Telangana High Court
Raaya Sridevi vs The District Educational Officer, on 21 December, 2023
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
WRIT PETITION (TR) NO.1327 of 2017
ORDER:
The present writ petition is filed declaring the action of the respondents in not extending the regular pay scale to the petitioner for the post of Secondary Grade Teacher (SGT) on par with DSC-2008 selected candidates in pursuant to the proceedings vide Rc.No.7235/ B3/2013, dated 18.01.2014 as illegal, arbitrary, unjustified and violative of Articles 14, 16, and 21 of the Constitution of India and consequently declare that the period from 27.11.2010 to 30.06.2013 treated as continuity of service and petitioner is eligible for notional seniority and eligible for regular pay scale from the date of joining i.e., 01.07.2013.
2. The brief facts leading to filing of the present writ petition are that the Commissioner & Director of School Education, Government of Andhra Pradesh, Hyderabad, had issued DSC- 2008 notification inviting the applications for various categories of posts including 1066 posts of SGT in Telugu medium in Nizamabad district vide G.O.Ms.No.161 Education (Services-VI) Department, dated 06.12.2008.
LNA,J WP (TR) No.1327 of 2017 2 2.1. In response to the said notification, petitioner applied for the post of SGT. The 1st respondent has published the selected list of SGT in the month of October, 2010 and as per the selected list, the petitioner secured 46.50 marks and with 3406 rank and she was the next candidate in the category of SC (Women), who secured 46.50 marks and with 3396 rank. One Rajani Priya was selected in SC (Women) category, however, she resigned to the post of SGT. The petitioner submitted representation to the respondents to consider her case as next meritorious candidate from SC (Women) category and the same was rejected by the respondents on 31.12.2010. 2.2. Aggrieved by the same, petitioner approached the APAT vide O.A.No.415 of 2011 and the same was allowed on 02.08.2012. Challenging the same, the respondents approached the High Court by filing W.P.No.2656 of 2013 and the said writ petition was dismissed on 12.03.2013. Contempt proceedings were initiated by the petitioner and subsequently, the respondents issued posting orders to the petitioner and accordingly, petitioner joined as SGT on 01.07.2013. Petitioner is being paid consolidated pay of Rs.3,600/- per month. However, candidates who were appointed in DSC-2008 LNA,J WP (TR) No.1327 of 2017 3 completed their apprentice period and getting regular pay scales.
2.3. The Government extended the benefit of regular scales to the teachers appointed through DSC-2012 and now there is no apprentice system. The candidates of DSC-2012, who joined duties before joining of petitioner are getting regular pay scale attached to the SGT in School Education Department and the same benefit was denied to the petitioner. Hence, the present writ petition.
3. The Hon'ble APAT vide order dated 21.12.2013 granted interim order directing the respondents to consider sanctioning regular pay scale to the petitioner and pass appropriate orders within a period of four weeks from the date of receipt of that order.
4. Respondents filed counter and contended that pursuant to the notification dated 06.12.2008, petitioner applied for the post of SGT (Telugu Medium) and secured 46.5 marks with rank 3406 and belongs to SC (Women) category. However, it is denied that she was in the zone of consideration for appointment. It is stated that the selection process of DSC-2008 for filling the SGT posts were completed following the guidelines issued vide LNA,J WP (TR) No.1327 of 2017 4 G.O.Ms.No.62 SE (PE SER.II) Department dated 29.10.2010, which superseded the G.O.Ms.No.27 SE (PE SER.II) Department dated 21.06.2010 issued earlier. As per the guidelines of G.O.Ms.No.62 dated 29.10.2010, the dual selected candidates have been given opportunity to the higher post and the selectins in lower post has been seized and the next immediate meritorious candidate of DSC-2008 aspirant was given the opportunity for selection into the lower post as per Rule 4 (VII) of G.O.Ms.No.62 dated 29.10.2010.
