Telangana High Court

A.Shankar Rao, vs State Of Telangana, on 27 September, 2024

              THE HON'BLE SRI JUSTICE PULLA KARTHIK
                           WRIT PETITION No.1493 OF 2023

ORDER:

This Writ Petition is filed seeking the following relief:

"... to issue an order, direction or Writ more particularly one in the nature of Writ of Mandamus or any other appropriate writ (i) to declare the action of the Respondents in not preparing the Integrated Seniority List for the post of School Assistant for promotion to the Multi-Zonal Post of Gazetted Head Master Gr II in terms of Rule 34 of the Telangana State and Subordinate Services Rules as illegal and arbitrary, (ii) declare that the Petitioners are eligible for promotion to the Multi-Zonal Post of Gazetted Head Master Gr II without reference to para 5 (2) (c) of Presidential Order, 2018 and GO Ms No.17 dated 04-07-2022, (iii) Consequently, direct the Respondents to consider the case of the Petitioners for Promotion to the Multi-Zonal Post of Gazetted Head Master Gr II without reference to para 5 (2) (c) of Presidential Order, 2018, and GO Ms No 17 dated 04- 07-2022 with all consequential benefits and pass such other order or orders as this Hon'ble Court may deem fit and proper in the interest of justice."

2) Heard Sri G. Vidya Sagar, learned senior counsel, representing Sri

Sai Prasen Gundavaram, learned counsel for the petitioners, and learned

Additional Advocate General appearing for the respondents.

3) Learned counsel for the petitioners has submitted that on formation

of new Districts in the State of Telangana and in terms of the Presidential

Order-2018, the new Zones and Multi-Zones have been constituted from

among the erstwhile Zone V and VI. Consequently, the employees falling

in the District Cadre, Zonal Cadre, Multi-Zonal Cadre were required to give

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preferences for allotment under new Presidential Order-2018. In

pursuance to the same, the erstwhile Mahabubnagar District has

undergone territorial changes and Wanaparthy, Nagarkurnool, Jogulamba

and Mahaboobnagar are newly formed Districts, which include part of

Ranga Reddy District. Therefore, the employees working in erstwhile

District were directed to exercise their option and indicate their

preferences as per reorganization of the new local cadres. Accordingly, the

petitioners, who are working as School Assistants, which is a District

Cadre post, were supplied with employee preference forms wherein the

first petitioner has exercised his preference to erstwhile Mahabubnagar

District, which includes the newly formed Districts. Accordingly, the first

petitioner was issued proceedings dated 06.01.2016 allocating him to the

post of School Assistant at UPSC Nerallacheruvu, Farooqnagar, Ranga

Reddy District. Similarly, other petitioners have also exercised their

preferences to the erstwhile Districts and they were also allocated to the

new Districts and worked as such in their respective new Districts for

some period. Thereafter, the Government has issued certain guidelines to

consider the request for inter local cadre transfer on mutual reciprocal

basis as per the schedule, through online, in accordance with para

5 (2) (c) of the Presidential Order-2018 vide G.O.Ms.No.21, General

Administration (SPF.I) Department, dated 02-2-2022, and G.O.Ms.No.402,

General Administration (SPF.I) Department, dated 19-02-2022. In

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consequence to the same, the second respondent is alleged to have

furnished the mutual inter-local cadre transfer proposal to the first

respondent and after careful examination of the proposals, the first

respondent has ordered the District Mutual Inter Local Cadre Transfers of

the employees on mutual/reciprocal basis vide G.O.Ms.No.17, School

Education (Ser.III) Department, dated 04-07-2022, and indicated that the

District Mutual Inter Local Cadre Transfers are subject to condition that

the seniority in the new Local Cadre will be subject to final orders of the

High Court in the writ petitions filed against G.O.Ms.No.402, dated

19.02.2022. Further, in terms of para 5 (2) (c) of Presidential Order-2018,

the individuals shall be assigned the last rank next to the last regular

candidate in their respective new cadres and also not entitled for any TA or

DA on such transfers. In terms of the above, the first petitioner has

submitted an application for mutual transfer requesting transfer to

Nagarkurnool and accordingly vide proceedings dated 04.07.2022 he was

posted at ZPHS, Perimilla, Uppunoothala Mandal, Nagarkurnool District.

