The Government Of Andhra Pradesh Rep By v. T.S. Chandra Mouli S/O Late T.L. Swamy

HON'BLE SRI JUSTICE SURESH KUMAR KAIT & HON'BLE SRI JUSTICE U. DURGA PRASAD RAO W.P. No. 13164 of 2004 O R D E R:- (ORAL) (Per Hon'ble Sri Justice Suresh Kumar Kait) This writ petition is filed challenging the order dated 30.10.2002 in O.A.No. 4213 of 1993 passed by the Tribunal, whereby the O.A. filed by the respondent herein was disposed of.

The case of the petitioners - Government is that as per the orders issued in G.O.Ms.No. 2705, dated 13.09.1966, Mechanical Engineer is a solitary post and there are no promotional avenues for the post. Moreover, there is no provision for the post of Marine Engineer/ Mechanical Engineer under the new Rules issued under G.O.Ms.No. 316, dated 09.04.1991. The posts of Executive Engineer & Deputy Executive Engineer included under Class II of the Rules, are deputation posts. In view of the solitary nature of the post of the respondent, he cannot be promoted to any higher post. The respondent has already been given benefits like Special Grade Scales, Special Adhoc Promotion Post-I and Special Adhoc Promotion Post Scale-II to which he is entitled. The Engineering stream and Administrative stream are different and Rules do not provide further promotion. However, the Tribunal overlooked all the facts mentioned above, and

disposed of the O.A. filed by the respondent by issuing directions to the petitioners.

The case of the respondent is that in the year 1965, he passed M.E.(Mechanical) and approached A.P. Public Service Commission for appointment to the post of Mechanical Engineer and consequent upon his selection by the A.P. Public Service Commission, he joined the Fisheries Department as a direct recruit Gazetted Officer and was given the scale of Assistant Engineer (now designated as Deputy Executive Engineer) with retrospective effect by virtue of G.O.Ms.No. 587, dated 14.12.1981. The respondent passed Departmental Test for the post of Assistant Director i.e. Accounts Test for Executive Officers in 1970, and based on this, his probation was also declared. However, in 1974, the Government formed a separate Corporation called A.P. Fisheries Corporation Limited and the respondent was deputed to this Corporation.

For the post of Marine Engineer, PTI, Kakinada is governed by the Rules issued in G.O.Ms.No. 2705, dated 13.09.1966, which have statutory force by virtue of Article 309 of the Constitution of India, due to which, the post of Marine Engineer was abolished and the respondent was continued in service. A seniority list was prepared by the Director of Fisheries, A.P., Hyderabad vide Memo No. 34255/ M1/ 71, dated 29.12.

training and working as Inspectors, were promoted as Deputy Directors and Additional Directors, who are juniors to the respondent, but various efforts made by the respondent to come back to the parent department were prevented. Being aggrieved, the respondent filed O.A.No. 40543 of 1991 before the Tribunal and the same was disposed of on 01.10.1991 directing the petitioners to examine the case of the respondent under the Automatic Advancement Scheme provided by the Government to avoid stagnation in a particular cadre and give him necessary benefits on completion of 10/ 15/ 22 years of service within a period of two months from the date of receipt of the order. It was also observed that if, for any reason, the petitioners feel that the respondent is not entitled to those benefits, the reason as to why he is not entitled to the scheme should be communicated to him.

It is not in dispute that the respondent had been given conditional option to be absorbed in the Corporation provided the Government Rules, Service Conditions, Scale of Pay are made applicable to him, but the Government, vide Memo dated 20.02.1992, informed the respondent that the Commissioner of Fisheries was permitted to upgrade the post to the next higher grade and consider promotion in the upgraded post by following the procedure in vogue.

Thereafter, through letter dated 02.06.1992, the Vice Chairman & Managing Director, A.P. Fisheries Corporation Limited, Hyderabad, was directed to repatriate the respondent to the Government, and accordingly, the Commissioner of Fisheries issued proceedings dated 17.06.1992 admitting the respondent to duty with effect from 06.06.1992 posting him as Deputy Executive Engineer in the office of the Joint Director of Fisheries, Kakinada. In fact, the Joint Director, who worked as Inspector, was in Subordinate Service, whereas the respondent was holding a higher post. The further case of the respondent is that as per G.O.Ms.No. 2705, dated 13.09.1966, the respondent has to be treated as having been posted to the post of Assistant Director of Fisheries in the year 1969.

As such, his case has been considered for promotion to the next higher post of Deputy Director along with others though he was working in the Corporation, and thereafter, he should have been considered for promotion to the post of Joint Director and Additional Director but it was not done. By virtue of the orders of the Tribunal in O.A.No. 40543 of 1991, though, he was repatriated to the Government Service, he was again asked to work under his juniors who initially worked as Inspectors and his post has not been upgraded by the Government in pursuance of the directions of the Tribunal.

