Telangana High Court
Sulthan Moinudin, vs The State Of Telangana, on 7 December, 2023
HIGH COURT FOR THE STATE OF TELANGANA
********
WRIT PETITION NO.5390 OF 2017
Between :
Sulthan Moinuddin, s/o.Azeemuddin,
Aged 43 years, occu: School Assistant,
ZPHS, Kodair (M), r/o.H.No.10-10,
Sadath Street, Nagarkurnool district
and others.
...Petitioners
and
The State of Telangana,
Rep.by its Principal Secretary,
School Education Department,
Secretariat Buildings and others.
.... Respondents
DATE OF JUDGMENT PRONOUNCED : 07.12.2023
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
1. Whether Reporters of Local Newspapers : No
may be allowed to see the Judgments ?
2. Whether the copies of judgment may be : Yes
marked to Law Reporters/Journals
3. Whether Their Lordship wish to : No
see the fair copy of the Judgment ?
LNA,J
WP No.5390 of 2017
2
*HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
+WRIT PETITION NO.5390 OF 2017
%07.12.2023
Between:
# Sulthan Moinuddin, s/o.Azeemuddin,
Aged 43 years, occu: School Assistant,
ZPHS, Kodair (M), r/o.H.No.10-10,
Sadath Street, Nagarkurnool district
and others.
...Petitioners
and
$ The State of Telangana,
Rep.by its Principal Secretary,
School Education Department,
Secretariat Buildings and others.
.... Respondents
!Counsel for the Petitioners : Sri G.V.Shivaji
Counsel for the Respondents : Govt.Pleader for Services-I
for respondents
<Gist :
>Head Note:
? Cases referred:
(2008) 7 SCC 728; 1998 (5) SCC 246; (2020) 5 SCC 230;
LNA,J
WP No.5390 of 2017
3
HONOURABLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
WRIT PETITION NO.5390 of 2017
ORDER:
This writ petition is filed to declare the impugned action of the
respondents in not according to the seniority and other benefits from the
year 2005 on par with all other candidates selected and appointed in
pursuance of DSC-2003 and further action in rejecting the
representation of the petitioners dated 18.02.104 vide impugned order
dated 13.03.2015 as illegal and arbitrary and consequently, direct the
respondents to accord seniority to the petitioners with effect from the
date of appointment of all other candidates as per DSC-2003 along with
all benefits.
2. The brief facts leading to filing of the present writ petition are
that, petitioners applied for selection to the post of School Assistants
pursuant to the notification issued in the year 2003. Originally, the
recruitment notification for DSC-2003 was issued in the year 2003 for
selection of posts of School Assistants. After issuance of notification, 2nd
respondent had issued circular granting relaxation in favour of the
candidates possessing single subject certificate in English and directed
them to be considered for promotions also. In view of the consideration
of candidates with single subject certificate holders from
LNA,J
Dr.B.R.Ambedkar Open University, who are otherwise ineligible, the
petitioners lost their opportunity of selections, though they are
meritorious.
3. Aggrieved thereby, petitioners filed O.A.No.9635 of 2002 and
batch, however, the said O.A.No.9635 of 2002 and batch were
dismissed. Aggrieved by the same, petitioners filed W.P.No.9073 of 2022
and batch. The Hon'ble High Court vide judgment dated 06.01.2006
held that relaxing the qualifications in favour of single subject certificate
holders is illegal and unsustainable
4. In the light of above judgment, the candidates who were appointed
on the basis of such single subject certificates are liable to be removed
and petitioners ought to have been appointed in their places, however,
respondents did not take any action. Therefore, petitioners approached
this Hon'ble High Court vide W.P.No.20426 of 2006 and during the
course of hearing, this High Court had taken a serious view against the
action of respondents. Therefore, the Government has taken a decision
to appoint the petitioners, accordingly, petitioners were appointed vide
proceedings dated 23.03.2009. The successful candidates in DSC-2003
were appointed vide proceedings dated 28.12.2005. Thus, petitioners are
deprived of services and seniority and all other benefits for a period of
four years. The delay in appointment of the petitioners is only due to
LNA,J
the illegal action of the respondents and not on account of any reason
attributable to the petitioners. Therefore, petitioners are entitled to
seniority and other benefits on par with the all other candidates
appointed in the year 2005 in pursuance of notification in DSC-2003.
5. Petitioners made representation dated 20.06.2013, however,
respondents did not take any action on the said representation.
