Telangana High Court
K. Mamatha vs The State Of Telangana on 23 August, 2024
* THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
+WRIT PETITION Nos.11306 of 2019 and 9803 of 2021
% 23-08-2024
# Smt.K.Mamatha
.... Petitioner
Vs.
The State of Telangana and others.
.... Respondents
!Counsel for the appellant : Sri Avadesh Narayan Sanghi
Counsel for the Respondents : G.P. for Services-I
<Gist :
>Head Note:
? Cases referred:
1. 2006 AIR (SCW) 6380
2. 2006 AIR (SCW) 6271
2. 1999 (1) SCC 685
3. 2010 (8) SCC 467
2
IN THE HIGH COURT FOR THE STATE OF TELANGANA
HYDERABAD
****
WRIT PETITION Nos.11306 of 2019 and 9803 of 2021
Between:
Smt.K.Mamatha
.... Petitioner
Vs.
The State of Telangana and others.
.... Respondents
ORDER PRONOUNCED ON: 23.08.2024
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? : Yes
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? : Yes
3. Whether His Lordship wishes to
see the fair copy of the Judgment? : Yes
_____________________________________
NAMAVARAPU RAJESHWAR RAO, J
3
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
WRIT PETITION Nos.11306 of 2019 and 9803 of 2021
COMMON ORDER:
Since the issue raised in these writ petitions is one and the
same, both the writ petitions are being disposed of by this common
order.
W.P.No.11306 of 2019 is filed seeking the following relief:-
"...... to issue a writ, order or direction more particularly one
in the nature of Writ of MANDAMUS to declare the impugned orders
issued by the 3rd respondent in Rc.No.6047/2018/M2, dated
17/04/2019, wherein decided to revise the seniority of the
petitioner in the cadre of Senior Assistant is illegal, arbitrary and
unconstitutional and set aside the same with a consequential
direction to the respondents to consider the claim of the petitioner for
promotion to the post of Superintendent for the panel year 2018-19
as the petitioner passed Departmental Test Part-II Paper Code-139
in the year 2012 along with others in the SC category with all
consequential benefits.........".
W.P.No.9803 of 2021 is filed seeking the following relief:-
"........ to issue appropriate Writ, Order or direction more particularly
one in the nature of Writ of Mandamus by calling for the records
relating to and connected with proceeding Rc.No.6047/2018/M2(ii)
dt.05/04/2021 and set aside the same holding it absolutely illegal,
arbitrary, unconstitutional and violative of Articles 14 and 16 of
Constitution of India and in gross violation of principles of natural
justice and voilative of Statutory Rules and consequently direct
Respondents to grant promotion and seniority and all service
benefits by treating my promotion as Senior Assistant w.e.f.
18/08/2008 ..........".
2. For the sake of convenience, the facts in W.P.No.9803 of 2021
are discussed hereunder:-
The petitioner was appointed as a Junior Assistant on
compassionate grounds on 04.10.2004. The petitioner passed the
Departmental Tests for Ministerial Staff of Forest Department Part-I
and II (Paper Code 107 and 125) in the year 2005 and the Accounts
Test for Subordinate Officers Part-I and II in May 2007. Later, the
petitioner passed the Departmental Test (139 Part-III) in 2012. The
petitioner's services as Junior Assistant were regularized, and she
was later promoted to the post of a Senior Assistant, based on her
seniority, on 18.08.2008. Her services were regularized as Senior
Assistant vide proceedings dated 26.02.2009. After rendering more
than 12 years of service as Senior Assistant and while she was due
for promotion to the post of Office Superintendent, the respondents
raised the issue of the petitioner's belated passing of the
departmental test (part-III). When certain juniors' case was sought to
be considered for promotion while ignoring the petitioner's case, the
petitioner made a representation to the Department and also filed
W.P.No.1962 of 2019 before this Court. The said Writ Petition was
disposed of vide order dated 04.02.2019 directing the respondents to
consider the representation submitted by the petitioner on
19.12.2019 and pass appropriate orders in accordance with law.
