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R. Prema Kumar And Another v. The State Of Telangana And Others

R. Prema Kumar And Another v. The State Of Telangana And Others

(High Court Of Telangana)

W.P. No. 34827 of 2017 | 03-10-2023

1. Heard Mr. J. Sudheer, the Learned Counsel appearing on behalf of the Petitioner, the Learned Government Pleader for Medical, Health and Family Welfare appearing on behalf of Respondent Nos.1 & 2 and learned Government Pleader for Services-I.

2. This Writ Petition is filed to issue an appropriate writ, order or direction, more particularly one in the nature of Writ of Mandamus to:

a) Call for the records issued by 2nd Respondent pertaining to the seniority list of Junior Assistants Proc.Rc.No.10726/E3E/2017 dated 01.09.2017 and also the seniority list of Seniors Assistants Proc. Rc. No.10726/E3E/2017 dated 01.09.2017 and to set them aside for treating the petitioners as Juniors to those Junior Assistants who were appointed before 03.05.1993 in the cadre of Junior Assistants and to place the petitioners above all the Junior Assistants who were appointed after 03.09.1993 as Junior Assistants and

b) To Promote the petitioners as Senior Assistants with effect from the date on which their immediate Juniors in the cadre of Junior Assistant were promoted as Senior Assistants and further to promote them as Superintendents/Administrative Officers with effect from the dates of their Juniors got promoted to such cadres.

c) by holding the action of the respondents in misinterpreting the GO MS. No. 77 dated 26.02.2009/policy decision of the Government that the petitioners have to pass the test as on date of the juniors got promoted as bad, illegal and declare that the petitioners having passed the test within 2 years from the date of GO MS. No. 77 dated 26.07.2009 are entitled for promotions as Senior Assistants/Superintendents/Administrative officers and above on par with the Juniors of the Petitioners.

3. The case of the Petitioners, in brief, as per the averments made in the affidavit filed in support of the present writ petition is as follows:

a) The Petitioners were employees from Hyderabad Allwyn Ltd., (HAL). The Government issued GO Ms. No. 87 dated 24.03.2003 and GO Ms. No. 337 dated 17.11.2003, giving modalities to absorb employees of Hyderabad Allwyn Employees, redeployed from Hyderabad Allwyn Ltd to the Government Departments and the supra mentioned GOs were before the Tribunal.

b) Through the judgment dated 12.09.2008 in OA 6243/2004 and batch, by the Tribunal, the Government came out with fresh modalities vide GO Ms. No 77 dated 26.02.2009.

c) As per para 6(a) and 6(b) of the supra mentioned GO, the employees of Hyderabad Allwyn Ltd., shall be appointed in various Government departments and shall be treated on par with Government employees in such departments and that the maximum age was relaxed for absorption with effect from 03.05.1993, respectively.

d) As per Para 6(c) and 6(d) of the supra mentioned GO, the employees so absorbed in such manner from 03.05.1993 shall be adjusted in the next regular vacancies in the respective departments and when the vacancies arise supernumerary posts created shall be continued and upon such absorption of employees, if the special rules require passing of any departmental tests/trainee such employee are to pass such tests, within 2 years from the date of issuance of the supra mentioned GO till the absorption of employees is made in departments, the employees of Hyderabad Allwyn Limited cannot be treated as Government Employees.

e) Considering that it would not be possible for deployed employees to have passed the test, Government sought it fit to give 2 years of time from issuance of GO Ms. No 77 dated 26.02.2009 to pass the tests, to enable them for next promotions and as such ‘As per rules’ under para 6(e) has to be understood that, the absorbed employees are to pass the departmental tests within 2 years from the date of issue of GO, i.e., within 25.02.2011.

f) The Petitioners were taken into respondents department and the Petitioners have appeared and cleared the required tests in May 2009 itself. Further, the Petitioners and some employees were absorbed into the Department of Health of Composite State of Andhra Pradesh vide proceedings dated 20-01-2010 were shown as Junior Assistants with effect from 03.05.1993.

g) That, one Mr. Zia-Ur Rahaman, Senior Assistant challenged the GO Ms. 77 dated 26.02.2009, contending that giving retrospective benefit to re-deployed employees of HAL would affect the in-service candidates and also challenged the Seniority list prepared in the category of Junior Assistant. The Department has filed a counter affidavit stating that, the GO Ms. 77 dated 26.02.2009 is valid and that the petitioners and other are entitled for all the benefits specified under the said GO Ms. 77 dated 26.02.2009. However, the said O.A.No.812 of 2010 filed by Md. Zia-Ur Rahman was closed on 30.07.2013.

