Telangana High Court
B.Vinay Kumar, vs The State Of Telangana, on 19 March, 2025
Author: Surepalli Nanda
Bench: Surepalli Nanda
HON'BLE MRS. JUSTICE SUREPALLI NANDA
WRIT PETITION No.7951 OF 2023
ORDER:
Heard Sri N. Ramesh, learned counsel appearing
on behalf of the petitioner and the learned
Government Pleader for Services - II, appearing on
behalf of the respondents.
2. The petitioner approached the Court seeking
prayer as under:
"...to issue an order or direction more
particularly one in the nature of Writ of
MANDAMUS to declare the action of
respondents in not granting Notional seniority
to the petitioner in the cadre of Senior
Assistant on par with unofficial respondents by
preparing the seniority list in the cadre of
Senior Assistant duly taking into consideration
of merit obtained by him in selection process to
the post of Village Revenue Officer in terms of
Rule 33 (b) of State & Subordinate Service
Rules 1996 is illegal, arbitrary and
unconstitutional consequently, direct the
respondents to grant the Notional seniority to
the petitioner in the cadre of Senior Assistant
w.e.f. 06.04.2017 on par with unofficial
respondents duly taking into consideration of
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merit obtained by him in selection process to
the post of Village Revenue Officer by preparing
the seniority list in the cadre of Senior
Assistant in terms of Rule 33 (b) of State &
Subordinate Service Rules 1996, by following
the law laid down by the Hon'ble Apex court in
case of Bimlesh Tanwar vs. State of Haryana
reported in (2003) 5 SCC 604 with all
consequential benefits including monetary
benefits and pass such other order or orders
may deem fit and proper in the circumstances
of the case."
3. The case of the petitioner, in brief, is that the
petitioner was appointed as Village Revenue Officer (VRO) in
the year 2012 through direct recruitment conducted by the
Telangana State Public Service Commission (TSPSC). After
serving as VRO for nearly five years, the petitioner was
promoted to the post of Senior Assistant in the year 2017.
However, despite having higher merit in the selection
process for VRO, the petitioner was placed below his juniors
in the seniority list. The respondents failed to prepare the
seniority list as per Rule 33(b) of the State and Subordinate
Service Rules, 1996. Aggrieved by the same, the petitioner
filed the present writ petition.
4. Learned counsel appearing on behalf of the petitioner
contends that the respondent authorities without preparing
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the seniority list in the cadre of Village Revenue Officers,
effected promotions vide Proceedings No.A2/2009-2014-2
dated 25.02.2017 to the post of Senior Assistant on the
basis of tentative eligible list of Village Revenue Officers
service particulars working in Karimnagar District by taking
into consideration of their date of birth in terms of
G.O.Ms.No.39 dated 11.01.2008 and according to the said
list, the petitioner's name is placed at serial No.504,
whereas the unofficial respondents were shown at serial
Nos.479, 485, 489 and 516 respectively.
5. Learned counsel appearing on behalf of the petitioner
submits that so far as marks secured by the petitioner are
concerned, the petitioner secured 83 marks with 24th rank.
The petitioner is fully eligible for the promotion for the post
of Senior Assistant since the petitioner passed all the
required departmental tests as prescribed under the Rules.
6. Learned counsel appearing on behalf of the petitioner
further submits that on earlier occasion, the petitioner
approached the Court by filing the writ petition i.e.,
W.P.No.17445 of 2017 seeking a direction to consider the
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petitioner's claim for promotion to the post of Senior
Assistant in existing vacancies with all consequential
benefits. While the said writ petition was pending
adjudication, respondent authorities issued endorsement
No.A2/2173/2017 dated 22.09.2017 wherein it is stated
that the petitioner's claim would be considered in future
promotions as per seniority and eligibility by following rule
of reservation, however, respondent authorities considered
petitioner's plea and promoted the petitioner to the post of
Senior Assistant in existing vacancies vide proceedings
No.A2/2009/2014 dated 28.12.2017, whereas petitioner's
juniors who are less meritorious in the cadre of Village
Revenue Officers were promoted without issuing final
seniority list vide proceedings No.A2/2009/2014-2 dated
06.04.2017.
7. Learned counsel appearing on behalf of the petitioner
submits that though the petitioner secured 83 marks as per
the merit list and stood at 24th rank in selection process to
the post of Village Revenue Officer as per selection list
published by the TSPSC and though the unofficial
respondents have secured less marks than the petitioner
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i.e., 82, 78, 73, 26, 32, 113 in the selection process,
however, the said unofficial respondents had been promoted
to the post of Senior Assistant despite having less merit vide
proceedings dated 06.04.2017.
