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W.P. No. 7198 of 2022
THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI
W.P.No. 7198 OF 2022
ORDER:
This Writ Petition is filed by the petitioner seeking a Writ of Mandamus declaring the action of the respondents in issuing proceedings in RC. No. A/106/2020 dated 02-02-2022 as illegal, arbitrary and to set aside the same and consequently to declare the petitioner as senior to both the un-official respondents and accordingly grant the petitioner seniority and all other consequential benefits.
Subsequent to the filing of the writ petition, the petitioner filed I.A.No.2 of 2022 seeking amendment of prayer in the Writ Petition as under:
(i) "Rc.No.A/106/2020, dated 02.02.2022 and also proceedings Rc.No.A/106/2020, Memo dated 02.02.2022 and set aside he same holding it absolutely illegal, arbitrary, unconstitutional and violative of statutory rules.2
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(ii) Calling for the records relating to and connected with proceedings No.A/501/2021, dated 06.01.2022 and set aside the same holding it absolutely illegal, arbitrary, unconstitutional and violative of Articles 14, 16 of Constitutional of India and also in gross violations of principles of natural justice".
This Court vide orders dated 17.02.2022 has allowed this I.A. and the prayer was amended accordingly.
2. Brief facts leading to the filing of the present writ petition are that pursuant to selection in the examination of Public Service Commission, the petitioner was appointed as Hostel Welfare Officer Grade-II vide proceedings dated 16-08-2013. The petitioner was assigned 123rd rank by the Public Service Commission. Similarly, the 5th and 6th respondents were also appointed by the Public Service Examination as Hostel Welfare Officer Grade-II on 17-08- 2013 and were assigned the 16th and 105th ranks by Public Service Commission respectively.
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3. The Learned Counsel for the petitioner submitted that on 25-05-2015, the petitioner passed the Account Test Part-I and Part- II and on 27-05-2015, he passed the Revenue Paper Part I - Paper-I and accordingly, the petitioner's probation was declared on 16-08- 2015. The 5th and 6th respondents passed the Account Test part-I on 16-12-2016 and 25-05-2016 respectively and their probation was declared on the said dates i.e., 16.12.2016 and 25.05.2016. The Learned Counsel for the petitioner submitted that in terms of rules 16 (g) of the Telangana State & Subordinate Service Rules, 1996, one has to pass the tests within two years of joining the post and admittedly, the 5th and 6th respondents did not pass the test within the stipulated time of 2 years, whereas, the petitioner passed the test within the prescribed time and therefore the petitioner should be considered as senior to the respondents in all respects in the cadre of Hostel Welfare Officer, Grade-II.
4. The learned counsel for the petitioners submitted that while matter stood thus, the post of Hostel Welfare Officer (HWO), Grade- I, a single solitary post in Ranga Reddy District, had fallen vacant with effect from 28.08.2020, due to promotion of one 4 W.P. No. 7198 of 2022 Sri.P.Kamalakar Reddy, as Assistant Tribal Development Officer. While considering the candidature of eligible candidates for promotion, a tentative seniority list of Hostel Welfare Officers, Grade-II was prepared by the District Tribal Development Officer (DTDO) and was communicated to all the Grade-II Hostel Welfare Officers working in the Nodal District of erstwhile Ranga Reddy District vide RC.No.A/106/2020, dated 01.09.2020 with instructions to submit their objections if any. In response to the same, the petitioner has raised objection that he has passed departmental test earlier than all and hence, he has to be put at the top of seniority list in terms of rule 16 (h) of State and Subordinate Service Rules 1996. It was also submitted that Smt.V.Sreelatha, HWO, Grade-II, ST Girls Hostel, Ibrahimpatnam, has raised objection that the seniority shall be based on the rank awarded by the Public Service Commission as per Rules 33 & 36 of State and Subordinate Service Rules, 1996.