h) Though the Petitioners can be absorbed as Junior Assistants from 03.05.1993 in the year 2010, they were not considered for promotion to the post of Senior Assistants. But Juniors to the Petitioners who were appointed as Junior Assistants after 03.05.1993 were promoted as Superintendents vide proceedings dated 22.08.2011. Moreover, the Petitioners failed to be promoted on par with their juniors to the posts of Senior Assistants and the Juniors of the Petitioners in cadre of Junior Assistants were further being promoted to the posts of Senior Assistants in the year 2011.

i) These issues were brought to the notice of the Government and the Government vide memo dated 19.03.2017 clarified that the petitioners were entitled for all the benefits on par with their juniors, but so far, the same has not been implemented. A revised seniority list was issued vide proceedings dated 28.01.2013 in the cadre of Junior Assistants and the petitioners were shown at Serial No. 16F and 50A, who were shown regularized as 03.05.1993 whereas, several other person, who were appointed as Junior Assistants after 03.05.1993 are shown above the petitioners, which is illegal, arbitrary, and contrary to G.O.Ms.No.77, dated 26.02.2009.

j) Aggrieved by the same, the Petitioners filed OA 9102/2011 before the Tribunal about the delay in promotion to the cadre of superintendent and for considering the Juniors of the Petitioner for Higher Cadre. The Tribunal vide its judgment dated 20.08.2013 rejected that the contentions of the in-service candidates considering the scope and object of GO Ms. 77 dated 26.02.2009 and directed the respondents to take a decision on the modified seniority list accordingly, and to revise the promotions. The Government through Memo dated 22.08.2016 and 07.09.2016 rejected to withdraw the GO Ms. No. 77 dated 26.02.2009, which was in favour of the Petitioners.

k) Pending the finalization of the seniority list, the juniors of the Petitioners were promoted to the posts of Superintendents. Thereafter, a tentative seniority list was prepared in the year 2015 during the bifurcation and that seniority list was solely for the purpose of bifurcation only. This non preparation of Seniority lists has led to the Petitioners working as Senior Assistants and their Juniors working in the posts as Superintendents and even as Administrative Officers, which goes against the true letter and intent of GO Ms. No. 77 dated 26.02.2009.

l) A provisional seniority list dated 19.04.2017 was issued in the cadre of Junior Assistants wherein the 1st Petitioner was not even shown and the 2nd Petitioner was shown at Sl. No 22. The 1st Petitioner gave a representation/objection to the provisional seniority list on 31.07.2017, and the 2nd Petitioner gave a representation objecting the provisional seniority list on 29.07.2017 asking for implementation of GO Ms. No. 77 dated 26.02.2009.

m) On 01.09.2017, two different lists of Junior Assistant and Senior Assistant were communicated, wherein the Petitioners were shown below the juniors of the Petitioner who joined the service after 03.05.1993, which is illegal. In the Final Seniority List of Senior Assistant, both the petitioners were shown at Sl. No 50 and 51, showing their seniority from May of 2009.

n) The contention of the Petitioners claiming that they are eligible for Promotion on par with their immediate juniors in Junior Assistant who were promoted as Senior Assistants was rejected on the ground that, petitioners actually got qualification by acquiring departmental tests only in May 2009 and that the Juniors in the cadre of Junior Assistants were promoted as Senior Assistants in the year 2000 and as per rules of 6(e) and thus, the petitioners are not entitled for promotion as the petitioners did not acquire the qualification. Such rejection for promotions on par with the Juniors of the Petitioners is in gross violation of GO Ms. No. 77 dated 26.02.2009 and that this was only to help the in-service candidates. Hence this Writ Petition.

