I. Nagendram vs The State Of Telangana
2023 Latest Caselaw 933 Tel

             THE HON'BLE MRS JUSTICE E.V.VENUGOPAL

                    WRIT PETITION No.1608 OF 2020
ORDER:

1 Aggrieved by the action of the respondents in not preparing the

seniority list in accordance with rule 33 (b) of state and subordinate

service rules and considering her claim for the promotion to the post of

Principal though she is a fully qualified for being promoted, the petitioner

filed the present writ petition.

2 The learned counsel for the petitioner submits that the petitioner

was appointed as junior lecturer in English under limited recruitment

through Andhra Pradesh College Service Commission in the year 1995

and was posted to the 3rd respondent organisation. The petitioner is

qualified and eligible for promotion to the post of Principal. But the

authorities without preparing the seniority list as per Rule 33 (b) of State

& Subordinate Service Rules by considering merit obtained in the session

process made in charge arrangement with the 4th respondent though she

secured lesser marks than the petitioner in the selection process. The

learned counsel further submits that the petitioner secured 48.16 marks

whereas the 4th respondent secured only 42.6 marks.

3 The learned counsel for the petitioner further submits that the

petitioner made a representation on 07.12.2019 to the authorities to

consider her claim for promotion but the same has not been acted upon.

He further submits that as per Rule 33 (b), the respondents have to

prepare the seniority list based on merit obtained in the selection

process. The learned counsel for the petitioner relied on the decision laid

down by the Hon'ble apex court in Bimlesh Tanwar vs. State of

Haryana1.

4 Counter affidavit has been filed on behalf of the respondent No. 3

wherein it is stated that Rule 33 (b) of the State & Subordinate Service

Rules has no application to the case on hand. It is mainly contended that

the 4th respondent was appointed on 07.07.1995 whereas the petitioner

was appointed on 05.08.1995 that means one month later from the

appointment of the 4th respondent and the same has been approved by

the Board of Intermediate Education as well as director of Intermediate

Education which clearly shows the seniority. It is further submitted that

the petitioner is under the misconception that she is claiming to be

senior on the basis of the marks but the seniority shall be counted from

the date of appointment under joining into the service. Rule 33 (b) is

applicable when more than one candidate is joined in the service on the

same day then the seniority is to be decided on the merit of the

candidates. In the instant case since the 4th respondent joined the

service much prior to the present writ petitioner, she cannot claim

seniority than the 4th respondent. Hence prayed to dismiss the writ

petition.

(2003) 5 SCC 604

5 in Bimlesh Tanwar vs. State of Haryana the Apex Court held at

Para No.52 as follows:

52. In this case also, although there does not exist any statutory rule but the practice of determining inter se seniority on the basis of the merit list has been evolved on interpretation of the Rules. A select list is prepared keeping in view the respective merit of the candidates. Not only appointments are required to be made on the basis of such merit list, seniority is also to be determined on that basis as it is expected that the candidates should be joining their respective posts almost at the same time. Yet again in Chairman, Puri Gramya Bank and Anr. v. Ananda Chandra Das and Ors.(1994) 6 SCC 301 this Court held:

"It is settled law that if more than one are selected, the seniority is as per ranking of the direct recruits subject to the adjustment of the candidates selected on applying the rule of reservation and the roster. By mere fortuitous chance of reporting to duty earlier would not alter the ranking given by the Selection Board and the arranged one as per roster. The High Court is, therefore, wholly wrong in its conclusion that the seniority shall be determined on the basis of the joining reports given by the candidates selected for appointment by direct recruitment and length of service on its basis."

6 It would be apt to refer to Rule 33 (b) of the Andhra Pradesh State

and Subordinate Service Rules, 1996, which is as under:

"33. Seniority:-

(a) x x x x

(b) The appointing authority may, at the time of passing an order appointing two or more persons 7 simultaneously to a service, fix either for the purpose of satisfying the rule of reservation of appointments or for any other reason the order of preference among them; and where such order has been fixed, seniority shall be determined in accordance with it. Provided further that the order of merit or order of preference indicated in a list of selected candidates prepared by the Public Service Commission or other selecting authority, shall not be disturbed inter se with reference to the candidates position in such list or panel while determining the seniority in accordance with this rule and notional dates of commencement of probation to the extent necessary, shall be assigned to the persons concerned, with reference to the order of merit or order of preference assigned to them in the said list."

7 As per the above said Rule, the order of merit or order of preference

indicated in a list of selected candidates prepared by the Public Service

Commission or the Appointing Authority shall not be disturbed inter se

with reference to the candidates' position in such list etc.

8 It is not in dispute that the selection of the petitioner as well as the

fourth respondent was done in one notification. There is also no dispute

with regard to the merit of the petitioner and the fourth respondent. In

the case on hand, the petitioner secured 48.16 marks whereas the 4th

respondent secured only 42.6 marks. It is not in dispute that in the list

of selected candidates, the name of the petitioner was shown above the

fourth respondent in view of her merit. Since the fourth respondent

joined the service before the petitioner the respondents are contending

that the fourth respondent is senior to the petitioner, which, in the light

of the above judgment, is not correct. Mere joining of duty of a candidate

before another candidate who secured more marks and stood above in

the merit list, does not entitle the candidate to claim seniority basing on

the joining date.

9 In the light of the above legal position as well as the principle

enunciated in the case cited supra, the petitioner ought to have been

placed above the fourth respondent.

10 It is borne on record that since the petitioner made a

representation on 07.12.2019 to the authorities to consider her claim for

promotion, the respondents are hereby directed to consider the case of

the petitioner keeping in view the above observations and pass

appropriate orders.

11 The writ petition is accordingly allowed. No order as to costs.

12 Miscellaneous petitions if any pending in this writ petition shall

stand closed.

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E.V.VENUGOPAL, J.

Date: 24.02.2023 Kvsn