5. The learned counsel for the petitioner submitted that since there appeared to be a conflict in both the said rules, a legal opinion was obtained from the Government Pleader (TW Services-II), High 5 W.P. No. 7198 of 2022 Court of Telangana vide RC.No.A/106/2020, dated 27.10.2020 and on the basis of such legal opinion, the final seniority list of HWO, Grade-II of erstwhile Ranga Reddy District was prepared in terms of rule 16(h) of State and Subordinate Service Rules, 1996, duly revising the date of commencement and declaration of the probation of the HWOs of erstwhile Ranga Reddy District. Accordingly, the petitioner was placed at Serial No.1 and Smt.V.Sreelatha i.e., respondent No.6 was placed at Serial No.2 and respondent No.5 was placed at Serial No.4, vide proceedings dated 20.11.2020. Subsequently, the petitioner made a representation dated 21.11.2020 to promote him to the post of HWO, Grade-I in the existing vacancy, as he was at Serial No.1 in the list of HWO, Grade-II of erstwhile Ranga Reddy District. After careful examination of all the circumstances and also after considering the legal opinion of Government Pleader, the respondent No.4 has promoted the petitioner to HWO, Grade-I under rule 10(a)(i) of Andhra Pradesh State and Sub-ordinate Service Rules 1996 and the petitioner was posted at ST Post-Matric Boys Hostel, Ibrahimpatnam, in the existing vacancy. The petitioner was also informed that his promotion now effected is purely temporary and is 6 W.P. No. 7198 of 2022 subject to Sub-rule (h) of Rule 16 of State and Subordinate Service Rules 1996 and also subject to outcome of OAs/CAs/WPs/CCs if any in the Hon'ble Court of law. Challenging the promotion of the petitioner, the respondent No.6 filed an appeal before the respondent No.2 and also W.P.No.2160 of 2021 before this Court. It is submitted that this Court refused to entertain the writ petition on the ground that statutory appeal filed by respondent No.6 is pending consideration and the Court directed the appellate authority to dispose of the appeal filed by the petitioner therein by assigning reasons in support of his decision and communicate his decision to the petitioner. As regards the challenge to the promotions granted to the petitioner herein who was unofficial respondent therein, this Court has observed that the said promotions cannot be said to be ex-facie illegal warranting interjection by the Court and it was observed that in the event of the petitioner therein succeeding before the appellate authority, the promotions already granted should be reviewed and the petitioner therein should be extended the benefit of promotion from the date of granting promotion to the unofficial respondent and the writ petition was accordingly disposed of on 03.02.2021. 7
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6. Pursuant thereto, the respondent No.2 examined the report submitted by DTDO, Ranga Reddy District and the final list of seniority as communicated by the DTDO, Ranga Reddy District and also the promotion order issued to the petitioner herein by the District Collector and observed that Smt.V.Sreelatha i.e., respondent No.6 herein has acquired the requisite qualification i.e., passed the departmental test within continuous period of three years from the date of her appointment as per rules and that her name was shown at Serial No.2 in the seniority list instead of Serial No.1 and that the individuals merit rank is 105 and that the petitioner herein has passed the departmental tests within the prescribed period and his merit rank is 123. He further observed that the final seniority list of HWO, Grade-II as communicated by the DTDO, Ranga Reddy District, is not in order as per clarification issued by the CTW vide Memo Rc.No.A1/394/2021, dated 29.01.2021. The CTW had also informed the respondent No.2 to rectify the promotion issued to the petitioner and instructed the DTDO, Ranga Reddy District to take necessary action in the matter and to send the action taken report to him after disposing of the appeal petition of the petitioner therein i.e., respondent No.6 herein, 8 W.P. No. 7198 of 2022 to avoid further legal complications. Accordingly, the seniority list was revised vide orders dated 26.05.2021.
