Telangana High Court

Md. Sadulla vs Southern Power Distribution ... on 28 October, 2022

Bench: P.Madhavi Devi

      THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI


                WRIT PETITION NO.27115 OF 2022
                                  AND
                WRIT PETITION NO.27116 OF 2022


                         COMMON ORDER


      Both the Writ Petitions are filed by the respective petitioners

seeking a Writ of Mandamus declaring the action of the respondents in

refusing to correct the seniority position of the petitioners over and

above the unofficial respondents as per their seniority and the impugned

action of cancelling the revised final seniority list of Linemen,

Operation Division dt.30.11.2021 vide the impugned Memo

No.DEE/OP/ZHB/JAO/D.No.858/2021 and Memo No.DEE/OP/ZHB/

JAO/D.No.859/2021 dt.14.02.2022 issued by the 3rd respondent and in

issuing fresh seniority list of Linemen, Operation Division, Zaheerabad

dt.14.02.2022 recording wrong date of promotion contrary to the entries

recorded in the service book of the petitioner, thereby placing juniors

over and above the petitioners and for taking further steps to undertake

promotions on the basis of the impugned Memos dt.14.02.2022, as

illegal, without jurisdiction and unconstitutional and consequently to set W.P.Nos.27115 and 27116 of 2022

aside the same along with any promotions, if effected, with all

consequential benefits.

2. Brief facts leading to the filing of W.P.No.27115 of 2022 are that

the petitioner was appointed as a Watchman on 29.03.2003 on

compassionate grounds and was promoted as Junior Lineman on

10.06.2005 and he joined as Junior Lineman on 15.06.2005. Thereafter,

he was promoted as Assistant Lineman on 10.01.2007 and joined at

Munipally Section under the control of AE/Operation, Mannapur and

further promoted as Lineman along with two of his juniors Mr. K.Rajesh

and Mr. B.Prabhu vide common order Memo

No.DEE/OP/ZHB/JAO/ADM/ C2/D.NO.748/12, dt.31.10.2012. Both

his juniors were promoted as Assistant Linemen on 08.08.2008. It is

submitted that the official respondents published a seniority list of

Linemen in Operation Division of Zaheerabad as on 15.10.2020, in July,

2021 in the notice board and it was noticed by the petitioner that his

juniors Rajesh and Prabhu were shown above him and he immediately

gave his objection to the 3rd respondent on 14.07.2021. It is submitted

that the 3rd respondent, after verifying the records, has found that the

petitioner is senior to the above mentioned two persons and published a W.P.Nos.27115 and 27116 of 2022

revised seniority list dt.30.11.2021, wherein the petitioner was shown

above his juniors and the same was communicated to all the Linemen in

Operation Division, Zaheerabad. It is submitted that after the revised

final seniority list which was published, it appears that the employees'

union, in which respondents 4 and 5 are officer bearers, have made a

representation to the 2nd respondent raising an objection to the revision

of seniority of Linemen cadre referring to a Circular Memo

No.57759/SER.A/2004-1 dt.20.05.2004 and citing the same, the 3rd

respondent, without any further notice to the petitioner, has cancelled

the revised final seniority list dt.30.11.2021 and issued the final

seniority list dt.14.02.2022. Challenging the same, the present Writ

Petition is filed.

3. Brief facts leading to the filing of W.P.No.27116 of 2022 are that

the petitioner was appointed as a Helper (Trainee) on compassionate

grounds on 12.10.1993 and later he was promoted as Assistant Lineman

on 07.01.2002 and thereafter as Lineman on 10.01.2007 and joined duty

as such on 29.05.2007 at Kondapur Section, Sangareddy Division. The

petitioner had applied for mutual transfer in Zaheerabad Division and

vide Memo No.ST/OP/MDK/PO/ADM/C2/D.No.2718/12 dated W.P.Nos.27115 and 27116 of 2022