Petitioners filed O.A.No.68 of 2014 seeking for notional seniority and pay
fixation to the petitioners on par with all other candidates appointed in
the year 2005. The Hon'ble Tribunal vide order dated 03.01.2014
granted interim direction permitting the petitioners to submit fresh
representation for seniority and notional increments on par with DSC-
2003 candidates and the respondents are directed to consider the
representation. Accordingly, petitioners submitted detailed
representation on 18.02.2014, but the respondents did not take any
action and therefore, the petitioners filed contempt cases. The 3rd
respondent issued impugned proceedings 13.03.2015 rejecting the
representations of the petitioners on the ground that petitioners were
appointed pursuant to the interim orders dated 28.09.2006 passed in
WPMP No.25826 of 2006 in W.P.No.20426 of 2006. Therefore,
petitioners cannot be given seniority along with DSC-2003 candidates
and also for the other reason that if notional seniority is given to the
LNA,J
petitioners, it will adversely affect the seniority of School Assistants.
Aggrieved by the same, the present writ petition is filed.
6. Respondents filed counter and contended that petitioners have
been appointed as School Assistants (English) in DSC-2003 with the
single subject certificate of Dr. B.R.Ambedkar Open University, on
23.03.2009 in view of the interim orders dated 28.09.2006 of the
Hon'ble High Court passed in W.P.No.20426 of 2006. The contention of
the petitioners to fix seniority on par with other selected candidates of
DSC-2003 is not convincing and no ground is made up as selections of
the petitioners was hit by litigation of Hon'ble Tribunal and Hon'ble High
Court and the respondents have implemented the orders of the Hon'ble
Courts from time to time to avoid contempt of court. Moreover, for the
recruitment of School Assistant post, district is the unit and the
petitioners cannot compare their seniority with the counterparts of the
other districts, where there is no such litigation.
6.1. It is contended that petitioners are the candidates of DSC-2003
and they were appointed in DSC-2003 selections in March, 2009 due to
the litigation pending before the Hon'ble Courts and now they submitted
representations in 2014 for considering their claim to count seniority
from the date on which their counter-parts appointed and working
already in 2005 i.e., four years prior to their date of joining in the
LNA,J
present posts. The petitioners are the candidates of DSC-2003 and who
are the litigants in both the Hon'ble APAT and this Court in
W.P.No.20426/2006 and batch, wherein this Hon'ble Court did not
interfere with the orders issued in G.O.Rt.No.556, dated 04.10.2005 and
also dismissed the W.P.No.20426 of 2006 and batch and hence, the
petitioners have no basis to claim seniority on par with the counterparts
of DSC-2003 who were already appointed in 2005.
6.2. It is further contended that the Hon'ble Apex Court in a similar
case vide judgment dated 25.10.2013 in Commissioner & Director of
Agriculture vs. P.Sudhakar Rao case in SLP (C) No.30636/2009, held
that seniority of the selected candidates who would be reckoned from
the date of their appointment only. Therefore, in the light of above
judgment, extending of notional seniority or monetary benefits to the
petitioners in the present writ petition on par with other selected
candidates in 2005 does not arise and finally, prayed for dismissal of the
writ petition.
7. Heard learned counsel Sri G.V.Shivaji for the petitioners and the
learned Government Pleader for Services-I for respondents.
8. The main issue in the present writ petition is with regard to claim
of seniority of candidates selected in DSC-2003, but were appointed in
LNA,J
2009. Petitioners filed O.A.No.68 of 2014 before the APAT praying to
declare that the petitioners are entitled to seniority in the cadre of
School Assistants with effect from the date on which their counter parts
were appointed in DSC-2003 i.e., in 2005 and above the School
Assistants appointed in subsequent DSCs.
9. The petitioners urged before the Tribunal and this Hon'ble Court
that though they were selected and appointed as School Assistants as
per their merit in DSC-2003, they were not treated as part of DSC-2003
merit list, treated their selection as separate selection and claimed that
they are entitled to reckon their seniority as per the panel or selection
list prepared for DSC-2003.
10. In support of his contention, learned counsel for petitioners
placed reliance on the following decisions:
(i) Balwant Singh Narwal and others vs. State of Haryana and others 1;
(ii) Order of this Hon'ble High Court in W.P.No.15167 of 2021
dated 6.12.2021; and
(iii) Order of this Hon'ble High Court in WP No.15185 of 2021
dated 06.12.2021
11. Per contra, according to the respondents, the petitioners were
appointed in DSC-2003 selections in March, 2009 of DCS-2003
selection due to litigation pending before the Hon'ble Courts and,
(2008) 7 SCC 728
LNA,J
therefore, they cannot be compared on with the other selected persons
appointed in DSC-2003 in the year 2005. Respondents have also raised
the plea of delay and latches as petitioner filed litigation before the
Hon'ble Courts instituted in the year 2006, which underwent in both
courts upto 20.02.2008 Further, it was also urged that if notional
seniority is extended to the petitioners, it would adversely impact others,
unsettling the settled issue and possibility of spate of litigation. The
petitioners also contended that if notional appointment is extended to
petitioners, they have to be paid regular pay scales from 2003 onwards
and arrears and monetary benefits also have to be paid.
