WA/1449/2024 of Dudam Sagar Vs Union of India on 31 December 2024

1. Dudam Sagar, S/o. Chandramouli, Aged about 35 [years, ][Occ-]Superintendent, Fl/o. Pragathi nagar, Hanmakonda.Superintendent, Fl/o. Pragathi nagar, Hanmakonda.2. Satish lr,4andala, S/o Odelu, Aged about 37 [years, ]Occ- [Superintendent, ][R/o.]Piagathi nagar' Hanmakonda. ...'ET.,.NERS/A''ELLANTSPiagathi nagar' Hanmakonda. ...'ET.,.NERS/A''ELLANTS

AND

1. Union of lndia, Rep by Secretary Ministry of Education Dept of [Higher]Education, New-Delhi.Education, New-Delhi.

2. National lnstitute of Technology, Rep by Director, Warangal.

3. National Institute of Technology, Rep by Registrar, [Warangal.]

4. National lnstitute of Technology, Rep by Deputy Registrar, [Warangal.]

..,RESPONDENTS

lA NO: 1 OF 2024

Petition under Section ['151 ]CPC [praying ]that in the circumstances [stated ][in]the affidavit filed in support of the [petition, ][the ][High ][Court may be ][pleased ][to]direct the Respondent Nos.2 to 4 to reserve two [posts ]in the existing [vacancies]for the post of Senior Superintendent Counsel for the Appellant: Ms. DORNALA SAI MAHITHACounsel for the Respondent No.1: SRI GADI [PRAVEEN KUMAR]

Dy. SOLICITOR GEN. oF INDIA

Counsel for the Respondent Nos. 2to4: [SRI ][T. ][MAHENDER ][RAO, ][SC ][FOR ][NIT]

The Court made the following: JUDGMENT

HON'BLE SRIJUSTICE ABHINAND KUMAR SI{AVILIANDHON'BLE SRI JUSTICE I.AXMI NARAYANA AIISHETTYw.A.No.1449 of 2024

JUDGMENT: [f ][i ][lto,l'b/ ln ]Jtr;tt,.e [..lbbinand ][Ktntr ][Sharili,]

Aggrieved by the interlocurory order dated 27.12.2024passed in I.ANo.1 of 2024 in \7.P.No.36753 of 2024 bythepassed in I.ANo.1 of 2024 in \7.P.No.36753 of 2024 bythelearned Single Judge, the present writ appeal has been filed.2. Ffuard IMs. D.Sai Mahitha, leamed counsel appearingfor the appellants, leamed Deputy Solicitor General of India2. Ffuard IMs. D.Sai Mahitha, leamed counsel appearingfor the appellants, leamed Deputy Solicitor General of Indiaappearing for respondent No.1 and Sri T.Mahender Rao,leamed Standing Counsel for National Instirute ofTechnologvappearing for respondent Nos.2 to 4.3. It is the case of the appellants that theywere appointed3. It is the case of the appellants that theywere appointedas Superintendents in the yaar 2022 ar,d they are eligible forpromotion to the posr of Senior Superintenden*. [lVhile ]so,the 4m respondent had issued Office Memorandum onthe 4m respondent had issued Office Memorandum on04.12.2024 ro the effect that they would be conductingprescribed test in December, 2024 andthe syllabrs as well a-s the draft inter-se senioriry list were appendedasAppendix- 1 Er Appendix- 2 to the Office Memorandum andthe names of the appellants are shown at Sl.Nos.2 and 4.The appellants are waiting for hall tickets to be issued tothem to participate in the prescribed test. fu per theNational Institutes of Technology (NITt) Non-TeachingRecruitment Rules, 2019 (for short ['the ]Rules), the post ofSenior Superintendent is liable to be filled up by [way ][of]promotion. The eligibility criteria for promotion to the Postof Senior Superintendent is that one must put in atleast [five]years regular servlce asSuperintendent or Accountant(existing) in Pay Band-2, Grade Pay of Rs.4200/ [- ]or at least 5years combined service of fusistant (SG 0 andSuperintendent) in Pay Band-2, Grade Pay of Rs.4200l-through DPC and working per{ormance record [(APAR)]through prescribed test and interview. Admimedly, theappellants are seniors and though the appellants do not fulfill

the eligibiliw criteria, Rule 6 of the Recruitment Rules clearlystates that, for matters not covered by the Statutes, thecorresponclng Crntral Govemment Rules shall beapplicable.

