Non-Conventional Energy Development Corporation of Andhra Pradesh (NEDCAP) vs S. Yerram Reddy

P.S. Mishra, C.J.—This appeal under Clause 15 of the Letters Patent is directed against the judgment of the learned single Judge in the petition under Article 226 of the Constitution of India, Petitioner-respondent in the affidavit filed in support of the petitioner has stated as follows : Being an engineer, he joined the appellant-Non-Conventional Energy Development Corporation of Andhra Pradesh Ltd. (NEDCAP Ltd.) as management trainee in the year 1983 and was appointed as the Development Officer in the year 1984. He, being the senior-most officer, was promoted as District Manager on 3-8-1989 and posted to Ongole branch officer, after being ratified by the Board of Directors of the Corporation in its 113th Board meeting held in the month of August, 1989. The vacancy in which he was promoted was caused due to the resignation of one A. Ramakrishna Reddy, the then District Manager of Mahbubnagar District. Appellant-Corporation, however, without any notice or reason reverted him on 14-2-1990 from the post of District Manager to that of Development Officer. Though reverted, he was kept in additional charge of District Manager at the same branch where he had been working as District Manager consequent upon his promotion. Petitioner made representations hoping that the injustice caused would be remedied. However, when he found that his reversion was not revoked he moved the petition.

According to the petitioner the Board of the Respondent-Corporation at its meeting dated 20-6-1994 determined the cadre strength of District Manager/Assistant Manager, Development Officer etc., and at its meeting dated 21-7-1995 created one post in addition to the posts already creates and the cadre strength which initially was 31 only was increased to 33. According to the petitioner apart from the two vacant posts which are additionally created in June, 1994 and July 1995, one post at each meeting, One Pratap Reddy working as Assistant Manager, Administration has been promoted as Manager and thus there are 3 clear vacancies of Assistant Manager/District Managers to be filled up. The petitioner-respondent being senior-most and most competent is entitled to be promoted to one of the three vacancies. After his last representation, however, on 21-9-1995, he has moved this Court seeking a direction to the respondents to promote him as Assistant Manager/District Manager.

In the counter-affidavit filed by the Manager, Administration of the appellant-Corporation it is said that the petitioner being the senior-most Development officer was promoted as District Manager depending upon the cadre strength and the exigencies of the work. In the year 1990, after assessing the work of the appellant-Corporation the management decided and reverted back the petitioner as Development Officer i.e., his substantive post. There being no clear vacancy, the cadre strength being 31 only and there are 31 Assistant Manager/District Managers already in office there is no vacancy in which the petitioner can be promoted. Learned single Judge has allowed the writ petition and set aside the order reverting the petitioner to the substantive post.

In the proceeding under which the petitioner has been promoted it is stated as follows :

"NEDCAP/Pers/B.41/89-90/336 dated 3-08-1989

PROCEEDINGS

Sub:--Pers - Sri S. Yerram Reddy, Development Officer - Temporary promotion to the post of District Manager - Orders - Issued

Sri S. Yerram Reddy, presently working as Development Officer in the time scale of Rs. 1360-60-1980-70-2750/- in the basic of Rs.1740/- is temporarily promoted as District Manager in the time scale of Rs.1810/-70-2510-SO-3230-/- in the basic of Rs.1810/-.

These orders will come into force from the date of assumption of office as District Manager in the posted district.

Sri. S. Yerram Reddy by virtue of these orders will acquire neither probationary rights nor claim for preferential treatment for future appointment. He will be reverted back to his original post as soon as the vacancy is filled.

The appointment is purely on temporary basis and Sri S. Yerram Reddy is liable to be reverted back.