14.09.2012, he was relieved at Kondapur Section, Sangareddy Division

on 18.09.2012 and has reported for duty at Nyalkal Section, Operation,

SPDCL, Zaheerabad on 18.09.2012 and has been working as such under

the control of the 3rd respondent. It is submitted that when the official

respondents published a provisional seniority list of Linemen in

Operation Division of Zaheerabad as on 15.10.2020 in the notice board

in July, 2021, the petitioner noticed that his juniors Rajesh, Prabhu and

Durgesh were shown above him and he immediately approached the 3rd

respondent and orally informed him of the mistake. It is submitted that

the petitioner's junior Mr. Durgesh has given an objection on

09.11.2020 and 14.07.2021 and on the basis of such an objection, a

revised final seniority list dt.30.11.2021 was published, wherein the

petitioner's date of joining as Lineman was corrected as 18.09.2012

from 19.12.2012. Thereafter, the petitioner made a representation on

10.02.2022 requesting the authorities to correct his seniority position as

per his seniority in service and it was corrected accordingly. It is

submitted that against the revised final seniority list, a representation of

the employees' union appears to have been made to the 2nd respondent

raising an objection for revision of seniority of Linemen cadre referring

to a Circular Memo No.57759/SER.A/2004-1 dt.20.05.2004 and on the W.P.Nos.27115 and 27116 of 2022

basis of such an objection, the official respondents have cancelled the

seniority list published on 30.11.2021 and issued another seniority list

dt.14.02.2022 placing the petitioner as junior to respondents 4 and 5.

Challenging the same, the present Writ Petition is filed.

4. Learned counsel for both the writ petitioners submitted that the

seniority of the petitioners is not fixed as per their service records and

therefore it is contrary to facts and law and therefore liable to be set

aside. It is submitted that after the petitioners have joined as Linemen in

Operation Division, Zaheerabad, no promotions have been effected and

no seniority list has been published till July, 2021 which was corrected

vide revised final seniority list dt.30.11.2021 and the same was

unilaterally set aside by the 3rd respondent and a fresh seniority list

dt.14.02.2022 has been issued. It is further stated that even as per the

fresh seniority list dt.14.02.2022, no promotions have been made and

therefore there was no occasion for the petitioners to come to know

about the mistakes in the seniority list and to raise objections to the

same. It is submitted that if the errors in the said seniority list are not

corrected, the petitioners will suffer irreparable loss and damage. The

learned counsel for the petitioners has drawn the attention of this Court W.P.Nos.27115 and 27116 of 2022

to the entries in the service records of the petitioners to demonstrate that

the date of joining of the petitioner in W.P.No.27116 of 2022 in the

present cadre of Lineman is 18.09.2012. He also submitted that the

employees mentioned at Serial Nos.2, 3 and 4 have been promoted and

have joined the present cadre subsequent to the joining of the petitioner

on 18.09.2012. Therefore, he submitted that all the three have to be

shown below the petitioner in W.P.No.27116 of 2022. With reference to

Circular Memo No.57759/Cir/A/2004 dt.20.05.2004 of the Government

of Andhra Pradesh, he submitted that no request for revision of seniority

for a period of more than 3 years shall be considered, but the said

Circular is not applicable in this case as no seniority list was finalised

and published till July, 2021. It is submitted that seniority has to be

fixed as per service records of the petitioners and since there was no

seniority list published earlier, it was at the earliest possible occasion

that the petitioners have raised objections and the same have been

corrected by the authorities, but subsequently have been revised without

any basis and without any notice to the writ petitioners.

