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Judgment
In this writ petition, the petitioner is seeking to declare that he is entitled to be promoted to the post of Administrative Officer in preference to respondent Nos.3 to 5 with all consequential benefits.
Heard both sides and perused the record.
Petitioner, who belongs to Scheduled Caste community, was initially appointed as an Attender in the year 1996 and on subsequent promotions, he is now working as Senior Assistant with effect from 26.08.2009. His case is that he is fully eligible and qualified to be promoted as Administrative Officer. It is stated that respondent Nos.3 to 5 were initially appointed as Junior Assistants in the office of the Joint Commissioner/RTA, Hyderabad, which is a subordinate office and later, they were temporarily promoted as Senior Assistants on 25.08.2008, 18.12.2008 and 29.06.2009 respectively, however, their services were not regularized and probation was also not declared in the said office, and inspite of the same, they were illegally transferred to the Head Office under the 12½ % quota. It is stated that one such transfer made earlier was cancelled by the Government vide order dated 04.02.1995. It is further stated that in the seniority list of Senior Assistants dated 23.09.2019, the petitioner’s name was at Serial No.1. The said list was in continuation of earlier seniority lists dated 04.12.2010 and 21.01.2013. The seniority list dated 04.12.2010 was questioned in W.P.(TR).No.916 of 2017 and the same is pending. It is also stated that though the petitioner has made a representation dated 25.06.2018 for sending back respondent Nos.3 to 5 to Muffasil Office and till such time not to effect promotions to the post of Administrative Officer, no orders are passed on the said representation till date and the respondents are taking steps to fill-up the vacancies of Administrative Officer. Hence, this writ petition.
In the counter affidavit filed by respondent Nos.1 and 2, it is stated that the Government has issued the scheme of transfer of personnel from Head of the Department (HoD) to Secretariat Departments and from Subordinate Offices to the HoD, vide G.O.Ms.No.1647, dated 31.10.1960, as per which, 25% of vacancies in the HoD can be filled up by transferring the Senior Assistants from Subordinate offices. Vide subsequent G.O.Ms.No.784, dated 23.12.1999, the said scheme was ordered to be continued on permanent basis and it was also ordered that transfers be effected not only against substantive vacancies but also against all actual clear vacancies. Accordingly, when respondent No.3 has requested for transfer to the HoD, she was transferred to the HoD in the existing vacancy and she reported to duty on 12.02.2009. Thereafter, as sufficient qualified Junior Assistants for promotion as Senior Assistants were not available in the HoD, a Memo dated 17.08.2009 was issued calling for applications and service particulars of Senior Assistants working in District Offices, who were willing to work in HoD on permanent basis and in pursuance of the same, respondent Nos.4 and 5 have submitted their applications along with willingness letters, therefore, they were transferred to the HoD from Muffassil Units as Senior Assistants in the clear existing vacancies vide order dated 25.09.2009 and respondent Nos.4 and 5 have reported to duty on 01.10.2009 and 14.10.2009 respectively. It is further stated in the counter affidavit that the petitioner was originally appointed as Office Subordinate in the office of the State Transport Appellate Tribunal, Andhra Pradesh in the year 1996 and later promoted as Junior Assistant in the year 2005 and transferred to the HoD. He was further promoted as Senior Assistant on Adhoc basis on 26.08.2009 subject to passing of required departmental tests, which he passed on 08.11.2012, therefore, he was deemed to have been promoted as Senior Assistant on regular basis with effect from 08.11.2012, on which date, he got eligibility for promotion as Senior Assistant. In the counter affidavit, the provisional seniority list of Senior Assistants, dated 06.11.2012 is given, as per which, out of the six Senior Assistants, respondent Nos.3 to 5 herein are shown at S.Nos.1 to 3 respectively and the petitioner is shown at S.No.5, by indicating their dates of promotion as Senior Assistants as 25.08.2008, 18.12.2008 and 29.06.2009 of respondent Nos.3 to 5 respectively and that of petitioner as 26.08.2009.
