THE HON’BLE SRI JUSTICE G. BHAVANI PRASAD WRIT PETITION No.22248 OF 2003 AND W.P.M.P.No.19618 OF 2009 Dated:24.02.2010 Between: I.V.Rama Rao .. Petitioner And The Commissioner of Endowments, Government of Andhra Pradesh, Tilak Road, Hyderabad and another .. Respondents THE HON’BLE SRI JUSTICE G. BHAVANI PRASAD WRIT PETITION No.22248 OF 2003 AND W.P.M.P.No.19618 OF 2009 COMMON ORDER: The Writ Petition No.22248 of 2003 is with a request to direct the respondents to pay the scale of Junior Assistant to the petitioner, and W.P.M.P.No.19618 of 2009 is with a request to confirm the petitioner’s service as Junior Assistant with effect from 01.04.2000 with all consequential benefits. The petitioner contends that he was originally appointed as N.M.R. by the 2nd respondent – Temple, on 15.09.1989, after the Employment Exchange has notified about the same. The petitioner, a graduate in Commerce, claimed to have worked at Rs.15/- per day for five years after which he was regularized in the Last Grade Service with effect from 01.02.1995. The petitioner claims that when less qualified persons with lesser service were regularized as Junior Assistants and Typists, ignoring his case, he approached the High Court, which directed consideration of his case for appointment as Junior Assistant or Record Assistant, on which, he was regularized as Record Assistant with effect from 31.01.1995. He was eligible and qualified to be promoted having passed all the tests and being the senior most Record Assistant and as per the rules, he should have been promoted as Junior Assistant. While so, his junior, Sri Y.Appa Rao, actually working as a Bus Conductor was re-designated as Record Assistant, which was challenged by him in W.P.No.7758 of 1999, in which an interim direction was granted in W.P.M.P.No.9624 of 1999 not to promote Sri Y.Appa Rao, as Junior Assistant. Then the 2nd respondent promoted the petitioner as Junior Assistant on 24.08.2000 in a clear vacancy and the order on the basis of G.O.Ms.No.1478, dated 17.11.1986, mentioned his promotion to be subject to W.P.No.7758 of 1999. The 2nd respondent paid salary in the cadre of Record Assistant only even after the promotion of the petitioner as a Junior Assistant and no proceedings were issued reverting the petitioner from the post of Junior Assistant to that of Record Assistant. The representations from the petitioner evoked no response from the 2nd respondent and when there was no illegality or irregularity in his promotion as Junior Assistant, he is entitled to have the pay and allowances of Junior Assistant. Hence, the Writ Petition. In W.P.No.7758 of 1999, the petitioner’s junior, Sri Y.Appa Rao, filed an affidavit accepting the seniority of the petitioner and accordingly proceedings were issued by the 2nd respondent recognizing the seniority of the petitioner vis-à-vis Sri Y.Appa Rao for all purposes, while promoting Sri Y.Appa Rao, as a Junior Assistant with effect from 01.04.2000. Consequently, the petitioner became entitled to be confirmed and continued as a Junior Assistant with all consequential benefits with effect from 01.04.2000. Hence, the W.P.M.P.No.19618 of 2009. The requests of the petitioner are resisted by the 2nd respondent claiming that the services of the petitioner were regularized as a Record Assistant in pursuance of the directions of the High Court in W.P.No.4763 of 1995 and he was treated as a Record Assistant only. The promotion orders issued by the then Executive Officer of the 2nd respondent just before leaving his office were the subject of an enquiry into their legality by the Commissioner of Endowments. While the petitioner was promoted in the vacancy caused due to promotion of L.Srinivas, no orders were received on the enquiry and the Commissioner returned the files without any remarks or orders. While admitting that the petitioner was paid pay and allowances in the cadre of Junior Assistant for four months, the 2nd respondent claimed to have not paid the pay and allowances of the promotion post due to the pendency of the enquiry, keeping the difference in salary in deposit. The 2nd respondent further claimed in the counter – affidavit to W.P.M.P.No.19618 of 2009 that there was no clear vacancy of the post of Junior Assistant when the petitioner was promoted and five Junior Assistants were working in excess as against 14 sanctioned posts of Junior Assistants. The High Court in W.P.M.P.No.27805 of 2003 granted an interim direction to pay the scale of Junior Assistant to the