K.Narender vs The State Of Telangana And 5 Others
2022 Latest Caselaw 5729 Tel

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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.

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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.

W.P. No. 7198 of 2022

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

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

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

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.

W.P. No. 7198 of 2022

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,

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

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.

W.P. No. 7198 of 2022

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.

W.P. No. 7198 of 2022

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

2009 (4) ALD 80

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

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

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.

W.P. No. 7198 of 2022

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

1998 (8) SCC 1

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

W.P. No. 7198 of 2022

THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI

W.P.No. 7198 OF 2022

Dated: .11.2022

Nsk/bak