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Judgment
Since the issue involved in both these Writ Petitions is one and the same, they are being heard together and disposed of by way of this common order.
For the sake of convenience, the facts in W.P.No.4720 of 2014 are hereunder discussed.
W.P.No.4720 of 2014 is filed to issue a Writ of Mandamus declaring the orders passed by the Andhra Pradesh Administrative Tribunal, Hyderabad (for brevity ‘the Tribunal’) in O.A.No.1940 of 2012 dated 06.11.2012, confirming the seniority list dated 22.02.2012, finalized and communicated by the Commissioner of GHMC/respondent No.2 in the category of Assistant Executive Engineer, GHMC, vide Circular No.4846/AC(A)/OP8/GHMC/11-91, dated 22.02.2012 as illegal, arbitrary and contrary to the Rules and set aside the same and to direct the respondent No.1 and 2 to prepare and finalize the seniority list afresh in the category of Assistant Executive Engineer, GHMC, strictly in accordance with Rules.
Heard Sri. Mamidi Rama Rao, learned counsel for the petitioner, Sri. Pasham Krishna Reddy, Standing Counsel for GHMC for respondent No.2 and Sri J.R.Monohar Rao, learned counsel for respondent Nos.3 and 4.
Learned counsel for the petitioner contended that the petitioner was appointed as Assistant Executive Engineer in Andhra Pradesh State Co-operative Rural Irrigation Corporation Limited, Hyderabad on 10.06.1996. Thereafter, the petitioner was transferred to the 2nd respondent Corporation on 22.12.2000 along with eight (8) others on deputation basis. The services of the petitioner was absorbed by the Government along with others as Assistant Executive Engineers vide G.O.Rt.No.410, dated 12.04.2010. Whereas, the services of the respondent No.3 was absorbed as Assistant Engineer (Non-Gazetted) through G.O.Rt.No.1397, dated 20.10.2009 and the services of the respondent No.4 was also absorbed as Assistant Engineer through G.O.Rt.No.1585, dated 03.12.2009 with a condition to take last rank below the regular Assistant Engineers of GHMC.
Learned counsel for the petitioner has further contended that the 2nd respondent/Commissioner, GHMC, has no power and authority to re-designate the services of the respondent Nos.3 and 4 as Assistant Executive Engineers in GHMC with effect from the date of their absorption i.e., 20.10.2009 and 03.12.2009 respectively through proceedings No.3539/AC(A)/OP8/GHMC/10, dated 15.02.2011 and No.3539/AC(A)OP8/GHMC/10, dated 25.02.2011 respectively with retrospective effect, contrary to the orders passed by the State Government. Even before issuing the impugned re-designating proceedings, the respondent No.2 has not issued any notice to the existing Assistant Executive Engineers in GHMC including the petitioner.
Learned counsel for the petitioner further contended that taking into account of the re-designation of the respondent Nos.3 and 4 in the cadre of Assistant Executive Engineers in GHMC, the issuance of final seniority list of Assistant Executive Engineers through circular No.4846/AC/(A)/OP8/GHMC/11-91, dated 22.02.2012 by the respondent No.2 is illegal and arbitrary to the Rules.
Learned counsel for the petitioner further contended that the respondent Nos.3 and 4 have not even completed their probation period as Assistant Engineers in the GHMC by the date of re-designation orders issued on 15.02.2011 and 25.02.2011. Respondent Nos.2 and 3, after accepting the post of Assistant Engineer as per the orders issued by the Government, joined in the GHMC in the last rank and they cannot claim the post of Assistant Executive Engineer which was their previous post in their parent Department prior to their absorption.
Learned counsel for the petitioner contended that aggrieved by the re-designation order issued by the Commissioner, GHMC in favour of the respondent Nos.3 and 4 and final seniority list prepared basing on the re-designation orders, the petitioner approached the Tribunal and filed two O.As. i.e. O.A. No.1940 of 2012 for questioning the final seniority list in the cadre of Assistant Executive Engineer and O.A.No.6299 of 2012 for questioning the re-designation of services of respondent Nos.3 and 4 as Assistant Executive Engineer (Assistant Engineer, GHMC) with effect from the date of absorption duly protecting their seniority from the date of their absorption and the Tribunal, without considering the contentions raised by the petitioner, dismissed both the O.As. Therefore, learned counsel for the petitioner has contended that both the impugned orders are liable to be set aside and consequently, direct the respondent Nos.1 and 2 to prepare the seniority list afresh as per rules.
The learned counsel for the respondent Nos.3 and 4 contended that the respondent Nos.3 and 4 were Assistant Executive Engineers in their parent Department and when they were posted on deputation in GHMC, their services were absorbed as Assistant Engineers instead of Assistant Executive Engineers in GHMC. The Commissioner, GHMC re-designated their services as AEEs in GHMC from the date of absorption as per Rules issued in G.O.Ms.No.81, dated 23.01.1980.
Learned counsel for the respondent Nos.3 and 4 has further contended that both the contesting parties are having same qualification, worked in the same post in their respective parent Departments and therefore the question of Gazetted or Non-Gazetted post does not arise. The respondent No.2 is the competent authority to issue re-designated orders in favour of respondent Nos.3 and 4 in the cadre of AEEs.
