WP/18694/2020 of Smt. V.Varalakshmi, Vs THE DEPUTY DIRECTOR on 31 December 2021

ORDER :

Heard the learned counsel for the petitioner and the learned Government Pleader for Services-II for the respondents No.1 to 4 and Mr. M. Vijaya Kumar, the learned counsel for the respondent No.5.

2. This Writ Petition is filed questioning the action of the 1[st] respondent in issuing the proceedings in Rc.No.B4/e24259/2020 dated 00-10.2020 reverting the petitioner as Hostel Welfare Officer Grade-II from the post of Hostel Welfare Officer Grade-I on the ground of non acquisition of qualifying of the Accounts Test for Sub-ordinate Officer Part-I till then.

3. The learned counsel for the petitioner submitted that the petitioner joined in service as Hostel Welfare Officer Grade-II in the year 2008 and her services were regularized with effect from 24.06.2012. Subsequently she was promoted as Hostel Welfare Officer Grade-I vide proceeding of the 1[st] respondent dated 30.08.2017 and notional promotion was also given by the 1[st] respondent vide proceedings dated 17.08.2018 with effect from 09.12.2016.

The learned counsel for the petitioner further submitted that the final seniority list of Hostel Welfare Officers as on 15.12.2016 shows that the petitioner is placed at serial No.6 and the 5[th]respondent is placed at serial No.25. But in an utter surprise at the instance of the complaint of the 5[th] respondent dated 07.09.2020, the 1[st] respondent issued the impugned proceedings dated 00.10.2020 reverting the petitioner from the post of Hostel Welfare Officer Grade-I, GTW Ashram School(G), Thandava to the post of Hostel Welfare Officer Grade-II, Narsipatnam while promoting the 5[th] respondent temporarily as Hostel Welfare Officer Grade-I. The learned counsel for the petitioner submitted that the 1[st] respondent who is the original authority/the disciplinary authority cannot pass the impugned proceedings on a belated complaint given by the 5[th] respondent since it is contrary to the Rule 23 and Rule 25 of the Andhra Pradesh State and Subordinate Services Rules, 1996 which reads as under:

23. Appeal, revision and review of orders of appointment (including promotion) to higher posts:- An order appointing a member of a service or class service or category, to a higher post by transfer or by promotion may, within a period of six months from the date of such order, be revised by an authority to which an appeal would lie against the order of dismissal passed against a member of a service, class or category, such revision may be made by the appellate authority aforesaid, either on its own motion or on an appeal filed by the aggrieved member of the service, class or category.

Provided that the Government may, irrespective of whether they are the appellate authority or not, revise such order of appointment after the expiry of the period of six months aforesaid, for special and sufficient reasons to be recorded in writing ; Provided further that no order or revision under this rule shall be passed unless the person likely to be affected by such revision is given an opportunity of making his representation against the proposed revision ; [Provided also that a member of service may submit a revision petition against the order of the Appellate Authority, within three months of the order passed by the Appellate Authority, to the Government].

25. Review: The State Government may, of their own motion or otherwise, review any original order passed by them, promoting a member of a service or class, to a higher post or approving a panel of candidates for appointment or promotion to any category, class or service, prepared by them, or any order of revision passed by them under Rule 24, if it was passed under any mistake, whether of fact or of law, or in ignorance of any material fact or for any other sufficient reason :

Provided that no order of review under this rule shall be passed unless the person affected or likely to be affected thereby is given an opportunity of making his representation against the proposed review.

The counsel for the petitioner also refers to the Rule 15 (a) of the Andhra Pradesh State and Subordinate Services Rules, 1996

with regard to the qualifying test of the petitioner is concerned as hereunder:

15. (a) Time to pass newly prescribed tests: Where a test is newly prescribed by the special rules of a service for any class, category or post thereof, a member of the service who has not passed the said test, but is otherwise qualified and suitable for promotion to such category or post may be promoted thereto and he shall be required to pass the said test or tests within the period of probation or within one year or in one of the first two examinations held after such promotion, whichever is later. If he fails to pass the tests he shall be reverted to the class, category, or post from which he was promoted and he shall not again be eligible for consideration for promotion unless he passes the tests. A person who is so reverted shall not by reason only of his promotion under this rule, be regarded as entitled to any preferential claim to future promotion to the category, grade or post, as the case may be, to which he had been promoted under this rule.

Explanation:- This rule shall be applicable even to appointment by transfer in the direct line, for example, for appointment by transfer of Superintendents to the post of Assistant Director (Administration), for appointment to which the passing of departmental tests has been newly prescribed as a pre-requisite qualification.

Note: This concession will be available only for a period of three years from the date on which the test has been newly prescribed.