4. The case of the Respondent Nos.1 and 2, in brief, as per their counter affidavit i.e. as follows:

a) The Petitioners have been absorbed w.e.f 03.05.1993 and the final Seniority list of Junior Assistants was communicated on 08.02.2011 and promotions were issued to them based on this seniority list.

b) The Petitioners have not submitted any representation, while working as Allwyn Staff in department of Directorate of Medical and Health Services AP, for inclusion of their names in seniority list or for promotion as Senior Assistants though their names were not present in seniority list of Junior Assistants on 11.10.1994. and 28.12.1999 and that they only started submitting representations for fixation of seniority and promotions only after GO Ms. No 77 dated 26.02.2009.

c) Rule 11(b) of AP Ministerial Service Rules 1998, accounts test for Subordinate Officer part (1) to be passed for promotion for senior assistant post basing on their date of passing of their department Test part -1, the seniority in the seniority list of Senior Assistant is fixed.

d) The Respondents issued Memo No. 7862/H1/2011-2 HM&FW(H) Dept, dated 19.03.2012 stating, that the seniority of the Petitioners, in terms of para 6(e) of the said GO Ms. No. 77 dated 26.02.2009 shall be below the last regular candidates already appointed by the department as on 03.05.1993 and that the Seniority of the Petitioners along with others are fixed below the last regular candidate in every year as per para 6(e) of the said GO Ms. No. 77 dated 26.02.2009 and also in accordance with rules prescribed in Ministerial service rules vide GO Ms. No. 261, GAD (Ser.B) Deptt, Dt: 14.07.1999 read with GO Ms. No. 1271 GAD(Rules) Department, dated 17.10.1966.

e) In the combined state of Andhra Pradesh, the Government has issued instructions vide Memo No. 7862/H1/2011-2 HM&FW(H) Dept, dated 19.03.2012, wherein the Government has imposed ban on recruitment in secretariat, HODs and district offices in the twin cities and Ranga Reddy district to the categories of posts of Typists, stenos, Junior Assistant Driver Class IV employees posts requiring ITI qualification and Assistant Engineers in the Engineering department so as to absorb the Hyderabad Allwyn Ltd Employees vide GO Ms. No. 304, GA(Ser.A) Dept., dated 31.05.1993. To regularize the re-deployed Hyderabad Allwyn Ltd employees, no direct recruitment has taken up in HODs for the post of Junior Assistant etc. and the government further stated that it not only absorbed redeployed employees of Hyderabad Allwyn Ltd, but also that their services can be considered for all regular vacancies during the year 1993 and 1994.

f) That, the petitioners have to be absorbed in the regular vacancies to be arised as and when, as year wise by taking their Date of Birth into criteria and also that the seniority of the petitioners are fixed below the last regular candidate in every year as per para 6(e) of GO Ms. No. 77, I&C (IFR.II) Department, dated 26.02.2009. Hence the writ petition is liable to be dismissed, as there are no merits.

PERUSED THE RECORD :

5. G.O.Ms.No.77, dated 26.02.2009 of the Government of Andhra Pradesh, Industries and Commerce (IFR.II) Department, read as under:

“In the reference first read above, orders were issued formulating the special scale for the redeployed workmen of erstwhile Hyderabad Allwyn Limited considering the report of the Committee of Officers and the modifications suggested by the Cabinet Subcommittee on services, in pursuance of the orders of Hon'ble Supreme Court of India, dated:18.09.2001 in Civil Appeal No.6734- 6745 of 2000 and others.

2. In the reference second read above, the Government after due consideration have issued guidelines in regard to applicability of the appropriate pay scales in respect of the workmen of the erstwhile Hyderabad Allwyn Limited.

3. Aggrieved by the orders issued in the reference first and second read above, certain redeployed employees of Hyderabad Allwyn Limited have filed O.A.No.6243/2004 and batch challenging the following paras of the orders, issued in G.O. first read above: Para 10 (2), 10 (3), 10 (4) (a), 10 (4) (b), 10 (5), 10 (6), 10 (7), 10 (8) and following para Numbers of orders issued in G.O. second read above para 4 (1), 4 (2), 4(5), 4 (8), 4 (11), 4 (12) and 4 (13).

4. In the reference third read above, while setting aside the above paras, the A.P.A.T., has directed the first respondent i.e. Secretary to Government, Industries and Commerce Department to treat all these employees as regular Government Servants and extend all the benefits, to which they are eligible just like other regular Government Servants with all consequential benefits.

5. Representations have also been received from such of those employees working against the supernumerary posts created stating that they are discharging the duties attached to them in the Government Departments, to which they were attached on par with other regular employees in those Departments and drawing. However the scales of pay originally sanctioned for the supernumerary posts, that they have put in more than 15 years of service in the same status without knowing their future and that they may be declared as Government employees and on that basis they may be placed on probation from the date of their joining duty in the respective Government Departments against the supernumerary posts.