Similarly, other petitioners also made applications in terms of para 5 (2) (c)

of the Presidential Order-2018 and they were allotted as per their request

and were issued with similar proceedings. Accordingly, all the petitioners

are working as School Assistants, which are the District Cadre posts and

feeder cadre post for promotion to the post of Gazetted Head Master

Grade-II and as per the new Presidential Order, Gazetted Head Master

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Grade-II is a Multi-Zonal cadre post, for which, an integrated seniority list

has to be prepared with reference to Sub-Rule (a) of Rule 33 of Telangana

State and Subordinate Service Rules. However, without preparing the

integrated seniority list, as per Rule 34 of the Telangana State and

Subordinate Service Rules, 1996, the respondents are proceeding for

effecting promotions contrary to the Rules.

4) Learned senior counsel has vehemently contended that as per

schedule-A under G.O.Ms.No.124, dated 30.08.2018, Zone I, II, III & IV

constitute Multi zone-I and Zone V, VI & VII constitute Multi Zone-II.

Further, as per para 3 of the Presidential Order-2018 and G.O.Ms.No.128,

dated 30.06.2021, the State Government shall within a period of 36

months from the date of commencement of the said order shall organize

the classes of posts in civil services and civil posts under the State into

various local cadres for different parts of the State. Accordingly, the

Government of Telangana has formulated a scheme for organization of

local cadres in MPP, ZPP in School Education vide G.O.Ms.No.256, dated

27.08.2021, and G.O.Ms.No.257, dated 28.08.2021 whereby the teachers

and school assistants are considered as District cadre posts and Gazetted

Head Master Grade-II posts as Multi-Zone posts. The petitioners have

been working as School Assistants and therefore they are eligible for

promotion to the post of Gazetted Head Master Grade-II, which is a multi-

zone post. Therefore, the respondents ought to have prepared seniority list

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in terms of Rules 33 and 34 of Telangana State and Subordinate Service

Rules, 1996. Further, the Government has issued G.O.Ms.No.17, dated

04.07.2022, providing for mutual transfers subject to the condition that

the persons who are seeking mutual transfers shall get last rank below the

regular candidate in their new zone in terms of para 5 (2) (c) of the

Presidential Order-2018. Learned Senior Counsel has vehemently

contended that the petitioners, who sought for mutual transfer, were

ranked below the regular candidate in the zone to which they were

allocated, but, as per Rule 34 of the Telangana State and Subordinate

Service Rules, 1996, the said seniority in zone is only for the purpose of

seniority in the said zone and for other benefits in the said zone, but the

said seniority has no relevancy for preparation of integrated seniority list

for the purpose of consideration of their candidature for promotion to the

multi-zone post i.e. Head Master Grade-II. Further, the seniority for the

post of Gazetted Head Master Grade-II is to be considered by drawing up

the integrated seniority list from among all the zones forming part of the

said multi-zone. The parameters specified in Rule 34 of Telangana State

and Subordinate Service Rules, 1996, are to be drawn up without

reference to the seniority on mutual transfers in respective zones. For

preparation of integrated multi zonal seniority, the seniority in the cadre of

School Assistants has to be reckoned in terms of Rule 33 of Telangana

State and Subordinate Service Rules, 1996, as per which, the seniority in

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the post will be counted from the date of commencement of probation in

the said cadre post. However, such exercise is not undertaken so far,

which affects the rights of the writ petitioners for consideration of their

candidature for promotion to the post of Gazetted Head Master Grade-II

and the same is arbitrary and illegal. Learned Senior Counsel has further

contended that as per the schedule to Presidential Order-2018, there are

different local areas for single cadre posts i.e. School Assistants.

Therefore, in terms of Rule 34 of State and Subordinate Service Rules,

1996, the respondents ought to have prepared the common seniority list

for School Assistant cadre/category belonging to different units/districts of

appointments for the purpose of promotion with reference to the provision

of Rule 33-A for the purpose of promotion to multi-zonal post. Further, in

the explanation to Rule 34, it is clearly specified that the principle

specified in the Rule shall be applicable wherever common integrated

seniority list is required to be prepared for categories in different services,

classes or categories. Therefore, for the purpose of promotion to the multi-

zone posts, the respondents shall prepare integrated or common seniority

list in terms of Rule 33-A without reference to para 5 (2) (c) of Presidential

Order-2018. Without following the same, the respondents are proceeding

for effecting promotions without preparing the integrated seniority list in

terms of Rule 34 of Telangana State and Subordinate Service Rules, 1996,

which is illegal and arbitrary. Therefore, the learned senior counsel has

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prayed this Court to issue necessary directions to the respondents. In

support of his contentions, reliance has been placed on Kumod Kumar v.

State of Jharkhand 1.

