*THE HONOURABLE Dr.JUSTICE G. YETHIRAJULU +Writ Petition No.9636 of 2004 % 10-9-2004 # B.Kulanda Reddy … Petitioner VS. $ The Govt. of A.P. rep. By its Commissioner, Endowments Department, Hyderabad & 3 others. ...Respondents. ! Counsel for the Petitioner: Mr.G. Vidyasagar ^Counsel for the Respondents No.1 to 3: G.P. for Endowments Counsel for Respondent No.4: Mr.P.Balakrishna Murthy < Gist : > Head Note : ? CITATIONS : IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TENTH DAY OF SEPTEMBER TWO THOUSAND AND FOUR PRESENT THE HON'BLE DR JUSTICE G.YETHIRAJULU WRIT PETITION NO : 9636 of 2004 Between: B. Kulanda Reddy, S/o. B. Venkat Rami Reddy, R/o. H.No. 10-389/3, Satya Raghavendra Colony, Malkajgiri, Secunderabad. ... PETITIONER AND 1. The Government of A.P. rep by its Commissioner, Endowments Department, Hyderabad. 2. The Regional Joint Commissioner, Office of the Commissioner of Endowments Dept., Government of A.P., Hyderabad. 3. The Executive Officer, Sri Ganesh Temple, Near Railway Station, Secunderabad. 4. P. Laxma Reddy, S/o. Sri Rami Reddy, C/o. Executive Officer, Sri Ganesh Temple, Near Railway Station, Secunderabad. ...RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an order direction or writ particularly one in the nature of Writ of Mandamus or any other appropriate writ declaring proceedings No. 25/SGT/2004, dt. 22-5-2004 promoting the 4th respondent as illegal and arbitrary (ii) declare that the 4th respondent cannot claim for seniority or promotion in third respondent temple and consequently direct the respondents 1 to 3 to consider and promote the petitioner to the post of Superintendent created vide proceedings No. 25/SGT/2004, dt. 22-5- 2004 with all consequential benefits and pass any such order as this Court deems fit and proper. Counsel for the Petitioner: Mr.G.Vidyasagar Counsel for the Respondents No.1 to 3: G.P. for Endowments Counsel for Respondent No.4: Mr.P. Balakrishna Murthy The Court made the following: Order: 1. The petitioner approached this Court through this petition for issuance of a writ of mandamus by way of declaring the proceedings No.25/SGT/2004 dated 22-5-2004 promoting the 4th respondent as Superintendent of the 3rd respondent temple as illegal and arbitrary and to declare that the 4th respondent cannot claim seniority over the petitioner or promotion in the 3rd respondent temple and consequently to direct respondents 1 to 3 to consider and promote the petitioner to the post of Superintendent. 2. The petitioner contends that he is working as a Senior Assistant in the 3rd respondent temple. He was appointed as a Junior Assistant in the said temple on 13-5-1983 and subsequently on 14-2-1990 he was promoted as a Senior Assistant subject to the condition of his passing the requisite tests. Except the Accounts Test for Subordinate Officers—Part- I, he passed all other tests. When he was required to pass Accounts Test Part-I also, he made a representation on 25-1-1993 to the first respondent for clarification as to whether a person who is promoted to the post of Senior Assistant is required to pass Accounts Test Part-I. The first respondent vide letter Dis.No.D.2/3881/1993 dated 1-2-1993 clarified that as per rules, there is no requirement of passing the Accounts Test Part-I for being promoted to the post of Senior Assistant in respect of the employment of the institutions other than the institutions under the direct control of the Deputy Commissioner. The petitioner further submits that at the relevant time the third respondent temple was only an Assistant Commissioner cadre institution, therefore, after receipt of the clarification from the first respondent, the third respondent did not insist upon the petitioner to pass the Accounts Test Part-I. The petitioner passed the said test at a subsequent date. As on that date, the employees working under the institutions were governed by the rules framed under G.O.Ms.No.1478, Revenue (Endowments VI) Department, dated 17-11- 1986 and those rules are known as “The Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Officeholders and Servants’ Conditions of Service Rules, 1983 (for short “Rules, 1983”). Though the said rules were framed in the year 1986, they were given effect to from 3- 2-1983. While so, the Government framed new rules in exercise of the powers conferred under Section 35 (4) read with Section 153 of the Endowments Act, 1987 (Act 30 of 1987) and the same were published vide G.O.Ms.No.888, Revenue (Endowments-I) Department dated 8-12- 2000 and those rules are known as “The Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Officeholders and Servants Service Rules, 2000 (for short “Rules, 2000”). The petitioner submits that as per Rule 33 of the Rules, 2000, each institution or endowment is a unit for the purpose of recruitment, seniority and promotion. Rule 12 of the 2000 Rules deals with the seniority of an employee in a particular