6. The said representations have been examined by the Government, keeping in view the orders of A.P.A.T in O.A.No.6243 of 2004 and batch dated: 12.09.2008 and it was decided to accept the said decision of the A.P.A.T. Accordingly following orders are issued:

(a) Consequent upon the winding up of the Hyderbad Allwyn Limited and such of the employees appointed in various Government Departments/Offices against the supernumerary posts on and from 03.05.1993 be treated as Andhra Pradesh State Government Employees on par with the employees, working in such equivalent categories in those Departments.

(b) The order in item (a) above shall be subject to fulfillment of Qualifications prescribed in the special rules for such equivalent post in. Government Departments, subject to however not insisting upon the maximum age, qualification prescribed for each such category of posts on. and from 3.5.1993.

(c) The employees now absorbed on and from 3.5.1993 against supernumerary posts created shall be adjusted in the next last regular vacancies that may arise on or after 3.5.1993 in the respective Department, duly abolishing the supernumerary posts created on that basis.

(d) On such absorption, if any special rule provide passing of departmental tests/trainings, the employee now considered to be absorbed, be asked to pass such tests/trainings within a period of 2 years from the date of issue of this order.

(e) On such absorption, subject to qualifications these employees, who are eligible for inclusion of their names in the list of cadre strength/seniority list of each category shall be below the last regular candidate already appointed by the respective Departments, as on 3.5.1993 and on that basis they are entitled for promotion to higher post, as per rules, subject to however giving show cause notice to those employees who likely to be affected.

(f) To the above extent, if any posts are within the purview of APPSC for making direct recruitment separate orders will be issued by General Administration (Ser.A) Department for keeping such posts outside the purview of APPSC, for this purpose, to the extent required. The Heads of Departments concerned and Departments of Secretariat under whom the redeployed employees are working shall furnish full information to General Administration (Ser.A) Department and the Secretary, APPSC directly for further action at their end in consultation with Finance Department wherever required.

(g) In respect of redeployed employees working on consolidated pay basis, they be considered for absorption in any of the categories identified in the A.P. Last Grade Service Rules on and from 3.5.1993

(h) The absorption now ordered will not attract the provisions contained in Act 2/1994.

7. The above orders are subject to outcome of any O,As./ W.Ps. pending in Hon'ble A.P.A.T./Hon'ble High Court of Andhra Pradesh.

8. All Heads of Departments and Departments of Secretariat shall take immediate further action in this regard.

9. This order issues with the concurrence of Public Enterprises Department vide their U.O.No.3131 /PE.III/A1/2008-1, Dt:22.12.2008 and Finance Department, U.O. No.3560/53/A1/PC.III/2009, Dated: 05.02.2009."

6. Counter affidavit filed on behalf of the 1st and 2nd Respondents, in particular paras 23, 25, 26, 27, 28, read as under :

“23. During the year 1993 and 1994 no direct recruitment shall be taken up in the HODs for the post of Junior Assistant etc. Further the Government have stated that with regard to absorption of HAL employees and it is clarification that it is not only absorbed redeployed employees of Hyderabad Allwyn Ltd employees against Direct Recruitment vacancies, but also their services can be considered for all regular vacancies i.e. 6+6=12 Junior Assistants during 1993 and 1994 so as to regularize the redeployed Hyderabad Allwyn LTD employees w.e.f. 03.05.1995 and their seniority shall be reckoned in terms of para 6(e) of the said G.O.Ms.No.77, dated 26.02.2009 i.e. from 03.05.1993 below the last regular candidates already appointed by the Department as on 03.05.1993.

25. Basing on the above the petitioners have to absorbed in the regular vacancies arised as and when as year wise by taking into criteria of Date of Birth.

26. The seniority of petitioners are fixed below the last regular candidate in the every year as per para 6(e) of G.O.Ms.No.77 I&C(IFE.II) Deptt., dated 26.02.2009.

27. It is respectfully submitted that the seniority fixed as per date of passing of examination as per Ministerial services.

28. It is respectfully submitted that certain erstwhile Allwyn employees are appeared Departmental Test and passed Account Test after entering the Department and before absorption in 2009 and their seniority was fixed from the date of passing of examination and also in the cadre of Senior Assistant."

