HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 1995 of 2004 DATED 11th November, 2011 BETWEEN G.V.Sai Prasad and anr …….Petitioners and AP State Election Commission, Secunderabad, rep. by its Secretary,and anr …… Respondents HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 1995 of 2004 ORDER: The 73rd and 74th Amendment to the Constitution led a way for formation of an independent agency called ‘State Election Commission’ in the year 1995 under G.O.Ms.No. 496, Panchayat Raj & Rural Development, dated 16.06.1995. At the inception of the constitution of the said State Election Commission, it had adopted the services of the employees from different Departments of the Government of Andhra Pradesh. Further, at the time of advent of the first respondent-Commission, no service rules were framed for the employees. Considering the same, the first respondent-Commission issued Memo No.1558/SEC-A/96, dated 27.08.1996 stating that officers and staff working on deputation would be considered for absorption in its office after approval of the Service Rules and that their cases for promotion would be considered as and when they get their promotion in parent department till the approval of draft Service Rules; and that after approval of service Rules, their cases for promotion would be considered according to its Service Rules. In the said memo, the first respondent- Commission requested the staff members and officers working under its control on deputation basis to submit their willingness for absorption. Thereafter, in exercise of powers conferred by the proviso to Article 309 of the Constitution of India read with Section 21 of the A.P. Panchayat Raj Act, Service Rules of the first respondent-Commission were formulated under G.O.Ms.No. 529, Panchayatraj & Rural Development (Elecs.) Department, dated 09.11.1999 titled as ‘The Andhra Pradesh State Election Commission Service Rules, 1999’ ( for short ‘the SEC Rules’) . The second respondent and the petitioners herein were appointed as Senior Assistants in the subordinate Service (ZP) on 20.2.1986, 29.10.1999 and 06.11.1999 respectively. Originally, the petitioners were deputed to the first respondent- Commissioner as Junior Assistants and when they got promotion in their parent department as Senior Assistants, they were given promotion in the first respondent-Commission. Thereafter, the petitioners were absorbed as Assistant Section Officers on 3.5.2000 in the first respondent-Commission immediately after their promotion to the post of Senior Assistant in their parent department. As matters stood thus, it is stated by the petitioners that the absorption of the second respondent was rejected for lack of requisite minimum educational qualification, i.e. degree. The next promotion of the candidates to the lis is Desk Officer/Section Officer, to which, the method of appointment as enumerated under Rule 4 (1) of the SEC Rules is (i) by promotion from Category I and II of Non- gazetted category, subject to the condition that the member must have worked for a minimum period of two years, and (ii) by transfer or by deputation on tenure basis from among the suitable posts in Subordinate Services of other Departments. The first respondent-Commission under the impugned order dated 13.01.2004 appointed the second respondent as Desk Officer. Aggrieved by the same, the petitioners filed the present writ petition, mainly contending that the second respondent is not a Graduate and does not satisfy the requisite qualification for promotion to the post of Desk Officer and also even to the post of Junior Assistant; the appointments or absorptions shall have to be made from the suitable and eligible posts whereas absorption of the second respondent as Desk Officer by transfer from the post of Senior Assistant is contrary to the SEC Rules and therefore the impugned order is contrary to G.O.Ms.No. 529, dated 9.11.1999. The first respondent filed counter affidavit stating that no norms have been prescribed by the SEC Rules for appointment by transfer to the post of Desk Officer and that it is entirely a matter of discretion of the appointing authority. It is stated in the counter affidavit that in as much as the second respondent has put in long service in the cadre of Senior Assistant, he stood on a more suitable footing for consideration for absorption as Desk Officer by Transfer and therefore the second respondent was appointed as such by Transfer under Rule 4 of the SEC Rules. It is stated that as per Rule 6(a) of the SEC Rules, no person shall be eligible to be appointed to the service unless he possess the qualifications mentioned in Schedule-I but in the Schedule-I,, no qualification is prescribed for the post of Desk Officer in the State Election Commission and as such, suitable person from any subordinate service of other department can be appointed by transfer under Rule 4 of the SEC Rules. It is stated that in as much as the second respondent has put in long service than the petitioners, he was found suitable by the appointing authority to be appointed by transfer as Desk Officer and accordingly the appointing authority absorbed him as Desk Officer. It is further stated that after appointment of the second respondent as Desk Officer, the petitioners were also appointed under Rule-4 of the SEC Rules, as Desk Officer under proceedings dated 16.8.2004 and their probation in the category of Desk Officers was also declared. However, the same was subjected to the outcome of the present Writ Petition. It is further averred that the claim of the petitioners that they should have been promoted earlier to the second respondent is totally misconceived and untenable. The second respondent has filed counter denying the averments of the petitioners that his willingness for absorption was not accepted by the first respondent-Commission, that he had lack of minimum requisite qualification of degree to be considered for any post under the Head of the Department etc. The second respondent stated that he was appointed as a Junior Assistant in the year 1980 in the Panchayat Raj Department under the recruitment of Group-IV examination conducted by the Andhra Pradesh Public Service Commission, and, he was promoted to the post of Senior Assistant in the year 1985 and after constitution of the first respondent-Commission in the year 1995, he was taken on deputation. He stated that at the time of absorbing him into