B.Harinatha Reddy vs The State Of Telangana And 8 Others
2022 Latest Caselaw 5728 Tel

     THE HONOURABLE SMT JUSTICE P. MADHAVI DEVI


                WRIT PETITION No.22928 OF 2021
ORDER:

1. This Writ Petition is filed by the petitioner,

seeking a writ of mandamus declaring the Memorandum of

respondent No.2 in RC.No.11817/E1/2003, dated

30.08.2021 disturbing the seniority of the petitioner, which

was confirmed 8 years back as arbitrary, illegal and

contrary to law laid down by Hon'ble Supreme Court and

consequently to set aside the same and pass such other

order as this Court deems just in the circumstances of the

case.

Brief facts :

2. The petitioner was appointed through Direct

Recruitment as Divisional Fire Officer on 14.11.2012. The

said post is redesignated as District Fire Officer. It is

submitted that on 02.09.2013 the respondent No.2 has

published the Confirmed Seniority List of District Fire

Officers after calling for objections and the petitioner was

placed at serial No.11 in the said Seniority List and

respondent No.3, 4 and 9 were placed at serial Nos.20, 21 PMD, J W.P. No.22928 OF 2021

and 22 respectively. It is submitted that the names of

respondents did not figured in the list anywhere. It is

further submitted that after bifurcation of combined State

of Andhra Pradesh, the Government for the State of

Telangana notified the Tentative Allocation-cum-Seniority

List in respect of employees of respondent No.2 on

24.06.2015, containing combined Seniority of all the

District Fire Officers and others allocated to Telangana

State and State of Andhra Pradesh and also fixing their

Seniority. In the said Combined Seniority List the

petitioner's name is figured at Serial No.10 and his

seniority rank was fixed at serial No.5 amongst the District

Fire Officers allocated to Telangana State. The name of the

3rd respondent figured at Serial No.14 in the Combined

Seniority List and his seniority was 8 amongst the District

Officers allocated to Telangana State. The name of 4th

respondent figured at Serial No.15 in the Combined

Seniority List and his seniority rank was 9 amongst the

District Fire Officers allocated to Telangana State. The

name of 5th respondent figured at Serial No.23 in the

Combined Seniority List and his seniority rank was 16 PMD, J W.P. No.22928 OF 2021

amongst the District Fire Officers allocated to Telangana

State. The name of 9th respondent figured at Serial No.16

in the Combined Seniority List and his seniority rank was

10 amongst the District Fire Officers allocated to Telangana

State. The names of respondent Nos.5, 7 & 8 did not find

place in the said Allocation-cum-Seniority List of District

Fire Officers dated 24.06.2015 as by that date they were

not promoted, even on adhoc basis to the post of District

Fire Officers. It is submitted that on 12.07.2016, while

considering the promotion to the two (2) vacant posts of

Regional Fire Officer from the Post of District Fire Officer,

the 2nd respondent sent a list of 7 names form the

Confirmed Seniority List of District Fire Officers as per

their seniority as on 12.07.2016 to the Departmental

Promotion Committee (DPC). The name of the petitioner

figured at serial No.4 and the respondent No.3 to 9 were

placed below the petitioner.

3. It is submitted that the persons placed at serial

Nos.1 and 2 in the Confirmed Seniority List were promoted

as Regional Fire Officers and petitioner became serial No.2

in the Seniority List of District Fire Officers. It is further PMD, J W.P. No.22928 OF 2021

submitted that on 27.08.2020 the respondent No.2 issued

Provisional Seniority List for fixing seniority of those who

are subsequently promoted/appointed through direct

recruitment as District Fire Officers. Even in that list, the

petitioner is shown at serial No.2 and the respondents

names were shown at serial No.5, 6, 8, 9, 11, 12 and 14

respectively. It is submitted that on 30.08.2021 the

respondent No.2 issued an impugned Memorandum in

RC.No.11817/E1/2003, dated 30.08.2021 proposing to

disturb the seniority of the petitioner by placing

respondent Nos.3 to 9 above the petitioner, thereby

disturbing the seniority of the petitioner, which was

confirmed 8 years back and by the said letter, the

objections of the persons affected were called for. The

petitioner immediately submitted two representations

seeking some information from respondent No.2 on

16.09.2021 and thereafter, on 17.09.2021 challenging the

memorandum dated 30.08.2021 this Writ Petition has been

filed.

