O Madhusudhana vs State Of AP & Others

Dr. K. Manmadha Rao, J

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

“…..to issue a Writ, Order or direction more particularly one in the nature of Writ of Mandamus, to declare the action of the respondents in not preparing the combined seniority list of Joint Director, I & PR and Chief Information Engineer for the purpose effecting promotions to the posts of Additional Director of Information and Public Relations department and further seeking to effect promotions to the post of Additional Director I & PR General Administration Department only from the feeder category of Joint Directors ignoring the feeder category of Chief Information Engineer as being arbitrary, illegal, contrary to provisions of Rule 3 of A.P Information Service Rules and Note 1 appended thereto and in violation of Articles 14 and 16 of the Constitution of India and consequently direct the respondents to prepare and communicate the combined seniority list of Joint Directors and Chief Information Engineer and thereafter effect promotions to the post of Additional Directors of Information and Public Relations by holding that the petitioner is entitled to be considered and promoted as Additional Director I & PR with all consequential benefits as per the provisions contained in the special rules and also on the strength of the similar orders passed by the Honble High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in I.A.No.1 of 2018 in W.A.No.1234/2018, dated 20.09.2018 and pass such other orders.”

Heard Mr. D. Linga Rao, learned Standing Counsel for the petitioner and learned Government Pleader for Services-I and II for the respondents 1 to 3 and Mr. M. Vijaya Kumar, learned counsel for the 4th respondent.

Learned counsel for the petitioner would contend that the petitioner was initially appointed as Deputy Executive Information Engineer on 14.02.1994. Thereafter he was posted on 31.05.2008 as Chief Information Engineer. Consequent Andhra Pradesh Re-Organization Act, 2014 enacted the petitioner was holding the post of Chief Information Engineer as on 02.06.2014. The Government of India allocated the petitioner to Andhra Pradesh vide order dated 24.11.2015 and his name was shown at Item No.6 and now he is working under administrative control of Successor State of Andhra Pradesh. The petitioner is eligible for promotion to the post of Additional Direct as per the special rules of the Government. As per Rule 3 of the special rules, the post of Additional Director shall be filled up by promotion from categories 2 and 3 and the Government is the appointing authority. The Government issued orders in G.O.Ms.No.108, dated 05.03.1993 re-designating the post of Radio Engineer as Chief Information Engineer. Later vide G.O.Ms.No.541, dated 14.10.1993, the government has issued certain amendments to the adhoc rules governing the posts of Additional Directors that in Rule 3, after the words “Joint Directors” the words and Radio Engineer” since re-designated as Chief Information Engineer shall be inserted likewise rule 4 also as amended. Therefore Chief Information Engineer and Joint Director, I & IP are eligible for promotion to the post of Additional Director, I & PR and such promotions shall be effected from a combined seniority list of Joint Directors and Chief Information Engineer in accordance with Note 1 appended to Rule 3 of Special Rules. Since the official respondents were not preparing the combined seniority list as per Special Rules, the petitioner submitted several representations to consider the case of the petitioner for promotion in accordance with rules. But the respondents did not take any action so far, which is illegal and arbitrary. Hence the writ petition came to be filed.

Per contra, the respondents 1 and 2 filed counter denying all material averments made in the writ affidavit and placed reliance on record the various G.Os issued by the Government and mainly contended that the respondents has taken action as per the rules in existence. As per rules, the post of Joint Director is the only feeder category post for promotion to the post of Additional Director. The post of Chief Information Engineer is not a feeder category post for promotion to the post of Additional Director. The Chief Information Engineer post was created to the technical need of department during 2016. Therefore the request of the petitioner for preparation of Combined Seniority List of Joint Directors and Chief Information Engineer is contrary to the existing service rules. Therefore the question of preparation and communication of combined seniority list of Joint Directors and Chief Information Engineer does not arise until G.O.Ms.No.397, dated 09.09.1996 is in force. As such, there is no provision to the post of Chief Information Engineer for promotion to the post of Additional Director. Hence, requested to dismiss the writ petition.

Learned counsel for the petitioner placed on record the interim order of learned Single Judge of erstwhile High Court of A.P in W.P.No.29699 of 2018 and also interim order dated 20.09.2018 by Division Bench of erstwhile High Court of A.P in I.A.No.1 of 2018 in W.A.No.1234 of 2018, which is filed by one Mr. L.L.R Kishore Babu, who allotted to the State of Telangana and working as Chief Information Engineer on the date of bifurcation of the State. The Hon’ble Division Bench of erstwhile High Court in I.A.No.1 of 2018 in W.A.No.1234 of 2018, wherein it was held as follows:

“Perusal of the order under appeal reflects that the learned Judge did not take into account the Special Rules promulgated by the Government of Andhra Pradesh vide G.O.Ms.No.261, dated 06.05.1992, which specifically provided the feeder category of Chief combined seniority list of Joint Directors and Chief Information Engineers with reference to their dates of commencement of probation in the respective categories. Admittedly, these Rules have been neither amended nor challenged whereby the feeder category of Chief Information Engineer stood removed. The learned Judge seems to have gone only by the ad hoc rules wherein the post of Radio Engineer, which has been re-designated as Chief Information Engineer, was omitted. We are of the opinion that the Special Rules would prevail over the ad hoc rules in the event of any contradiction between the two. Further, we are at a loss to understand as to why the Government thought it fit to simultaneously maintain a set of adhoc rules having put in place Special Rules, both made in exercise of power under Article 309 of the Constitution. In any event, when the Special Rules still continue to hold the field, it is not open to the State to extinguish one feeder category as set out therein by relying on an omission effected in the ad hoc rules.”

Following the decision of the Division Bench of erstwhile High Court of A.P as stated supra, this Court inclined to issue a writ of Mandamus to the petitioner, while declaring the inaction of the in preparing the combined seniority list of Joint Director, I & PR and Chief Information Engineer for the purpose of effecting promotions to the posts of Additional Director of Information and Public Relations as illegal and arbitrary. Further directing the respondents to prepare and communicate the combined seniority list of Joint Directors and Chief Information Engineer and thereafter effect promotions to the post of Additional Directors of Information and Public Relations by holding that the petitioner is entitled to be considered and promoted as Additional Director I & PR with all consequential benefits as per the provisions contained in the Special Rules, within a period of two (2) months from the date of receipt of a copy of this order.

With the above direction, the Writ Petition is allowed. There shall be no order as to costs.

As a sequel, miscellaneous applications pending, if any, shall also stand closed.