5. Smt. Battu Rajani Priya, who was one of the selected candidates, was also an aspirant for the post of School Assistant English, for which 95 vacancies were notified, however, only 85 School Assistant English vacancies were in existence at the time of selection process. As per G.O.Ms.No.112 Education dated 06.10.2009, Government had issued instructions to fill up the available vacancies of 85 posts of School Assistants English. Smt. Battu Rajani Priya, who was selected as SGT in the earlier process of selections, was selected as School Assistant English and she resigned to the post of SGT on 10.11.2010. The next meritorious candidate i.e., petitioner herein had approached the Hon'ble High Court by filing W.P.No.2656 of 2013. Subsequently, petitioner was issued LNA,J WP (TR) No.1327 of 2017 5 appointment orders and she joined on 01.07.2013. It is further stated that regular pay in the post of SGT was not considered as every candidate selected in DSC-2008 has to serve two years of apprentice period and after completion of said period, the candidates are eligible for regular time scale as per G.O.Ms.No.161 SE (PE SER.II) Department, dated 06.12.2018. He finally contended that request of petitioner for sanction of regular pay scale was considered by the DEO and rejected as it is not feasible to implement.
6. Heard learned counsel Sri N.Ramesh for the petitioner and the learned Government Pleader for School Education for respondents.
7. The main issue in the present writ petition is with regard to extending regular pay scales to the petitioner for the post of SGT on par with DSC-2008 selected candidates and to declare the period from 27.11.2010 to 30.06.2013 as continuity of service with notional seniority.
8. In support of his contention, learned counsel for petitioner placed reliance on the following decisions:
(i) Order of Division Bench of this Hon'ble High Court in W.P.No.21193 of 2017, 29.06.2017;
LNA,J WP (TR) No.1327 of 2017 6
(ii) Order of Division Bench of this Hon'ble High Court in WP No.17397 of 2014, dated 20.12.2022
(iii) Common order of Division Bench of this Hon'ble Court in W.P.Nos.21701 and 22011 of 2011.
9. Per contra, according to the learned Government Pleader, petitioner being one of DSC-2008 recruitment candidates, the salary has to be paid in accordance to the pay and allowances as applicable as per rules in force and she was paid the consolidated pay applicable to DSC-2008 recruitees. He submitted that though the apprenticeship period of consolidated pay is abolished, she being one of the employees appointed in DSC-2008, she is not eligible for regular scale on par with DSC- 2008 recruitees. Petitioner had joined into Government service on 01.07.2013 and was not in Government service and claiming notional seniority and regular pay in the post of SGT is not proper as every candidate in DSC-2008 has to serve two years of apprentice period and only after completion of two years of apprentice period, she is eligible for regular time scale as per G.O.Ms.No.161, dated 06.12.2008.
10. Further, it was also urged that if notional seniority and regular pay scale is extended to the petitioner, it would adversely impact others, unsettling the settled issue and possibility of spate of litigation. Learned Government Pleader LNA,J WP (TR) No.1327 of 2017 7 also contended that if notional seniority is extended to petitioner, they have to be paid regular pay scales from 2013 onwards and arrears and monetary benefits also have to be paid. No such steps can be taken to assess higher seniority affecting right of subsequent DSC candidates. The issue of inter se seniority between DSC-2008 and subsequent DSC candidates is settled long ago and settled things cannot be un- settled after long lapse of time.
11. Issue for consideration is whether petitioner is entitled to treat the period from 27.11.2010 to 30.06.2013 as continuity of service, the notional seniority on par with all other candidates as per DSC-2008 with all attendant benefits including regular pay scale to the post of SGT from 01.07.2013 and arrears thereof ?
Consideration:
12. Before adverting to merits and rival contentions of both the parties, it is appropriate to refer to the view taken by the Hon'ble Supreme Court and this Hon'ble Court on the claim to seniority by persons though selected pursuant to earlier recruitment notification, but appointed later to appointments made as per subsequent recruitment notifications.
