B. Ashok Kumar Vs. Board of Intermediate Education Rep. by Its Vice Chairman and Prl. Secretary to Higher Education, Govt. of A.P. and anr. - Court Judgment

Excerpt:
- maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is boiled, ghee is obtained which has shelf life of more than a year in controlled conditions. ghee at least as of now is most synthesized, ghee is a natural product derived ultimately from milk. so to say, milk is converted to dahi, then butter. scientifically or common sense point of view, even though ghee is not directly obtained from milk (which is certainly a product of cow/buffalo), it is certainly a product of a product of livestock i.e., cow or buffalo. it would be rather illogical or irrational to say that ghee is not a milk/dairy product or to say that it is not a product of livestock. section 2(x) and 2(iv) of the act used the plural products of livestock. the legislative intention is very clear that not only a product of livestock like milk (when notified by government), butter etc., are products of livestock but even derivative items (derived from a product of livestock) are intended to be product of livestock for the purpose of the act. thus the term ghee is to be interpreted on the basis of expression products of livestock as defined in section 2(xv) of the act. whatever products are declared as such by the government by notification, they become products of livestock for purpose of the act. consequently it was held that ghee is the product of livestock and by reason of power conferred under section 3(1) read with section 3(3) of the act on them it is competent for the government to declare ghee as product of livestock for the purpose of regulating its purchase and sale, in any notified market area. [per p.s. narayana, j,(dissenting)]if livestock or agricultural produce and the categories thereof had been specified in the statute itself by appending in the schedule or otherwise, that would stand on a different footing from the present provisions of the act which contemplate the issuance of notifications in accordance with the procedure ordained by the provisions specified supra. in view of the clear definition of the livestock and products of livestock, the ghee being derivative of butter or cream, if the language employed in definition to be taken as they stand, the only conclusion would be is that the ghee would not fall within ambit of the definitions aforesaid. sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] declaration of notified area held, it is only under section 3 that government are required to publish draft notification inviting objections and section 3(3) mandates to consider objections and suggestions before issuing declaration order. it is very conspicuous that section 4 does not contemplate any draft notification inviting objections and suggestions before either constituting market committee, establishing notified market area or declaring notified market area for the purpose of levy of market fees. thus, except ordaining government to issue preliminary/draft notification inviting objections at the time of issuing declaration order under section 3(3) of the act nowhere much less under section 4 contemplates issuing a notification inviting objections. when the legislature has chosen to exclude principles of natural justice, the court cannot introduce rule of audi alteram partem and render statutory provisions unworkable. in such a case, maxim, expressum facit cessare tacitum (when there is express mention of certain things, then anything not mentioned is excluded) would apply. section 7: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] levy of market fee element of quid pro quo - held, levying fees and tax are two forms of exercise of sttaes taxing power. there is no quid pro quo between tax payer and public authority as tax is a part of common burden. it is also well settled that fee is charge for special service or a benefit given to a class of individual fee payers and fee collected need not have correlation with actual service in exactitude but if it is shown that substantial portion of the fee is expended or the purpose for which it is levied, it would be justified. expressum facit cessare tacitum sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] meaning when there is express mention of certain things, then anything not mentioned is excluded. - the very fact that two deputy secretaries, who are seniors to the petitioner, were promoted on 08-08-2007, discloses that the 1st respondent did take into account the exigency of service, as well as number of available vacancies for effecting promotions to the posts of joint secretaries.orderl. narasimha reddy, j.1. the petitioner was initially employed as l.d.c., in the board of intermediate education, the 1st respondent, in the year 1972. thereafter, he earned promotions as u.d.c., office superintendent, administrative officer, and ultimately as deputy secretary. the petitioner retired in the category of deputy secretary, on 31-10-2007, on attaining the age of superannuation. the grievance of the petitioner is that, he ought to have been promoted to the post of regional inspection officer-cum-joint secretary, and complains that he was wrongfully denied the same. the petitioner seeks the relief of a direction to the respondents to give notional promotion to him, to the post of joint secretary.2. sri c. srinivasa baba, learned counsel for the petitioner, submits that though the probation of all the four deputy secretaries, appointed in the year 2004, was declared on 28-06-2007, the respondents promoted only the first two candidates, namely, c. nanda kumar and d. jagannadham, on 08-08-2007 to the posts of joint secretaries, in category-i. he contends that denial of promotion to the petitioner, particularly when there were vacancies; is illegal, arbitrary and unconstitutional.3. smt. c. sindu kumari, learned standing counsel for the respondents, on the other hand, submits that even assuming that there existed vacancies, the petitioner cannot claim promotion, as of right. she contends that the question, as to whether an incumbent must be promoted to a higher post, would depend upon the exigency of service, apart from the incumbent holding the requisite qualifications. her further contention is that the petitioner can claim notional promotion only when it is established that any deputy secretary junior to the petitioner was promoted, and that such is not the case here.4. it is no doubt true that the petitioner and three others were promoted as deputy secretaries vide proceedings dated 31-07-2004, and the probation of all the four officers was declared on 28-06-2007. the petitioner figured at sl. no. 3 in the list of four deputy secretaries. all of them submitted a representation on 13-07-2007 to the 1st respondent, with a request to promote them as joint secretaries. however, only two candidates, by name, c. nanda kumar and d. jagannadham, who are seniors to the petitioner, were promoted. hardly within two months thereafter, the petitioner retired from service.5. it is urged that the other vacancies of joint secretaries were held by officials from other departments, on deputation. it is not alleged that such deputations came to be made against the vacancies, that have arisen after the petitioner acquired the eligibility for promotion. the very fact that two deputy secretaries, who are seniors to the petitioner, were promoted on 08-08-2007, discloses that the 1st respondent did take into account the exigency of service, as well as number of available vacancies for effecting promotions to the posts of joint secretaries. by the time, another vacancy became available, the petitioner attained the age of superannuation and retired from service.6. an employee can seek the relief of notional promotion only when it is established that he was wrongfully denied promotion, and in his place a junior was promoted. it is from such date, that the employee is entitled to be promoted on notional basis. such a comparison becomes necessary because of the reason that no employee, howsoever senior he may be, cannot claim promotion as of right, even assuming that there existed clear vacancies. promotion has to be accepted by an employee, as and when it is accorded to him. notional dates become relevant only when a person junior to him was wrongfully promoted, ahead of him. the second eventuality is where the promotions are provided for, on completion of a particular length of service, by the incumbent, in the feeder category. none of the circumstances existed in the instant case.this court does not find any merits in the writ petition. the writ petition is accordingly dismissed. there shall be no order as to costs.