4. The learned counsel for the petitioner has

drawn the attention of this Court to all the relevant PMD, J W.P. No.22928 OF 2021

documents relating to the petitioner and also respondents

No.3 to 9, who are not direct recruits and were placed as

juniors to the petitioner. It is submitted that only by the

impugned memo proceedings dated 30.08.2021, the

petitioner has been shown as junior to the respondents

No.3 to 9. He submitted that the respondents No.3 to 9

were promoted as District Fire Officers on adhoc basis and

their promotion was not confirmed against any substantive

vacancy by the date of the appointment of the petitioner as

direct recruit. Therefore, their tenure of working in the

District Fire Officer cannot be considered for the purposes

of assigning the seniority.

5. He further submits that since the Confirmed

Seniority List dated 02.09.2013 has not been challenged,

the same has become final and the subsequent provisional

seniority list after bifurcation of the State has also not been

challenged and has thus became final and hence, the

respondents should not have disturbed the said seniority

list without notice to the petitioner. He further submits

that unless the adhoc promotion given to the respondent

Nos.3 to 9 as District Fire Officers is regularized against PMD, J W.P. No.22928 OF 2021

substantive vacancies filled in the promotion quota, their

seniority cannot be fixed. Further, the learned counsel for

the petitioner has drawn the attention of this Court to the

averments of the counter affidavit filed by respondents

No.1 and 2 stating that he has no authority for fixing the

seniority in the cadre of District Fire Officer but the matter

has to be referred to the State of Andhra Pradesh. The

respondent No.2 has no authority to fix the seniority or

even to recommend and therefore, the said

recommendation of the respondent No.2 proposing to place

respondents No.3 to 9 above the petitioner in seniority is

unsustainable. He therefore, seeks a Writ of Mandamus

setting aside the provisional seniority list dated

30.08.2021.

6. The learned Special Government Pleader

appearing for the respondent Nos.1 and 2 placed reliance

upon the averments in the counter affidavit and submitted

that the post of Station Fire Officer as well as Assistant

Fire Officer posts belong to District posts in the State of

Telangana and therefore, the respondent No.2 has power to

prepare the seniority list of the Officers in the said cadre.

PMD, J W.P. No.22928 OF 2021

7. It is submitted that it is only the District Fire

Officer, which is a State post. Therefore, the

remarks/recommendations of the respondent No.2 have

been forwarded to the Government of Andhra Pradesh for

taking a decision on the final seniority list. It was

submitted that there was a dispute regarding Station Fire

Officer post which has travelled up to Hon'ble Supreme

Court and the time taken for adjudication was a decade

and as per the directions of the Hon'ble Supreme Court,

the seniority of the Station Fire Officers i.e., respondents

No.3 to 9 or similarly placed officers are accordingly

replaced for giving effect to the order of the Hon'ble

Supreme Court and the provisional seniority list has been

drawn up. It is submitted that the provisional seniority list

is only a show cause notice calling for objections and the

petitioner could have raised all the contentions that he has

raised in the present writ petition as objections and instead

of doing so, the petitioner has filed the present writ

petition. Therefore, according to the learned Government

Pleader, this Writ Petition is not maintainable. He further

submits that the date of appointment of the petitioner had PMD, J W.P. No.22928 OF 2021

not been altered and therefore, no prejudice has been

caused to the petitioner.

8. The learned counsel representing respondents

No.3 to 9 submit that there was a delay in revision of the

seniority list of Station Fire Officer due to litigation which

is beyond the control of the respondent Nos.3 to 9 and

therefore, they cannot be blamed. It is submitted that the

provisional seniority issued by the respondents is only to

give effect to the orders/judgment of one Hon'ble Supreme

Court. In reply to the contention of the petitioner that the

respondents have not been regularized in the post of

Assistant District Fire Officer, he submits that in the year

2019, notional promotion has been given to respondents

No.3 to 9 and thereafter, as District Fire Officers.

