WP/26504/2006 of M.Muralidhar Vs The Commissioner of Endowments, AP., Boggulakunta on 27 December 2007

ORDER:

This writ petition is filed seeking a Mandamus declaring theproceedings Rc.No.E5/48153/2006-1 and Rc.No.E5/48153/2006-2dated 7.12.2006 issued by the first respondent as arbitrary and illegal.

According to the petitioner, respondents 3 and 4 who wereappointed initially in Hyderabad district were transferred to Nellore andMahabubnagar districts long ago and they have become part andparcel of establishment of Nellore and Mahabubnagar districts. Theyhave no lien of their posts in Hyderabad district. District is a unit for thepurpose of seniority, promotion and transfer. The respondents 3 and 4who were transferred long ago cannot be treated as employees ofHyderabad district unit. The respondents 3 and 4, who weretransferred to Nellore and Mahabubnagar districts on their ownrequest, cannot be permitted to reckon their seniority in Hyderabaddistrict. Therefore, they are not entitled for being promoted asExecutive Officer Gr.III. Promotion by way of transfer of respondents 3and 4 is arbitrary and illegal apart from being contrary to thePresidential Order. Petitioner is fully qualified and eligible for beingpromoted to the post of Executive Officer Gr.III and he is working inHyderabad city since his initial appointment i.e. in the year 1993.

The respondents filed a detailed counter denying the allegationsmade by the petitioner and asserted that according to Section 29(3) ofA.P. Charitable and Hindu Religious Institutions and Endowments Act,1987 (Act 30/87) (for short ‘Endowments Act’), twenty percent ofvacancies in each grade of Executive Officers shall be filled by theemployees belonging to institutions or Endowments of prescribed grade. Government also issued service rules vide G.O.Ms.No.262,Revenue (Endts.I) Department dated 20.5.2002. Under the said rules,there is a provision for appointment of temple employees under twentypercent quota as Executive Officers Gr.I, Gr.II and Gr.III by transfer ofservice. The petitioner and respondents 3 and 4 are only templeemployees and they are governed by the rules made underG.O.Ms.No.888 dated 8.12.2000. According to service rulesapplicable to temple employees issued under Section 35 ofEndowments Act vide G.O.Ms.No.888 Revenue (Endts.I) Departmentdated 8.12.2000, each temple is a unit for the purpose of appointment,seniority etc. Moreover, petitioner is a temple employee and non-government servant and the Presidential Order has no application tonon-government servants. Two vacancies of Executive Officers Gr.IIIare earmarked for Junior Assistants working in temples/institutionsworking in Hyderabad district and petitioner stands at Serial No.23 inthe seniority list. The third respondent was originally appointed asJunior Assistant in the establishment of Sri Venkateshwara SwamyDevasthanam, Chikkadpally, Hyderabad in the year 1983 and later hewas transferred to Nellore district on some personal grounds in theyear 1985 and continued there. He was first appointed at Hyderabadtemple and his lien is maintained at Hyderabad. Since the thirdrespondent was initially appointed at Hyderabad district and workingin Nellore district on transfer and in accordance with G.O.Ms.No.888Revenue (Endts.I) Department dated 8.12.2000, each temple is a unitfor appointment, seniority etc., his case was considered forappointment to the post of Executive Officer Gr.III as he passed all therequisite tests and eligible to hold the post of Executive Officer, Gr.IIIas per rules made in G.O.Ms.No.262, Revenue (Endts-I) Departmentdated 8.5.2002. Hence the appointment of third respondent as Executive Officer Gr.III cannot be said to be either arbitrary or illegal.

Executive Officer Gr.III cannot be said to be either arbitrary or illegal.