The learned counsel for the petitioner further submitted that before passing the impugned proceedings dated 00-10-2020 a notice was issued by the 1[st] respondent dated 10.09.2020 for which

the petitioner gave written explanation stating that no departmental test was prescribed for the post of Hostel Welfare Officer Grade-II at the time of her appointment in the said post in the year 2008. He also referred the G.O.Ms.No.189 dated 31.12.1997 of Special Rules for the Andhra Pradesh Social Welfare Subordinate Service, Government of Andhra Pradesh wherein the annexure contains for the post of Warden Grade-II at serial No.4 by Direct recruitment, the qualification prescribed was only Graduation with B.Ed., B.T. Degree of any University recognized by Union Grants Commission. But for the post of Warden Grade-I shown at serial No.3 prescribes by promotion the additional qualification prescribed was passing in accounts test for Subordinate Officers Part-I and Revenue Test Part-I, Paper-I apart from other qualifications. He also refers to the G.O.Ms.No.45 dated 28.06.2011 of the Andhra Pradesh Tribal Welfare Subordinate Service Rules, Government of Andhra Pradesh as per Rule 9 of the said rules its stipulates that every person appointed by direct recruitment shall pass the test indicated against them within a period of probation. It shows in the category of Hostel Welfare Officers Grade-II, Accounts Test for Subordinate Officers Part-I, Revenue Test Part-I, Paper-I are prescribed. Similarly for the Hostel Welfare Officer, Grade-I, Accounts Test for Subordinate Officers, Part-I and Part-II or Executive Officers Test are prescribed.

4. On the other hand, the learned Government Pleader for Services-II for the official respondents submitted that the impugned proceedings have already been given effect to the petitioner as the 5[th] respondent already took charge in the promotion post and the petitioner as well joined in the reverted post. The learned Government Pleader further contended that the above said rule position referred by the counsel for the petitioner would not come to the rescue of the petitioner as it is an ineligibility found as on the date of passing of the impugned proceedings due to lack of acquisition of qualifying of the eligibility test by the petitioner even after her promotion.

5. Similarly, the counsel for the 5[th] respondent submitted that the petitioner did not pass the departmental test paper code 8 and 18 which are necessary to sustain the promotion in the cadre of Hostel Welfare Officer Grade-I and as such the complaint/representation of the respondent no.5 dated 07.09.2020 to the 1[st] respondent can’t be faulted with as per the above said G.O.Ms.No.45 dated 28.06.2011. Even as per the above said G.O.Ms.No.45 dated 28.06.2011 the petitioner ought to have qualified in the prescribed test on promotion to the post of Hostel Welfare Officer Grade-I by completing the same within the period of probation. As on the date of passing of the impugned order, the petitioner did not possess the required qualification and as such the impugned order dated 00.10.2020 is sustainable.

6. In reply to the contentions of the respondents the learned counsel for the petitioner submitted that the petitioner passed the Sub-ordinate Officers Test Paper-I (Code-8) as per the Notification 6 of 2020 issued by Andhra Pradesh Public Service Commission, Vijayawada with Hall Ticket No.10301586 in the examination held on 22.11.2020. Hence she acquired the requisite qualification with effect from 22.11.2020 and as such she is entitled to be promoted as Hostel Welfare Officer Grade-I.

In the backdrop of the above said facts and circumstances, rule position and rival contentions the issue falls for consideration before this Court is that whether the impugned order dated 00.10.2020 is sustainable to the extent of reverting the petitioner from the post of Hostel Welfare Officer Grade-I to Hostel Welfare Officer Grade-II.

7. It is to be seen that the petitioner was appointed initially as Hostel Welfare Officer Grade-II in the year 2008 and the services were regularized with effect from 24.06.2012, later she was promoted as Hostel Welfare Officer Grade-I vide proceedings of the 1[st] respondent dated 30.08.2017 and notional promotion was also given vide proceedings of the 1[st] respondent dated 17.08.2018 with effect from 09.12.2016. As per the above said relevant rules no additional qualifying test prescribed for the post of Hostel Welfare Officer Grade-II insofar as the petitioner is concerned with reference to her date of appointment of the year 2008. But insofar as the post, Hostel Welfare Officer Grade-I is concerned an additional qualification of the test prescribed is contemplated in the above said G.O.Ms.No.45 dated 28.06.2011 in case of promotion to the said post from the cadre of Hostel Welfare Officer Grade-II. For that it is the case of the petitioner that she passed the said test prescribed with effect from 22.11.2020 as stated supra whereas the impugned order was passed in October, 2020. Be that as it may with respect to the qualification of the petitioner, this Court has to see whether the impugned order of the 1[st] respondent dated 00-10-2020 insofar as the writ petitioner is concerned is sustainable in law. For which the Rule 23 of Andhra Pradesh State and Subordinate Services Rules, 1996 would come to aid for the said purpose. Though, the impugned order is treated as suo motu revision basing upon the complaint of the 5[th] respondent. The same was passed by the original authority contrary to the Rule 23 of the Andhra Pradesh State and Subordinate Services Rules, 1996 it prescribes that the revision can be exercised either by the appellate authority within six months from the date of passing of such order or by the Government even after expiry of the said period. It is admitted that the impugned order was passed by the original authority alone who is the 1[st] respondent in this case.

Hence there is no doubt in any manner to say that the impugned order is insofar as the petitioner is concerned is ex facie violative of rule 23 of the Andhra Pradesh State and Subordinate Services Rules, 1996. Hence it cannot be sustained.

8. In the result, the impugned order of the 1[st] respondent dated 00-10-2020 insofar as the petitioner is concerned is set aside and the concerned official respondents shall consider the case of the petitioner afresh for promotion to the post of Hostel Welfare Officer Grade-I in accordance with law within a period of eight (08) weeks from the date of receipt of a copy of this Order and receipt of the representation of the petitioner.

9. Accordingly, the Writ Petition is disposed of. No costs.

As a sequel, miscellaneous petitions, if any pending in this case, shall stand closed.

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JUSTICE B. KRISHNA MOHAN

Dt.31-12-2021 Yvk