cadre or post. Rule 13 deals with promotion of an employee. The method of recruitment and qualification for the posts are notified under Rule 39 in Annexure III. As per Annexure III clause (2) under Rule 39 of the Rules, 2000, the Superintendent post is to be filled by promotion from the post of Senior Assistant or by borrowing the services of a Superintendent from the Endowments Department. The petitioner used to work on deputation at Ellamma—Pochamma Temple, Balkampet, Hyderabad and he was repatriated to his parent temple i.e., third respondent through the proceedings dated 23-8-2002. The first respondent revised the cadre strength of the third respondent through the proceedings dated 21-5-2004 and sanctioned two additional posts of Superintendent, one belonging to the temple and the other from the Endowments Department. The Executive Officer of the third respondent temple promoted the fourth respondent to the post of Superintendent vide proceedings dated 22-5- 2004. The petitioner is the seniormost employee of the third respondent temple working as a Senior Assistant since 14 years. The fourth respondent was initially appointed as a Junior Assistant on 1-6-1988 in Sri Narsingmuth, Secunderabad and subsequently promoted as a Senior Assistant at Ujjaini Mahankali Temple, R.P. Road, Secunderabad on 23-9- 1994. He was transferred to the third respondent temple in the year 1997 and by proceedings dated 23-8-2002 he was re-transferred from the third respondent temple to Sri Ujjaini Mahankali Temple, which is his parent temple. Since the fourth respondent does not belong to the third respondent temple, he cannot be considered for promotion to the post of Superintendent. Hence, the petition for the reliefs mentioned above. 3. The third respondent filed a counter-affidavit resisting the writ petition and the same reads as follows: 4. The petitioner approached this Court through this writ petition without exhausting the remedy of revision under Section 92 of the Endowments Act, 1987 (for short ‘the Act’) and second revision under Section 93 of the Act. Though the petitioner was initially promoted on 14- 2-1990 as a Senior Assistant, he was reverted to the post of Senior Assistant through the proceedings dated 18-1-1993 for not passing the tests within two years as directed at the time of promotion. The petitioner subsequently passed the Accounts Test, but no further orders have been issued promoting the petitioner as Senior Assistant. Since the petitioner did not challenge the reversion order, it became final. As per G.O.Ms.No.1478 dated 17-11-1986, an employee in order to get eligibility for promotion as a Senior Assistant must pass the Accounts Test for Subordinate Officers Part-I. The fourth respondent was promoted as a Senior Assistant on 23-9-1994 after passing of the requisite tests in June 1991. The petitioner completed all the tests only in 1997. As the fourth respondent has been working in the third respondent temple since seven (07) years, he was considered for promotion. As the employees of one temple are transferred to the other, their promotions are being considered wherever they are posted and some of the employees are being absorbed in the temples. Even assuming that the petitioner was promoted as a Senior Assistant after passing of the prescribed tests in 1997, the promotion was much later to the promotion of the fourth respondent, therefore, the petitioner cannot question the promotion of the fourth respondent. The petitioner is not entitled for the relief sought for. Hence the writ petition is liable to be dismissed. 5. The fourth respondent filed a counter-affidavit which is briefly as follows: 6. As per Rule 33 of G.O.Ms.No.888 dated 8-12-2000 each institution or endowment is a separate Unit for the purpose of recruitment, seniority and promotion. Rule 39 empowers the Commissioner or Deputy Commissioner or Assistant Commissioner, as the case may be, to transfer any office holder or servant attached to a charitable or religious institution to any other institution or endowment and therefore it may be inappropriate to name an institution as the parent institution. The petitioner has been transferred to various institutions and brought back to the third respondent temple on 23-8-2002. The fourth respondent was also transferred to various institutions and brought back to third respondent temple on 12-6-1997. The post of Senior Assistant comes under Category III in Annexure III to G.O.Ms.No dated 8-12-2000. One has to pass Accounts Test for Subordinate Officer Part-I and Endowments Test Part I and II to get eligibility for promotion as a Senior Assistant. The clarification said to be given by the first respondent on 1-2-1993 will not help him in this regard. Though the petitioner was promoted as a Senior Assistant on 14-2-1990, he was reverted back and he passed the tests only on 13-7-1997. The petitioner failed to mention the factum of reversion in his affidavit under reply, which is unfair on his part. The petitioner cannot claim or aspire to the post of Superintendent, since his promotion to the post of Senior Assistant was illegal and without jurisdiction. Simply because the petitioner is senior to the fourth respondent in the cadre of Junior Assistant, he is not entitled to seek promotion on priority to the fourth respondent. The promotion of the fourth respondent is legal, valid and unassailable. The petitioner has no locus standi to question the promotion of the fourth respondent. Hence the writ petition is liable to be dismissed with costs. 