Likewise, the fourth respondent was appointed initially as JuniorAssistant in the establishment of Sri Hanuman Temple, VijayanagarColony, Hyderabad on 20.9.1989. At the time of considering thetemple employees for the post of Executive Officer, since the fourthrespondent was originally appointed in Hyderabad and working atMahabubnagar district as Manager and according to G.O.Ms.No.888 dated 8.12.2000, each temple is a unit for appointment, seniority,promotion etc., his case was considered for appointment as ExecutiveOfficer, Gr.III. Therefore, petitioner cannot question the appointment ofrespondents 3 and 4 as Executive Officer Gr.III as he was appointed asJunior Assistant only in the year 1993, much after the appointment ofrespondents 3 and 4 in Hyderabad district.

Heard both sides.

During the course of arguments, the learned GovernmentPleader has taken an objection as to the very maintainability of writpetition stating that the petitioner is questioning the promotion ofrespondents 3 and 4 as Executive Officers Gr.III who are governed bythe Rules made under Article 30 of the Constitution of India, therefore,he should have approached the Administrative Tribunal by filing O.A.for working out his remedies. Further, the petitioner is also basing hisclaim as per those rules.

The learned counsel for petitioner Mr.P.Balakrishna Murthy, inthis regard, contended that governing the service conditions of thepetitioner, no rules are made under Article 309 of the Constitution ofIndia. As of now, petitioner is only a temple employee, therefore, hecannot be treated as a person who can maintain Original Application(OA) before the Administrative Tribunal. Section 3 read with Section19 of Administrative Tribunals Act would not bar the jurisdiction of this Court. Section 19 of Administrative Tribunals Act does not include atemple employee and the petitioner is not governed by any rules madeunder Article 309 of the Constitution of India as of now. Sections 3and 19 of the Administrative Tribunal’s Act reads as under:

Section 3:

In this Act, unless the context otherwise requires; (a)‘Administrative Member’ means a member of aTribunal who is not a Judicial Member within themeaning of clause (i); (aa)‘Administrative Tribunal’ in relation to a State means the Administrative Tribunal for the State or, as thecase may be, the Joint Administrative Tribunal for thatState and any other State or States:

(b) ‘Application’ means an application made underSection 19;

(c) ‘Appointed day’ in relation to a Tribunal means the date with effect from which it is established, bynotification under Section 4; (d)‘appropriate Government’ means ;

(i) in relation to the Central AdministrativeTribunal or a Joint Administrative Tribunal, theCentral Government;

(ii) in relation to a State Administrative Tribunal,the State Government;the State Government; (e)‘Bench’ means a Bench of a Tribunal (f)‘Central Administrative Tribunal’ means theAdministrative Tribunal established under sub-section(1) of Section 4;Administrative Tribunal established under sub-section(1) of Section 4; (g)‘Chairman’ means the Chairman of the Tribunal; (h)‘Joint Administrative Tribunal’ means anAdministrative Tribunal for two or more Statesestablished under sub-section (3) of Section 4;Administrative Tribunal for two or more Statesestablished under sub-section (3) of Section 4;

(i) ‘Judicial Member’ means a Member of a Tribunalappointed as such, under this Act, and includes theChairman or a Vice Chairman who possess any of thequalifications specified in sub-section (3) of Section 6; (ia) ‘Member’ means a Member (whether Judicial orAdministrative) of a Tribunal, and includes theAdministrative) of a Tribunal, and includes the Chairman and a Vice Chairman”]

(j) ‘Notification’ means a notification published in theofficial Gazette;official Gazette; (k)‘Post’ means a post within or outside India;

(l) ‘Prescribed’ means prescribed by rules made underthis Act;this Act;

(m) ‘President’ means the President of India; (n)(omitted by Act 19 of 1986).

