IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU W.P.No.22061 OF 2010 Date:20.07. 2011 Between:- K.Muneeshwara Naidu .. Petitioner And The State of A.P., rep.by its Principal Secretary, Department of Housing, Hyderabad and others. .. Respondents ORDER: This writ petition is filed seeking to issue writ of Mandamus declaring the action of respondent No.2 in not regularizing the petitioner’s services in the cadre of Assistant Engineer (Housing) with effect from 01.04.2003, as has been done in the case of other Assistant Engineers (Housing), who were promoted along with the petitioner in pursuance of G.O.Ms.No.32, Housing (RH.A1) Department, dated 29.10.2009, as illegal and arbitrary and consequently, direct respondent No.2 to regularize his services in the said cadre with effect from 01.04.2003. 2. The petitioner was initially appointed as Work Inspector (Tech.,) in the respondent Corporation on 15.08.1985 and later, promoted as Assistant Engineer (Housing) by proceedings of respondent No.2, dated 17.01.2002 along with 84 employees, who were working as Draughts Men (Civil)/Work Inspector (Tech.). On 09.08.2002, respondent No.2 issued show cause notice calling for explanation as to why the promotions given to them cannot be cancelled on the ground that lot of irregularities were committed while effecting promotions. Questioning the show cause notice, the petitioner along with one Shivanna filed W.P.No.17960 of 2002 wherein by interim order, dated 18.09.2002, respondent Nos.2 and 3 were directed to continue the petitioner and Shivanna in their promotion posts pending disposal of the writ petition and as such, the petitioner has been continuing in the said post. Assailing the show cause notice, dated 09.08.2002, some writ petitions were filed, which were disposed of vide order, dated 23.10.2003, directing respondent No.2 to issue/communicate to all Assistant Engineers promoted in the month of February, 2002, a fresh show cause notice assigning reasons as to why respondent No.2 has proposed for cancellation of the promotion orders issued through the proceedings, dated 17.01.2002 and 09.02.2002. Again, respondent No.2 issued a show cause notice, dated 09.12.2003, calling for explanation. Later, respondent No.2, by proceedings, dated 25.12.2005, cancelled all the promotions effected during the year 2002. Aggrieved thereby, several writ petitions were filed and by order, dated 29.12.2005, this Court granted status quo to be maintained and directed to post all the writ petitions along with W.P.No.15870 of 2002. Pursuant thereto, the petitioner and other promotees are continuing in their respective posts. Respondent No.1 issued G.O.Ms.No.32, Housing (RH.A1) Department, dated 29.10.2009, relaxing the rules relating to the method of direct recruitment to the post of Assistant Engineer in the service rules of the Corporation. In pursuance of the said G.O., the services of all Assistant Engineers, who were promoted through proceedings, dated 17.01.2002 and 09.02.2002 were regularized with effect from 01.04.2003 but the petitioner’s services were not regularized. Though he requested respondent No.1 for regularization of his services, it is of no use. He made a representation, dated 24.05.2010, to respondent No.2, but no action has been taken. Respondent No.1 is taking steps to promote the Assistant Engineers as Deputy Executive Engineers. Hence, he filed the present writ petition. 3. The respondents filed a counter affidavit stating that the Government vide G.O.Ms.No.33 Housing (HR), dated 26.05.1998, notified A.P.State Housing Corporation Employees General Services Rules, 1998 (for short, ‘the Rules’). As per the said rules, the Asst. Engineers have been categorized as class-III and the method of appointment for the said category is by direct recruitment and by promotion in the ratio of 1:1 and in the promotion category 1:1:1 from TW1(Graduate), TW1 (Diploma) and D’man Grade-III. For being eligible for promotion to the post of Assistant Engineer, one must possess minimum qualification of Diploma in Civil or Mechanical Engineer and must have put in a minimum service of three years in the post of Draughtsman (Civil) or must have completed a minimum of 5 years service as Work Inspector (Technical) has been fixed at 1:1. Initially, under proceedings, dated 17.01.2002, promotions were issued promoting 85 Work Inspectors/Draughtsman as Assistant Engineers (H). Subsequently, the respondent Corporation issued revised posting orders, dated 16.02.2002, whereunder 71 out of 85 Work Inspectors/Draughtsman, promoted in proceedings, dated 17.01.2002, were issued posting orders. For the remaining 14 Work Inspectors, who were promoted under proceedings, dated 17.01.2002, posting orders were not issued and they were not relieved and continued as Technical Work Inspectors. The respondent Corporation issued the above said revised posting orders to 71 Work Inspectors/Draughtsman posting them as Asst.Engineers(H) vide proceedings, dated 16.02.2002, on the premise that the net vacancies arrived at while issuing promotions/posting orders, vide proceedings, dated 