5) Per contra, the learned Additional Advocate General has contended

that though the petitioners were selected to the post of School Assistants

in erstwhile Ranga Reddy District, consequent to formation of new

Districts, as per G.O.Ms.No.317, 06.12.2021, they were allotted to the new

Districts as per the preferences opted by them. Further, the Government

has issued guidelines vide G.O.Ms.No.21, dated 02.02.2022, with regard to

mutual inter-local cadre transfers on mutual/reciprocal basis as per a

fixed time schedule through online process strictly in accordance with the

provisions contained in para 5 (2) (c) of the Presidential Order-2018 and

subsequently the Government has issued G.O.Rt.No.402, dated

19.02.2022, wherein it was categorically stated that paras 7 and 8 in

G.O.Ms.No.21, dated 02.02.2022, are not applicable to mutual transfers

between the two employees of the same erstwhile District Cadre and their

seniority shall be protected in the new local cadre. Aggrieved by the same,

some of the employees have filed W.P. Nos.16182, 16255 and 17227 of

2022 wherein this Hon'ble Court has passed interim order on 11.04.2022

suspending G.O.Rt.No.402, dated 19.02.2022 making it clear that the

1 (2015) 4 SCC 646

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Government can proceed with mutual transfers without reference to

G.O.Rt.No.402, dated 19.02.2022. In pursuance to the same, the

Government has issued Memo No.6196/Ser.II/ A1/2022, dated

25.05.2022, instructing the RJDSEs and DEOs in the State to obtain fresh

willingness of the employees for conditional District cadre inter local

mutual transfer specifying that the seniority in the new local cadre will be

subject to final orders of the High Court to be passed in the writ petition

Nos.16182, 16255 and 17227 of 2022 filed questioning G.O.Rt.No.402,

dated 19.02.2022. Consequently, some of the applicants have withdrawn

their respective applications. However, the petitioners herein have applied

for mutual transfers and submitted their willingness and undertakings

specifying that the seniority in the new local cadre will be subject to the

final orders of the Hon'ble High Court in W.P.Nos.16182 of 2022 & batch.

Thereafter, mutual transfer orders were issued in G.O.Ms.No.14, dated

20.06.2022, G.O.Ms.No.17, dated 04.07.2022 and G.O.Ms.No.20, dated

04.07.2022, in respect of the employees, who have submitted their fresh

undertakings, and as per their requests. Learned Additional Advocate

General has further contended that since the petitioners were transferred

from earlier cadre to present new local cadre, on their own request, the

seniority of the petitioners in the new local cadre will be counted in terms

of Rule 35 (b) of the Telangana State and Subordinate Service Rules, 1996,

and the seniority of the petitioners in the cadre of School Assistant shall be

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considered from the date of joining in the new local cadre for promotion to

the post of Gazetted Head Master Grade-II, which is a Multi-zonal post and

the School Assistant post is a District cadre post. Hence, in the first

instance, the seniority list of School Assistants has to be prepared at the

District level and thereafter the integrated seniority list of Gazetted Head

Master Grade-II for promotion post shall be prepared at Multi-Zonal level.

The petitioners are placed next to the last regular candidate in the

seniority list in the newly transferred District as per Rule 5 (2) (c) of the

Presidential Order-2018 and Guideline No.9 of G.O.Ms.No.21, dated

02.02.2022. Therefore, the petitioners are entitled to be counted their

seniority in the new local cadre only i.e. from the date of their joining in

the present station. Hence, there are no merits in the Writ Petition and

prayed to dismiss the Writ Petition. Reliance has been placed on K.P.

Sudhakaran v. State of Kerala 2.

6) This Court has taken note of the submissions made by the

respective parties and perused the material on record.

7) A perusal of the record discloses that in the present Writ Petition, all

the petitioners were originally appointed as SGTs/SAs in erstwhile

Mahabubnagar District and while they are working as School Assistants,

as per G.O.Ms.No.317, dated 06.12.2021, they were allocated to the new

2 (2006) 5 SCC 386

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Districts, based on their seniority and after obtaining options in the form

of preference from them, without disturbing their seniority. Thereafter, on

considering the requests of some of the employees, the Government has

decided to consider the request for inter local cadre transfers on

mutual/reciprocal basis, as per a fixed time schedule through online

process, strictly in accordance with the provisions contained in para

5 (2) (c) of the Presidential Order-2018, subject to certain conditions laid

down in G.O.Ms.No.21, dated 02.02.2022. Clauses (8), (9) and (10) of the

Presidential Order-2018, which are relevant in the present context, are

extracted hereunder:

8. Both the employees seeking mutual transfer shall give an undertaking in the prescribed

format that they would forego their lien and seniority in the old local cadres and accept to take the

rank in the new local cadres.