(o) ‘Rules’ means rules made under this Act; (p)‘Service’ means service within or outside India;(q)‘Service matters’ in relation to a person, mean allmatters relating to the conditions of his service inconnection with the affairs of the Union or of any Stateor of any local or other authority within the territory ofIndia or under the control of the Government of India,or, as the case may be, of any corporation (or society)owned or controlled by the Government, as respects;

(i) remuneration (including allowances), pension and other retirement benefits;

(ii) tenure including confirmation, seniority,promotion, reversion, premature retirement andsuperannuation;promotion, reversion, premature retirement andsuperannuation;

(iii) leave of any kind;

(iv) disciplinary matters; or

(v) any other matters whatsoever;

(r) ‘Service rules as to redressal of grievances’, inrelation to any matter, mean the rules, regulations,orders or other instruments or arrangements as inforce for the time being with respect to redressal,otherwise than under this Act of any grievances inrelation to such matters.

(rr) ‘Society’ means a society registered under the SocietiesRegistration Act, 1860 (21 of 1860), or under anycorresponding law for the time being in force in aState;Registration Act, 1860 (21 of 1860), or under anycorresponding law for the time being in force in aState; (s)‘Supreme Court’ means the Supreme Court of India;(t)‘Tribunal’ means the Central Administrative Tribunalor a State Administrative Tribunal or a JointAdministrative Tribunal.(t)‘Tribunal’ means the Central Administrative Tribunalor a State Administrative Tribunal or a JointAdministrative Tribunal.

(u) ‘Vice Chairman’ means the Vice Chairman of aTribunal.Tribunal.

Section 19:

Application to Tribunals:

(1) Subject to the other provisions of this Act a personaggrieved by any order pertaining to any matter withinthe jurisdiction of the Tribunal may make anapplication to the Tribunal for the redressal of hisgrievance.aggrieved by any order pertaining to any matter withinthe jurisdiction of the Tribunal may make anapplication to the Tribunal for the redressal of hisgrievance.

Explanation: For the purposes of this sub-section‘order’ means an order made:- (a)by the Government or a local or otherauthority within the territory of India or underthe control of the Government of India or byany Corporation (or society) owned orcontrolled by the Government; or (b)by an officer, committee or other body oragency of the Government or a local or otherauthority or corporation (or society) referred toin clause (a).agency of the Government or a local or otherauthority or corporation (or society) referred toin clause (a).

(2) Every application under sub-section (1) shall be in suchform and be accompanied by such documents orother evidence and by such fee (if any, not exceedingone hundred rupees) (in respect of the filing of suchapplication and by such other fees for the service ofexecution processes, as may be prescribed by theCentral Government”).form and be accompanied by such documents orother evidence and by such fee (if any, not exceedingone hundred rupees) (in respect of the filing of suchapplication and by such other fees for the service ofexecution processes, as may be prescribed by theCentral Government”).

(3) On receipt of an application under sub-section (1), theTribunal shall, if satisfied after such inquiry as it maydeem necessary, that the application is a fit case foradjudication or trial by it, admit such application; butwhere the Tribunal is not so satisfied, it maysummarily reject the application after recording itsreasons”.Tribunal shall, if satisfied after such inquiry as it maydeem necessary, that the application is a fit case foradjudication or trial by it, admit such application; butwhere the Tribunal is not so satisfied, it maysummarily reject the application after recording itsreasons”.

(4) Where an application has been admitted by a Tribunalunder sub-section (3), every proceeding under therelevant service rules as to redressal of grievance inrelation to the subject matter of such applicationpending immediately before such admission shallabate and save as otherwise directed by the Tribunal,no appeal or representation in relation to such mattershall thereafter be entertained under such Rules”.under sub-section (3), every proceeding under therelevant service rules as to redressal of grievance inrelation to the subject matter of such applicationpending immediately before such admission shallabate and save as otherwise directed by the Tribunal,no appeal or representation in relation to such mattershall thereafter be entertained under such Rules”.