Learned counsel for the respondent Nos.3 and 4 further contended that the Tribunal has rightly observed that basing on the representation, the 2nd respondent restored the seniority by re-designating the respondent Nos.3 and 4 as AEEs and no notice is required while passing the orders. The counsel for the respondent Nos.3 and 4 further contended that the Tribunal rightly observed that the respondent Nos.3 and 4 are absorbed in the year 2009 and the petitioner is absorbed in the year 2010. The absorption orders were issued by the Government since the respondent Nos.3 and 4 were taken from the other Department and when they become the employees of the Corporation, the Commissioner is competent to extend the benefit according to the rules including the orders of the re-designation. Therefore, there is no illegality or irregularity in the impugned orders dated 06.11.2012 passed in O.A.No.1940 of 2012 confirming the seniority list dated 22.02.2012 and the impugned orders passed in O.A.No.6299 of 2012 dated 06.11.2012 confirming the orders passed by the Commissioner in re-designating respondent Nos.3 and 4 as AEEs in GHMC Cadre. Hence, both the Writ Petitions are liable to be dismissed.
The learned Standing Counsel for the 2nd respondent Corporation contended that there is no clarity in absorption orders issued in G.O.Rt.No.410 dated 12.04.2010 to show that the petitioner was absorbed in which category of AEE or AE on temporary basis and the Tribunal rightly dismissed the O.As filed by the petitioner and there is no substantial ground to allow the writ petitions herein and the same are liable to be dismissed. Further, after considering all the aspects, the Tribunal has rightly dismissed both the O.As vide common order dated 06.11.2012 and the respondent Nos.3 and 4 were absorbed in the cadre of Assistant Engineer by protecting their pay in the category of Assistant Executive Engineers.
After hearing on both sides and perusal of records, this Court having considered the rival submissions made by the learned counsel for both the parties is of the considered view that the services of the petitioner was absorbed as Assistant Executive Engineer in GHMC through G.O.Rt.No.410, dated 12.04.2010, whereas, the services of the respondent Nos.3 and 4 were absorbed as Assistant Engineers in GHMC through G.O.Rt.No.1397, M.A. & U.D, department dated 20.10.2009 and G.O.Rt.No.1585, M.A. & U.D department dated 03.12.2009 respectively with a condition to take last rank below the regular Assistant Engineers of GHMC. It is admitted fact that the petitioner’s services were absorbed in GHMC as Assistant Executive Engineer and same was accepted by the GHMC in Para No.3 of the counter affidavit filed in W.P.No.4720 of 2014. There is no dispute that the respondent Nos.3 and 4 were absorbed in GHMC as Assistant Engineers on 20.10.2009 and 03.12.2009, respectively, and have taken last rank in the cadre of Assistant Engineer. The Commissioner, GHMC, without obtaining any approval or orders from the Government, re-designated the services of respondent No.3 & 4 as Assistant Executive Engineer in GHMC, which is against the orders passed by the Government absorbing the respondent No.3 and 4 as Assistant Engineers.
The Commissioner, GHMC, without issuing the notices to the effected parties issued orders of re-designation of services of the respondent Nos.3 and 4 as Assistant Executive Engineer in the impugned orders. Therefore, the action of respondent No.2/Commissioner, GHMC in re-designating the services of respondent No.3 and 4 as Assistant Executive Engineer in GHMC with effect from the date of absorption i.e., 20.10.2009 and 03.12.2009 through impugned proceedings is arbitrary and illegal.
Since the respondent No.3 and 4 before entering into services of GHMC accepted to join as Assistant Engineers in the last rank, they cannot claim their original cadre in the GHMC after their absorption. The Tribunal without taking into consideration the contentions raised by the petitioner, erroneously dismissed the O.A.No.6299 of 2012, dated 06.11.2012 and the same is liable to be set aside.
Further, the Commissioner, GHMC, prepared combined seniority list of Draughtsman Grade-I/Assistant Engineers and Assistant Executive Engineers working in the GHMC on 22.02.2012 contrary to the Rules as the Draughtsman Grade-I, the Assistant Engineer and the Assistant Executive Engineer cadres are different and therefore the said seniority list is liable to be set aside on the ground that integrated seniority list cannot be prepared for the cadre of Draughtsman Grade-I/Assistant Engineer and Assistant Executive Engineers. Therefore, the action of the 2nd respondent-Commissioner, GHMC, Hyderabad, in re-designating the services of the respondent Nos.3 and 4 as Assistant Executive Engineers is without jurisdiction and against the orders of absorption issued by the Government. The Government is the only competent authority to re-designate the services from the date of their absorption in the cadre of Assistant Engineer.
Accordingly, the impugned re-designation orders dated 15.02.2011 and 25.02.2011 are set aside only to the extent of re-designating the respondent Nos.3 and 4 as Assistant Executive Engineers with retrospective effect and also the confirming orders passed by the Tribunal in O.A.No.6299 of 2012, dated 06.11.2012 are set aside and accordingly, W.P.No.7230 of 2014 is allowed. Further, in view of allowing W.P.No.7230 of 2014, the proceedings regarding impugned seniority list dated 22.02.2012 are set aside and confirming orders passed in O.A.No.1940 of 2012, dated 06.11.2012 are also set aside. Accordingly, W.P.No.4720 of 2014 is also allowed. The 2nd respondent-Commissioner, GHMC, Hyderabad, is directed to prepare seniority lists afresh in each of the cadres without being influenced by the re-designation orders dt.15-02-2011 and 25-02-2011, and effect their promotions, after regularization of their services in each cadre by strictly following the Rules, with all consequential benefits including monetary benefit with effect from the date of their promotions. There shall be no order as to costs.
Miscellaneous petitions, pending if any, shall stand closed.