Y.Vijaya Pratap vs The State Of Telangana
2023 Latest Caselaw 1931 Tel

      THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI


           I.A.NO.2 OF 2023 IN W.P.NO.18377 OF 2023;

           I.A.NO.2 OF 2023 IN W.P.NO.19055 OF 2023;

                WRIT PETITION NO.18377 OF 2023

                                  AND

                WRIT PETITION NO.19055 OF 2023


                          COMMON ORDER


      In both these Writ Petitions, the petitioners are challenging the

Memo dt.22.06.2023 and the consequential show-cause notice

dt.26.06.2023 by granting notional seniority to respondent No.4 on par

with his juniors during the panel year 2015-16, as illegal, arbitrary and

in violation of Articles 14, 16 and 21 of the Constitution of India and as

without any power, authority and jurisdiction and contrary to Rules 26

and 33 of the State and Subordinate Service Rules and the directions

issued by this Court in W.P.No.20571 of 2021 dt.20.12.2022 and to pass

such other order or orders as this Court may deem fit and proper in the

circumstances of the case.

2. Brief facts leading to the filing of the present Writ Petitions are

that the petitioners as well as respondent No.4 were all recruited directly W.P.Nos.18377 & 19055 of 2023

to the post of Reserve Sub-Inspector (AR) [RSI (AR)] in the month of

July, 2008 after undergoing a selection process. Respondent No.4 also

belongs to the petitioners' batch. The seniority of RSI (AR) will depend

on the rank obtained in the Training College. Accordingly, respondent

No.4 was senior to the petitioners. The petitioners and respondent No.4

were promoted to the post of Reserve Inspector (AR) vide proceedings

dt.24.08.2016. However, the unofficial respondent, i.e., respondent No.4

made an application relinquishing his promotion to the post of Reserve

Inspector (AR) for the panel year 2015-16 and the same was accepted

and an order was passed stating that the case of respondent No.4 shall be

considered for promotion in the next panel year. Accordingly, his case

was considered in the next panel year 2016-17 and he was also given

promotion as Reserve Inspector (AR) on 29.05.2017. Thereafter,

respondent No.4 has made an application for consideration of his

seniority in the category of Reserve Inspector (AR) with effect from the

date on which his juniors have been promoted. However, the same was

rejected vide Memo dt.04.02.2021, against which he filed a Writ Petition

in W.P.No.20571 of 2021. Vide orders dt.20.12.2022, this Court had

disposed of the said Writ Petition permitting him to make a detailed

representation before the respondents and upon receipt of the same, the W.P.Nos.18377 & 19055 of 2023

respondents therein were directed to consider such representation in

accordance with law by giving a lenient view on the aspect of sufferance

undergone by him, preferably within a period of six weeks from the date

of receipt of a copy of the order. Thereafter, respondent No.1 has

considered the representation of the respondent No.4 and has passed the

impugned order dt.22.06.2023 assigning notional seniority to him with

effect from 24.08.2016 on par with his immediate junior Sri

A.Janardhan, Reserve Inspector, who was promoted during the panel

year 2015-16 by observing that the individual, i.e., respondent No.4 has

lost both opportunities, i.e., seniority and conversion due to change in

the criteria by the cancellation of original notification. Thereafter,

respondent No.1 has directed the Director General of Police, i.e.,

respondent No.2 herein to issue show-cause notices to all the affected

persons by duly following the procedure prescribed under Rule 24 of the

Telangana State and Subordinate Service Rules, 1996. In compliance

thereof, a show-cause notice dt.26.06.2023 was issued by respondent

No.2. Aggrieved by the same, the petitioners seem to have filed a Writ

Appeal against the order in W.P.No.20571 of 2021 dt.20.12.2022 and a

Division Bench of this Court has permitted the petitioners to take all

grounds raised therein before the learned Single Judge while challenging W.P.Nos.18377 & 19055 of 2023

the impugned order. Thus, the present Writ Petitions have been filed

taking various grounds on the merits of the case and also on ground of

violation of principles of natural justice in taking a decision first and

thereafter issuing show-cause notices dt.26.06.2023.

3. This Court vide orders dt.13.07.2023 in W.P.No.18377 of 2023

has granted interim suspension of the impugned order dt.22.06.2023 and

vide orders dt.20.07.2023 in W.P.No.19055 of 2023, there was an

interim suspension of the impugned order dt.22.06.2023. The unofficial

respondent, i.e., respondent No.4 has filed his counter affidavit along

with stay vacate petitions in I.A.Nos.2 of 2023 in both the Writ

Petitions. The official respondents are yet to file their counter affidavits.

4. Learned Special Government Pleader for Home, appearing for

respondents 1 to 3, submitted that the respondents have reconsidered the

issue and as the show-cause notice was issued after the decision has

been taken on the issue, they have decided to issue a fresh show-cause

notice to all the affected parties and to take a decision thereafter.

