L. Prathap Reddy vs The High Court of A.P. and Others

G. Radhakrishna Rao, J.—This Writ Petition is filed for the issuance of a writ of mandamus directing the respondents 1 and 2 to revise and review the promotions given to the respondents 3 and 4 dt.23-2-1988 and 12-5-1988 respectively and consequently promote the petitioner by revising his promotion as Deputy Nazir with effect from the date on which the respondents 3 and 4 were promoted and further by holding that the petitioner is senior to the respondents 3 and 4 in the category of Deputy Nazir/U.D.C.

The promotion vacancies in Nizamabad unit (Judicial Department) arose in or about 1986. The respondents 3 and 4 herein filed writ petitions to fill up the vacancies by promotion and a direction was given to consider their cases for promotion. In pursuance of the direction given by this Court, the respondents 3 and 4 were considered for promotion and in view of that the writ petitions 16252 and 16885 of 1987 were disposed of by this Court stating that no further orders are necessary as the case of respondents 3 and 4 for promotion has been considered. The contention of the petitioner is that the respondents 3 and 4 were promoted subsequent to the petitioner acquired the qualifications for being considered him to the promotion post.

The crucial point that has to be bear in mind in this case is whether the actual date of vacancy has to be taken into account and the persons eligible for being promoted by. that date also has to be taken into consideration or that all the persons who are eligible for promotion by the date of filling up of the vacancies has to be considered.

When the vacancy arose on a particular date and when it was not filled up or one reason or the other and subsequently when it was filled up on a particular day, it is the duty of the head of the institution, who is the authority to consider the promotions, to take into account the date of filling up of the vacancy alone as a crucial date and see whether they have become eligible or not. Since the petitioner and respondents 3 and 4 became eligible by the date of filling up of the vacancy, the 2nd respondent ought to have considered the case of the petitioner also. The curious explanation that is sought to be made by the learned District Judge is that the respondents 3 and 4 became eligible in 1984 and 1985 respectively, the petitioner cannot be considered for promotion and petitioner cannot be give, preference, is not correct. In view of that all the persons eligible by the date or filling up of vacancy have to be considered and the fact that one has become eligible on earlier point of time will not give any right to consider his case first.

Accordingly, the Writ Petition is allowed with a direction to the 2nd respondent-District Judge to consider the case of the petitioner duly taking into account the vacancy that has been filled up in the month of May, 1988 and which was filled subsequent to the petitioner acquiring qualification for being considered to the promotion post. However, if the petitioner, respondents 3 and 4 have already been promoted, their seniority shall be refixed. No costs.