7. In the light of the contentions raised by both parties, the following is the point for consideration: Whether the promotion of the fourth respondent as a Superintendent in the third respondent temple is illegal and whether the petitioner is entitled to be considered by respondents 1 to 3 for promotion as prayed for? Point: 8. The third respondent temple is the parent institution of the petitioner. He was initially appointed as a Junior Assistant in the third respondent temple on 1-5-1983. The parent institution of the fourth respondent is Ujjaini Mahankali Temple, Secunderabad and he was appointed as a Junior Assistant in the said temple on 1-6-1988 i.e., about 5 years after the date of entry of the petitioner into service. By invoking the powers under Section 39 of the Endowments Act, 1987 the Commissioner or the Deputy Commissioner or Assistant Commissioner, as the case may be, have been transferring the employees of one institution to the other depending upon the necessity and such employees are being retransferred to their parent institutions as and when there is ceasing of necessity. In the year 1986 the Government of Andhra Pradesh framed rules under Section 31 (5) read with Section 107 of the Endowments Act, 1966 known as “The Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Officeholders and Servants Conditions of Service Rules, 1983 vide G.O.Ms.No.1478 dated 17-11- 1986 and the said rules came into force with effect from 03-2-1983. The 1983 rules were in force by the date of initial appointment of the petitioner and the fourth respondent, therefore, these rules govern the service conditions, seniority and promotion of the petitioner and the fourth respondent. Rules 12 and 13 of the 1983 rules deals with “Seniority and “Promotion” of the employees of the charitable, Hindu religious institutions and the Endowments Department, and the same read as follows: 12.Seniority: a. The seniority of an employee in a particular category or post shall count from the date of commencement of probation in that category or post. b. The appointing authority may at the time of passing an order appointing two or more persons simultaneously fix the order of preference among them, and their seniority shall be in accordance with that order. 13.Promotion: No employee shall be eligible for promotion from a lower category to a higher category unless he has satisfactorily completed the probation and has put in a service for a minimum period of five years in the category from which he is to be promoted. 9. In the year 2000 the Government of Andhra Pradesh framed fresh rules applicable to the employees of the charitable, Hindu religious institutions and Endowments and the same have been notified through G.O.Ms.No.888 dated 8-12-2000. Rules 12 and 13 of the Rules, 2000 also deal with “Seniority” and “Promotion” and they read as follows: 12.Seniority: c. The seniority of an employee to a particular category or post shall count from the date of commencement of probation in that category or post unless he has been reduced to a lower rank as a punishment, be determined by the date of his first appointment to such category of post. d. The appointing authority may at the time of passing an order appointing two or more persons simultaneously fix the order of preference among them, and their seniority shall be in accordance with that order. 13.Promotion: No employee shall be eligible for promotion from a lower category to a higher category unless he has satisfactorily completed the probation and has put in a service for a minimum period of three years but in no case shall it be less than two years in the category from which he is to be promoted. Provided that the service rendered to a different category, which is also a channel of promotion to that higher category, shall be counted towards, three years but in case shall it be less than two years of service for the purpose of promotion. 10. In Rule 33 of the Rules, 2000 the word “Unit” has been defined and it reads as follows: 33. Unit: Each institution or endowment shall be a unit for the purpose of recruitment, seniority and promotion. 11. Rule 34 of the Rules, 2000 deals with the deputation of employees from Foreign Service and it reads as follows: 34. The Commissioner, Endowments shall be competent to depute a Government employee on Foreign Service as per F.R.110 to any institution or endowment. 