THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
I.A.NO.2 OF 2023 IN W.P.NO.18377 OF 2023;
I.A.NO.2 OF 2023 IN W.P.NO.19055 OF 2023;
WRIT PETITION NO.18377 OF 2023
AND
WRIT PETITION NO.19055 OF 2023
COMMON ORDER
In both these Writ Petitions, the petitioners are challenging the
Memo dt.22.06.2023 and the consequential show-cause notice
dt.26.06.2023 by granting notional seniority to respondent No.4 on par
with his juniors during the panel year 2015-16, as illegal, arbitrary and in violation of Articles 14, 16 and 21 of the Constitution of India and as without any power, authority and jurisdiction and contrary to Rules 26 and 33 of the State and Subordinate Service Rules and the directions issued by this Court in W.P.No.20571 of 2021 dt.20.12.2022 and to pass such other order or orders as this Court may deem fit and proper in the circumstances of the case.
2. Brief facts leading to the filing of the present Writ Petitions are that the petitioners as well as respondent No.4 were all recruited directly W.P.Nos.18377 & 19055 of 2023 2 to the post of Reserve Sub-Inspector (AR) [RSI (AR)] in the month of July, 2008 after undergoing a selection process. Respondent No.4 also belongs to the petitioners' batch. The seniority of RSI (AR) will depend on the rank obtained in the Training College. Accordingly, respondent No.4 was senior to the petitioners. The petitioners and respondent No.4 were promoted to the post of Reserve Inspector (AR) vide proceedings dt.24.08.2016. However, the unofficial respondent, i.e., respondent No.4 made an application relinquishing his promotion to the post of Reserve Inspector (AR) for the panel year 2015-16 and the same was accepted and an order was passed stating that the case of respondent No.4 shall be considered for promotion in the next panel year. Accordingly, his case was considered in the next panel year 2016-17 and he was also given promotion as Reserve Inspector (AR) on 29.05.2017. Thereafter, respondent No.4 has made an application for consideration of his seniority in the category of Reserve Inspector (AR) with effect from the date on which his juniors have been promoted. However, the same was rejected vide Memo dt.04.02.2021, against which he filed a Writ Petition in W.P.No.20571 of 2021. Vide orders dt.20.12.2022, this Court had disposed of the said Writ Petition permitting him to make a detailed representation before the respondents and upon receipt of the same, the W.P.Nos.18377 & 19055 of 2023 3 respondents therein were directed to consider such representation in accordance with law by giving a lenient view on the aspect of sufferance undergone by him, preferably within a period of six weeks from the date of receipt of a copy of the order. Thereafter, respondent No.1 has considered the representation of the respondent No.4 and has passed the impugned order dt.22.06.2023 assigning notional seniority to him with effect from 24.08.2016 on par with his immediate junior Sri A.Janardhan, Reserve Inspector, who was promoted during the panel year 2015-16 by observing that the individual, i.e., respondent No.4 has lost both opportunities, i.e., seniority and conversion due to change in the criteria by the cancellation of original notification. Thereafter, respondent No.1 has directed the Director General of Police, i.e., respondent No.2 herein to issue show-cause notices to all the affected persons by duly following the procedure prescribed under Rule 24 of the Telangana State and Subordinate Service Rules, 1996. In compliance thereof, a show-cause notice dt.26.06.2023 was issued by respondent No.2. Aggrieved by the same, the petitioners seem to have filed a Writ Appeal against the order in W.P.No.20571 of 2021 dt.20.12.2022 and a Division Bench of this Court has permitted the petitioners to take all grounds raised therein before the learned Single Judge while challenging W.P.Nos.18377 & 19055 of 2023 4 the impugned order. Thus, the present Writ Petitions have been filed taking various grounds on the merits of the case and also on ground of violation of principles of natural justice in taking a decision first and thereafter issuing show-cause notices dt.26.06.2023.
3. This Court vide orders dt.13.07.2023 in W.P.No.18377 of 2023 has granted interim suspension of the impugned order dt.22.06.2023 and vide orders dt.20.07.2023 in W.P.No.19055 of 2023, there was an interim suspension of the impugned order dt.22.06.2023. The unofficial respondent, i.e., respondent No.4 has filed his counter affidavit along with stay vacate petitions in I.A.Nos.2 of 2023 in both the Writ Petitions. The official respondents are yet to file their counter affidavits.
4. Learned Special Government Pleader for Home, appearing for respondents 1 to 3, submitted that the respondents have reconsidered the issue and as the show-cause notice was issued after the decision has been taken on the issue, they have decided to issue a fresh show-cause notice to all the affected parties and to take a decision thereafter.