Pursuant thereto, the respondent authorities issued Proceedings
Rc.No.6047/2018/M2 dated 17.04.2019, wherein it was stated that
the petitioner passed the Departmental Test (139 Part-III) belatedly in
2012; hence, her seniority in the category of Senior Assistant will be
revised. Later, the 3rd respondent issued the impugned show-cause
notice dated 05.04.2021, proposing to revise the petitioner's seniority
on the ground that the petitioner has passed the departmental test
belatedly and further concluding that she is guilty of suppression of
fact. The said show-cause notice reads as follows:-
"Thus, Smt K.Mamatha, Senior Assistant Office of District Forest
Officer, Sangareddy of Medak Circle has deliberately suppressed
the facts of not passing the Departmental Tests for persons in
Ministerial Service of the Forest Department Part-II Paper-III
(Paper Code 139) in the year 2008 to the concerned authorities
and totally misguided the authorities and taken the advantage of
entries recorded erroneously In her Service Register and received
promotion to the category of Senior Assistant in the year 2008
vide Chief Conservator of Forests, Nizamabad Circle,
Nizamabad S.O.No. 29/2008/M2 (Rc.No. 6240/2007/M2), dated
14.08.2008 which is gross negligence of duties and leads to
suppression of facts and dishonesty."
Aggrieved thereby, the petitioner filed W.P.No.9803 of 2021
before this Court.
3. On 19.04.2021, while issuing notice before admission, this
Court suspended the impugned show-cause notice dated 05.04.2021.
4. The respondents filed a counter-affidavit along with an
application in I.A.No.2 of 2021 seeking to vacate the interim order
passed by this Court on 19.04.2021.
5. Heard Sri Avadesh Narayan Sanghi, learned counsel for the
petitioner and perused the counter-affidavit filed by the 3rd
Respondent.
6. In the counter affidavit, it is stated that the petitioner herself
deposed in her affidavit that she has passed the Departmental Test
part-III (paper code 139) in 2012, and has intentionally suppressed
the fact of not passing the said Departmental Test when she got
promoted to the post of Senior Assistant in the year 2008.
7. It is further stated that the petitioner also submitted a
representation before the Conservator of Forests, Nizamabad Circle,
Nizamabad, on 05.08.2008 wherein she stated that she has passed
the Departmental Tests and Accounts Test Part-I in June 2008 and
requested to post her at Zaheerabad Range Office. Based on the
records/documents and as per the recommendation of the Divisional
Forest Officer, Medak and considering the representation of the
petitioner, the Conservator of Forests, Nizamabad Circle, Nizamabad,
has accorded promotion to the petitioner to the post of Senior
Assistant vide proceedings in S.O.No.29/2008/M2
(Rc.No.6240/2007/M2), dated 14.08.2008.
8. It is further stated that the petitioner, while relying upon Rule
17 of the Telangana Ministerial Service Rules, 1998 in her affidavit,
has not quoted the entire rule position and only quoted the rule
position to the extent to which it gives benefit to the petitioner, which
shows the petitioner's intention to mislead this Court to gain
favourable orders.
9. It is further stated that the contention of the petitioner that the
State Government has no power to revise, since the petitioner's
services were regularized and probation was declared, is incorrect.
As per Rule 17 of the Telangana Ministerial Service Rules, 1998, read
with Rule 25 of Telangana State and Subordinate Service Rules,
1996, the Government has full power to take any action to review or
revise any order if it was passed by mistake. In the instant case, the
petitioner has not passed the Departmental test Part-II, Paper-III
(Paper Code 139) in 2008, which is mandatory to get promotion as
Senior Assistant and further promotion as Superintendent. It is
stated that the petitioner enjoyed the benefit of promotion from 2008,
for which she is ineligible. Therefore, there are no merits in the writ
petition, and the same is liable to be dismissed.
10. Learned counsel for the petitioner submits that the petitioner is
governed by the Telangana Ministerial Service Rules and Annexure-II
to the Rules prescribes qualification and passing of Departmental
test. Rule 17 mandates revision of any such promotion only within
six months and not thereafter. In the instant case, the 3rd respondent
had already concluded the issue in the impugned show-cause notice
beyond its authority and power and also in gross violation of
principles of natural justice, as the 3rd respondent has no power,
authority or jurisdiction to review or revive the promotion beyond six
months and even the State cannot delegate any such power to be
interpreted under the Rules.