12. The above provisions clearly indicate that the Commissioner, Deputy Commissioner or Assistant Commissioner, as the case may be, are competent to transfer the employees from one Unit to another Unit, but for the purpose of recruitment, seniority and promotion, the employees are considered for seniority or promotion along with the employees of that particular Unit in which he was initially appointed. In the case on hand, the petitioner was appointed in the third respondent temple, therefore, he is entitled to be considered along with the other employees of that institution for the purpose of seniority and promotion. 13. Regarding the eligibility of the petitioner, the learned counsel for the petitioner submitted that the petitioner passed all the departmental tests required for promotion as a Senior Assistant in 1997 and immediately after passing of those tests, he was promoted as a Senior Assistant in July 1997. From then onwards he is continuing as a Senior Assistant working since more than seven (07) years. Since the petitioner passed all the requisite tests and completed more than three years service in the category of Senior Assistant, he is eligible to be considered for promotion to the post of Superintendent in his parent Unit i.e., the third respondent temple and there is no disqualification for the petitioner for the purpose of consideration for promotion to the post of Superintendent. 14. The learned counsel for the fourth respondent submitted that the petitioner was reverted from the post of Senior Assistant through the proceedings dated 18-1-1993 for not passing the Accounts Test Part-I, therefore, the petitioner remained as a Junior Assistant till now. Hence he has no locus standi to file this writ petition questioning the promotion of the fourth respondent. 15. The third respondent passed the impugned order on 22-5-2004. Paragraphs 2 and 3 of the impugned order read as follows: As per the seniority list Sri B.Kulanda Reddy, Senior Assistant was initially appointed as a Junior Assistant on 1-05-1983 and promoted to the cadre of Senior Assistant by the Executive Officer vide proceeding dated 14-2-1990 and with a condition to acquire required Departmental Tests within the period of three years. But the said individual has not acquired minimum qualification of the Departmental Test, and hence he was reverted to the Cadre of Junior Assistant and subsequently the individual has passed Account Test Part-I in the month of 7/97 and again promoted as Senior Assistant. Sri P. Laxma Reddy, Junior Assistant was initially appointed as a Junior Assistant on 1-6-1988 and the said individual was promoted to the Cadre of Senior Assistant by the Executive Officer of the subject Temple vide proceedings dated 23-09-1994 and reported for duty on 23-09-1994. Since the individual has passed the tests under the Endowments Act and Rules in the year 11/1988 and the Account Test Part-I in 6/1991, thus Sri P.Laxma Reddy originally junior to Mr.B.Kulander Reddy in his initial appointment of the Cadre of Junior Assistant was promoted to the cadre of Senior Assistant prior to Mr.B.Kulanda Reddy who failed to acquire minimum required qualification of the Department Tests. 16. It is seen from the language of the order that the petitioner was initially promoted as a Senior Assistant on 14-2-1990 with a condition to pass the departmental tests within a period of three years. Since the petitioner did not pass the departmental tests, he was reverted to the cadre of Junior Assistant and later promoted as a Senior Assistant in July 1997. The impugned order further reveals that the fourth respondent was promoted as a Senior Assistant on 23-9-1994 and sincethen he has been working in that capacity. The impugned order also reveals that though the fourth respondent was originally junior to the petitioner in his initial appointment as a Junior Assistant, he was promoted to the cadre of Senior Assistant earlier to the promotion of the petitioner, therefore, the fourth respondent is promoted as a Superintendent. The impugned order dated 22-5-2004 makes it clear that though the petitioner was reverted in the year 1993, he was again promoted as a Senior Assistant in July 1997, therefore, there is no force in the contention of the learned counsel for the fourth respondent regarding the locus of the petitioner challenging the impugned order of the third respondent promoting the fourth respondent as Superintendent. The petitioner has completed more than seven years of service in the category of Senior Assistant as on the date of passing the impugned order and became eligible for promotion to the post of Superintendent. 