Insofar the maintainability of writ petition is concerned, a ticklishquestion arises for consideration. Petitioner, as of now, is a templeemployee and not a government employee governed by the rulesmade under Article 309 of the Constitution of India. Whereas as perregulations made under G.O.Ms.No.262 Revenue (Endowments-I)Department dated 20.5.2002, he is also entitled for being promoted tothe post of Executive Officer Gr.III, since the post of Junior Assistant isone of the feeder posts for consideration for promotion to the post ofExecutive Officer Gr.III. Therefore, so long as the petitioner is notpromoted to the post of Executive Officer Gr.III, he is not governed bythe rules made under Article 309 of the Constitution of India. But, asper rules he has right to claim promotion to the post of ExecutiveOfficer being a Junior Assistant and an employee governed by TempleService Rules. The Rules with regard to promotion of ExecutiveOfficer Grade-III reads as under:

“Executive Officer, Gr.III

(i) by direct recruitment;

(ii) by transfer from the category of Junior Assistants ofAndhra Pradesh Ministerial Service in theEndowments Department andJunior Assistantsworking in the institutions published underSection 6(a), (b), (c) and (d) of the Actother thanRegional Joint Commissioner and DeputyCommissioner cadre institutions.”Andhra Pradesh Ministerial Service in theEndowments Department andJunior Assistantsworking in the institutions published underSection 6(a), (b), (c) and (d) of the Actother thanRegional Joint Commissioner and DeputyCommissioner cadre institutions.”

In view of the above rule, the submission of the learned counselfor petitioner that there is every reason to believe that the O.A., if any,

filed by the petitioner could have been dismissed as not maintainable,cannot be ruled out. As such, I am of the opinion that the petitioner hasan option, till he is promoted to the post of Executive Officer Gr.III,either to approach this Court under Article 226 of the Constitution ofIndia or approach the Administrative Tribunal and work out hisremedies. But the petitioner cannot be thrown out at the thresholdsaying that the very writ petition is not maintainable.

Insofar as merits of the case are concerned, it is not in disputethat the respondents 3 and 4 were appointed in Hyderabad district inthe year 1983 and 1989 respectively, whereas petitioner wasappointed in the year 1993. But the matter that requires to beexamined is whether the respondents 3 and 4 who were transferred toNellore and Mahabubnagar district respectively are entitled to claimseniority in Hyderabad district unit in the cadre of Junior Assistants forthe purpose of promotion to the post of Executive Officer Gr.III andwhether they have any lien in Hyderabad district.

Though the learned Government Pleader appearing for officialrespondents placed the records before this Court and submitted thatwhile the respondents 3 and 4 were transferred to Nellore andMahabubnagar districts respectively, their lien was protected inHyderabad, a perusal of the record would clearly show thatrespondents 3 and 4, on their own request, were transferred to Nelloreand Mahabubnagar districts respectively. Absolutely, there is norecord to show that the lien of respondents 3 and 4 is maintained inHyderabad district. Therefore, the question of protecting ormaintaining their seniority in the cadre of Junior Assistants inHyderabad district does not arise. Further, it is interesting to noticethat respondents 3 and 4 were transferred in the year 1985 and 1999respectively and the rules made under the above G.O. have no retrospective effect. As such, the respondents cannot claim any thingunder those rules. In fact, they are not entitled to reckon their seniorityin the revenue district of Hyderabad, which is a unit for all purposes,such as, seniority, promotion etc. Therefore, I am of the opinion that thepromotion of respondents 3 and 4 by way of transfer as ExecutiveOfficers Gr.III is arbitrary and illegal.

For all the above reasons, the writ petition is allowed and theimpugned orders dated 7.12.2006 are set aside. Further, therespondents 1 & 2 are directed to consider the case of the petitioner forbeing promoted to the post of Executive Officer Gr.III, if he is otherwiseeligible as per law. No order as to costs.

Date: .12.2007DA

____________

C.V.RAMULU, J

THE HON’BLE SRI JUSTICE C.V.RAMULU

.12.2007

IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESHAT HYDERABAD

THE HON’BLE SRI JUSTICE C.V. RAMULU

W.P.No.26504 of 2006

Date: December, 2007

Between:

M.Muralidhar

.. Petitioner

And

The Commissioner of Endowments,Andhra Pradesh, Boggulkunta, Tilak Road,Hyderabad & others.

.. Respondents