LNA,J WP (TR) No.1327 of 2017 8
13. In Balwant Singh Narwal and others vs. State of Haryana and others 1, merit list drawn by Public Service Commission including 30 names was challenged on the ground that though the indent was for 18 vacancies only, inclusion of larger number of candidates in the selection list was illegal before High Court. The learned single Judge of Punjab and Haryana High Court upheld the challenge and same was affirmed by the Division Bench also. Pursuant to the decision of the High Court, 16 candidates were appointed by an order dated 02.06.1994. The order of the Division Bench was challenged before the Hon'ble Supreme Court and the Hon'ble Supreme Court, at the interlocutory stage, passed orders directing the respondents not to fill up 12 vacancies. Ultimately, the Appeals were disposed of by an order dated 06.12.1999 by the Hon'ble Supreme Court reversing the decision of the High Court and dismissing the writ petitions filed before the High Court. The Hon'ble Supreme Court held that the Government requisitioned 37 posts, therefore, there was no bar on the power of the Commission to recommend 30 names. Pursuant to the said judgment, 13 persons were appointed as Principals by order dated 26.05.2000. After appointments, 13 persons submitted 1 (2008) 7 SCC 728 LNA,J WP (TR) No.1327 of 2017 9 representations for fixing their seniority as per the merit list drawn by the Public Service Commission on 01.10.1993. They contended that but for the litigation, they would have been appointed along with other 16 candidates and as their selection was with regard to the vacancies notified in January, 1992, they should be given seniority above those who were appointed against subsequent vacancies. The State Government accepted their plea and fixed their positions immediately after the 16 candidates appointed from the same merit list and they were shown above the later appointees. The challenge made by the later appointees was rejected by the High Court.
14. Considering a similar situation in Surendra Narain Singh Vs State of Bihar 2, the Hon'ble Supreme Court held that candidates selected against earlier vacancies, but could not be appointed along with others of the same batch due to certain technical difficulties, when appointed subsequently, would have to be placed above those who were appointed against subsequent vacancies.
2 1998 (5) SCC 246 LNA,J WP (TR) No.1327 of 2017 10
15. In C.Jayachandran vs. State of Kerala and others 3, issue was similar to Balwant Singh Narwal (supra). The selection list was challenged with reference to minimum age and the Kerala High Court struck down the eligibility with reference to minimum age and the same was affirmed by the Hon'ble Supreme Court. Consequently, four candidates were selected against general merit vacancies and 3 others against reserved vacancy category. The selection was disputed by non-selected candidates before the Hon'ble Supreme Court and the Hon'ble Supreme Court granted liberty to file writ petition. Consequently, a writ petition was filed before the High Court challenging the grant of moderation/grace marks to the candidates appointed on 30.03.2009 and sought for appointment as District and Sessions Judge. The writ petition was allowed by the Division Bench. The ground of moderation of marks was found to be unsustainable, therefore, High Court directed to recast the select list.
16. In W.P.No.36266 of 2013 also similar issue has come for consideration before Hon'ble Division Bench of this Court. Pursuant to District Selection Committee 2001 selections, 9 SGTs were appointed on 04.10.2002, whereas others were 3 (2020) 5 SCC 230 LNA,J WP (TR) No.1327 of 2017 11 appointed on 18.01.2002. Nine SGTs filed O.A., before the Tribunal and sought for notional seniority from 18.01.2002 on par with first batch of 2001 candidates. The Tribunal allowed O.A., holding that the applicants were entitled to notional seniority as per their ranking in merit list of 2001 on par with the teachers appointed on 18.01.2002 by relying upon the decision of Balwant Singh Narwal. Following the decision of Balwant Singh Narwal, the Division Bench of this Court upheld the Tribunal's directions.
17. In substance, it is consistently held by Hon'ble Supreme Court and this Court that among the persons selected in pursuant to the same recruitment notification, if some persons were appointed earlier and some persons were appointed later and the delay occasioned due to administrative lapses, the persons appointed later are entitled to claim seniority on par with the persons appointed earlier and over and above candidates appointed in the subsequent selections.