7. Aggrieved, the petitioner herein had approached this Court and filed W.P.No.14752 of 2021 and this Court vide orders dated 05.07.2021 has allowed the writ petition and set aside the impugned order dated 26.05.2021 and the matter was remanded to respondent No.2 with a direction to pass orders in accordance with law, by duly following relevant statutory rules, after giving an opportunity of hearing to the affected persons i.e., including the petitioner as well as the respondent No.5 therein. It was further observed that the petitioner shall be continued as HWO, Grade-I till the appellate authority passes order in the appeal preferred by the respondent No.5. The appellate authority in the case of Smt.V.Sreelatha, thus, passed orders dated 06.01.2022 observing that the respondent No.6 herein i.e., the appellant before the authority has joined the duty within the prescribed period and that the seniority has to be fixed basing on the merit rank issued by the Public Service Commission. He further observed that as per rules 33 & 36 of State and Subordinate Service Rules 1996, the order of 9 W.P. No. 7198 of 2022 the merit or order of preference indicated in the list of selected candidates prepared by the Public Service Commission or other selection authority shall not be disturbed inter-se with reference to the candidates in position in such list of panel while determining seniority. Therefore, he observed that the seniority list filed by the DTDO, Ranga Reddy District has to be revised as per the merit and rules 33 & 36 of State and Subordinate Service Rules 1996 and also review the promotion of the writ petitioner to the post of HWO, Grade-I and submit the action taken report.
8. Consequently, the respondent No.2 has passed memo in Rc.No.A/106/2020, dated 02.02.2022, revising the seniority list of the HWO, Grade-II Officers and placing the petitioner as junior to the respondents No.5 and 6. Consequently, the respondent No.3 has also issued proceedings vide Rc.No.A/106/2020, dated 02.02.2022 cancelling the order communicated earlier vide Office Rc.No.A/106/2020, dated 21.11.2020 revising seniority list. Challenging these two proceedings, the present writ petition is filed. 10
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9. The grievance of the petitioner is that respondent No.2 has passed the order of revising the seniority list without assigning any reason and without giving interpretation given to the rules including the law declared by this Court and further submitted that the petitioner would suffer irreparable loss if he is to be reverted to the post of Hostel Welfare Officer Grade-II based on the impugned revision of seniority list. This Court vide orders dated 10.02.2022 had directed the respondents to maintain status quo as on the date of the order. Thus, the respondent Nos. 4 and 6 have filed their counter affidavits along with stay vacate petitions.
10. The Learned Counsel for the Petitioner reiterated the averments made in the affidavit filed along with the writ petition.
11. The official respondent i.e., respondent No.4 has filed counter affidavit supporting the impugned orders stating that before passing of order dated 06.01.2022, the petitioner has been put on notice and that the seniority has been fixed as per rule 33 and 36 of State and Subordinate Service Rules 1996. It is also confirmed that unofficial respondents No.5 and 6 have passed the relevant departmental test within the prescribed probation period. 11
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12. The respondent No.6 has filed the counter affidavit and supported the impugned orders by supporting the contentions of the above official respondents.
13. It is submitted that the seniority of the petitioner was revised vide order dated 23.10.2020 on the basis of rule 16(h) of State and Subordinate Service Rules 1996 and same ought not to have been revised by applying rules 33 and 36 of the Telangana State and Subordinate Service Rules without giving proper opportunity of hearing to the petitioner and without considering the relevant rules and judicial interpretations thereon. He placed reliance upon the judgment of this Court in W.A.Nos.124 and 1915 of 2017 and in the case of S.Bheem Prasad and Another Vs. State of Andhra Pradesh and Others1 in W.P.No.22978 of 2008 and batch. He submitted that this Hon'ble Court has held that notwithstanding anything contained in Special Rules or Sub-rule (a)(b) of rule 33 of General Rules, rule 16(h) will override any provisions under the special rules, including the note under rule 8 thereof in so far as the date of commencement of periods of probation of the individuals who do not pass the departmental tests within the period of 1 2009 (4) ALD 80 12 W.P. No. 7198 of 2022 probation or extended period of probation are concerned. Therefore, the learned counsel for the petitioner submits that since the petitioner has successfully completed/passed the relevant test before the respondents No.5 and 6, he should be considered as senior in terms of rule 16(h) of State and Subordinate Service Rules.