Being aggrieved, the respondent filed O.A.No. 4213 of 1993, and the Tribunal, by order dated 30.10.2002, disposed of the O.A. after nine years from the date of filing the O.A. It is not in dispute that the petitioners did not file counter affidavit before the Tribunal.

Having no option, the Tribunal proceeded with the matter in the absence of the counter affidavit of the petitioners.

Keeping in view the averments made in the application under Section 19 of the Administrative Tribunals Act, 1985 and the submissions of the learned counsel for the respondent, the Tribunal, while disposing of the O.A.No.4213 of 1993 observed that the respondent was selected and appointed as Deputy Executive engineer through A.P. Public Service Commission and his services were deputed to various Corporations and he was not allowed to come back. As promotions were created only when he approached the Tribunal, his services were reckoned back. Once, his services are absorbed in the parent department, as a matter of fact, the respondent is entitled to take into consideration his seniority as was existing at the time of his deputation to various Corporations. Accordingly, the petitioners were directed to give entire seniority as on the date of his deputation to various Corporations and on that basis notional promotions should be given to the respondent in

various cadres. Since the respondent approached the Tribunal belatedly, only notional benefits should be given. After the date of filing the petition monetary benefits should also be given. Accordingly, necessary orders should be passed within a period of two months from the date of receipt of a copy of the order.

It is pertinent to mention here that even though the petitioners filed W.P.M.P.No.16842 of 2004 seeking suspension of the impugned order dated 30.10.2002, this Court, vide order dated 13.02.2005, has not suspended the operation of the impugned order, however directed the petitioners to make payments to the respondent in compliance with the order of the Tribunal which shall be subject to the result of the writ petition. It is also observed that insofar as differential amount arising from the declaration of the Tribunal that the respondent is entitled to notional seniority is concerned, the same shall be paid to the respondent on condition that the respondent furnishes a bank guarantee for an amount of Rs.75,000/ -. It is not in dispute that the respondent, instead of furnishing bank guarantee, had deposited an amount of Rs.75,000/ - with this Court vide order dated 14.12.2005.

The case of the petitioners is that there is no provision of the post of Marine Engineer/ Mechanical Engineer in the

new Rules issued by the Government under G.O.Ms.No. 316, dated 09.04.1991. In view of the solitary nature of the post of the respondent, he cannot be promoted to any higher posts. However, the respondent has already been given benefits like Special Grade Scales, Special Adhoc Promotion Post-I and Special Adhoc Promotion Post Scale-II to which he is entitled. Thus, the respondent is not entitled to any promotion as observed by the Tribunal.

In the case of Food Corporation of India and Others v. Parashotam Das Bansal & Others1 the Supreme Court, on similar facts, held as under:

" When employees are denied an opportunity of promotion for long years (in this case 30 years) on the ground that they fell within a category of employees excluded from promotional prospect, the superior Court will have the jurisdiction to issue necessary direction.

If there is no channel of promotion in respect of a particular group of officers resulting in stagnation over the years, the Court although may not issue any direction as to in which manner a scheme should be formulated or by reason thereof interfere with the operation of existing channel of promotion to the officers working in different departments and officers of the Government but the jurisdiction to issue direction to make a scheme cannot be denied to a superior court of the country. So far as introduction of grant of selection grade is concerned, the same does not provide for a promotional scheme. It is available to a limited number of employees. By reason thereof, a promotional scheme cannot be said to have been framed. The Scheme of Accelerated Career Progression is distinct and different from grant of selection grade. We have noticed 1 (2008) 5 SCC 100

hereinbefore that although such a provision has been made for the unionized employees but even then they are also entitled to grant of selection grade as well."

The Petitioners - Government is a State within the meaning of Article 12 of the Constitution. An employee of the State although has no fundamental right of promotion, it has a right to be considered therefor. What is necessary is to provide an opportunity of advancement; promotion being a normal incidence of service. When employees are denied an opportunity of promotion for 28 long years of service on the ground that there is no promotional cadre, then the Court will have power to issue necessary direction as held in the judgement cited supra.

In view of the facts recorded above and the legal position, we find no illegality and perversity in the impugned order passed by the Tribunal.

Hence, we find no merit in this writ petition, the same is, accordingly dismissed.

The Registry is directed to release the amount of Rs.75,000/ - (Rupees Seventy Five Thousand Only) in favour of the respondent with interest accrued thereon if any after steps are taken by the respondent.

As a sequel, Miscellaneous Petitions, if any pending, shall stand disposed of as infructuous.

_____________________ SURESH KUMAR KAIT, J 03.07.2017 _____________________ U.DURGA PRASAD RAO, J bcj