Telangana High Court
Raaya Sridevi vs The District Educational Officer, on 21 December, 2023
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
WRIT PETITION (TR) NO.1327 of 2017
ORDER:
The present writ petition is filed declaring the action of
the respondents in not extending the regular pay scale to the
petitioner for the post of Secondary Grade Teacher (SGT) on par
with DSC-2008 selected candidates in pursuant to the
proceedings vide Rc.No.7235/ B3/2013, dated 18.01.2014 as
illegal, arbitrary, unjustified and violative of Articles 14, 16, and
21 of the Constitution of India and consequently declare that
the period from 27.11.2010 to 30.06.2013 treated as continuity
of service and petitioner is eligible for notional seniority and
eligible for regular pay scale from the date of joining i.e.,
01.07.2013.
2. The brief facts leading to filing of the present writ petition
are that the Commissioner & Director of School Education,
Government of Andhra Pradesh, Hyderabad, had issued DSC-
2008 notification inviting the applications for various categories
of posts including 1066 posts of SGT in Telugu medium in
Nizamabad district vide G.O.Ms.No.161 Education (Services-VI)
Department, dated 06.12.2008.
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2.1. In response to the said notification, petitioner applied for
the post of SGT. The 1st respondent has published the selected
list of SGT in the month of October, 2010 and as per the
selected list, the petitioner secured 46.50 marks and with 3406
rank and she was the next candidate in the category of SC
(Women), who secured 46.50 marks and with 3396 rank. One
Rajani Priya was selected in SC (Women) category, however, she
resigned to the post of SGT. The petitioner submitted
representation to the respondents to consider her case as next
meritorious candidate from SC (Women) category and the same
was rejected by the respondents on 31.12.2010.
2.2. Aggrieved by the same, petitioner approached the APAT
vide O.A.No.415 of 2011 and the same was allowed on
02.08.2012. Challenging the same, the respondents approached
the High Court by filing W.P.No.2656 of 2013 and the said writ
petition was dismissed on 12.03.2013. Contempt proceedings
were initiated by the petitioner and subsequently, the
respondents issued posting orders to the petitioner and
accordingly, petitioner joined as SGT on 01.07.2013. Petitioner
is being paid consolidated pay of Rs.3,600/- per month.
However, candidates who were appointed in DSC-2008
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completed their apprentice period and getting regular pay
scales.
2.3. The Government extended the benefit of regular scales to
the teachers appointed through DSC-2012 and now there is no
apprentice system. The candidates of DSC-2012, who joined
duties before joining of petitioner are getting regular pay scale
attached to the SGT in School Education Department and the
same benefit was denied to the petitioner. Hence, the present
writ petition.
3. The Hon'ble APAT vide order dated 21.12.2013 granted
interim order directing the respondents to consider sanctioning
regular pay scale to the petitioner and pass appropriate orders
within a period of four weeks from the date of receipt of that
order.
4. Respondents filed counter and contended that pursuant
to the notification dated 06.12.2008, petitioner applied for the
post of SGT (Telugu Medium) and secured 46.5 marks with rank
3406 and belongs to SC (Women) category. However, it is denied
that she was in the zone of consideration for appointment. It is
stated that the selection process of DSC-2008 for filling the SGT
posts were completed following the guidelines issued vide
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G.O.Ms.No.62 SE (PE SER.II) Department dated 29.10.2010,
which superseded the G.O.Ms.No.27 SE (PE SER.II) Department
dated 21.06.2010 issued earlier. As per the guidelines of
G.O.Ms.No.62 dated 29.10.2010, the dual selected candidates
have been given opportunity to the higher post and the selectins
in lower post has been seized and the next immediate
meritorious candidate of DSC-2008 aspirant was given the
opportunity for selection into the lower post as per Rule 4 (VII)
of G.O.Ms.No.62 dated 29.10.2010.
5. Smt. Battu Rajani Priya, who was one of the selected
candidates, was also an aspirant for the post of School
Assistant English, for which 95 vacancies were notified,
however, only 85 School Assistant English vacancies were in
existence at the time of selection process. As per G.O.Ms.No.112
Education dated 06.10.2009, Government had issued
instructions to fill up the available vacancies of 85 posts of
School Assistants English. Smt. Battu Rajani Priya, who was
selected as SGT in the earlier process of selections, was selected
as School Assistant English and she resigned to the post of SGT
on 10.11.2010. The next meritorious candidate i.e., petitioner
herein had approached the Hon'ble High Court by filing
W.P.No.2656 of 2013. Subsequently, petitioner was issued
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appointment orders and she joined on 01.07.2013. It is further
stated that regular pay in the post of SGT was not considered as
every candidate selected in DSC-2008 has to serve two years of
apprentice period and after completion of said period, the
candidates are eligible for regular time scale as per
G.O.Ms.No.161 SE (PE SER.II) Department, dated 06.12.2018.
He finally contended that request of petitioner for sanction of
regular pay scale was considered by the DEO and rejected as it
is not feasible to implement.
6. Heard learned counsel Sri N.Ramesh for the petitioner
and the learned Government Pleader for School Education for
respondents.