11. Learned counsel for the petitioner further submits that the
petitioner was promoted to the post of Senior Assistant on
18.08.2008, her probation was declared on 25.02.2009, and her
services were also regularized thereafter. Therefore, the vested right is
accrued to the petitioner over her seniority and the same cannot be
altered after a lapse of considerable time.
12. Learned counsel for the petitioner further submits that once her
services are regularized and probation is declared, even the State
Government has no power or authority to revise the same. The
petitioner has passed all the Departmental Tests, and she is fully
eligible and qualified for promotion to the post of Office
Superintendent and after rendering 12 years of service as Senior
Assistant, proposing to downgrade her below more than 120
employees would cause great injustice to the petitioner and she
would not get any promotion in her service career. Therefore,
appropriate orders be passed in the writ petitions by allowing the writ
petitions setting aside the proceedings dated 17.04.2019 and the
show-cause notice dated 05.04.2021.
13. In support of his contentions, learned counsel for the petitioner
relied upon the judgment of the Hon'ble Apex Court in M/s.SIEMENS
LTD. Vs. STATE OF MAHARASHTRA AND OTHERS 1, wherein the
Hon'ble Apex Court held as follows :-
"9. The question as to whether jurisdictional fact existed for
issuance of the said notice order passed by the respondent was
in question in the said writ petition.
10. Although ordinarily a writ court may not exercise its
discretionary jurisdiction in entertaining a writ petition
questioning a notice to show cause unless the same inter alia
appears to have been without jurisdiction as has been held by
this Court in some decisions including State of Uttar Pradesh v.
Brahm Datt Sharma and Anr. AIR 1987 SC 943, Special Director
and Another v. Mohd. Ghulam Ghouse and Another, (2004) 3
SCC 440 and Union of India and Another v. Kunisetty
Satyanarayana, 2006 (12) SCALE 262], but the question herein
has to be considered from a different angle, viz, when a notice is
issued with pre-meditation, a writ petition would be
maintainable. In such an event, even if the courts directs the
2006 AIR SCW 6380
statutory authority to hear the matter afresh, ordinarily such
hearing would not yield any fruitful purpose [See K.I. Shephard
and Others v. Union of India and Others (1987) 4 SCC 431 : AIR
1988 SC 686]. It is evident in the instant case that the
respondent has clearly made up its mind. It explicitly said so
both in the counter affidavit as also in its purported show
cause."
14. Learned counsel for the petitioner further relied upon the
judgment of the Hon'ble Apex Court in SHELHAR GHOSH Vs. UNION
OF INDIA 2, wherein the Hon'ble Apex Court held as follows :-
"13. The order dated.21-11-1996 clearly demonstrates that the
Senior Divisional Officer, Kota, without holding an enquiry
arrived at a finding that his original post was Khalasi in Wagon
Repair Shop, Kota and his lien had been cancelled. He was
directed to be repatriated. Despite arriving at such a finding a
post decisional hearing was sought to be afforded to the
appellant.
14. A post decisional hearing was not called for as the
disciplinary authority had already made up its mind before
giving an opportunity of hearing. Such a post decisional hearing
in a case of this nature is not contemplated in law. The result of
such hearing was a forgone conclusion."
The said judgment also placed reliance on another judgment of the
Hon'ble Apex Court in Ram Ujarey vs. Union of India 3 , and held as
follows:
"17. It is not denied or disputed that even when a mistake
is sought to be rectified, if by reasons thereof, an employee has
2006 AIR SCW 6271
(1999) 1 SCC 685
to suffer civil consequences ordinarily the principles of natural
justice are required to be complied with. It was so held in Ram
Ujarey V. Union of India [(1999) 1 SCC 685] in the following
terms:-
1988 AIR SCW 3709, Para 18
"17. There is yet another infirmity in the impugned order
of reversion. The appellant had been allowed the benefit of
service rendered by him as Coal Khalasi in the Loco
Department from 1964 to 1972 as that period was
counted towards his seniority and it was on that basis
that he was called for the trade tests which the appellant
had passed and was, thereafter, promoted to the posts of
Semi-skilled Fitter and Skilled Fitter. If the benefit of
service rendered by him from 1964 to 1972 was intended
to be withdrawn and promotion orders were to be
cancelled as having been passed on account of mistake,
the respondents ought to have first given an opportunity of
hearing to the appellant. The appellant having earned two
promotions after having passed the trade tests, could not
have been legally reverted two steps below and brought
back to the post of Khalasi without being informed that the
period of service rendered by him from 1964 to 1972 could
not be counted towards his seniority and, therefore, the
promotion orders would be cancelled. In a situation of this
nature, it was not open to the respondents to have made
up their mind unilaterally on facts which could have been
shown by the appellant to be not correct but this chance
never came as the appellant, at no stage, was informed of
the action which the respondents intended to take against
him."