It is the case of respondent Nos.1 and 2 that Rule 3 of A.P.Ministerial Service Rules r/w. G.O.Ms.No.784, dated 23.12.1980 provide 25% quota for appointment of Senior Assistants from Subordinate offices to the HoD, and accordingly, in view of administrative exigencies, applications were called for from the eligible and qualified Senior Assistants, and appointed respondent Nos.3 to 5 in the HoD and their seniority was fixed below the last regularised Senior Assistant working in the HoD, as per Rule 15(1)(iii) of the A.P. Ministerial Service Rules. Referring to the contention of petitioner that the temporary employees cannot be transferred under 12½ % quota to the HoD, it is stated that there is no such provision in the Ministerial Service Rules. It is stated that after considering various objections, the seniority list dated 21.01.2013 was prepared showing respondent Nos.3 to 5 above the petitioner herein. Later, another seniority list dated 23.09.2019 was prepared separately, wherein, the name of petitioner is shown at S.No.1, however, the names of respondent Nos.3 to 5 were not shown in the said list, as their seniority was already fixed in the earlier seniority list dated 21.01.2013. While referring to the averment in the writ affidavit that the transfer of an employee to the HoD on an earlier occasion was cancelled, it is stated in the counter affidavit that it was cancelled as the said individual i.e. Smt. Ch.Prabhavathy did not acquire the requisite qualification of Graduation and that she was temporarily working as Senior Assistant. It is further stated that respondent Nos.3 to 5 are working as Senior Assistants in the HoD for the last 14 years and their seniority in the cadre of Senior Assistant was confirmed in the year 2013, therefore, the petitioner’s request for revision of such confirmed seniority list, that too, after lapse of 8 years, cannot be considered as per the Circular Memo dated 20.05.2004. Accordingly, they prayed for dismissal of the writ petition.
In the counter affidavit filed by respondent Nos.3 and 5, while reiterating some of the averments made in the counter affidavit filed by respondent Nos.1 and 2, it is stated that the petitioner was temporarily appointed as Senior Assistant on 26.08.2009 as he has not passed the Accounts Test for Subordinate Officers Part-I. It is contended by respondent Nos.3 and 5 that their services were regularized as Senior Assistants on 25.08.2008 and 29.06.2009 respectively and were subsequently transferred to the Head Office on 11.02.2009 and 14.10.2009 respectively under 25% quota meant for Graduate Senior Assistants working in the Muffasil Offices. It is stated that their probation was declared with effect from 24.08.2009 and 29.07.2010, vide proceedings dated 03.10.2009 and 21.01.2011 respectively. Therefore, considering their eligibility only, they were appointed in the Head Office. It is stated that there is no proof of filing any representation by the petitioner on 25.06.2018 as contended by him and even if such representation is presumed to have been made, it would be after lapse of nine years of their transfer to HoD, and hence, it cannot be entertained. It is also contended that the final seniority list dated 21.01.2013 was prepared after considering the objections raised by the petitioner and as he did not challenge such final seniority list within three years, he is not entitled to question the same at this stage. On this aspect, they referred to a judgment of Hon’ble Supreme Court in B.S.Bajwa and another v. State of Punjab and others 1998 (2) SCC 523 and prayed to dismiss the writ petition.
In the counter affidavit filed by respondent No.4, it is stated that the petitioner was promoted as Senior Assistant on adhoc basis as he did not pass the relevant departmental tests, and as he was not promoted on regular basis, his name was not included in the seniority list of confirmed Senior Assistants, dated 21.01.2013. It is contended by respondent No.4 that she joined as Senior Assistant in the HoD on 01.10.2009, respondent No.3 joined on 12.02.2009 and respondent No.5 joined on 14.10.2009. It is contended that the seniority list of Senior Assistants working in the HoD was communicated vide proceedings dated 23.09.2019 after considering all the objections and it has become final. By contending that respondent Nos.1 and 2 have not violated any Rules while fixing the seniority of Senior Assistants, respondent No.4 has prayed for dismissal of the writ petition.