5. Learned counsel for the petitioners, however, pointed out that it is not only a case of violation of principles of natural justice, but also it is a case of exercise of power without any authority. He submitted that W.P.Nos.18377 & 19055 of 2023 5 respondent No.4 had voluntarily relinquished his promotion for the panel year 2015-16 and subsequently, sought notional seniority along with the petitioners and without giving any reason or rule position as to how the relief can be granted to respondent No.4, respondent No.1 has passed the impugned order dt.22.06.2023 and thereafter, has directed respondent No.2 to issue the show-cause notice for issuance of final seniority list. It is submitted that in the show-cause notice, the time given for submission of objections of the petitioners was 10 days, but without verifying whether the show-cause notices have been served on the petitioners and even without waiting for those 10 days, respondent No.2 has communicated the final seniority list of Reserve Inspectors (AR) dt.12.07.2023, and therefore, the haste exhibited in taking a decision shows that the orders have been passed not in accordance with law, but for extraneous reasons. The learned counsel for the petitioners submitted that by setting aside of the orders and remanding the matter to the same authority for reconsideration would not serve any purpose as the authority would only reaffirm his position and may not consider the case of the petitioners and it would cause serious injustice to the petitioners. He also placed reliance upon a judgment of the Hon'ble Supreme Court in the case of H.L.Trehan and others Vs. Union of W.P.Nos.18377 & 19055 of 2023 6 India and others 1 for the proposition that no purpose would be served by remanding the matter when a decision is already taken before the show-cause notice is issued.
6. The learned counsel for respondent No.4, however, pointed out that the impugned order dt.22.06.2023 was passed by respondent No.1, whereas the show-cause notice as well as the final seniority list have been issued by respondent No.2. He submitted that respondent No.4 had relinquished his promotion only on the ground that his request for allotment from RSI (AR) to SI (Civil) was pending consideration before the Government and the same was subsequently rejected and therefore, respondent No.4 had accepted the promotion in the subsequent year and claimed seniority on par with his juniors.
7. Having regard to the rival contentions and the material on record, this Court finds that there is clear violation of principles of natural justice in this case. The affected parties were not even given any notice nor were they heard before a decision is taken for grant of notional seniority to respondent No.4. Respondents No.1 to 3 are taking shelter under the direction of this Court in W.P.No.20571 of 2021 for granting 1 (1989) 1 SCC 764 W.P.Nos.18377 & 19055 of 2023 7 relief to respondent No.4. However, the direction of this Court in W.P.No.20571 of 2021 was only to reconsider the case of respondent No.4 herein and the reason for reconsideration is that he has undergone some sufferance and therefore it needs reconsideration. Therefore, there was no direction from this Court to positively consider and grant notional seniority to respondent No.4 herein. Further, the official respondents ought to have issued notice to the petitioners before taking any decision in respect of respondent No.4 and only after taking their objections/representations into consideration, they ought to have passed orders on the representation of respondent No.4.
8. Therefore, on this ground alone, the impugned order dt.22.06.2023 as well as the subsequent show-cause notice dt.26.06.2023 and the final seniority list dt.12.07.2023 are liable to be set aside and they are accordingly set aside. Respondent No.1 being the highest authority in the Department is directed to reconsider the matter by issuing show-cause notices to all the affected persons and thereafter, pass appropriate orders on the representation of respondent No.4 in accordance with law without being influenced by the earlier orders passed by him on 22.06.2023. Respondent No.1 also shall take into consideration the objections of the petitioners and pass a detailed and W.P.Nos.18377 & 19055 of 2023 8 speaking order as to why they are not acceptable if he finds them not acceptable. Respondent No.1 shall also quote the rule position and give reasons for granting relief to respondent No.4 if he finds that relief is to be granted to respondent No.4 and if he opts to do so.
9. With the above directions, the issue is now remitted to the file of respondent No.1 for necessary action at his end. Both the Writ Petitions are accordingly disposed of. Consequently, the vacate stay petitions in I.A.No.2 of 2023 in W.P.No.18377 of 2023 and in I.A.No.2 of 2023 in W.P.No.19055 of 2023 are dismissed.
10. In the result, (1) W.P.No.18377 of 2023 is disposed of. No order as to costs. (2) W.P.No.19055 of 2023 is disposed of. No order as to costs. (3) I.A.No.2 of 2023 in W.P.No.18377 of 2023 is dismissed. (4) I.A.No.2 of 2023 in W.P.No.19055 of 2023 is dismissed.
11. Pending miscellaneous petitions, if any, in these Writ Petitions shall stand closed.
___________________________ JUSTICE P. MADHAVI DEVI Date: 04.09.2023 Svv