Telangana High Court
M Babu Rao vs The State Of Telangana And 4 Others on 14 November, 2022
Bench: Surepalli Nanda
IN THE HIGH COURT OF TELANGANA AT HYDERABAD
W.P. No. 18078 of 2020
Between:
M.Baburao ... Petitioner
And
The State of Telangana,
Rep. by its Principal Secretary to Government,
Home Department and others
... Respondents
JUDGMENT PRONOUNCED ON: 14.11.2022
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
1. Whether Reporters of Local newspapers : yes
may be allowed to see the Judgment?
2. Whether the copies of judgment may be
marked to Law Reporters/Journals? : yes
3. Whether Their Lordships wish to
see the fair copy of the Judgment? : yes
____________________
SUREPALLI NANDA, J
WP_18078_2020
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THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. No. 18078 of 2020
% 14.11.2022
Between:
# M.Baburao
..... Petitioner
and
$ The State of Telangana,
Rep. by its Principal Secretary to Government,
Home Department and others
.....Respondents
< Gist:
> Head Note:
! Counsel for the Petitioner : Mr K.Lakshmi Narsimha
^Counsel for the Respondents: G.P. for Services
? Cases Referred:
1. (2010) 12 SCC 471
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THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. No. 18078 of 2020
ORDER:
Heard learned counsel for the petitioner and learned
counsel for the respondents.
2. This writ petition is filed to issue a writ or order
preferably in the nature of Writ of Mandamus and after calling
for records pertaining to the impugned order vide Final
Seniority list of Supdts/S K Stationery Wing issued vide
Circular Memo vide Rc.No.290/E1/2019-20 dated 20.08.2019
and consequential promotion order issued to the 3rd
respondent vide proc. No.53/Admn.A1/2019, dated
19.09.2020 passed by the 2nd respondent and consequently
declare the action of the 1st and 2nd respondents in not taking
the seniority of the petitioner in the Category of
Superintendent from the date of promotion of the petitioner
to the category of Special Category of Superintendent from
the date of promotion of the petitioner to the category of
Special Category Stenographer i.e. 01.12.2009 in terms of
Rule 15(2)(i) of Telangana Ministerial Service Rules 1998 as
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illegal, arbitrary, and consequentially set aside the impugned
Final Seniority List issued by the 2nd respondent vide Circular
Memo RC No.290/E1/2019-20 dated 20.08.2019 and
consequential promotion issued to the 3rd respondent vide
impugned order proc. No.53/Admn.A1/2019, dated
10.09.2020 as Assistant Director Stationery Wing as illegal,
arbitrary and consequently declare that the petitioner is
entitled to count his seniority from the date of his promotion
as Special Category Stenographer i.e. 01.12.2009 in the
category of Superintendent and consequently direct the 1st
and 2nd respondents to place the petitioner at S.No.1 in the
said Final Seniority List and consequently, declare that the
petitioner is entitled to be promoted as Assistant Director,
Stationary Wing on par with the 3rd respondent with all
consequential benefits like seniority, arrears of pay etc and
consequently direct the 1st and 2nd respondents to promote
the petitioner as Assistant Director, Stationery Wing on par
with the 3rd respondent with all consequential benefits like
seniority, arrears of pay etc.
PERUSED THE RECORD :
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3. The main contentions put forth by the counsel for
the petitioner are as under:
a) That the Petitioner belongs to S.C. community and the
Petitioner was initially appointed as Senior Stenographer on
27.06.1997 and further promoted as Special Category
Stenographer on 01.12.2009.
b) That the services of the Petitioner were regularized in
that category w.e.f. 01-12-2009 and the probation was also
declared w.e.f. 01-12-2009.
c) That in terms of Telangana Ministerial Services Rules,
1998 the Petitioner was appointed as Superintendent by way
of conversion vide order dt. 15.03.2019 and since then the
Petitioner is working in the said capacity till date.
d) That aggrieved by such conversion the 3rd and 5th
Respondents have raised their objections vide representation
dt. 18.03.2019 and the same was considered and rejected by
the 2nd Respondent vide Order dt. 02.04.2019 and the same
has become final.