Petitioner is challenging the transfer of respondent Nos.3 to 5 to the HoD, on the ground that such transfers are contrary to the provisions of the T.S.Ministerial Service Rules. The contention of respondent Nos.3 to 5 is that they were transferred as per Rule 3 of the T.S.Ministerial Service Rules read with G.O.Ms.No.784, dated 23.12.1980. As per the said G.O., the transfers made from subordinate offices to the HoDs., introduced vide the earlier G.O.Ms.No.1647, dated 31.10.1960, shall be continued on a permanent basis. It is contended by the petitioner that respondent Nos.3 to 5 were transferred by violating the roster as specified under Rule 3 of the T.S.Ministerial Service Rules, which deals with the method of appointment. Note 2 of the said Rule is relevant for the present issue and relevant portion of the said Note reads as under:
“The first vacancy out of every four successive vacancies, excluding leave vacancies of Senior Assistants in the Offices of Heads of Departments and Directorates shall be filled from among suitable Senior Assistants working in the Subordinate Offices of the concerned Head of the Department or the Directorate….”
As per the above Note, the first vacancy out of every four vacancies shall be filled up with the Senior Assistants working in the subordinate offices. Thus, 25% of vacancies of Senior Assistants in the HoD can be filled up by transferring the Senior Assistants working in the subordinate offices. In the present case, as there were 15 vacancies in the HoD, 25% quota comes to 3.75, and therefore, vide Proceedings dated 25.09.2009, applications were called for from the willing Senior Assistants working in the subordinate offices to get transferred to HoD on a permanent basis, and as respondent Nos.3 to 5 had expressed their willingness, they were transferred to the HoD, which is within the 25% quota as specified in the Rules. Therefore, it cannot be said that the respondents have violated Rule 3 of the T.S.Ministerial Service Rules.
The learned counsel for petitioner has also relied on Rule 8 of the T.S. Ministerial Service Rules, which reads as under:
“8. Minimum Service:- Unless otherwise specified in these rules no person shall be eligible for appointment by transfer or promotion unless he has put in not less than three years of service in the category from which such promotion or appointment by transfer is made:
Provided that the person converted from one category to another shall commence his probation afresh in the category to which he is converted and takes the rank below the last probationer in the converted category.”
As per the aforesaid Rule, one has to complete three years of service in a particular category for being promoted to the next higher category. In the present case, respondent Nos.3 to 5 were promoted as Senior Assistants on 25.08.2008, 18.12.2008 and 29.06.2009 respectively, and thereafter, they were transferred to HoD on 12.02.2009, 01.10.2009 and 14.10.2009 respectively. Thus, it is not as if they were promoted at the time of their transfer, but they were already promoted as Senior Assistants and were working as such in the subordinate offices and thereafter only, they were transferred to HoD in view of administrative exigencies. Therefore, it cannot be said that respondent Nos.3 to 5 were transferred by violating Rule 8 of the T.S. Ministerial Service Rules.
Further, it is to be seen that respondent Nos.3 to 5 were promoted as Senior Assistants on 25.08.2008, 18.12.2008 and 29.06.2009 respectively and they were transferred to HoD on 12.02.2009, 01.10.2009 and 14.10.2009 respectively, whereas, the petitioner was promoted on adhoc basis as Senior Assistant on 26.08.2009 as he was not possessing the requisite qualifications and he was promoted on permanent basis with effect from 08.11.2012 after passing the requisite examinations. Therefore, it is clear that respondent Nos.3 to 5 are seniors to the petitioner in the category of Senior Assistant and such seniority was finalised in the year 2013 itself after considering the objections raised by the petitioner and others. Hence, the claim of petitioner to be promoted to the post of Administrative Officer in preference to respondent Nos.3 to 5, cannot be considered.
Since there is no violation of T.S.Ministerial Service Rules while transferring respondent Nos.3 to 5 to HoD, and such transfers were made in view of administrative exigency within the prescribed 25% quota, this Court is of the considered view that there is no ground to interfere in the matter and the writ petition is liable to be dismissed.
The writ petition is accordingly dismissed. No order as to costs.
Pending miscellaneous applications, if any, shall stand closed.