4. Leamecl counsel for the appellants has drawn ourattention to the Gntral Govemment GuidelinesonFraming/Amendment,/Rela-xation of Recruitment Rules andPart-III of the Guidelines on preparing Schedule &Notification. Rule 3.1.2 clearly stares that in some cases ofpromotion, the senior officen would not have cornpleted therequired service where as the junion would have completedthe prescnbed eligibiliry condition for promotion, in suchcases, seniors will be left out from consideration for thehigher post. To avoid such a situation, a suitable nore may beiruerted in the recruitment mles so that the seniors v4ro havecompleted the probation period, are also be consideredwhere the junion who have completed the requisite service are being considered. Leamed counsel for the appellants hadcontended that in view of the said Gntral GovemmentGuidelines, if the appellants do not fulfill the eligibilirycontended that in view of the said Gntral GovemmentGuidelines, if the appellants do not fulfill the eligibilirycriteria for promotion ro the post of Seruor Superintendentand if the juniors are fulfilling the eligibiliry criteria, in rhosecircumstances, the seniors cannot be left out fromand if the juniors are fulfilling the eligibiliry criteria, in rhosecircumstances, the seniors cannot be left out fromconsideration for the higher post.4.1. Leamed counsel had further contended that the OfficeMemorandum 04.12.2024 makes it very clear that inter se4.1. Leamed counsel had further contended that the OfficeMemorandum 04.12.2024 makes it very clear that inter sesenioriry of non-teaching cadres was appended to the OfficeMemorandum as Appendix-2 and the names of theappellants were placed at Sl.Nos.2 and 4 which would meanappellants were placed at Sl.Nos.2 and 4 which would meanthat the respondents have considered the cases of theappellants for promorion ro the post of SeniorSuperintendents, however, for the best reasons known to therespondents, the respondeffs have not issued any call lenersand did not and did not permit the appellants ro parricipate in the selections. In those set of circumsrances, the appellants haveapproached thi-s Court by filing \X/.P.No.3625 3 of 2024 ardthe appellants have sought relief before the learned SingleJudge [to ][dLrect ][the ][respondents ][not ]to effect promotions tothe post of Senior Superintendent without considering thecases of the appellants in ensuing Depanmental promotionalapproached thi-s Court by filing \X/.P.No.3625 3 of 2024 ardthe appellants have sought relief before the learned SingleJudge [to ][dLrect ][the ][respondents ][not ]to effect promotions tothe post of Senior Superintendent without considering thecases of the appellants in ensuing Depanmental promotionalC-ommittee meeting on par with junion for rhe post ofSenior Superintendent in the existing vacancies. But theleamed Single Judge while ordering norice, passed an orderto the effect that 'anypromorions made to the post of SeniorSuperintendent, shall be subject to further orden of thisCourt'.Senior Superintendent in the existing vacancies. But theleamed Single Judge while ordering norice, passed an orderto the effect that 'anypromorions made to the post of SeniorSuperintendent, shall be subject to further orden of thisCourt'.

4.2. Leamed counsel appearing for the appellants hadcontended that there are seven vacancies of SeniorSuperintendents and only rwo junion were participated inthe promotional exercise and in view of the GntralGovemmenr Rules, if the appellants do not fulfill the \

eligibiliry criteria for promotion to the post of Senior

Superintendent and if the junion are fulfilling the eligibilitycriteria, in those cicumstances, the seniors cannot be left outfrom consideration for the higher post. Therefore,appropriate orden be passed in the writ appeal by directingthe respondents to consider the cases of the appellants alsofor promotion to the post of Senior Superintendents, ifnecessary by conducting fresh prescribed test and also byconducting DPC, however, results of the appellants may notbe declared and the same may be subject to resuh of the writPetltlon.5. Leamed Standing C-ounsel appearing for respondentNos.2 to 4 had contended that as per Recruitment Rules,201,9, for promotion to the post of Senior Superintendent,one must put in atleast 5 years of regular service asSuperintendent or Accountant (existing) in Pay Batd-2,Grade Pay o f P$.4200/ [- ]or at least 5 yean combined service of fusistanr (SG1) and Superintendent) in Pay Band-2,Grade Pay of Rs.4200l- through DPC and workingperformance record (APAR) through prescribed test andlrrtervlew.

5.1. Leamed counsel had funher contended thatadmittedly, the appellants are not fuffi[ing the eligibilirycriteria, therefore, the question of considering the cases ofthe appellants does not arise and the leamed Single Judgeprotected the interest of the appellants by observing that anypromotion made to the post of Senior Superintendent, shallbe subject to further orden in the writ petition. Therefore,there are no mer-its in the writ appeal and the same is liableto be dismissed.

6. Flaving considered the rival submissions made by theleamed counsel on either side, this Court is of the view thata perusal of the Recruitment Rules, 2019 makes it clear thatfor promotion to the post of Senior Superintendent, one must put in atleast 5 pan of regularservrce asSuperintendent or Accountant (existing) in Pay Band-2,Grade Pay of Rs.4200l- or at leasr 5 pars combined serviceof Assistant (SG 1) and Superintendent) in Pay Band-2,Grade Pay of Rs.4200l- through DPC and workingperformance record (APAR) through prescribed test andlntewlew.

6.1. Further, Rule 6 of Recruitment Rules, 2019 also makes it clear that for matters not covered by the Statutes, thecorresponding Crntral Govemmenr Rules shall beapplicable. A perusal of the Office Memorandum dated25.03.1996 issued by the Govemment of India, Ministry ofPersonnel Public Grievances and Pensions, Depanment ofPersonnel & Training males it clear that para 3.1..2 wuamended in compliance of the judgment of the Apex Courtn R.Ptabha Deui and others vs. Government of India ,i and otherst. The Office Memorandum categorically states as under:

'To avoid such a situation the lbllowing note maybe insened below the relevant service nrles/column inthe schedule to the Recruitment Rules.