17.01.2002, were erroneously determined as 88, whereas the actual vacancies were only 71. Hence, the management has effected 71 promotions to the extent of clear vacancies and two persons got promotions as per the directions of this Court. But due to lack of clear vacancies, the remaining 15 Technical Work Inspectors, who were promoted as Assistant Engineers, the place of posting orders have not been issued and as such, 15 members are continuing as Technical Work Inspectors. On 15.05.2008, after getting clear vacancies of Assistant Engineers, the said 15 employees were also promoted as Assistant Engineers. The Government sought clarification on some issues on the batch of promotions during the year 2002. Not satisfied with the reply, the Government requested respondent No.2 to cancel all the orders issued for promotions. Respondent No.2 issued show cause notice and aggrieved by the show cause notice, some of the employees approached this Court. As per the directions of this Court, a fresh show cause notice, dated 09.12.2003, was issued to all the individuals and obtained objections and later, issued orders canceling the irregular promotions and reverting all the promotees to the post of Work Inspectors/Draughtsman (Civil). Aggrieved by the cancellation orders, some employees filed number of writ petitions, wherein status quo was ordered. The respondents sent a proposal, dated 25.06.2008, to the Government to relax the ratio 1:1 (Direct recruitment verses Promotions) and permission to fill up the posts sanctioned for HABTECH also. The Government, issued orders, dated 29.10.2009, vide G.O.Ms.No.32, Housing (RH.I) Department relaxing the rule relating to the method of direct recruitment to the post of Assistant Engineers in the rules in favour of 71 Work Inspectors, who were promoted to the post of Assistant Engineers. During the year 2002, for the purpose of regularization of their services in the category of Assistant Engineers from the year 2003-2004 onwards against the clear vacancies as per the seniority and the provisions of the rules to the extent of posts meant for direct recruitment. Accordingly, orders were issued to 71 individuals duly promoting them as Assistant Engineers with effect from 01.04.2003. At the time of promotions in the year 2002, promotions were considered upto seniority serial No.342. The petitioner’s name stands at serial No.344 in the seniority list. Hence, the petitioner’s case was not considered and no juniors to the petitioner were promoted. The petitioner’s case was considered after arriving clear vacancies as Assistant Engineer on 15.06.2008 on par with other employees. 4. Learned counsel for the petitioner contended that though the petitioner is entitled for regularization of his services in terms of G.O.Ms.No.32, Housing (RH.A1) Department, dated 29.10.2009, his services were not regularized with effect from 01.04.2003; and that some other persons, who stand on the same footing as that of the petitioner, were considered for regularization. 5. On the other hand, learned counsel appearing for the respondents contended that at the time of giving promotions in the year 2002 in the existing vacancies, the petitioner’s name has not come up within the zone of consideration and in the seniority list, he stood at serial No.344 and therefore, when the vacancy arose in the year 2008, his services have been regularized and hence, the writ petition is devoid of merit and liable to be dismissed. 6. The factual matrix is not in dispute. It is an admitted fact that the petitioner’s services were regularized with effect from 15.06.2008. The case of the petitioner is that his services in the category of Assistant Engineer have to be regularized with effect from 01.04.2003. If the services of any one of his juniors were regularized from 01.04.2003, then, certainly, the case of the petitioner has to be considered on par with his juniors. The case of the petitioner is that the other persons, who stand on the same footing as that of him, have been considered for regularization. That aspect has been clearly stated in the counter affidavit that the petitioner stood in the seniority list at serial No.344 whereas depending upon the vacancies, the candidates upto serial No.342 were taken into consideration for the purpose of regularizing their services. So, for regularizing the services, there must be an existing sanctioned vacancy. As there were no vacancies at that point of time, the petitioner’s case was not considered because he was not eligible at that point of time as he was not within the zone of consideration. The vacancy arose in the year 2008. Therefore, his case was considered for regularization with effect from 15.06.2008. So, the question of giving benefit of regularization of the petitioner from 01.04.2003 onwards does not arise. The petition is devoid of merit and is liable to be dismissed. 7. The Writ Petition is dismissed. There shall be no order as to costs. ______________________ JUSTICE K.C.BHANU 20th July, 2011. AMD THE HON'BLE SRI JUSTICE K.C.BHANU W.P.No.22061 OF 2010 Date:20.07.2011 AMD