23. In this case, respondents accept that Appellant was entitled
to a hearing. All the necessary ingredients of principles of
natural justice were thus required to be complied with.
Appellant as notice hereinbefore had not been given adequate
opportunity of hearing inasmuch as: (i) the hearing was sought
to be given was a post-decisional one, which is bad in law; (ii) a
copy of the complaint was not supplied to Appellant at
furtherance if not proposed that a mistake was sought to be
rectified; (iii) No charges were framed; (iv) no witness was
examined; and (v) no Inquiry Officer arrived at any finding that
Appellant was guilty of the charges levelled against him.
24. The Tribunal or the High Court did not consider these
aspects of the matter. The impugned judgment, therefore,
cannot be sustained.
25. For the reasons aforementioned, the appeal is allowed."
15. Learned counsel for the petitioner further relied upon the
judgment of the Hon'ble Apex Court in SULOCHANA CHANDRAKANT
GALANDE Vs. PUNE MUINICIPAL TRANSPORT AND OTHERS 4,
wherein the Hon'ble Apex Court held as follows :-
"19. In a similar situation, in Gulam Mustafa Vs. The State of
Maharashtra & Ors., AIR 1977 SC 448, this Court held as under:-
"5....once the original acquisition is valid and title has
vested in the Municipality, how it uses the excess land is no
concern of the original owner and cannot be the basis for
invalidating the acquisition. There is no principle of law by
which a valid compulsory acquisition stands voided because
long later the requiring authority diverts it to a public purpose
other than the one stated in the.......declaration.""
"24. The suit land was acquired in 1979. The revision was preferred
in 1998, after expiry of about two decades. Section 34 reads as
under :-
"34. Revision by State Government:- The State
Government may, on its own motion, call for and examine the
records of any order passed or proceeding taken under the
provisions of this Act and against which no appeal has been
(2010) 8 SCC 467
preferred under Section 12 or Section 30 or Section 33 for the
purpose of satisfying itself as to the legality or propriety of
such order or as to the regularity of such procedure and pass
such order with respect thereto as it may think fit "
25. Undoubtedly, Section 34 does not prescribe any limitation
during which the revisional power can be exercised by the State
Government either on application or suo moto. The question does
arise as to whether absence of limitation in Section 34 confers
unfettered power to vary or revoke the order of the prescribed
authority without any outside limitation in point of duration i.e. does
it confer an everlasting or interminable power in point of time. If the
contention raised by Mr. Ganguly that such provisions of Section
34 do not prescribe any limitation, and it confers an
interminable power upon the State Government in point of time to
exercise the revisional power, is accepted, there will be no finality of
the proceedings taken under the 1976 Act.