9. In reply to the contention of the petitioner that

the respondents No.3 to 9 mere working against the

vacancies of direct recruiters, he submitted that the direct

recruiters already working were found to be in excess of

required quota and therefore, the respondents No.3 to 9

were not promoted. They were working at the available

places on adhoc basis only, and therefore, they cannot be PMD, J W.P. No.22928 OF 2021

deprived of the seniority in the said positions as they were

working on adhoc basis. He accordingly seeks dismissal of

the writ petition.

10. In rebuttal, the learned counsel for the

petitioner submits that the averments in the counter

affidavit filed by respondent Nos.1 and 2 does not appear

to be a mere proposal and recommendation of the

respondent No.2 but it is the determination of the right of

petitioner and his seniority. He further submits that after a

lapse of nearly 8 years publishing the provisional seniority

list, the respondents ought not to have disturbed the

seniority of the petitioner by placing him below the

respondents No.3 to 9.

11. Having regard to the rival contentions and the

material available on record, it is noticed that the petitioner

has been appointed as the District Fire Officer by virtue of

direct recruitment and has joined the service on

14.11.2012. The respondents No.3 to 9 are reportedly

recruited to the post of Station Fire Officer, which is a

feeder category to the post of Assistant District Fire Officer.

In view of the litigation with regard to the eligibility of the PMD, J W.P. No.22928 OF 2021

respondents No.3 to 9 to be promoted to the next post

subject to their passing of the test and the Hon'ble

Supreme Court has held that there was no justification on

the part of the Government to have issued G.O dated

22.05.2012 for determination of entire seniority by making

classification, the Hon'ble Supreme Court, therefore,

concurred with the findings of the High Court and

consequently, the respondents concerned had to

implement the orders of the High Court. The respondent

No.2 being the appointing/controlling authority had to

prepare the Provisional Seniority List in the rank of Station

Fire Officer and thereafter, the notional promotion as

Assistant District Fire Officer and thereafter, as District

Fire Officer in the order of seniority were to be given.

However, as rightly pointed out by the learned counsel for

the petitioner, the respondents themselves, in the memo

dated 27.08.2020 have stated that there was no objection

with regard to the seniority list published on 12.07.2016

and only with regard to the remaining candidates in the

category of District Fire Officer that the seniority has been

decided and communicated after receipt of the orders from PMD, J W.P. No.22928 OF 2021

the Hon'ble Supreme Court and the orders of the

Government. In the said order of seniority list also the

petitioner has been placed at serial No.2 while the

respondent No.3, 4 and 9 are placed as juniors to the

petitioner. Without giving any justification as to why the

petitioner has been placed at serial No.9 i.e., below the

respondent Nos.3 to 9 who are placed at serial No.2 to 8,

the issuance of letter dated 30.08.2021 is not justified.

12. In view of the above, though this Court is also

of the opinion that the writ petition is premature as it is

not against the final seniority list prepared by the

respondents, the respondents are directed that the

objections/contentions raised in the writ petition shall be

treated as objections of the petitioner to the provisional

seniority list and they shall be considered and appropriate

orders be passed thereon, before taking any action on the

provisional seniority list dated 30.08.2021. The

respondents shall also not promote to the next higher post

i.e., Divisional District Fire Officer till a decision is taken

on the objections of the petitioner as well as any other PMD, J W.P. No.22928 OF 2021

persons who raised objections against the provisional

seniority list.

13. In the result, the writ petition is partly allowed.

14. Miscellaneous applications, pending if any,

shall stand closed.

___________________________ JUSTICE P. MADHAVI DEVI

Date:09.11.2022.

Krl.

PMD, J W.P. No.22928 OF 2021

THE HONOURABLE SMT JUSTICE P. MADHAVI DEVI

WRIT PETITION No.22928 OF 2021

Dt.09.11.2022

Krl