Judgment:
ORDER

L. Narasimha Reddy, J.

1. The petitioner was initially employed as L.D.C., in the Board of Intermediate Education, the 1st respondent, in the year 1972. Thereafter, he earned promotions as U.D.C., Office Superintendent, Administrative Officer, and ultimately as Deputy Secretary. The petitioner retired in the category of Deputy Secretary, on 31-10-2007, on attaining the age of superannuation. The grievance of the petitioner is that, he ought to have been promoted to the post of Regional Inspection Officer-cum-Joint Secretary, and complains that he was wrongfully denied the same. The petitioner seeks the relief of a direction to the respondents to give notional promotion to him, to the post of Joint Secretary.

2. Sri C. Srinivasa Baba, learned Counsel for the petitioner, submits that though the probation of all the four Deputy Secretaries, appointed in the year 2004, was declared on 28-06-2007, the respondents promoted only the first two candidates, namely, C. Nanda Kumar and D. Jagannadham, on 08-08-2007 to the posts of Joint Secretaries, in category-I. He contends that denial of promotion to the petitioner, particularly when there were vacancies; is illegal, arbitrary and unconstitutional.

3. Smt. C. Sindu Kumari, learned Standing Counsel for the respondents, on the other hand, submits that even assuming that there existed vacancies, the petitioner cannot claim promotion, as of right. She contends that the question, as to whether an incumbent must be promoted to a higher post, would depend upon the exigency of service, apart from the incumbent holding the requisite qualifications. Her further contention is that the petitioner can claim notional promotion only when it is established that any Deputy Secretary junior to the petitioner was promoted, and that such is not the case here.

4. It is no doubt true that the petitioner and three others were promoted as Deputy Secretaries vide proceedings dated 31-07-2004, and the probation of all the four officers was declared on 28-06-2007. The petitioner figured at Sl. No. 3 in the list of four Deputy Secretaries. All of them submitted a representation on 13-07-2007 to the 1st respondent, with a request to promote them as Joint Secretaries. However, only two candidates, by name, C. Nanda Kumar and D. Jagannadham, who are seniors to the petitioner, were promoted. Hardly within two months thereafter, the petitioner retired from service.

5. It is urged that the other vacancies of Joint Secretaries were held by officials from other departments, on deputation. It is not alleged that such deputations came to be made against the vacancies, that have arisen after the petitioner acquired the eligibility for promotion. The very fact that two Deputy Secretaries, who are seniors to the petitioner, were promoted on 08-08-2007, discloses that the 1st respondent did take into account the exigency of service, as well as number of available vacancies for effecting promotions to the posts of Joint Secretaries. By the time, another vacancy became available, the petitioner attained the age of superannuation and retired from service.

6. An employee can seek the relief of notional promotion only when it is established that he was wrongfully denied promotion, and in his place a junior was promoted. It is from such date, that the employee is entitled to be promoted on notional basis. Such a comparison becomes necessary because of the reason that no employee, howsoever senior he may be, cannot claim promotion as of right, even assuming that there existed clear vacancies. Promotion has to be accepted by an employee, as and when it is accorded to him. Notional dates become relevant only when a person junior to him was wrongfully promoted, ahead of him. The second eventuality is where the promotions are provided for, on completion of a particular length of service, by the incumbent, in the feeder category. None of the circumstances existed in the instant case.

This Court does not find any merits in the writ petition. The writ petition is accordingly dismissed. There shall be no order as to costs.