5. Learned counsel for the petitioners, however, pointed out that it is

not only a case of violation of principles of natural justice, but also it is a

case of exercise of power without any authority. He submitted that W.P.Nos.18377 & 19055 of 2023

respondent No.4 had voluntarily relinquished his promotion for the

panel year 2015-16 and subsequently, sought notional seniority along

with the petitioners and without giving any reason or rule position as to

how the relief can be granted to respondent No.4, respondent No.1 has

passed the impugned order dt.22.06.2023 and thereafter, has directed

respondent No.2 to issue the show-cause notice for issuance of final

seniority list. It is submitted that in the show-cause notice, the time

given for submission of objections of the petitioners was 10 days, but

without verifying whether the show-cause notices have been served on

the petitioners and even without waiting for those 10 days, respondent

No.2 has communicated the final seniority list of Reserve Inspectors

(AR) dt.12.07.2023, and therefore, the haste exhibited in taking a

decision shows that the orders have been passed not in accordance with

law, but for extraneous reasons. The learned counsel for the petitioners

submitted that by setting aside of the orders and remanding the matter to

the same authority for reconsideration would not serve any purpose as

the authority would only reaffirm his position and may not consider the

case of the petitioners and it would cause serious injustice to the

petitioners. He also placed reliance upon a judgment of the Hon'ble

Supreme Court in the case of H.L.Trehan and others Vs. Union of W.P.Nos.18377 & 19055 of 2023

India and others 1 for the proposition that no purpose would be served

by remanding the matter when a decision is already taken before the

show-cause notice is issued.

6. The learned counsel for respondent No.4, however, pointed out

that the impugned order dt.22.06.2023 was passed by respondent No.1,

whereas the show-cause notice as well as the final seniority list have

been issued by respondent No.2. He submitted that respondent No.4

had relinquished his promotion only on the ground that his request for

allotment from RSI (AR) to SI (Civil) was pending consideration before

the Government and the same was subsequently rejected and therefore,

respondent No.4 had accepted the promotion in the subsequent year and

claimed seniority on par with his juniors.

7. Having regard to the rival contentions and the material on record,

this Court finds that there is clear violation of principles of natural

justice in this case. The affected parties were not even given any notice

nor were they heard before a decision is taken for grant of notional

seniority to respondent No.4. Respondents No.1 to 3 are taking shelter

under the direction of this Court in W.P.No.20571 of 2021 for granting

(1989) 1 SCC 764 W.P.Nos.18377 & 19055 of 2023

relief to respondent No.4. However, the direction of this Court in

W.P.No.20571 of 2021 was only to reconsider the case of respondent

No.4 herein and the reason for reconsideration is that he has undergone

some sufferance and therefore it needs reconsideration. Therefore, there

was no direction from this Court to positively consider and grant

notional seniority to respondent No.4 herein. Further, the official

respondents ought to have issued notice to the petitioners before taking

any decision in respect of respondent No.4 and only after taking their

objections/representations into consideration, they ought to have passed

orders on the representation of respondent No.4.

8. Therefore, on this ground alone, the impugned order

dt.22.06.2023 as well as the subsequent show-cause notice

dt.26.06.2023 and the final seniority list dt.12.07.2023 are liable to be

set aside and they are accordingly set aside. Respondent No.1 being the

highest authority in the Department is directed to reconsider the matter

by issuing show-cause notices to all the affected persons and thereafter,

pass appropriate orders on the representation of respondent No.4 in

accordance with law without being influenced by the earlier orders

passed by him on 22.06.2023. Respondent No.1 also shall take into

consideration the objections of the petitioners and pass a detailed and W.P.Nos.18377 & 19055 of 2023

speaking order as to why they are not acceptable if he finds them not

acceptable. Respondent No.1 shall also quote the rule position and give

reasons for granting relief to respondent No.4 if he finds that relief is to

be granted to respondent No.4 and if he opts to do so.

9. With the above directions, the issue is now remitted to the file of

respondent No.1 for necessary action at his end. Both the Writ Petitions

are accordingly disposed of. Consequently, the vacate stay petitions in

I.A.No.2 of 2023 in W.P.No.18377 of 2023 and in I.A.No.2 of 2023 in

W.P.No.19055 of 2023 are dismissed.

10. In the result,

(1) W.P.No.18377 of 2023 is disposed of. No order as to costs.

(2) W.P.No.19055 of 2023 is disposed of. No order as to costs.

(3) I.A.No.2 of 2023 in W.P.No.18377 of 2023 is dismissed.

(4) I.A.No.2 of 2023 in W.P.No.19055 of 2023 is dismissed.

11. Pending miscellaneous petitions, if any, in these Writ Petitions

shall stand closed.

___________________________ JUSTICE P. MADHAVI DEVI

Date: 04.09.2023 Svv