DISCUSSION AND CONCLUSION:

DISCUSSION :

7. It is the specific case of the Petitioners that the Petitioners are initially employees of Hyderabad Allwyn Limited (HAL) and that the government issued G.O.Ms.No.87, dated 24.03.2003 and G.O.Ms.No.337, dated 17.11.2003 giving modalities of absorption of the Hyderabad Allwyn Employees, Redeployed from Hyderabad Allwyn Limited to the Government Department and the said G.Os fell for consideration before the Tribunal and based upon the judgment of the Tribunal dated 12.09.2008 in O.A.No.6243 of 2004 and batch the Government came out with fresh modalities vide G.O.Ms.No.77, dated 26.02.2009. It is further the case of the Petitioners that the Petitioners appeared for the required tests and passed the tests in May 2009 itself, and the Petitioners were absorbed as Junior Assistants w.e.f., 03.05.1993 in the year 2010, but however, they were not considered for promotions to the post of Senior Assistants and juniors to the Petitioners in the cadre of Junior Assistants i.e., those who were appointed as Junior Assistants after 03.05.1993 were promoted as Superintendents vide Proceedings dated 22.08.2011, and the juniors of the Petitioners in the cadre of Junior Assistants were further promoted to the cadre of Senior Assistants in the year 2011, and when these issues were raised the government clarified vide Memo dated 19.03.2017 that the Petitioners are entitled for all the benefits on par with their juniors but however, this has not been implemented and further a revised seniority list in the cadre of Junior Assistants was issued vide proceedings dated 28.01.2013 and the Petitioners were shown as 16F and 50A showing their date of regularization as 03.05.1993 and several of the persons who were appointed as Junior Assistants after 03.05.1993 are shown above the Petitioners. The Petitioners filed O.A.No.9102/2011 before the Tribunal aggrieved by the delayed promotions to the cadre of Superintendents and considering their juniors for promotion to higher cadre, there were counter cases as well and all the matters pertaining to Hyderabad Allwyn Ltd., employees were heard and vide judgment dated 20.08.2013 the contention of the in service candidates was rejected by considering the scope and object of G.O.Ms.No.77, dated 26.02.2009, that however, reviewing of the promotions is concerned it was directed by the Tribunal that the Respondents shall take a decision on the modified seniority list. It is further the case of the Petitioners that pending finalization of the seniority list some of the juniors of the Petitioners were promoted as Superintendents and though the Petitioners are fully eligible and qualified to be treated as Junior Assistants from 03.05.1993 and though they have passed the departmental tests within 2 years from the date of issuing of G.O.Ms.No.77, dated 26.02.2009 they are not being promoted as Senior Assistants/Superintendents/Administrative Officers on par with the Junior Assistants who have joined the department on 03.05.1993 or thereafter.

8. It is further the case of the Petitioners that the provisional seniority list dated 19.04.2017 was issued in the cadre of Junior Assistant wherein the 1st Petitioner was not even shown while the 2nd Petitioner is shown at Sl.No.22 showing his date of entry as Government Servant (Junior Assistant) w.e.f. 03.05.1993 and the provisional senior list in the cadre of Senior Assistant is also given showing both the Petitioners w.e.f. May 2009. The 1st Petitioner gave representation/objection dated 31.07.2017 and the 2nd Petitioner gave objection dated 29.07.2017 seeking implementation of G.O.Ms.No.77, dated 26.02.2009, however, on 01.09.2017 through two different proceedings final seniority list of Junior Assistant and Senior Assistant were communicated and in the category of Junior Assistants the Petitioners are shown at Sl.No.16 and 23 showing them as regular employees with effect from the date of 03.05.1993, but curiously several of the persons above the Petitioners are those who have joined the service after 03.05.1993 and in so far as the final seniority list of Senior Assistant is concerned the Petitioners are given positions of 50 and 51 showing their seniority position in Senior Assistant with effect from the date of May 2009. It is further the case of the Petitioner that the objections of the Petitioners were rejected mechanically and the Petitioners despite their entitlement are still lagging two cadres lower in their service and hence the present writ petition.

9. The Counter affidavit has been filed by the 1st and 2nd Respondents and a specific plea is taken that the seniority of the Petitioners are fixed below the last regular candidate in the every year as per the para 6(e) of G.O.Ms.No.77, I & C (IFE.II) Department, dated 26.02.2009 and further that there is no illegality in fixing the seniority of the Petitioners and hence the writ petition needs to be dismissed.