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e) That the petitioner passed all the tests and is fully
eligible and entitled to be promoted as Assistant Director,
while so, the 2nd Respondent has given a tentative seniority
list of Superintendents on 22.07.2019 and in the said list
Petitioner is placed at Sl.No.4 whereas the Respondents No.3
to 5 were placed above the Petitioner from Sl.No.1 to 3.
f) That the Petitioner has given his objections on
30.07.2019 pointing out the illegality in that Seniority list and
requested that the Petitioner be shown above the
Respondents 3 to 5. But however ignoring the same the 2nd
Respondent issued a final seniority list impugned in the
present Writ Petition dt. 20.08.2019 communicated to the
Petitioner on 20.08.2020 and further the Petitioner gave a
representation on 02.09.2020 to the 2nd Respondent and also
simultaneously filed Appeal vide Petitioner's Appeal dt.
07.09.2020.
g) That the 2nd Respondent had convened a DPC on
07.09.2020 and hurriedly promoted the 3rd Respondent as
Assistant Director, Stationery Wing (impugned in this Writ
Petition) vide order dated 10.09.2020.
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h) That in the said DPC, the Petitioner has reliably learnt
that besides the 3rd Respondent the 4th Respondent's name is
also included.
i) That the 3rd Respondent is going to retire on
31.10.2020 and based on the said illegal DPC proceedings
dated 07.09.2020 the 4th Respondent is going to be
promoted.
j) That the 1st Respondent i.e., the Government vide their
Memo dated 14.09.2020 directed the 2nd Respondent to
submit a report but so far no action has been taken by the 2nd
Respondent and the 4th Respondent is also going to be
promoted without considering any of the representation of the
Appeal of the Petitioner.
k) That the Petitioner after having been appointed as
Senior Stenographer on 27.06.1997 through APPSC in the
O/o. Commissioner of Printing, Stationery and Stores
purchase department and worked as stenographer for 12
years was promoted to the post of Special Category
Stenographer on 01-12-2009 i.e., Superintendent rank and
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worked on the said promotion post w.e.f. 01-12-2009 and
completed more than 9½ years of service on the post of
Special Category Steno i.e., in the rank of Superintendent to
the utmost satisfaction of Petitioner's superiors and HOD.
l) That the Petitioner's services were regularized and
probation was already declared on the post of Special
Category Stenographer. The Petitioner was converted as
Class-A Category-1 Superintendent as per the provisions
contained in the Rule 3 and 16 of the Ministerial Service
Rules, 1998 and the Petitioner is fulfilling all the eligibility
conditions for conversion as per the rules.
m) That in the exercise of the powers conferred under the
Rule (12) r/w Rule (13) of the Ministerial Service Rules, 1998
on conversion the Petitioner was posted as Superintendent
against the existing vacancy in the Stationery Wing on
Administrative grounds and the Petitioner assumed the charge
of the post of the Superintendent on 15.03.2019 A.N. in
Stationery Wing.
o) That the tentative Seniority List for preparation of final
seniority list of Superintendents/Storekeeper was
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communicated to the Petitioner placing the Petitioner's name
at Sl.No.4 and the objections of the Petitioner to the said
seniority list are as follows:
(a) that the Petitioner's date of appointment was
wrongly mentioned as 15.03.2019 instead of
mentioning as 01-12-2009.
(b) that the Petitioner was converted as Class-A
Category (1) Superintendent as per the
provisions contained in the Rule(3) and (16) of
the Ministerial Service Rules vide Proceedings
No.782/Admn.B1/2018, dt. 15.03.2019.
(c) that as per Rule 15(2)(i) of the Ministerial
Service Rules, 1998 it should be mentioned as
01.12.2009 from the date of promotion to the
post of Special Category Stenographer which is
equivalent to Superintendent in the scale of
Rs.29,760 - 80,930 which is feeder cadre for the
next higher post.
(d) that it was wrongly mentioned that the
Petitioner's services are not regularized when
the Petitioner's services were regularized to the
post of Special Category Steno vide
Proc.No.2585/Admn.B1/2010, dt. 01.11.2011.
(e) though the Petitioner's probation was wrongly
mentioned as not declared whereas the
probation of the Petitioner was declared vide
Proceedings dt. 28.01.2011 to the post of Special
Category Stenographer.
(f) that the qualification of the Petitioner was
wrongly mentioned as Shorthand English when
the Petitioner was qualified for Shorthand
English Senior Grade Higher.
(g) that in the remarks column it was wrongly
mentioned that the Petitioner was transferred to
Stationery Wing from Printing Wing and
therefore it was not a transfer but conversion as
per the orders issued vide
Proc.No.782/Admn.B1/2018, dt. 15.03.2019.
(h) that the Departmental test passed was wrongly
mentioned as Stores Purchase Volume 1 & 2
whereas it should be mentioned as Stationery
Manual Volume 1 & 2.