the service of the first respondent-Commission, there were no Service Rules till the year 1999 and he was continued in the cadre of Senior Assistant which is equivalent to the post of Assistant Desk Officer/Assistant Section Officer. Denying the averment of the petitioner that he lacks graduation qualification, he stated that he had completed his graduation in the year 2002 from the Manonmanaiam Sundaranar University, which was incorporated under Tamilnadu Act No.31 of 1990. As was stated by the first respondent-Commission in its counter, the second respondent also stated that no specific qualification is prescribed in the SEC Rules for promotion to the post of Desk Officer; and that under Rule 6(a) of the SEC Rules, no person shall be eligible to be appointed in its service unless he/she possess the requisite qualification mentioned in Schedule-I and as specified in Rules 22 and 23 of the AP Ministerial Service Rules, Rule 4 of the AP General Subordinate Service Rules and Rule 5 of the AP Last Grade Service Rules. It is his case that in as much as the first respondent-Commission was not incorporated in the list of departments mentioned in Annexure-I of the A.P. Ministerial Service Rules, qualification prescribed in Rule 6(5) of the said Rules has no application to the first respondent- Commission. He lastly stated that in as much as the claim of the petitioners for promotion to the post of Desk Officer was considered after filing of the Writ Petition, no cause survives as the prayer of the petitioners was considered by the first respondent- Commission. The petitioners had also filed reply-affidavit to the counter filed by the first respondent. Heard both sides at length. Perused the case file scrupulously. The learned Counsel for the petitioners as well as the learned Counsel for the first respondent- Commission and the second respondent reiterated the averments made in their respective affidavit and counter affidavits. At the outset, it is to be seen that the present Writ Petition is filed seeking a declaration that the proceedings dated 13.1.2004 issued by the first respondent-Commission appointing the second respondent as a Desk Officer and not considering the cases of the petitioner for the said posts as illegal and arbitrary and for a consequential direction not to give effect to the proceedings dated 13.1.2004 and to consider the cases of the petitioners for promotion to the said post. This Writ Petition was filed on 03.02.2004. Subsequent to the filing of the Writ Petition, the petitioners were promoted as Desk Officers on 16.8.2004. In view of this subsequent development, no cause survives in the Writ Petition for adjudication. In this regard, the learned Counsel for the petitioners submitted that the petitioners should have been considered in the first instance than the second respondent in as much as the second respondent was not eligible to be considered for promotion to the post of Desk Officer at the time when he was so considered. It is to be seen that after the petitioners were promoted as Desk Officers on 16.8.2004, they did not choose to take appropriate steps to amend the prayer as well as their affidavit in the Writ Petition. On the other hand, they proceeded to contest the matter on the aforesaid issue whih does not survive for adjudication in the light of the promotion of the petitioners as Desk Officers on 16.8.2004. It is submitted by the learned Counsel for the petitioners that the seniority in between the petitioners and the second respondent can only be reckoned from the date of absorption in the service of the first respondent-Commission and not based on the second respondent’s appointment in his parent department. It is argued that the second respondent was not absorbed in the service of the first respondent-Commission along with the petitioners and therefore the case of the second respondent cannot be treated as an employee of the first respondent-Commission nor would he be placed over the petitioners in the seniority. The Constitution Bench of the Apex Court in Direct Recruit Class II Engineering Officers' Association Vs. State of Maharastra and ors {1990 (2) SCR900}, after a thorough discussion of several of its earlier decisions on the issue held that once an incumbent is appointed to a post according to the rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above Rule is, where the initial appointment is only ad hoc and not according to the rules and made as a stop- gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. Again in Director, Central Bureau of Investigation and Anr.vs. Shri D.P. Singh [JT2009(15)SC232] the question fell for consideration before the Apex Court was as to whether a Sub-Inspector, who was appointed as such in the Border Security Force when transferred on deputation to the Delhi Police in the cadre of Sub-inspector (Executive) on being permanently absorbed with the transferred post, was entitled to count his substantive service as a Sub- Inspector in BSF for the purpose of seniority in the cadre of Sub-Inspector (Executive) in the Delhi Police or not. While dealing with the aforesaid question, the Apex Court referred to long line of cases and, particularly, relying upon earlier decisions in R.S. Makashi v. I.M. Menon : (1982) 1 SCC 379 and Wing Commander J. Kumar v. Union of India : (1982) 2 SCC 116 held that right of deputationist to count his service for the purpose of seniority in the transferred department was well settled and, therefore, when a deputationist is absorbed in a department, he would certainly have expected that his seniority in the parent department would be counted. Further in K. Madhavan Vs. Union of India {(1987) 4 SCC 566,} the Apex Court Court, while holding that `deputation' may be regarded as a `transfer' from one government department to another, reiterated that transfer cannot wipe out length of service in the post from which an employee has been transferred and if a government servant holding a particular post is transferred to the same or equivalent post in another government department, the period of his service in the post before his transfer ought to be taken into consideration. It also needs to be noticed that it is well settled by the Judgments of the Supreme Court in the case of T. Shantharam v. State Of Karnataka And Ors. 1995 SCC537 that when an employee works in a post for a long time, it should be deemed that his services