The receipt of orders may be acknowledged

Sd/- Managing Director''''

It is clear from the above that apart from the statement that the petitioner would be reverted back to his original post as soon as the vacancy is filled, temporary promotion given to him, as District Manager without any probationary right or claim for preferential treatment for future appointment, is neither a regular promotion nor a substantive promotion. It is said in the impugned judgment that after going through the record learned single Judge has found as follows :

"Mr. T.V. Chowdary, one of the Managing Directors, has gone through the record and asked the office to put up a clear note regarding the promotion and reversion of the petitioner. Thereafter, Mr. T. V. Chawdhary was transferred and the file is circulated to the present Managing Director for further consideration. In view of the conflicting claims of promotion to the post of Assistant Manager between diploma and degree holders, the promotions are held up and the Corporation is considering and contemplating the entire exercise of promotions and that promotions will be given effect to in a month or two. Though a post of District Manager/ Assistant Manager is essential on the project site at Ramgiri in Anantapur district, the government have directed the Corporation to fill up the above said post by internal deployment only. Consequent upon the said direction the District Manager is made in-charge as Asst. Manager for Ramgiri Station to look after the wind energy programme and as far as the promotion of the writ petitioner to the post of Asst. Manager at the Ramgiri station is concerned, the matter will be dealt with separately and his case is under consideration."

The petitioner-respondent''s case that there are clear vacancies to which he can be promoted, however, has been contested and in the counter-affidavit sworn on 25-12-95 it is stated as follows :

"..... the respondents Corporation was originally a subsidiary of Andhra Pradesh State Agro Industries Development Corporation Limited since 1969. It was started initially with a few employees and the activity grew from time to time and the main activity started from the year 1982 onwards when it was entrusted with the activities of bio-gas and chulhas under Prime Minister''s 20 point programme. The status of the Corporation as a subsidiary of the A.P. State Agro Industries Development Corporation Limited continued till 1979 and thereafter it was renamed as Agro Pumpsets and Implements Limited enjoying the same subsidiary status. Thereafter, in the year 1986, the government after reviewing the Corporation''s activities, changed the name of the Corporation as M/s. Non-Conventional Energy Development Corporation of Andhra Pradesh Limited (NEDCAP Ltd.). Even after the formation of the present Corporation also, it enjoyed the subsidiary status till 1987 when the Government invested in the majority of the shareholding of the Corporation and thereafter it became an independent corporation. The Corporation is surviving on the yearly grants given by the government from time to lime. The cadre strength of the employees has not been fixed so far. On the basis of information furnished to the government every year, the salary grants are being released against the posts mentioned in the information furnished to the government. The staffing pattern for which the grants were released in G.O.Ms.No.72 dated 8-3-1989 is being adhered till today with a slight modification approved by the government in D. O. Letter N0.7164/RES/91-14, dated 26-12-1994. Thus, the cadre of District Managers/Asst. Managers including the administrative officer continued to be 31 since 1988-89.

One Mr. T. Narayana Rao, who was appointed as District Manager in the corporation was on deputation with the department of Non-Conventional Energy sources, New Delhi and his deputation was extended only up to 31-3-1990 and he was expected to join the Corporation thereafter. The contention that the petitioner was promoted in one of the two clear vacancies caused due to the resignation of Mr. A. Ramakrishna Reddy the then District Manger, Mahbubnagar, is not tenable as Mr. A. Ramakrishna Reddy resigned in the year 1987 itself and there was no clear cadre strength approved by the government except for the first time during the year 1988-89 under G.O.Ms.No.72 dated 8-3-1989. The Corporation is under an obligation to maintain the cadre strength of 31 incumbents in the cadre of District Managers/Asst. Managers including the Administrative Officer and Mr. T, Narayana Rao has to be accommodated consequent upon his repatriation to the Corporation.''''