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(i) that as per the Rule 15(2)(i) of Ministerial
Service Rules, 1998 Petitioner's seniority shall be
fixed with reference to the date of his first
appointment as Special Category Stenographer
i.e., from 01.12.2009 and not from the date of
conversion i.e., 15.03.2019 and the Petitioner
should be placed at Sl.No.1.
p) That in view of the clear patent illegality
committed by the Respondents the Writ Petition should
be allowed as prayed for.
4. The main contentions put forth by the counsel for
the respondents are as follows:
a) Learned counsel mainly relied on paras 6, 7, 10,
12 and 16 of the counter affidavit, which are as follows:
Para 6: In this regard it is humbly submitted that the
petitioner was initially appointed as Senior Stenographer on
27-06-1997 in Printing Wing. He was later promoted as
Special Category Stenographer in Printing Wing and having
examined the said representations of the petitioner by the
then Commissioner and an order was issued on 15.03.2019
converting him to the post of Superintendent in the Stationery
Wing on his own request instead of Printing Wing to which he
is originally appointed to, as there was no vacancy in the
Printing Wing at the time of his representation and one post of
Superintendent was lying vacant in Stationery Wing from
23.08.2017 and no eligible Senior Assistants were available in
the said Stationery Wing to be promoted as Superintendent.
Para 7: As the Petitioner was posted in Stationery Wing as
Superintendent on his own request he was placed in the
tentative seniority list of Superintendents and Storekeeper
below that of Respondents 3 to 5, since the Stationery Wing is
a separate unit of appointment to that of Printing Wing to
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which the Petitioner originally belongs to and the Respondents
3 to 5 were already discharging their services as
Superintendents in the Stationery Wing.
Para 10: The Committee in its report concluded that, the
petitioner has come up on his own request from his parent
unit of Printing wing to another unit of appointment, that is
stationery wing, and hence, he may be treated as junior
among the existing Superintendents and Storekeeper of the
Stationery Wing by treating the conversion of the petitioner
from one unit to another unit equally as transfer from one unit
to another on his own request. Hence, it may be observed that
his request has been considered and converted from the
Special Category Stenographer to the category of
Superintendent from one printing Wing to another stationery
wing despite the three wings being separate units of
appointment for promotion, seniority etc. as per the orders
laid down in the Government Memo. No.58398/Ptg.A2/95-5,
dated: 12.03.1996 for promotion, seniority etc.
Para 12: Thus the Petitioner is not qualified and not eligible for
promotion to the post of Assistant Director (Stationery).
Para 16: Further, the Petitioner had filed an appeal with
the Government on 07.09.2020 with regard to his seniority
position in the Stationery Wing to which a detailed report
mentioning the facts and circumstances of the case have
already been sent to the Government vide File No.CPSSP-
STY/E1/SM/7/2020-STY(E), dt. 08.12.2020 and the orders are
awaited from the Government.
b) The counsel for the respondents places reliance
on the judgment dated 31.07.2008 in
W.P.No.27749/2007 and batch of a Division Bench of
this Court and contends that the principle laid down in the
said judgment equally applies to the facts of the present case
wherein it was observed that seniority is all together different
from that of the eligibility criteria laid down for the purpose of
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promotion and further the Petitioner has not rendered 5 years
of service in the Stationery Wing as Superintendent and
therefore Petitioner is not qualified and not eligible for
promotion to the post of Assistant Director (Stationery).
c) As per Rule 8 and 15 read together of the A.P.
Ministerial Service Rules, 1998 the Petitioner for the purpose
of Seniority has to be below the unofficial Respondents.
d) The Counsel for the Respondent also places
reliance on the judgment dated 12.04.2017 passed in
Civil Appeal Nos.6795, 6798 of 2014 and batch and
contends that the principle laid down in the said judgment
applies to facts of the present case and contends that when
certain length of service in a particular cadre can validly be
prescribed and if so prescribed unless a person possesses that
qualification he cannot be considered eligible for appointment
and that seniority by its self does not out weigh experience
and in the present case the petitioner did not have the
required experience as per rules for promotion to the post of
Assistant Director, Stationery Wing.
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e) That there is no any patent illegality committed in
respect of the final seniority list of Superintendents/SK
Stationery Wing issued vide Circular Memo vide
Rc.No.290/E1/2019-20, dt. 20.08.2019.