petitioner on 22.10.2003 and since then the petitioner is being paid the said scale, subject to the final result of the Writ Petition. Subsequently, a comprehensive report was submitted to the Commissioner, Endowments, on 14.05.2005, on which, the Commissioner has sanctioned five supernumerary posts in the cadre of Junior Assistant to accommodate five promotees including the petitioner. In pursuance of the said orders, dated 29.04.2005, the promotions were given effect from 01.04.2000. The 2nd respondent further submitted that in W.P.No.7758 of 1999, the High Court ordered on 01.05.2009, that appropriate order shall be passed on the representation of Sri Y.Appa Rao considering his promotion within two weeks from his representation. On the representation of Sri Y.Appa Rao, requesting to relegate him to the position of immediate next junior to the petitioner, Sri Y.Appa Rao was given promotion as Junior Assistant with effect from 01.04.2000 as a junior to the petitioner herein. The petitioner ought to have filed an appeal before the Commissioner, Endowments, in respect of his grievance; he should not have approached the High Court directly. Hence, the 2nd respondent desired the dismissal of the Writ Petition and the Miscellaneous Petition also. Sri Aka Venkata Ramana, learned counsel for the petitioner, and Sri V.T.M.Prasad, learned Standing Counsel representing both the respondents, are heard at length. It is not in dispute that the orders of promotion of the petitioner dated 24.08.2000 clearly recognized the eligibility and seniority of the petitioner for being promoted to the post of Junior Assistant and he was accordingly promoted subject only to the finalization of W.P.No.7758 of 1999. It is also admitted that he was paid in the first instance, the pay and allowances of the post of Junior Assistant, which was subsequently reduced not on the ground of any specific order passed in respect of the petitioner, on merits, either administratively or in any other manner but only due to the Commissioner, Endowments, assessing the files of promotions given by the then Executive Officer just before leaving his office. While the same could not have been a ground to refuse to pay the pay and allowances of the post of Junior Assistant to the petitioner, who was admittedly discharging the duties of that office, even the Commissioner, Endowments, did not pass any orders or remarks on the promotions and just returned the files at least after which the differential amounts kept in deposit should have been released in favour of the petitioner and the pay and allowances at least thereafter could have been paid in the scale, as of now, of a Junior Assistant. The very counter – affidavit in W.P.M.P.No.19618 of 2009 shows that even if there were any factual complications at the time of the petitioner being promoted as a Junior Assistant, on a comprehensive report submitted to the Commissioner, Endowments, he was pleased to sanction five supernumerary posts to adjust not only the petitioner, but also four others in consequence of which two people reverted earlier were restored back to the post of Junior Assistant with effect from 01.04.2000. The counter – affidavit also admits that the order in W.P.No.7758 of 1999, dated 01.05.2009, shows that Sri Y.Appa Rao, who was disputing with the petitioner concerning their respective positions in the service had admitted by way of an affidavit before the High Court that he was junior to the petitioner for all purposes, consequent to which Sri Y.Appa Rao was promoted as Junior Assistant with effect from 01.04.2000. Therefore, this Court felt no need for passing any separate orders in W.P.No.7758 of 1999 and Sri Aka Venkata Ramana, learned counsel for the petitioner, had referred to the contentions of W.P.No.7493 of 1999 and other Writ Petitions, subject to which Sri Y.Appa Rao was promoted as Junior Assistant to show that the subject matter of those Writ Petitions had nothing to do with the claim of the petitioner for the status of Junior Assistant with effect from 01.04.2000. If Sri Y.Appa Rao, who is junior to the petitioner, himself was so confirmed in the status of Junior Assistant with effect from 01.04.2000, there could have been no justification or reason for denying such reliefs to the petitioner. Under the circumstances, both the Writ Petition and the Miscellaneous Petition have to be allowed and accordingly they are allowed without costs. ______________________ G. BHAVANI PRASAD, J 24th February 2010 KH