\X4rere junion who have completed their

qual-if,ing/eligibilicy service are being considered forpromotion, their senion would also be consideredprovided they are not shon of the requisitequalifuing/eligibiliry service by more than half of suchqual-ifving/eligibfity service or rwo years, whichever isIess, and have successfully completed their probadonperiod for promotion to the next higher grade alongwith their junion n4ro have already complercd suchqualif yingl eligibilfuy service'.

Further, the Office Memorandum dated 25.03.1996

contemplates that if seniors did not fulfill the eligibilirycriteria and [junion ]fulfill the eligibilfuy cdteda, in suchcircumstances, the semors cases also be considered forPromotlon.

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6.2. Admittedly,lnthe instant case, the appellants'probationwasdeclared. A perusai of the OfficeMemorandum issued by the respondenrs on 04.12.2024makes it clear that inter-se senioriry list was appended to thesaid Office Memorandum as Appendix-2 wherein the namesof the appellan* were shown at Sl.Nos.2 and 4 and in therevised iuter se senioriry dated 19.12.2024, the names of theappellants were shown at Sl.Nos.2 and 3. Therefore, therespondents were not justified in not considering the casesof the appellants for promotion to the post of SeniorSuperintendents. Leamed Single Judge ought to have givenadirection to the respondents to consider the cases of theappellants also for promotion to the post of SeniorSuperintendents in view of the Central Government OfficeMemorandum dated 25.03.1996. R[ht for promotion maynot be a Fr.rndamental Right, howeveq right to be consideredis the Fundamental Right guaranteed r.rnder the Corutirution \

of India. Therefore, ends of justice would be met if the writappeal is disposed of by directing the responden* rocoruider the cxes of the appellants for the post of SeniorSuperinrendents.

7. Accordingly, the [lX/rit ]Appeal is disposed of directingthe respondents to consider the cases of the appellants forthe post of Senior Superintendents in pursuance of theOffice Memorandums dated 04.L2.2024 and 25.03.1995. Nocosts.

Miscellaneous peririons, f *y pending shall standclosed.closed.

SD/- K. [SAILESHI]DEPUTY "t-' ' '*"): REGISTRAR["" ' ]'/sEcrloN d#rcen //TRUE COPY/'

One fair [copy ][to ][THE ][HON'BLE ][SRI ][JUSTTCE ][ABHINAND ][KUMAR SHAVILI](For His LordshiP's [Kind ][Perusal)]ANDone fair [copy ][to ][THE ][HoN'BLE ][sniiuirrce ][LAXMINARYANA ][ALISHETTY](For His LordshiP's [Kind ][Perusal)]

To,

i - +l.t tf;:Pi"3""r"trry, [Union ][of ][lndia' ][Irlinistrv ][of ][Law' ][Justice ][and]Comoanl Affairs, New Delhi'- +l.t tf;:Pi"3""r"trry, [Union ][of ][lndia' ][Irlinistrv ][of ][Law' ][Justice ][and]Comoanl Affairs, New Delhi'[[High ][court]][[court]]

Comoanl Affairs, New Delhi'3 The.Seiretav, [r.t"ngiia"Advocates ][Association Lrbrary, ][[High ][court]][[court]]Buildinqs, [HYderabad]4 The Secretary [Ministry of Education ][Dept of ][Higher Education' Union of]lndia, [New-Delhi.]5. The Director' [Nat][ional lnstitute][ of ][Technology, ][Warangal']6. The Registrar [,Na][tional lnstitute][ of ][TechnologY' Waranga]y, warangal.7. Theegistrar, [National][ lnstitute ][of ][Technolog]clBeCC tolVs. DORNALA [SA][I IVAHITHA, ][Advocate][oPUOFOne CC to [SRI. ][GADI PRAVEE][N ][KUMAR ][DY. ][SOLICITOR][ GEN.]INDIA IOPUC]ro.bX"'cclo 5ni. [r. ][iliIAHENDER ][RAo, ][sC ][FoR ][Nlr ][[oPUc]]11.Two CD [CoPies]BM3 The.Seiretav, [r.t"ngiia"Advocates ][Association Lrbrary, ][[High ][court]][[court]]Buildinqs, [HYderabad]4 The Secretary [Ministry of Education ][Dept of ][Higher Education' Union of]lndia, [New-Delhi.]5. The Director' [Nat][ional lnstitute][ of ][Technology, ][Warangal']6. The Registrar [,Na][tional lnstitute][ of ][TechnologY' Waranga]y, warangal.7. Theegistrar, [National][ lnstitute ][of ][Technolog]clBeCC tolVs. DORNALA [SA][I IVAHITHA, ][Advocate][oPUOFOne CC to [SRI. ][GADI PRAVEE][N ][KUMAR ][DY. ][SOLICITOR][ GEN.]INDIA IOPUC]ro.bX"'cclo 5ni. [r. ][iliIAHENDER ][RAo, ][sC ][FoR ][Nlr ][[oPUc]]11.Two CD [CoPies]BM

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HIGH COURT

DATED:31 11212a24