DISCUSSION & CONCLUSION :
5. A bare perusal of the proceedings
No.782/Admn.B1/2018, dated 15.03.2019 of the 2nd
respondent herein clearly indicate that the petitioner, a
special category stenographer is considered and
converted as Class-A Category(1) Superintendent as
per the provisions contained in Rule (3) and (16) of the
Ministerial Service Rules, 1998 and is posted as
Superintendent against the existing vacancy in the
Stationery Wing on administrative grounds in exercise
of the powers conferred under the Rule (12) r/w Rule
(13) of the Ministerial Service Rules, 1998.
6. Rule 15(2)(i) of the Telangana Ministerial Service
Rules, 1998 deals with seniority and the same is
extracted below :
"Seniority 15(2)(i) The seniority of a member of the
service who is appointed by conversion from the post of
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Special Category Stenographer to the post of Superindentent
or from the post of Senior Stenographer or U.D. Typist to the
post of Senior Assistant shall be fixed with reference to the
date of his first appointment as Special Category
Stenographer or Senior Stenographer or UD, Typist as the
case may be".
7. It is clear from the above Rule that the petitioner
who is confirmed member of the service in the category
of Special Category Stenographer is entitled to count
his seniority in the category of Superintendent from the
date of his appointment as Special Category
Stenographer which is 01.12.2009 but however, the
Petitioner's seniority in the category of Superintendent
is reckoned only from 15.03.2019 i.e., the date of
appointment to that post of Superintendent by way of
conversion.
8. It is, however, specifically contended by the
Petitioner at para 4.4 of the affidavit filed in support of
the present writ petition that the 2nd Respondent has
given a tentative seniority list of Superintendents on
22.07.2019. In the said list the Petitioner was placed at
Sl.No.4 whereas the Respondents No.3 to 5 were placed
above the Petitioner i.e., from Sl.No.1 to 3 and
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aggrieved by the same the Petitioner has given his
objections on 30.07.2019 pointing out the illegality in
that Seniority list and requested that the Petitioner be
shown above the Respondents 3 to 5. But however
ignoring the same the 2nd Respondent issued a final
seniority list impugned in the present Writ Petition
dated 20.08.2019 communicated to the Petitioner on
20.08.2020 and further the Petitioner gave a
representation on 02.09.2020 to the 2nd Respondent
and also simultaneously filed Appeal vide Petitioner's
Appeal dated 07.09.2020.
9. A bare perusal of para 16 of the counter affidavit
filed by the Respondent and the material documents
filed along with the said counter affidavit very clearly
indicates that the Petitioner had filed an Appeal with
the Government on 07.09.2020 with regard to
Petitioner's seniority position in the Stationery Wing to
which a detailed report vide Memo No.6640/Ser.IV/
A2/2020, dt. 14.09.2020 was called for from the 2nd
Respondent and the detailed report mentioning the
facts and circumstances of the case have already been
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sent to the Government vide File No.CPSSP-
STY/E1/SM/7/2020-STY(E), dt. 08.12.2020 and orders
are awaited from the Government. A bare perusal of the
material papers filed by the Petitioner in support of the
present writ petition also indicate that in pursuance to
the impugned final seniority list dated 20.08.2019 the
Petitioner submitted detailed representations dated
02.09.2020 and 07.09.2020 to the 2nd and 1st
respondents respectively, but however, no decision
duly considering the representations dated 02.09.2020,
07.09.2020 and communicating the said decision to the
petitioner has taken place till as on date.
10. The Petitioner's challenge in the present writ
petition is three fold, firstly
Firstly, Challenging the impugned final seniority
list dt. 20.08.2019,
Secondly, challenging the consequential
promotion order issued to the 3rd Respondent vide
Proceedings dt. 10.09.2020 passed by the 2nd
Respondent,
Thirdly, Challenging the action of the 1st and 2nd
Respondents in not taking the seniority of the
Petitioner in the category of Superintendent from the
date of promotion of the Petitioner to the category of
Special Category Stenographer i.e., 01.12.2009 in
terms of Rule 15(2)(i) of Telangana Ministerial Service
Rules, 1999 as illegal and to set aside the impugned
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final seniority list dt. 20.08.2019 and also the
consequential promotion order issued to the 3rd
Respondent dt. 10.09.2020 passed by the 2nd
Respondent.
11. The Apex Court in judgment reported in (2010) 12
SCC 471 in Shiba Shankar Mohapatra & Others v. State
of Orissa & Others observed at para 17 as follows :
Para 17 : One must not lose sight that seniority and
eligibility for promotion are two different concepts
altogether. Explaining the difference between the Two,
this Court in R. Prabha Devi v. Govt. of India held as
under. (SCC) pp. 241-42. para 15)
"15. The rule-making authority is competent to frame
rules laying down eligibility condition for promotion
to a higher post. When such an eligibility condition
has been laid down by service rules, it cannot be said
that a direct recruit who is senior to the promotees is
not required to comply with the eligibility condition
and he is entitled to be considered for promotion to
the higher post merely on the basis of his seniority.