9. The employees transferred on request for mutual inter-local cadre transfer, shall be

assigned the last rank next to the last regular candidate in their new local cadre, as per paragraph

5 (2) (c) of the PO-2018. They shall also forego seniority/lien in the earlier local cadre.

10. As the transfer is on request basis, the employees are not entitled for any TA or DA.

Thereafter, the Government has issued G.O.Rt.No.402, dated 19.02.2022,

stating that para 7 and 8 of G.O.Ms.No.21, dated 02.02.2022, shall not

apply to mutual transfers between two employees of the same erstwhile

district cadres and their seniority shall be protected in the new local cadre.

Aggrieved by G.O.Rt.No.402, dated 19.02.2022, some of the employees

have filed W.P. Nos.16182, 16255 and 17227 of 2022 wherein this Hon'ble

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Court has passed interim order on 11.04.2022 suspending G.O.Rt.No.402,

dated 19.02.2022 and made it clear that the Government can proceed with

mutual transfers without reference to G.O.Rt.No.402, dated 19.02.2022.

In consequence to the same, the Government has issued G.O.Ms.No.17,

dated 04.07.2022, ordering Inter District Mutual Transfers to certain

employees including the petitioners, subject to the following conditions:

4. The list of Mutual Inter Local Cadre Transfers of District Cadre is appended to this order as Annexure in detail District wise. The District Mutual Inter Local Cadre Transfers are subject to the condition that the 'seniority' in the new local cadre will be subject to final orders of the Hon'ble High Court in the Writ Petitions filed questioning the orders issued in G.O.Ms.No.402, G.A. (SPF.I) Dept., Dt.19.02.2022 and the employees have fulfilled all the conditions as stipulated in G.O.Ms.No.21, G.A (SPF) Dept., dt.02.02.2022 and also both the employees have submitted willingness for such conditional orders.

5. The above individuals shall be assigned the last rank next to the last regular candidate in their respective new local cadres in terms of Para 5(2) (c) of P.O-2018 and also not entitled for any TA or DA on such transfers."

Accordingly, the petitioners were allotted to their respective Districts in the

category of School Assistant on various dates in the year 2022.

8) Now, the issue for consideration before this Court in the present

Writ Petition is 'Whether the petitioners, who belong to same erstwhile

District Cadre and were allocated to new local cadre on mutual/reciprocal

basis, are entitled for protection of their seniority also in the new local cadre,

as per Rules 33 and 34 of Telangana State and Subordinate Service Rules,

1996?'

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9) For better adjudication of the matter, Rule 33 (a) & (b), Rule 34 and

Rule 35 (a) (b) of Telangana State and Subordinate Service Rules are

extracted hereunder:

Rule 33. Seniority:- (a) The seniority of a person in a service, class, category or grade, shall unless he had been reduced to a lower rank as a punishment, be determined by the date of his first appointment to such service, class, category or grade.

(b) The appointing authority may, at the time of passing an order appointing two or more persons 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;

Rule 34. Preparation of integrated or common seniority list of persons belonging to different units of appointment:- Where as integrated or common seniority list of a particular class, or category or grade in any service belonging to different units of appointment has to be prepared for the purpose of promotion or appointment by transfer to a class or category having different units of appointment or for any other purpose, such an integrated or common seniority list shall be prepared with reference to the provision of sub-rule (a) of Rule 33, provided that the seniority list of the persons inter-se belonging to the same units shall not be disturbed.

Rule 35. Fixation of seniority in the case of transfers on request or on administrative grounds:- (a) The seniority of a member of a service, class or category transferred from one unit of appointment to another unit of appointment, on administrative grounds, shall be, determined with reference to the date of seniority of such member in the former unit.

(b) The seniority of a member of a service, class of category, who is transferred on his own request from one unit of appointment to another unit of appointment shall be fixed with reference to the date of his joining duty in the latter unit of appointment.

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10) Here, it is pertinent to note that admittedly the initial allocation was

made based on the seniority in the cadre of School Assistant and after

obtaining options from the petitioners, without disturbing their seniority.

Thereafter, mutual transfers to the new local cadre were done on their own

request, in terms of G.O.Ms.No.17, dated 04.07.2022. Further, as per the

Telangana State and Subordinate Service Rules, 1996, the School

Assistant post is a District Cadre post and also feeder category post for

promotion to the post of Gazetted Headmaster Grade-II, which is a multi-

zonal post, as per the new Presidential Order-2018. Therefore, as per Rule

33(a) of Telangana State and Subordinate Service Rules, 1996, the

respondents have to prepare seniority list in the cadre of School Assistants

at the District level, at the first instance, and thereafter as per Rule 34 of

Telangana State and Subordinate Service Rules, 1996, the integrated

seniority list of School Assistants has to be prepared at Multi-zone level for

consideration of their promotion to the post of Gazetted Headmaster

Grade-II.

