hyderabad^-

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The Director (P, A and W), Sinjareni Collieries Co.Ltd., Kothagudem, Khammam District.

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The General .Marrager, (Personnel), RC, lR and pM, Singareni Collieries

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. -^{Company Ltd., Corporate Office, Singareni Bhavan, Red} Hills, Hvderabad. 10..|.he ceneral ManaEer, (Personnel) Etrr Singareni Collieries Conipany Ltd., Kothagudem. Bhadradri Kothagudem District.

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11.The General Manager, Ramagundam-ll Area, singareni collieries company Ltd., Ramagundam. Karimnagar District

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12.One CC to Sri Ch. Venliat Raman, Advocate tOpUCl

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one cc to sri NamavarapuRajeshwar Rao, Assista'nt solicitor General topucl 14.Two CCs to Sri P. cqyilgq Re<idy, Speciat G.p. forA.p., Hish CoJ,1 oiAndhra Pradesh at Amaravathi. [OUT]

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