27. In Ibrahimpatnam Taluk Vyavasaya Coolie Sangham Vs. K.
Suresh Reddy & Ors., (2003) 7 SCC 667, this Court considered the
provisions of the Andhra Pradesh (Telangana Area) Tenancy and
Agricultural Lands Act, 1950, wherein the provisions contained in
Section 50-B(4) empowered the statutory authority to exercise suo
moto revisional power at any time. The Court held as under :-
"9...Use of the words 'at any time' in sub- Section (4) of Section 50-
B of the Act only indicates that no specific period of limitation is
prescribed within which the suo motu power could be exercised
reckoning or starting from a particular date advisedly and
contextually. Exercise of suo motu power depended on facts and
circumstances of each case. In cases of fraud, this power could be
exercised within a reasonable time from the date of detection or
discovery of fraud. While exercising such power, several factors
need to be kept in mind such as effect on the rights of the third
parties over the immovable property due to passage of considerable
time, change of hands by subsequent bona fide transfers, the orders
attaining finality under the provisions of other Acts (such as Land
Ceiling Act)...Use of the words 'at any time' in sub-section (4)
of Section 50-B of the Act cannot be rigidly read letter by letter. It
must be read and construed contextually and reasonably. If one has
to simply proceed on the basis of the dictionary meaning of the
words 'at any time', the suo moto power under sub- Section (4)
of Section 50-B of the Act could be exercised even after decades and
then it would lead to anomalous position leading to uncertainty and
complications seriously affecting the rights of the parties, that too,
over immovable properties. Orders attaining finality and certainty of
the rights of the parties accrued in the light of the orders passed
must have sanctity. Exercise of suo moto power 'at any time' only
means that no specific period such as days, months or years are
not(sic) prescribed reckoning from a particular date. But, that does
not mean that 'at any time' should be unguided and arbitrary. In
this view, 'at any time' must be understood as within a reasonable
time depending on the facts and circumstances of each case in the
absence of prescribed period of limitation."
16. Learned counsel for the petitioner, on the strength of the
aforementioned judgments, vehemently contended that the impugned
order dated 05.04.2021 was bad in law and prayed to set aside the
same and allow the writ petition.
17. This Court, having considered the submissions made by the
learned counsel for the petitioner and on a perusal of the counter
affidavit filed by the respondents, is of the considered view that the
learned counsel for the petitioner has relied upon Rule 17 of the
Telangana Ministerial Service Rules, 1998 to contend that the
reversion of the petitioner to a lower grade is contrary to the said
rule. Rule 17 reads as follows:
"17. Revision and review of orders of promotion or
appointment by transfer:- An order of appointment by
transfer or promotion of a member of a service or class to a
category, grade of post therein, made by the competent
authority may, within a period of six months from the date of
such order, be revised by an authority to which an appeal
would lie against an order of dismissal passed against a full
member of the service, class, category or grade, as the case may
be. Such revision may be made by appellate authority aforesaid
either on its own motion or otherwise:
Provided that where the Government are the appellate
authority they may revise such an order after the expiry of the
period of six months aforesaid for special and sufficient reasons
to be recorded in writing;
Provided further that no order of revision under this
rule shall be passed unless the persons affected adversely
thereby are given an opportunity of making their
representations against the revision proposed;
Provided also that notwithstanding anything in this
rule, the State Government may, of its own motion or
otherwise, review any order or revision if it was passed
under any mistake, whether of fact, or of Law or of any
Rules or in ignorance of any material fact or for any
other sufficient cause, and the provisions contained in
the foregoing second proviso shall apply in respect of any
order under this proviso."
(emphasis supplied)
Rule 17 contemplates that an order for revision of appointment by
transfer or promotion may be made by the appellate authority within
a period of six months from the date of such order, i.e., the order of
appointment by transfer/promotion. Hence, a plain reading of the
said rule shows that any revision of the earlier order of promoting the
petitioner ought to have been undertaken by the Department within a
period of six months. The respondent authorities have taken a plea
stating that the Rule position was not completely quoted by the
petitioner, in order to gain a favourable order from this Court and
have sought the shelter of the second and the third provisos to the
rule to contend that Rule 17 does not stand in the way of revising the
seniority of the petitioner and issuing the impugned show-cause
notice. Hence, regarding the question of the applicability of Rule 17 to
the petitioner, it is to be examined whether the second and the third
provisos to the Rule lend any defence to the Government. The second
proviso to the Rule categorically mentions that no order of revision
under the said rule shall be passed unless the persons affected
adversely thereby, are given an opportunity to make their
representations against the revision proposed. Further, the third
proviso allows such a review of any order, if it was passed under any
mistake, whether of fact, or of law, or of any Rules or in ignorance of
any material fact, or for any other sufficient cause. However, the said
proviso also holds that the conditions stipulated in the foregoing
second proviso shall also be applicable for any such order. In other
words, any subsequent order passed by invoking the third proviso
shall also be subject to the condition in the preceding proviso, viz.,
the persons so affected adversely shall be given an opportunity to
make their representations against the revision proposed. Hence, an
order of revision may be passed after six months, provided that the
conditions in provisos two and three are complied with.