11) The record further discloses that as per G.O.Ms.No.317, dated

06.12.2021, the petitioners were allocated to the new District local cadres

on the basis of seniority and as per the options exercised by them without

disturbing their seniority. Thereafter, as per G.O.Ms.No.21, dated

02.02.2022, their request for inter local cadre transfer on mutual/

reciprocal basis was considered by the Government subject to assigning

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last rank next to the last regular candidate in their respective new local

cadres in terms of para 5 (2) (c) of the Presidential Order-2018. Here,

admittedly, the petitioners were working as School Assistants in the

erstwhile Mahabubnagar District, which was re-organized into 4 Districts

viz., Mahabubnagar, Wanaparthy, Jogulamba-Gadwal and Narayanpet.

Further, certain Mandals of erstwhile Mahabubnagar District viz,

Shadnagar, etc. were merged in newly formed Ranga Reddy District.

Further, on formation of new Districts, as per G.O.Ms.No.317, dated

06.12.2021, the petitioners were allocated to new Districts, based on their

seniority in the erstwhile Mahabubnagar District and as per the options

exercised by them and at that stage their seniority was also protected.

Therefore, the allotment of the petitioners to new District, as per

G.O.Ms.No.317, dated 06.12.2021, can be construed as administrative

transfer, as per Rule 35(a) of Telangana State and Subordinate Service

Rules, 1996. But, in the present case, admittedly, the petitioners, after

allotment to the new Districts in terms of G.O.Ms.No.317, dated

06.12.2021, on their own request pursuant to G.O.Ms.No.21, dated

02.02.2022, were re-allocated to the present Districts. Hence, it can be

construed as allotment/transfer on request and therefore their case

squarely falls under Rule 35(b) of Telangana State and Subordinate Service

Rules, 1996. In view of the same, this Court is of the opinion that the

petitioners having accepted the conditions laid down in G.O.Ms.No.21,

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dated 02.02.2022, now cannot turn around and seek seniority in the cadre

of School Assistant and claim consideration of their seniority for promotion

to the post of Gazetted Head Master Grade-II as per Rule 33 of Telangana

State and Subordinate Service Rules, 1996.

12) Since the petitioners were re-allocated to the new local cadres, on

their own request, they cannot seek protection under Rule 33(a) and 34 of

Telangana State and Subordinate Service Rules, 1996, and their case

squarely falls under Rule 35(b) of Telangana State and Subordinate Service

Rules, 1996.

13) Coming to the judgment relied by the learned counsel for the

petitioners in Kumod Kumar's case (referred supra), the said judgment

is not applicable to the facts of the present case since in this case the

petitioners were transferred to the present Station on their own request.

14) Further, in K.P. Sudhakaran's case (referred supra), the Hon'ble

Supreme Court while dealing with a similar situation has held as under:

"11. In service jurisprudence, the general rule is that if a government servant holding a particular post is transferred to the same post till the date of transfer and the period of service in the post before his transfer has to be taken into consideration in computing the seniority in the transferred post. But where a government servant is so transferred on his own request, the transferred employee will have to forego his seniority till the date of transfer, and will be placed at the bottom below the juniormost employee in the category in the new cadre or department. This is because a government servant getting transferred to another unit or department for his personal considerations, cannot be permitted

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to disturb the seniority of the employees in the department to which he is transferred, by claiming that his service in the department from which he has been transferred, should be taken into account. This is also because a person appointed to a particular post in a cadre, should know the strength of the cadre and prospects of promotion on the basis of the seniority list prepared for the cadre and any addition from outside would disturb such prospects. The matter is, however, governed by the relevant service rules."

15) For the afore-mentioned reasons and in view of the law laid down by

the Hon'ble Supreme Court in K.P. Sudhakaran's case (referred supra),

this Court does not find any merit in the writ petition and the same is

liable to be dismissed.

16) Accordingly, the Writ Petition is dismissed. At this juncture, this

Court makes it abundantly clear that since the question of application of

Rule 5 (2)(c) of Presidential Order-2018 in case of the employees, who were

transferred on mutual/reciprocal basis, and also the validity of

G.O.Ms.No.21, dated 02.02.2022, are the subject matter of writ petitions

viz., W.P. Nos.16182 of 2022 & batch pending before the Division Bench of

this Court for consideration, the present Writ Petitions are being disposed

of without entering into the said aspect of the matter.