18. The learned Division Bench of this Court in The Government of Andhra Pradesh, rep.by its Secretary to School Education Department, Vs. B.Aswathama and others (WP Nos.21701 & 22011 of 2011 dated 29.07.2022) following LNA,J WP (TR) No.1327 of 2017 12 the principles of law laid down in Balwant Singh Narwal (supra), Surendra Narain Singh (supra) and C.Jayachandran, held as under:
"38. In the case on hand, issue is not about inter se seniority of DSC1998 batch. The respondents are seeking to place them en-masse below the first batch. Though by the time they were appointed the candidates selected in pursuant to subsequent DSCs were already appointed such appointments were contrary to the directions issued by the Tribunal. As noticed above, Tribunal clearly directed to draw merit list and appoint respondents before appointing DSC-2000 candidates. Though respondents were successful in establishing their claim, but employer was dragging its feet leading to three rounds of litigation. Denying seniority to respondents would amount to perpetrating the illegality committed by the employer. It is unjust to deprive the fruits of success in the litigation merely because of the lapses of employer and for no fault of respondents. A right has accrued to respondents by virtue of declaration and directions issued by the Tribunal and affirmed by the High Court to treat them as belonging to DSC-1998 selection process and this right should logically result in according seniority on par with first batch of DSC-1998."
19. It is also appropriate to note that the delay in appointment of petitioners, on the ground of pending litigation, is not attributable to them, but to the employer. The principle of law laid down in Balwant Singh Narwal (supra), Surendra Narain Singh (supra) C.Jayachandran (supra) and B.Aswathama (supra), squarely apply to the facts of this case.
20. In the case on hand, issue is to treat the period from 27.11.2010 to 30.06.2013 as continuity of service, to fix the seniority and other benefits on par with all other candidates LNA,J WP (TR) No.1327 of 2017 13 selected and appointed in pursuance of DSC-2008 since the petitioner is not responsible for her belated appointment in the year 2013. Though petitioner was successful in establishing her claim, but employer was dragging its feet leading to litigation. Denying to treat the period from 27.11.2010 to 30.06.2013 as continuity of service and notional seniority along with regular pay scales to the post of SGT from 01.07.2013 would amount to perpetrating the illegality committed by the employer.
21. The petitioner cannot be deprived of her notional seniority merely because of delay in litigation, and for no fault of petitioner. A right has accrued to petitioner by virtue of declaration and directions issued by the Tribunal on 24.12.2013 directing the respondents to consider sanctioning regular pays scale to the petitioner attached to the post of SGT, based upon her representation dated 10.10.2013 and appropriate orders in this regard be passed within a period of four weeks from the date of receipt of the order and this right should logically result in according seniority on par with selection candidates in DSC- 2008.
22. It is not in dispute that the appointment of the petitioner was delayed owing to the lapse on the part of the respondent- authorities in the same DSC-2008 selections.
LNA,J WP (TR) No.1327 of 2017 14 Conclusion:
23. On due consideration of the above facts and circumstances and legal position, this Court is of the considered that the petitioner is entitled to the notional seniority and regular pay scales to the post of SGT from the date of her joining i.e., 01.07.2013 including other benefits from the year 2013 on par with all other candidates selected and appointed in pursuance of DSC-2008. The respondents are also directed to treat the period from 27.11.2010 to 30.06.2013 as continuity of service.
24. Accordingly, this Writ Petition is allowed, setting aside the impugned proceedings dated 18.01.2014 of the 1st respondent. The respondents are directed to pay regular pay scales of SGT post from the date of joining of the petitioner i.e., 01.07.2013 and treat the period from 27.11.2010 to 30.06.2013 as continuity of service for notional seniority. There shall be no order as to costs.
Pending miscellaneous petitions if any shall stand closed.
___________________________________ LAXMI NARAYANA ALISHETTY, J Date: 21.12.2023 Kkm LNA,J WP (TR) No.1327 of 2017 15 HON''BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY WRIT PETITION (TR) NO.1327 of 2017 Date: 21.12.2023 Kkm