There can be no doubt to the fact situation that petitioner is the senior-most amongst the Development Officers and he is due for promotion as and when a vacancy becomes available. From the above it is seen that during the period T. Narayana Rao was on deputation to New Delhi there was a clear vacancy. The Assistant Managers/District Managers being 30 only in which post pending a regular promotion the petitioner-respondent was given a temporary appointment. The case of the petitioner that A. Ramakrishna Reddy resigned in the year 1987 also did not give clear vacancy for the reason that when he resigned, cadre strength was not approved by the Government and when cadre strength was approved it was limited to 31 and Rama Krishna Reddy being beyond the number of 31 and 31 officers being at a station even today there is no clear vacancy. To our satisfaction about the existence of any vacancy we wanted the appellant to file an affidavit in the appeal. An affidavit has been filed in which the above facts are reiterated and it is further stated that the appellant has absolutely no reason to deny to the petitioner-respondent his due but he can be promoted and appointed as Assistant Manager/District Manager only when a vacancy is available. He was given a temporary promotion so long the cadre strength was not clear and the appellant anticipated that the Government would honour Board''s resolutions for additional number of two posts of Assistant Managers/District Managers but since the Government has vide G.O.Ms.No.72, dated 8-3-1989 limited the cadre strength of 31 only of District Managers/Assistant Managers, the only course to give to the petitioner-respondents a position in the service of the appellant was to keep him in his substantive vacancy but respecting his seniority to make him in charge as and when possible.

It is not disputed that appellant is a State. The petitioner-respondent is holding the substantive post of Development Officer under the appellant and he is the senior-most Development Officer. There is a dispute as to whether the cadre strength of District Managers/Assistant Managers is 31 as claimed by the-appellant or 33 because two additional number of posts were created by the appellant and as alleged by the petitioner-respondent he is entitled to be promoted in one such post. There is also a dispute whether on account of resignation of A. Ramakrishna Reddy number of officers in the cadre strength of District Managers/Assistant Managers is 30 only and the post to which the petitioner-respondent was promoted was the 31st, thus, the case of the petitioner-respondent that all the 31 officers are in position as District Managers/Assistant Managers is true or not. It is difficult on the facts of the case to accept that appellant has wrongly stated that cadre strength is 31 and all the 31 District Managers/ Assistant Managers are in position, thus, there is no vacancy is which the petitioner-respondent can be promoted or that the two additional posts which the appellant created are available besides 31 posts in respect of which, the Government issued G.O.Ms.No.72, dated 8-3-1989. In view of the above it would be difficult to hold that there is a clear vacancy in which the petitioner-respondent can be appointed as District Manager/ Assistant Manager.

One of the settled principles of law is that the Court, in exercise of its extraordinary power under Article 226 of the Constitution, avoids issuing any direction in the nature of mandamus to promote any person even though there are reasons to find that in all respects the person concerned is suitable and fit for promotion. The Court in such circumstances only directs to consider the case of the petitioner and to decide upon whether to promote him or not to promote him. It is also well settled that an employee of the Slate has the right, under Article 16(1) read with Article 14 thereof, of being treated equally with other persons similarly situated but the substantive right of the petitioner in the instant case is only in the post of Development Officer and not in the post of the Assistant Manager/District Manager. Reversion of a temporary employee to his substantive post does not attach any stigma and does not hit the concerned employee for any civil consequences. Court interferes, no doubt, when a person senior in the substantive cadre is reverted while a junior is retained in the temporary post when reversion is not effected for a reasonable cause as in such a case the rule of last come first go is not valid. In the case of the petitioner-respondent it cannot be said that the above rule is attracted or that there is any arbitrariness and/or illegality in reverting the petitioner. True, in the letter promoting the petitioner it is said the petitioner would be reverted back to his original post as soon as the vacancy is filled as well as that the petitioner-respondent is promoted purely on temporary basis and he would be liable to be reverted back, yet it would not be possible to say that because the vacancy is not filled in on substantive post reversion of the petitioner-respondent is bad in law. As there is no vacancy in which he can be continued on temporary basis as Assistant Manager/District Manager his reversion to his substantive post does not warrant any such inference that he has been illegally or wrongly reverted to his substantive post. For the reasons aforementioned we are satisfied that direction to promote the petitioner as ordered by the learned single Judge is not sustainable. Accordingly the impugned judgment is set aside, the appeal is allowed and the writ petition is dismissed. It is, however, made clear that no sooner a vacancy is available the case of the petitioner-respondent shall be considered strictly in accordance with law. On the facts and in the circumstances of the case, however, there shall be no order as to costs.