7. The main issue in the present writ petition is with regard
to extending regular pay scales to the petitioner for the post of
SGT on par with DSC-2008 selected candidates and to declare
the period from 27.11.2010 to 30.06.2013 as continuity of
service with notional seniority.
8. In support of his contention, learned counsel for
petitioner placed reliance on the following decisions:
(i) Order of Division Bench of this Hon'ble High Court in
W.P.No.21193 of 2017, 29.06.2017;
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(ii) Order of Division Bench of this Hon'ble High Court in
WP No.17397 of 2014, dated 20.12.2022
(iii) Common order of Division Bench of this Hon'ble Court
in W.P.Nos.21701 and 22011 of 2011.
9. Per contra, according to the learned Government Pleader,
petitioner being one of DSC-2008 recruitment candidates, the
salary has to be paid in accordance to the pay and allowances
as applicable as per rules in force and she was paid the
consolidated pay applicable to DSC-2008 recruitees. He
submitted that though the apprenticeship period of consolidated
pay is abolished, she being one of the employees appointed in
DSC-2008, she is not eligible for regular scale on par with DSC-
2008 recruitees. Petitioner had joined into Government service
on 01.07.2013 and was not in Government service and claiming
notional seniority and regular pay in the post of SGT is not
proper as every candidate in DSC-2008 has to serve two years of
apprentice period and only after completion of two years of
apprentice period, she is eligible for regular time scale as per
G.O.Ms.No.161, dated 06.12.2008.
10. Further, it was also urged that if notional seniority and
regular pay scale is extended to the petitioner, it would
adversely impact others, unsettling the settled issue and
possibility of spate of litigation. Learned Government Pleader
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also contended that if notional seniority is extended to
petitioner, they have to be paid regular pay scales from 2013
onwards and arrears and monetary benefits also have to be
paid. No such steps can be taken to assess higher seniority
affecting right of subsequent DSC candidates. The issue of inter
se seniority between DSC-2008 and subsequent DSC
candidates is settled long ago and settled things cannot be un-
settled after long lapse of time.
11. Issue for consideration is whether petitioner is entitled to
treat the period from 27.11.2010 to 30.06.2013 as continuity of
service, the notional seniority on par with all other candidates
as per DSC-2008 with all attendant benefits including regular
pay scale to the post of SGT from 01.07.2013 and arrears
thereof ?
Consideration:
12. 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.
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13. In Balwant Singh Narwal and others vs. State of
Haryana and others 1, 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. 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 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
(2008) 7 SCC 728
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representations for fixing their seniority as per the merit list
drawn by the Public Service Commission on 01.10.1993. 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.
14. 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
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15. 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.
16. 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
(2020) 5 SCC 230
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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 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.
17. In substance, it is consistently held by Hon'ble Supreme
Court and this Court that 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.
18. 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
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the principles of 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 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."
19. 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.
20. In the case on hand, issue is to treat the period from
27.11.2010 to 30.06.2013 as continuity of service, to fix the
seniority and other benefits on par with all other candidates
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selected and appointed in pursuance of DSC-2008 since the
petitioner is not responsible for her belated appointment in the
year 2013. Though petitioner was successful in establishing her
claim, but employer was dragging its feet leading to litigation.
Denying to treat the period from 27.11.2010 to 30.06.2013 as
continuity of service and notional seniority along with regular
pay scales to the post of SGT from 01.07.2013 would amount to
perpetrating the illegality committed by the employer.
21. The petitioner cannot be deprived of her notional seniority
merely because of delay in litigation, and for no fault of
petitioner. A right has accrued to petitioner by virtue of
declaration and directions issued by the Tribunal on 24.12.2013
directing the respondents to consider sanctioning regular pays
scale to the petitioner attached to the post of SGT, based upon
her representation dated 10.10.2013 and appropriate orders in
this regard be passed within a period of four weeks from the
date of receipt of the order and this right should logically result
in according seniority on par with selection candidates in DSC-
2008.
22. It is not in dispute that the appointment of the petitioner
was delayed owing to the lapse on the part of the respondent-
authorities in the same DSC-2008 selections.
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Conclusion:
23. On due consideration of the above facts and
circumstances and legal position, this Court is of the considered
that the petitioner is entitled to the notional seniority and
regular pay scales to the post of SGT from the date of her
joining i.e., 01.07.2013 including other benefits from the year
2013 on par with all other candidates selected and appointed in
pursuance of DSC-2008. The respondents are also directed to
treat the period from 27.11.2010 to 30.06.2013 as continuity of
service.
24. Accordingly, this Writ Petition is allowed, setting aside the
impugned proceedings dated 18.01.2014 of the 1st respondent.
The respondents are directed to pay regular pay scales of SGT
post from the date of joining of the petitioner i.e., 01.07.2013
and treat the period from 27.11.2010 to 30.06.2013 as
continuity of service for notional seniority. There shall be no
order as to costs.
Pending miscellaneous petitions if any shall stand closed.
___________________________________
LAXMI NARAYANA ALISHETTY, J
Date: 21.12.2023
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HON''BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
WRIT PETITION (TR) NO.1327 of 2017
Date: 21.12.2023
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