12. The Tribunal vide interim orders dated 03.01.2014 passed in
O.A.No.68 of 2014 held that petitioners are permitted to submit fresh
representations regarding their claim for seniority and notional
increments on par with DSC-2003 candidates and the respondents are
directed to pass appropriate orders on the said representation within a
period of six weeks from the date of receipt of the representation.
13. Learned Government Pleader would contend that date of joining in
service is much later to the date of joining DSC-2003 candidates i.e., in
the year 2005 and from DSC-2003, there are more than four DSC
recruitments were made. Therefore, the petitioners are not entitled to
claim seniority on par with DSC-2003 candidates. According to the
LNA,J
Assistant Government Pleader, for direct recruits, inter se seniority is
based on merit secured in the recruitment and date of joining in service.
He would submit that direct recruitee commences his service when he
joins in service and that shall be the date of commencement of
probation and to assign seniority and no direct recruitee can claim a
date anterior to the date of appointment for the purpose of computation
of service for seniority. Therefore, petitioners cannot compare
themselves to DSC-2003 candidates.
14. He would submit that that DSC-2003 candidates, who were
appointed in the year 2005 are not made parties in this writ petition.
However, if the claim of the petitioners is accepted, they have to be
placed above DSC-2005 and subsequent DSC selected candidates in the
seniority list. No such steps can be taken to assess higher seniority
affecting right of DSC-2005 candidates and subsequent DSC candidates.
The issue of inter se seniority between DSC-2005 and subsequent DSC
candidates is settled long ago and settled things cannot be un-settled
after long lapse of time.
15. Issue for consideration is whether petitioners are entitled to claim
seniority on par with all other candidates as per DSC-2003 with all
attendant benefits including pay and fixation and arrears thereof ?
LNA,J
Consideration:
16. Before adverting to merits and rival contentions of both the
parties, it is appropriate to refer to the view taken by the Hon'ble
Supreme Court and this Hon'ble Court on the claim to seniority by
persons though selected pursuant to earlier recruitment notification,
but appointed later to appointments made as per subsequent
recruitment notifications.
17. In Balwant Singh Narwal (supra), merit list drawn by Public Service
Commission including 30 names was challenged on the ground that
though the indent was for 18 vacancies only, inclusion of larger number
of candidates in the selection list was illegal before High Court. The
learned single Judge of Punjab and Haryana High Court upheld the
challenge and same was affirmed by the Division Bench also. H
Pursuant to the decision of the High Court, 16 candidates were
appointed by an order dated 02.06.1994. The order of the Division
Bench was challenged before the Hon'ble Supreme Court and the
Hon'ble Supreme Court, at the interlocutory stage, passed orders
directing the respondents not to fill up 12 vacancies. Ultimately, the
Appeals were disposed of by an order dated 06.12.1999 by the Hon'ble
Supreme Court reversing the decision of the High Court and dismissing
the writ petitions filed before the High Court. The Hon'ble Supreme
Court held that the Government requisitioned 37 posts, therefore, there
LNA,J
was no bar on the power of the Commission to recommend 30 names.
Pursuant to the said judgment, 13 persons were appointed as Principals
by order dated 26.05.2000. After appointments, 13 persons submitted
representations for fixing their seniority as per the merit list drawn by
the Public Service Commission on 1.10.1993. They contended that but
for the litigation, they would have been appointed along with other 16
candidates and as their selection was with regard to the vacancies
notified in January, 1992, they should be given seniority above those
who were appointed against subsequent vacancies. The State
Government accepted their plea and fixed their positions immediately
after the 16 candidates appointed from the same merit list and they
were shown above the later appointees. The challenge made by the later
appointees was rejected by the High Court.
18. Considering a similar situation in Surendra Narain Singh Vs
State of Bihar 2, the Hon'ble Supreme Court held that candidates
selected against earlier vacancies, but could not be appointed along with
others of the same batch due to certain technical difficulties, when
appointed subsequently, would have to be placed above those who were
appointed against subsequent vacancies.