14. Having regard to the rival submissions and the material on record, this Court finds that the Sub rule (h) of rule 16 refers to change of date of commencement of probation and provides that "notwithstanding anything contained in the special rules of Sub rules (a) and (b) of rule 33 of these rules, a probationer, who does not pass the prescribed tests or acquire the prescribed special qualifications within the period of probation or within the extended period of probation under rule 17 and whose probation is further extended by the Government by an order under rule 31, till the date of his passing such tests or acquiring such qualifications, shall be deemed to have commenced the probation with effect from the date to be fixed by the Government, which would be anterior to a date of his passing such tests or acquiring such special qualifications, so, however, that the interval between the two dates shall be equivalent 13 W.P. No. 7198 of 2022 to the prescribed period of probation, whether on duty or otherwise and seniority of such probationer shall be determined with reference to the date so fixed".
15. It is observed that the period of probation has been fixed under Sub-rule (c) of rule 16 and Sub-rule (i) thereof provides that every person appointed by direct recruitment to any post shall, from the date on which he commences his probation, be on probation for a period of two years on duty within a continuous period of three years. It is observed that the petitioner has completed the probation within two years of commencement of probation and prior to the respondents No.5 and 6.
16. It is observed that rule 33 of State and Subordinate Service Rules deals with seniority and rule 36 deals with inter-se seniority where the dates of commencement of probation are same.
17. It is observed that Sub-rule(i) of rule 36 provides that the seniority of the persons in the service shall be determined in respect of the candidates selected by the Telangana State Public Service Commission or other selecting authorities by direct recruitment, as 14 W.P. No. 7198 of 2022 per the ranking assigned to them, irrespective of the dates of commencement of their probation in that category.
18. In this case, the question that arises is relating to seniority of the petitioner vis-a-vis the respondents No.5 and 6 and whether it is to be determined as per rule 16(h) or rules 33 and 36 of State and Subordinate Service Rules. Though, undisputedly the petitioner has completed his probation within a period of two years from the date of joining, the respondents No.5 and 6 also have completed their probation within a period of three years and while on duty in continuous period of two years. Rule 16(h) only deals with completion of probation, whereas the seniority is to be fixed as per rules 33 and 36 of State and Subordinate Service Rules. The petitioner as well as unofficial respondents have been appointed by the Public Service Commission selection held in the year 2013 and therefore, their seniority is to be fixed as per the rank assigned to them under rule 36 (i) of State and Subordinate Service Rules unless the date of their commencement of probation is different or they have not completed the probation within the prescribed period. 15
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19. The decisions relied upon by the learned counsel for the petitioner are distinguishable facts. In the Writ Petition Nos.7954 & 8001 of 2022, this Court by considering the facts of that case has held that observance of principle of natural justice have to be followed before revising the seniority list and that further by taking into consideration of the law laid down by the Hon'ble Supreme Court in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others2, this Court had set aside the impugned order and directed the respondents therein to dispose of the representations of the petitioners therein after putting all the concerned parties on notice and to pass orders thereon in compliance of directions of the Court in W.P.No.4609 of 2021. However, in the case before this Court, the respondents have averred that the petitioner has been put on notice before revising the seniority list and the petitioner has not rebutted this contention by filing any reply to the counter. Therefore, this decision is not applicable to this case.
20. It is observed that in W.A.Nos.1724 and 1915 of 2017, it is a case of fixation of seniority between two probationers i.e., those who 2 1998 (8) SCC 1 16 W.P. No. 7198 of 2022 pass the departmental tests within a period of probation and those who did not do so and required extension of their probation. The Hon'ble Division Bench has taken note of rule 16(h) of the Telangana State and Subordinate Service Rules and it was held that the person who has completed probation period within the period of probation has to be considered as senior to the persons whose probation has been declared after extension of the probation period. However, the above decision is not applicable to the case on hand as the respondents No.5 and 6 have also completed the probation within the prescribed period of three years. Therefore, the judgment would not come to rescue of the petitioner.
21. In view of the same, this Court does not find any merit in the writ petition.
22. Accordingly, this writ petition is dismissed. There shall be no order as to costs.
Miscellaneous petitions, if any, pending in this Writ Petition, shall stand closed.
____________________________ JUSTICE P.MADHAVI DEVI Dated:09.11.2022 Nsk/bak 17 W.P. No. 7198 of 2022 THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI W.P.No. 7198 OF 2022 Dated: .11.2022 Nsk/bak