5. Learned Standing Counsel for the official respondents submitted

that the official respondents have been publishing the seniority list of W.P.Nos.27115 and 27116 of 2022

O&M staff periodically and the provisional seniority list dt.02.07.2013

was communicated calling for objections thereto within 15 days from

the date of publication, wherein the petitioner was placed at Serial

No.27 and his date of joining in the present cadre was shown as

01.11.2012, while the unofficial respondents 4 and 5 were shown at

Serial Nos.28 and 29 respectively and their date of joining in the

present cadre of service was recorded as 31.10.2012 and after

considering the objections, the final seniority list was published vide

Memo dt.31.12.2013 and the seniority list of Linemen in Operation

Division, Zaheerabad as on 01.07.2013 was published, wherein the

petitioner in W.P.No.27115 of 2022 was shown at Serial No.28, i.e.,

below the unofficial respondents 4 and 5 who were shown at Serial

Nos.26 and 27 respectively. It is submitted that the petitioners did not

file any objections for the same and for subsequent years also, the

seniority lists have been published. The petitioner in W.P.No.27115 of

2022 was shown at Serial No.19, whereas the unofficial respondents 4

and 5 were shown at Serial Nos.17 and 18 respectively in the seniority

list dt.07.09.2016. It is submitted that the seniority lists for 2017-18,

2018-19 and 2019-20 were also published and the petitioners have never

raised any objections except to the provisional seniority list published W.P.Nos.27115 and 27116 of 2022

on 30.06.2021, wherein the petitioner in W.P.No.27115 of 2022 was

shown at Serial No.5, whereas the unofficial respondents were shown at

Serial Nos.3 and 4. When the petitioner in W.P.No.27115 of 2022 got

promotion as Junior Lineman on 31.10.2012, he was posted to Raikud

itself and on the same night, he joined and he mentioned his joining date

as 01.11.2012 and on that basis, the juniors to him have been shown

above him and that he made a representation dt.09.11.2020 in that

regard. It is submitted that after correction of the date of joining of the

petitioner in W.P.No.27115 of 2022, the unofficial respondents have

made representations objecting to the revision of the seniority list after

lapse of 8 years and accordingly on the basis of the Circular issued by

the Government of Andhra Pradesh dt.20.05.2004 that no request for

revision of seniority for a period of more than 3 years old shall be

considered, the seniority list was rectified. Therefore, according to him,

there is no merit in these Writ Petitions. The learned counsel for the

official respondents has also filed copies of seniority lists published

from the year 2013 onwards in proof of his above contentions.

Therefore, he prayed for dismissal of the Writ Petitions.

W.P.Nos.27115 and 27116 of 2022

6. Learned counsel for the petitioners, however, has brought to the

notice of this Court that such seniority lists were never communicated to

the employees. It is submitted that a close scrutiny of the lists furnished

along with the counter affidavit would show that the copies were

marked only to the Assistant Engineer/OP and the Assistant Divisional

Engineer/OP and the Superintending Engineer/OP/Medak for

information, whereas the seniority list of 2021 was, for the first time,

directed to be communicated to the Controlling Officers to serve on the

individuals. It is submitted that only on receipt of the said seniority list

as on 15.10.2020, did the petitioners come to know about the mistakes

in the seniority list due to the erroneous entry of the date of joining as

taken by the official respondents and accordingly made the

representations.

7. Upon hearing both the parties and after going through the material

on record, it is noticed that though the petitioners have joined the

present position prior to the unofficial respondents 4 and 5, the

petitioners have been shown as juniors to them. Therefore, there is a

factual error committed by the official respondents while fixing the

seniority. Without communicating the seniority list to the petitioners and W.P.Nos.27115 and 27116 of 2022

the similarly placed employees, the respondents cannot take shelter

under the Circular Memo No.57759/SER.A/2004-1, dt.20.05.2004. If

the seniority list had been communicated to the employees and if they

had not raised any objection for a period of three years, only in such

circumstances, would the Circular apply.

8. The learned counsel for the petitioners had relied upon the

following case law in support of his contention.