CONCLUSION :

10. A bare perusal of Clause 6 of G.O.Ms.No.77, dated 26.02.2009 indicates that as per 6(a) of G.O.Ms.No.77, dated 26.02.2009 consequent upon winding up of Hyderabad Allwyn Limited, the employees of Hyderabad Allwyn Limited shall be appointed in various Government Departments against supernumerary posts and shall be treated on par with the Government employees in such Departments and para 6(b) the maximum age was relaxed for their absorption with effect from the date of 03.05.1993 and as per para 6(c) the employees absorbed in the said manner from 03.05.1993 shall be adjusted in the next class regular vacancy in the respective departments and as and when the vacancies arise supernumerary posts created shall be continued and under para 6(d) upon such absorption if the special rules require passing of any Departmental Tests/Trainee such absorbed employees are asked to pass such tests within 2 years from the date of issuing of G.O.Ms.No.77, dated 26.02.2009 and till the absorption is made in the Departments the Hyderabad Allwyn Ltd., employees cannot be treated as government employees and only after they become the government employees they shall be treated as government employees for all practical purposes, and as per 6(e) the deployed employees were entitled for seniority from 03.05.1993 i.e., the date of absorption as government employees and on such basis they are entitled for promotion to higher posts as per Rules subject to giving show cause notice to employees who are likely to be affected.

11. This Court opines that the reason for rejecting the specific plea of the Petitioners, vide proceedings dated 01.09.2017 in Proc. R.C.No.10726/E3E/2017 of the 2nd Respondent herein that the Petitioners are entitled for seniority in the category of Senior Assistant with effect from the date on which their immediate juniors in Junior Assistants were promoted as Senior Assistants on the ground that the Petitioners actually got qualifications by acquiring departmental tests only in May 2009 and as para 6(e) of G.O.Ms.No.77, dated 26.02.2009 the promotions have to be given to the redeployed employees of HAL as per rules and as the rules required, that one should require to pass the departmental test, the Petitioners are not entitled for promotion as Senior Assistants on par with the juniors is not tenable since the same is contrary to the scope and object of G.O.Ms.No.77, dated 26.02.2009 in as much as the very policy of the government is to give two years time to pass departmental tests after absorption and the Petitioners herein had an opportunity to pass the test only after absorption i.e., only after G.O. has been issued on 26.02.2009, and two years time would lapse on 25.02.2011. The Policy decision of the government that the Petitioners have to pass the test as on the date the juniors got promoted and the Petitioners having passed the tests within two years from the date of G.O.Ms.No.77, dated 26.02.2009 are entitled to be considered for promotions as Senior Assistants/Superintendents/Administrative Officers and above on par with the juniors of the Petitioners in the cadre of Junior Assistants and for their due promotion accordingly. This Court opines that the respondents misinterpreted G.O.Ms.No.77, dated 26.02.2009 and further the 2nd Respondent in rejecting the objections of the Petitioners to the provisional seniority list dated 19.04.2017 failed to take into consideration the vital fact that the Petitioners had an opportunity to pass the test only after absorption i.e., only after G.O. had been issued on 26.02.2009 and the Petitioners had passed the said tests in May 2009 itself well within a period of two years from the date of issue of G.O.Ms.No.77, dated 26.02.2009 as stipulated in Clause 6(d) of G.O.Ms.No.77, dated 26.02.2009, therefore holding the Petitioners as not eligible is not only unreasonable but also illogical.

12. A bare perusal of the record also indicates that the objections put forth by the Petitioners vide representations dated 31.07.2017 and 29.07.2017 had not been considered and except stating that there is no valid ground in their objections vide proceedings dated 01.09.2017 in Proc. R.C.No.10726/E3E/2017 by the 2nd Respondent herein, there is no discussion by the 2nd Respondent in relation to the objections submitted by the Petitioners nor any reasoning for arriving at the said conclusion that there is no valid ground in their objections.