When qualifications for appointment to a post in a
particular cadre are prescribed, the same have to be
satisfied before a person can be considered for
appointment. Seniority in a particular cadre does not
entitle a public servant for promotion to a higher post
unless he fulfils the eligibility condition prescribed by
the relevant rules. A person must be eligible for
promotion having regard to the qualifications
prescribed for the post before he can be considered
for promotion. Seniority will be relevant only amongst
persons eligible. Seniority cannot be substituted for
eligibility nor it can override it in the matter of
promotion to the next higher post.....
When certain length of service in a particular
cadre can validly be prescribed and is so
prescribed, unless a person possesses that
qualification, he cannot be considered eligible for
appointment. There is no law which lays down
that a senior in service would automatically be
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eligible for promotion. Seniority by itself does
not outweigh experience.
12. This Court opines that until and unless the first
limb of the prayer of the petitioner as sought for by the
petitioner is examined by respondent Nos.1 & 2 herein
duly considering the petitioner's representations dated
07.09.2020 addressed to the 1st Respondent and
02.09.2020 addressed to the 2nd Respondent and a
decision taken by the concerned Respondents, the
other consequential prayers sought for by the
petitioner in the present Writ Petition cannot be
granted at this stage. Taking into consideration the
specific averments pleaded by the Petitioner at para 4.4
of the affidavit filed in support of the present writ
petition (referred to and extracted above) and also the
specific averments made by the Respondent at paras, 6,
7, 10, 12 and 16 of the counter affidavit filed in the
present writ petition (referred to and extracted above)
and also the law laid down by our High Court and Apex
Court referred to and relied upon by the learned
Counsel for the Respondent i.e., (1) the judgment
dt.31.07.2008 in W.P.No.27749/2007 i.e., E.Shankar
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Reddy v. State of A.P. & Others and batch of a Division
Bench of this Court on the point "that seniority is all
together different from that of the eligibility criteria
laid down for the purpose of promotion" and (2) the
judgment dt. 12.04.2017 passed in Civil Appeal
Nos.6795, 6798 of 2014 i.e., Palure Bhaskar Rao v. P.
Ramaseshaiah & Others and batch in so far as the
principle is concerned "that seniority is all together
different from that of the eligibility criteria laid down
for the purpose of promotion" and further that seniority
by itself does not outweigh experience and further
taking into consideration the law laid down by the Apex
Court (2010) 12 SCC 471 in Shiba Shankar Mohapatra &
Others v. State of Orissa & Others on the point that
there is no law which lays down that a senior in service
would automatically be eligible for promotion, this
Court opines that the first limb of the prayer sought by
the Writ Petitioner should be addressed first to enable
the Petitioner to pursue the consequential prayers
sought for in the present Writ Petition.
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13. Taking into consideration all the above referred
facts and circumstances the writ petition is disposed of
directing respondent Nos.1 and 2 to take a decision on
the detailed report forwarded to respondent No.1 i.e.,
Government vide File No.CPSSP-STY/E1/SM/7/2020-
STY(E), dated 08.12.2020 by the 2nd Respondent duly
examining and considering the petitioner's
representations dated 02.09.2020 addressed to the 2nd
Respondent and 07.09.2020 addressed to the 1st
Respondent within a period of 3 weeks from the date of
receipt of the copy of the order duly following the
principles of natural justice and communicate the said
decision to the Petitioner. Based on the said decision,
as communicated to the petitioner, the petitioner is at
liberty to pursue the other consequential reliefs sought
for in the present Writ Petition as per the remedies
available to the petitioner under law.
14. Here, it is pertinent to mention that in view of the
fact that the facts stated in the counter affidavit relate
to a situation as on 22.12.2020 as per the deponents
signature. In the event the respondents have already
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considered the petitioner's representations dated
02.09.2020 and 07.09.2020, on the basis of the report
vide file No.CPSSP/STY/E1/ SM/7/2020 -,STY(E),
dated 08.12.2020, and passed orders against the
interest of the petitioner, the petitioner is at liberty to
pursue the remedies as available to the petitioner
under law. There shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand
closed.
_________________
SUREPALLI NANDA, J
Date: 14.11.2022
Note: L.R.Copy to be marked
b/o
kvrm