18. In the instant case, the Department has not brought forth any
evidence to suggest that the petitioner was lent such an opportunity
to make her representation. The petitioner was directly issued the
impugned show-cause notice dated 05.04.2021. The question for the
consideration of this Court is whether the impugned show-cause
notice, or the Proceedings dated 17.04.2019 satisfies the condition
prescribed in the second proviso to Rule 17, i.e., to give an
opportunity to the petitioner to make representations against the said
revision.
19. At this juncture, it is pertinent to observe that in the counter-
affidavit filed by the respondents, it is stated that the petitioner
herself made a representation on 05.08.2008 stating that she has
passed the Departmental Tests and Account Test Part-I in June 2008
and requested to post her in Zaheerabad Range Office. However, a
perusal of the representation dated 05.04.2008 goes to show that the
petitioner stated that she has appeared for Departmental Tests and
Account Test Part-I passed in June 2008 and she did not state
anything with regard to the passing of Departmental Test Part-III
(Paper Code 139). The said request of the petitioner to the respondent
authorities to post her at Zaheerabad Range was only with regard to
her family issues. But the respondent authorities, without looking
into the representation properly, issued her promotion order vide
Proceedings Rc.No.6240/2007/M2, dated 14.08.2008 and posted the
petitioner to the Office of the Forest Range Officer, Narayankhed, as a
Senior Assistant. Pursuant thereto, her services were also regularized
vide Proceedings Rc.No.2062/2008/M2, with effect from her date of
joining as a Senior Assistant, i.e., since 18.08.2008. This merely
shows that there is negligence on the part of the Department. The
Department cannot accuse the petitioner of suppression of facts
when, in her letter dated 05.08.2008, she has categorically stated
that she has only appeared for the Departmental Tests and that she
passed Account Test Part-I in June 2008. The petitioner cannot be
held liable for the Department's lack of scrutiny in passing the
proceedings dated 14.08.2008. Eleven years later, upon the orders of
this Court in W.P.No.1962 of 2019 dated 04.02.2019, the respondent
authorities woke up from their slumber and issued Proceedings dated
17.04.2019, and later issued the impugned show-cause notice dated
05.04.2021, after the petitioner approached this Court by filing
W.P.No.11306 of 2019. Hence, in all aspects, the impugned show-
cause notice dated 05.04.2021 and the Proceedings dated 17.04.2019
cannot be considered as giving a reasonable opportunity to the
petitioner to submit representations as contemplated under the
second proviso to Rule 17, and as such, the same is untenable.
20. Learned counsel for the petitioner rightly relied upon the
judgments of the Hon'ble Apex Court in M/s.SIEMENS LTD. Vs.
STATE OF MAHARASHTRA AND OTHERS (1st supra) and SHELHAR
GHOSH Vs. UNION OF INDIA (2nd supra) to contend that the
Department had already made up its mind while issuing the
impugned show-cause notice dated 05.04.2021, and as such, the
same cannot be considered to have been passed after giving a
reasonable opportunity of being heard to the petitioner. Further, such
an act of revising the petitioner's seniority after eleven years of service
in the said post is a gross violation of the principles of natural justice.
The petitioner cannot be made to suffer for the mistakes of the
Department. Therefore, the impugned show-cause notice dated
05.04.2021 is liable to be set aside and it is accordingly set aside.
Accordingly, W.P.No.9803 of 2021 is allowed. The respondents
are directed to promote the petitioner to the post of Office
Superintendent and grant seniority and service benefits by treating
her promotion as Senior Assistant with effect from 18.08.2008, in
accordance with law.
In view of the orders passed in W.P.No.9803 of 2021, no orders
are required to be passed in W.P.No.11306 of 2019.
Accordingly, W.P.No.11306 of 2019 is closed. There shall be no
order as to costs.
As a sequel, pending miscellaneous applications, if any
shall stand closed. No order as to costs.
_____________________________________
NAMAVARAPU RAJESHWAR RAO,J
Date: 23.08.2024
Note:
L.R.copy to be marked
(B/o)
Prv