have been absorbed. In a recent decision in Kaushal Kishore Singh v. Dy. Directcor of Education and ors (AIR2002SC488) the Apex Court held that the claim of seniority of the employee is always determined in any particular Grade or Cadre and it is not the law that seniority in one Grade or Cadre would be dependent on the seniority in other Grade or Cadre. Seniority of an officer in a grade or scale shall be reckoned with reference to the date of his appointment in that grade or scale. Where there are two or more officers of the same length of service in the grade or scale, their inter se seniority shall be reckoned with reference to their seniority in the immediately preceding grade or scale to which they belong. The inter se seniority of officers directly recruited in a batch to any grade or scales shall be reckoned with reference to the rank allotted to them at the time of such recruitment. The learned Counsel for the petitioners, reiterating the averments in the reply affidavit filed by the petitioners on 27.11.2007 submitted that in as much as the first respondent is the Head of the Department, as per Rule 6(5) of the A.P. Ministerial Service Rules, 1998, which are adopted by the first respondent-Commission, no person working in the subordinate office shall be appointed by transfer to the post of Superintendent, Senior Assistant or Junior Assistant in the Head of the Department unless he/she possessed a degree qualification. He submitted that as per Rule 8 of the SEC Rules read with Rule 6(5) of the A.P. Ministerial Service Rules, the second respondent who is possessing only Intermediate qualification is not eligible to be absorbed by transfer to the post of Asst. Section Officer or Desk Officer in the first respondent- Commission. It appears that there is no dispute either by the first respondent or by the second respondent with regard to the aforesaid rule position as stated by the learned Counsel for the petitioners. The second respondent after acquiring degree qualification from the Manonmaniam Sundaranar University Act 1990, which had received the assent of the Government of the Tamilnadu and was incorporated in Act No.31 of 1990, submitted the same before the first respondent-Commission for making necessary entries in his service register. Pursuant thereto, the first respondent-Commission by order dated 16.2.2008 ordered the same. The second respondent completed his degree from the said University in the year 2002 and basing on the same, the first respondent issued impugned proceedings promoting him to the post of Desk Officer. Now, the learned Counsel for the petitioners submitted that the degree certificate obtained by the second respondent is not valid in as much as the Distance Education Programme offered by the Manonmaniam Sundaranar University during the relevant period was not approved by the Distance Education Council under the Indira Gandhi National Open University Act, 1985. Much material is placed before the Court by the learned Counsel for the petitioners to prove that the degree certificate obtained by the second respondent from the Manonmaniam Sundaranar University is not valid and hence the same cannot be taken as basis in providing promotion to him. However the learned Counsel for the second respondent also seriously opposed the contentions of the learned Counsel for the petitioners and he also produced material to prove that the degree certificate obtained by the second respondent from the said university is valid. It is not for this Court to go into the issue relating to validity or otherwise of the degree qualification obtained by the second respondent in exercise of its writ jurisdiction. The reason is simple. The petitioners, without agitating the aforesaid issue before the appropriate authorityby availing the remedies available to them, straight away raised before this court. Unless and until an order is invited from the appropriate authority on the aforesaid issue, this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India will not make a roving enquiry as to the validity or otherwise of the degree certificate obtained by the second respondent. It is for the authority concerned to do so, if such an issue is raised before them by the persons aggrieved. Further it is to be seen that the second respondent acquired the degree qualification in the year 2002 and basing on the same, he was given promotion to the post of Desk Officer. The petitioners having known the said fact, kept quite till this date for the reasons best known to them. Even as on the date of causing necessary entries in his service register on 16.2.2008, the petitioners have not objected for doing so before the appropriate authority though they are seriously disputing his promotion right from the beginning. Clause (VI)(b) of Rule 4 (1) of the SEC rules prescribes the method of appointment to the post of Desk Officer in two modes: (i) by promotion from Category I and II of Non-gazetted category, subject to the condition that the member must have worked for a minimum period of two years; and (ii) by transfer or by deputation on tenure basis from among the suitable posts in Subordinate Services of other Department. Rule 6 (a) of the said rules prescribes qualification and the said rule, which is relevant for the purpose of subject matter reads that no person shall be eligible to be appointed to the service unless he possesses the qualifications mentioned in Schedule I. Schedule I of the said rules however does not prescribe any qualification therefor. A combined reading of the said rules goes to show that for appointment by transfer to the post of Desk Officer from among the suitable posts in the subordinate service, no norm has been prescribed in the SEC Rules. In those circumstances, the only course left open is the exercise of discretion of the competent authority in the matter. For the foregoing discussion and in view of the settled legal principle of law, I am of the considered opinion that the first respondent-State Commission rightly exercised its discretion in promoting the second respondent to the post of Desk Officer as he is the senior to the petitioners in the subordinate service,. Viewed from any angle, I do not see any merit in the Writ Petition, which is accordingly dismissed. There shall be no order as to costs. --------------------------------------------- JUSTICE ASHUTOSH MOHUNTA Dated 11th November, 2011. Msnro