13. Taking into consideration of the above said facts and circumstances of the case and as per the discussion and conclusion arrived at as above, the writ petition is allowed, the 2nd Respondent is directed to reconsider the whole issue pertaining to the seniority list of Junior Assistants in Proc.R.C.No.10726/E3E/2017, dated 01.09.2017 and the seniority list of Senior Assistants Proc. R.C.No.10726/E3E/2017, dated 01.09.2017 issued by the 2nd Respondent, in accordance to law, duly considering the observations of this Court in the present order at para ‘11’ in so far as the scope and object of G.O.Ms.No.77 dated 26.02.2009 is concerned and pass appropriate orders to the extent of treating the Petitioners as juniors to those Junior Assistants who were appointed after 03.05.1993 in the cadre of Junior Assistants and to place the Petitioners above all the Junior Assistants who are appointed after 03.05.1993 as Junior Assistants and to further consider the request of the Petitioners to promote the Petitioners as Senior Assistants with effect from the date on which their immediate juniors in the cadre of Junior Assistants were promoted as Senior Assistants and further to promote them as Superintendents /Administrative Officers with effect from the dates when the juniors got promoted to such cadres within a period of two weeks from the date of receipt of the copy of the order after issuing due notice and reasonable opportunity to the Petitioners and others concerned in compliance with the principles of natural justice and by following the due procedure as prescribed under the relevant rules in force and duly communicate the decision to the Petitioners. However, there shall be no order as to costs.

14. Miscellaneous petitions, if any, pending shall stand closed.

Advocate List

  • Mr J.Sudheer

  • G.P. for Medical, Health and Family Welfare G.P. for Services I

Bench
  • HON'BLE MRS. JUSTICE SUREPALLI NANDA
Eq Citations
  • 2024 (1) ESC 446
  • LQ/TelHC/2023/558
Head Note