9. The Hon'ble Supreme Court in the case of Arun Kumar

Chatterjee Vs. South Eastern Railway and others1 had held as under:

"12. We find no justification for the attitude adopted by the Railway Administration in depriving the appellant of his legitimate rights. Loss of seniority of a Government servant with consequent loss of promotional prospects, higher pay and emoluments is a matter of serious consequence to him. When the appellant by his representations drew the attention of the departmental authorities to the injustice done to him, it was their duty to have rectified the mistake and re-fixed the seniority of the appellant. It was precisely to meet a situation of this kind that the Railway Board's circular dated 16-10-1964 was issued. It provides that if a person has been promoted but not on the date on which he should have been promoted due to some administrative error then the employee should be assigned correct seniority vis-a-vis his juniors already promoted irrespective of

(1985) 2 SCC 451 W.P.Nos.27115 and 27116 of 2022

the date of promotion. It further provides that the pay of such employee in higher grade on promotion will be fixed pro forma at the stage which he would have reached if he had been promoted at the proper time. There was no reason for the Railway Administration to have deprived the appellant of the benefit of the aforesaid circular, particularly in view of the decision of Anil Kumar Sen, J., in Lal Mohan Paul case [Civil Rule No. 620(W)/70, dated April 23, 1974] ."

10. The Hon'ble Supreme Court in the case of Ajay Kumar Shukla

and others Vs. Arvind Rai and others2 has held as under:

"35. The plea to defend the seniority list prepared contrary to the statutory provisions on the ground of delay would be a difficult proposition. Apart from the submission of the appellants that there is no delay as they came to know of the three separate lists only in March, 2010, even if it is assumed that there was some delay and a fresh seniority list was being prepared in 2009-2010 again contrary to the provisions of statutory rules, such seniority list cannot be sustained or defended on the ground of delay of five years."

11. Further in the case of Sushma Mutreja Vs. Union of India and

others3, the Hon'ble Supreme Court has held as under:

"3. Having considered the rival submissions and bearing in mind the peculiar facts and circumstances under which the appellant was appointed as UDC in the Labour Department, on being nominated by the Commerce Department, after she has acquired

2021 SCC OnLine SC 1195

(2001) 6 SCC 428 W.P.Nos.27115 and 27116 of 2022

necessary qualification for such promotion, we are of the considered opinion that the redrawing up of the seniority list in the year 1991 must be held to be an arbitrary exercise of power and the employer has failed to indicate any reason for altering the seniority list which had been drawn up in the year 1989. That apart, on first principle also when a person is brought from one cadre to other and joins a new cadre then he must be treated to be lowest in the cadre on that date, but he cannot be junior to all those who were not even borne in the cadre on that date. In other words, Respondents 3 to 30 were Lower Division Clerks and some were officiating on ad hoc basis, not being borne in the select list in the posts of Upper Division Clerks in the Commerce Ministry, whereas the appellant was brought, after being nominated by the Commerce Ministry to the Labour Ministry, and was allowed to join the post of UDC on 3-11-1982. That being the position, rightly she was shown senior to Respondents 3 to 30 in the seniority list of the year 1989. That list could not have been altered without any reason by the employer. In the aforesaid premises, we set aside the impugned judgment of the Tribunal, allow this appeal and hold that the appellant would be senior to Respondents 3 to 30 in the cadre of UDC in the Labour Ministry. If she would be entitled to any consequential benefits on that score, then her case may be duly considered and given accordingly."

12. In view of the above precedents on the issue of seniority, it is seen

that except in the seniority list communicated to the petitioners in the

year 2021, the respondents 4 and 5 have always been shown as juniors

to the petitioners and immediately on noticing the mistake, the

petitioners have raised objections. The service record of the petitioner in W.P.Nos.27115 and 27116 of 2022

W.P.No.27116 of 2022 also refers to the date of joining of the petitioner

in the present post of Lineman as 18.09.2012. The seniority list cannot

be contrary to the service record of the petitioner which is maintained

and certified by the official respondents themselves. In view of the

same, this Court deems it fit and proper to uphold the seniority list

dt.30.11.2021, wherein the respondents have corrected the seniority list

by taking the date of joining of both the writ petitioners in the post of