17. The learned counsel for the petitioner submitted that when the petitioner was reverted as a Junior Assistant through the proceedings dated 18-1-1993 on the ground that he did not pass Accounts Test Part-I, he made a representation to the first respondent on 25-1-1993 seeking clarification as to whether a Junior Assistant working in his parent Unit other than the temples mentioned in Rule 36 of the Rules, 2000 is required to pass Accounts Test Part-I for the purpose of promotion as a Senior Assistant, the first respondent through the letter dated 1-2-1993 clarified that as per rules, there is no need for a Junior Assistant to pass the Accounts Test Part-I for the purpose of getting promotion to the post of Senior Assistant. He, therefore, submits that in view of the clarification given by the first respondent, the petitioner became eligible for promotion to the post of Senior Assistant in the year 1993 itself. 18. Rule 36 of the Rules, 2000 deals with the special provisions for certain temples. Eight temples have been listed for the said purpose and the said rule reads are as follows: 36. Special provisions for certain temples: The following provisions in addition to the above rules, except rules 5 and 16 SHALL APPLY TO THE OFFICE HOLDERS AND SERVANTS OF THE FOLLOWING EIGHT INSTITUTIONS. e. Sri Varaha Lakshminarasimha Swamy Devasthanam, Simhachalam, Visakhapatnam District. f. Sri Veera Venkata Satyanarayana Swamy Devasthanam, Annavaram, East Godavari District. g. Sri Seetharama Chandra Swamy Devasthanam, Bhadrachalam, Khammam District. h. Sri Venkateswara Swamy Devasthanam, Dwaraka Tirumala, West Godavari District. i. Sri Durga Malleswara Swamy Devasthanam, Vijayawada, Krishna District. j. Sri Raja Rajeswara Swamy Devasthanam, Vemulawada, Kareemnagar District. k. Sri Lakshmi Narasimha Swamy Devasthanam, Yadagirigutta, Nalgonda District. l. Sri Bramaramba Mallikarjuna Swamy Devasthanam, Srisailam, Kurnool District. The third respondent temple is not the one among the above temples. Rules 37 and 38 of the Rules, 2000 deal with the classification and cadre strength of the employees of the eight temples mentioned supra. The learned counsel for the petitioner submitted that Rules 39 and 40, which deal with qualifications and tests also relate to the employees of the above eight temples. After carefully reading the Rules, 2000 it is noticed that Rules 39 and 40 are applicable to all categories of employees and are not confined to the temples referred in Rule 36. Therefore, passing of the Accounts Test for Subordinate Officers Part-I is a must for the employees of the temples who are seeking promotion to the post of Senior Assistant or who are kept under probation with a condition that they should pass all the tests prescribed for the said post, including the Accounts Test for Subordinate Officers Part-I. The clarification dated 1-2-1993 issued by the first respondent is not in consonance with Rules 39 and 40 of the Rules. Therefore, the petitioner is not entitled to seek any exemption on the basis of the clarification given by the first respondent and he is bound to pass the Accounts Test for Subordinate Officers Part-I as required under Rule 40 of the Rules, 2000. However, since the petitioner has already passed the above test in July 1997, the question of not qualifying for promotion to the post of Senior Assistant does not arise. 19. The learned counsel for the petitioner submits that since the fourth respondent is working in the third respondent temple only on deputation, the third respondent cannot be treated as the parent Unit of the fourth respondent, therefore, the seniority of the fourth respondent has to be considered along with the employees of his parent Unit i.e., Sri Ujjaini Mahankali Temple, Secunderabad, and not with the employees of the third respondent institution. If the fourth respondent gets eligibility for promotion in his parent Unit and gets promotion in that Unit, his services can be utilized in any other Unit by taking him on deputation or in the event of non-availability of eligible candidates in the third respondent Unit, any employee from foreign service can be brought on promotion to officiate in the next higher post i.e., as “Superintendent” in the third respondent Unit. The grievance of the petitioner is that though he passed all the departmental tests and completed more than three years of service as a Senior Assistant and became eligible for promotion, the respondents No.1 to 3 instead of considering his name for promotion as “Superintendent”, promoted the fourth respondent to the post of “Superintendent” by treating him as an employee of the third respondent Unit, thereby committed illegality by not following Rule 33 of the Rules, 2000. 20. The Rules, 2000 clearly specify that the employee who is found eligible for promotion in the next higher category has to be promoted in his parent unit only. However, if eligible employees are not available in the Unit, an employee deputed to that Unit can be promoted to officiate the higher post till any of the