- Constitutional Law — Directive Principles of the State Policy — Prohibition of traffic in human beings and forced labour: held — not an enforceable right; exploitation of prostitution by traffickers, brothel-keepers held to be a crime — flexible interpretation of the provisions of Sections 29 and 30 of the Anti-Trafficking in Persons Act, 1956, called for — Central Government's scheme for the reintegration of the victims of trafficking, framed in 1998, held, to be providing only for short-term rehabilitation and hence, inadequate. - Apartheid — restrictions on movements of persons, detention and inhuman treatment of prisoners, denial of basic human rights and freedoms to the black citizens: held — a crime against humanity under the International Criminal Court Act, 2000 — an offence under Section 3 of the Anti-Apartheid Act, 1981 — Section 3A of the Anti-Apartheid Act, 1981, held, to be ultra vires as violative of Article 14 of the Constitution — section held as void. - Anti-Apartheid Act, 1981 — Section 3B thereof, held — ultra vires as it restricts human rights — Section 3B, held, to be void to the extent, that it imposes conditions for purveying information and materials through any media including films, visual recordings, publications and other documents, etc., about a foreign or international organization with any link with South Africa, engaged in violence, terrorism or propaganda against the territorial integrity of India. - Apartheid — restrictions on movement of persons, detention and inhuman treatment of prisoners, denial of basic human rights and freedoms to the black citizens: held — a crime against humanity under the International Criminal Court Act, 2000 — an offence under Section 3 of the Anti-Apartheid Act, 1981 — Section 3A of the Anti-Apartheid Act, 1981, held, to be ultra vires as violative of Article 14 of the Constitution — section held as void. - Public Prosecutor — Intervention by the Public Prosecutor in a pending criminal case: held — confined to exercising control over the police, their investigation and evidence that is to be adduced, to hold the scales of justice evenly and to protect the interests of the State and the victim and to secure a fair trial to the accused. - Public Prosecutor — powers of — to examine the FIR; to direct further investigation; to give consent to the police to file the final report; to ask for further investigation/additional evidence; to accord approval for launching prosecution or not; to conduct investigation if the police refuses/neglects to investigate; to investigate the complaint if the police refuse/neglect or refuse to register a case; to intervene or take over the case from the police at any stage; to contest the bail application; to withdraw or not a case from the court; to apply for the transfer of the case from one Court to another; to submit an application to the court for making appropriate orders including an order for payment of compensation to the victim as mandated by Section 357A of the Code of Criminal Procedure, 1973; to participate in the selection of the judges of the court; to submit a revision application before the superior court, challenging a discharge order; to file an appeal against the judgment of the trial court and generally take all other measures and steps for ensuring proper investigation, fair trial and efficient and effective criminal justice. - Public Prosecutor — power to compound offences — after the committal of the offence: held— can be exercised in the public interest, as he has the discretionary power to compound offences of a minor nature respecting which, he has a limited choice — discretion should be exercised judiciously — held also that, power to compound does not include the power to compound offence punishable with death, imprisonment for life or for more than 7 years — power to compound cannot be exercised after the trial of the accused is concluded. - Evidence — Offence punishable with death, life imprisonment or imprisonment for ten years or more: held — can be proved only by oral evidence — evidence in the form of statements under Sections 25, 26, 27 and 65B of the Evidence Act, 1872, held unacceptable — not admissible — Section 65B of the Evidence Act, (inserted by amendment in 2005), held to be ultra vires and void to the extent, it permits the use of statements and reports of child witnesses in the trial of an accused for an offence punishable with death, life imprisonment or imprisonment of not less than 10 years. - Evidence — Statement of accused in police custody — held — inadmissible unless proved that it was a voluntary statement — a confession made by an accused in police custody: held — is a statement of the accused himself — an accused is entitled to a fair trial, which includes the right to a fair and thorough investigation and the right to legal assistance from the beginning of interrogation and investigation — Article 20(3) of the Constitution and Section 29 of the Cr. P.C., held, to need an unconditional prohibition against self-incrimination. - Evidence — dying declaration — held — a good piece of evidence, if proved to be a voluntary statement — dying declaration could be of great value in ensuring that justice is done and the real culprit is brought to book — court should be satisfied that the statement was not made under duress, coercion or influence — no guarantee can be provided by the circumstances that the police did not offer any threat or inducement to the injured to make a dying declaration — even a very seriously or mortally injured person might still have a desire to have revenge or to protect or save a friend, relative or well-wisher — as such there is a possibility of a dying declaration being secured even through inducement, threat or coercion — a confession made by an accused in police custody: held — is a statement of the accused himself — an accused is entitled to a fair trial, which includes the right to a fair and thorough investigation and the right to legal assistance from the beginning of interrogation and investigation — Article 20(3) of the Constitution and Section 29 of the Cr. P.C., held, to need an unconditional prohibition against self-incrimination. - Evidence — statement of witness recorded under Section 161 of the Code of Criminal Procedure, 1973 — held — is not a substitute for statement of the witness in the Court — statement under Section 161 of the Code, held — is relevant on the issue of veracity of the witness and not under Section 32(1) of the Evidence Act, 1872 — statement under Section 161 is not a substantive piece of evidence but the mere absence of any material improvement in the deposition of the witness before the court, will not make such statement under Section 161, inadmissible — Section 162 of the Code, held — not intended to enlarge the scope and ambit of Section 161 of the Code — statement of a witness under Section 161 of the Code of Criminal Procedure, 1973, held — not substantive evidence but can be used for contradicting the witness under Section 145 of the Evidence Act, 1872 — statement under Section 162 cannot be used to fill up the lacuna in the evidence of a witness or to improve upon the same — statements under Sections 161 and 162 of the Code: held — not to be used as confessional statements as the same flow out of police interrogation in the course of investigation and, as such, attract the bar contained under Article 20(3) of the Constitution — prosecution cannot be permitted to fill up the gaps in the prosecution story by relying upon the statements under Sections 161 or 162 of the Code. - Evidence — First Information Report — contents of: held — not to be treated as evidence in the case as the FIR is not an evidence and is not a document under Section 3 of the Evidence Act, 1872 — same is an informational document — statements made in FIR: held — inadmissible as evidence though it can be used to discredit or lend support to the version of the complainant or the witnesses in a case — FIR eannot be used to corroborate the evidence of a witness — use of FIR in the trial: held — to be confined to the limited purpose of supporting/contradicting the prosecution witnesses on the relevant issues — use of FIR as evidence: held — impermissible in law — writing on a small piece of paper — may not be a public document unless it has been recognized as such — a writing on a loose piece of paper, having no evidentiary value, would not become admissible merely because it happens to be contained in the case record — such a writing may be useful to the investigating officer but cannot be regarded as a piece of evidence in the case — also held — that in determination of the admissibility/validity of a document, the court will have to rely on the Evidence Act, 1872 — even in a civil case, the rejection of a document means that it cannot be used as an evidence in the case. - Evidence — documentary evidence — entries in the hospital record — held — inadmissible as evidence unless the author of the entries is examined in the court — Article 21 of the Constitution — right to life and personal liberty — right of an accused to a fair trial — held — includes the right to examine the person who has prepared the documents put up by the prosecution or the State — not only the right of cross-examination but also the right to examine the person in the court in the first instance — Article 21 of the Constitution should be interpreted broadly to cover all the facts of