1998 (5) SCC 246
LNA,J
19. In C.Jayachandran vs. State of Kerala and others 3, issue was
similar to Balwant Singh Narwal (supra). The selection list was
challenged with reference to minimum age and the Kerala High Court
struck down the eligibility with reference to minimum age and the same
was affirmed by the Hon'ble Supreme Court. Consequently, four
candidates were selected against general merit vacancies and 3 others
against reserved vacancy category. The selection was disputed by non-
selected candidates before the Hon'ble Supreme Court and the Hon'ble
Supreme Court granted liberty to file writ petition. Consequently, a writ
petition was filed before the High Court challenging the grant of
moderation/grace marks to the candidates appointed on 30.03.2009
and sought for appointment as District and Sessions Judge. The writ
petition was allowed by the Division Bench. The ground of moderation
of marks was found to be unsustainable, therefore, High Court directed
to recast the select list.
20. In W.P.No.36266 of 2013 also similar issue has come for
consideration before Hon'ble Division Bench of this Court. Pursuant to
District Selection Committee 2001 selections, 9 SGTs were appointed on
04.10.2002, whereas others were appointed on 18.01.2002. Nine SGTs
filed O.A., before the Tribunal and sought for notional seniority from
18.01.2002 on par with first batch of 2001 candidates. The Tribunal
(2020) 5 SCC 230
LNA,J
allowed O.A., holding that the applicants were entitled to notional
seniority as per their ranking in merit list of 2001 on par with the
teachers appointed on 18.01.2002 by relying upon the decision of
Balwant Singh Narwal. Following the decision of Balwant Singh Narwal,
the Division Bench of this Court upheld the Tribunal's directions.
21. In substance, it is consistently held by Hon'ble Supreme Court
and this Court that from among the persons selected in pursuant to the
same recruitment notification, if some persons were appointed earlier
and some persons were appointed later and the delay occasioned due to
administrative lapses, the persons appointed later are entitled to claim
seniority on par with the persons appointed earlier and over and above
candidates appointed in the subsequent selections.
22. The learned Division Bench of this Court in The Government of
Andhra Pradesh, rep.by its Secretary to School Education
Department, Vs. B.Aswathama and others (WP Nos.21701 & 22011 of
2011 dated 29.07.2022) following the principles law laid down in
Balwant Singh Narwal (supra), Surendra Narain Singh (supra) and
C.Jayachandran, held as under:
"38. In the case on hand, issue is not about inter se seniority of
DSC1998 batch. The respondents are seeking to place them en-masse
below the first batch. Though by the time they were appointed the
candidates selected in pursuant to subsequent DSCs were already
appointed such appointments were contrary to the directions issued
by the Tribunal. As noticed above, Tribunal clearly directed to draw
LNA,J
merit list and appoint respondents before appointing DSC-2000
candidates. Though respondents were successful in establishing their
claim, but employer was dragging its feet leading to three rounds of
litigation. Denying seniority to respondents would amount to
perpetrating the illegality committed by the employer. It is unjust to
deprive the fruits of success in the litigation merely because of the
lapses of employer and for no fault of respondents. A right has
accrued to respondents by virtue of declaration and directions issued
by the Tribunal and affirmed by the High Court to treat them as
belonging to DSC-1998 selection process and this right should
logically result in according seniority on par with first batch of DSC-
1998.
23. It is also appropriate to note that the delay in appointment of
petitioners, on the ground of pending litigation, is not attributable to
them, but to the employer. The principle of law laid down in Balwant
Singh Narwal (supra), Surendra Narain Singh (supra) C.Jayachandran
(supra) and B.Aswathama (supra), squarely apply to the facts of this
case.
24. In the case on hand, issue is to fix the seniority and other benefits
from the year 2005 on par with all other candidates selected and
appointed in pursuance of DSC-2003 though the petitioners are not
responsible for their belated appointments in the year 2009. Though
petitioners were successful in establishing their claim, but employer was
dragging its feet leading to litigation. Denying seniority to petitioners
would amount to perpetrating the illegality committed by the employer.
The petitioners cannot be deprived of their seniority merely because of
delay in litigation, and for no fault of petitioners. A right has accrued to
petitioners by virtue of declaration and directions issued by the Tribunal
LNA,J
and by the High Court to treat them as belonging to DSC-2003 selection
process and this right should logically result in according seniority on
par with selection candidates in 2003, who were appointed in the year
2005.
25. It is not in dispute that the appointments of the petitioners were
delayed owing to the lapse on the part of the respondent-authorities in
the same DSC-2003 selections.
Conclusion:
26. On due consideration of the above facts and circumstances and
legal position, this Court is of the view that petitioners are entitled to the
seniority and other benefits from the year 2005 on par with all other
candidates selected and appointed in pursuance of DSC-2003.
Accordingly, this Writ Petition is allowed, setting aside the impugned
proceedings dated 13.03.2015 of the 3rd respondent. There shall be no
order as to costs.
Pending miscellaneous petitions if any shall stand closed.
___________________________________
LAXMI NARAYANA ALISHETTY, J
Date: 07.12.2023
Kkm