PERUSED THE RECORD
8. The counter affidavit has been filed on behalf of
the respondent No.3 and in particular, paragraph
Nos.4, 5 and 7 are extracted hereunder:
"4). In reply to the averments made at para-3
of the petitioner's affidavit, it is submitted that,
according to the instructions contained in
D.O.Lr.No.12540/146/A4/SMPC-I/201,
dt.26.05.2011 of the Finance (SMPC) Dept., the
2nd respondent was requested to take necessary
action for filling up of (1172) posts of Village
Revenue Officers in Revenue Department in
Telangana State and the Government vide Memo
No.49877/VA.1/2011-3 of Revenue (VA)
Department dt. 15.06.2011, have indicated
district-wise breakup of the above mentioned
vacancies and requested the 2nd respondent to
take necessary action as per the advice of the
Finance Department dt.26.05.2011.
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Subsequently, the Government vide
G.O.Rt.No.3379-GA (Cabinet) Dept.,
dt.29.07.2011, issued instructions to all the
District Collectors to issue notifications inviting
applications from the eligible candidates for filling
up of the vacant posts of Village Revenue Officers
to the extent indicated and informed the 2nd
respondent to issue necessary guidelines in this
regard so as to complete the entire process of
selection and appointment to all the notified posts
in accordance with the Service Rules enacted vide
G.O.Ms.No.39-Revenue (VA) Dept.,
dt.11.01.2008 as amended from time to time
based on the marks secured in a Written Test of
objective Type. According to the instructions
issued by the Government as well as by the 2nd
respondent, notification for erstwhile Karimnagar
district was issued by the 3rd respondent, for the
recruitment of Village Revenue Officers vide
ref.No. A4/3802/2011, dt.07.12.2011 and during
the written examination, short list of candidates
based on merit basis according to the marks
obtained in the written examination and selection
of the candidates for appointment as Village
Revenue Officer, based on the merit marks was
made according to the Roster enacted under
Rule-33(b) of State & Subordinate Service Rules-
1996 in which the petitioner and respondents
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No.5 to 9 were selected for appointment as
Village Revenue Officer as under:
Selection
Sl.N Name of the Marks Selection made at
Status
o. person secured Rank Roster
point
Respondent 43-BC-
No.7 D(G)
Respondent
2 M. Padma(OC) 78 113 50-OC-W
No.8
M. Laxman (BC- Respondent
3 83 26 51-OC-G
D) No.6
B. Vinay Kumar 60-BC-
(BC-B) B(G)
B. Saraswathi Respondent
5 73 104 81-BC-B-W
(BC-B) No.9
According to the above selection, the appointment
orders were issued to all the candidates selected as
Village Revenue Officers (including the present writ
petitioner and (4) respondents herein) vide Proc.
No.A4/3802/2011, dt.30.04.2012 of the 3rd
respondent and they have reported to duty as
Village Revenue Officer on 01.05.2012.
5). In reply to the averments made at para-4 of the
petitioner's affidavit, it is submitted that, during the
year 2017, promotion to the qualified Village
Revenue Officers were considered as Senior
Assistants, keeping in view the seniority and
passing of departmental tests etc., in respect of the
respondents No.6 to 9 herein by the 3rd respondent
vide Ref. No. A2/2009/2014-2, dt.06.04.2017. The
writ petitioner aggrieved by non-consideration of his
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name for promotion as Sr. Asst., made a
representation on 03.05.2017 and while the matter
was under examination, he filed WP No.17445/2017
before the Hon'ble High Court and the Hon'ble High
Court where under this Hon'ble Court passed an
order, on 02.06.2017, directed the 3rd respondent
herein to consider the petitioner's representation
dt.03.05.2017 within a period of (8) weeks from the
date of receipt of a copy of the order and
communicate decision to the petitioner. Accordingly,
the case of the writ petitioner was examined and
an endorsement was issued to him vide
ref.No.A2/2173/2017, dt.22.09.2017, by the
3rd respondent herein that the claim of the
writ petitioner will be considered in future
promotions as per seniority and eligibility by
following rule of reservation. Subsequently,
his name was considered for promotion as
Senior Assistant vide Proc. No. A2/2009/2014,
dt.28.12.2017 by the 3rd respondent herein.
7). In reply to the averments made at para-6 to 9
of the petitioner's affidavit, it is submitted that as
submitted above, the names of the writ petitioner
and respondents No.6 to 9 were placed in roster
point under Rules-1996 as shown below:
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Selection
Sl.N Name of the Marks Selection made at
Status
o. person secured Rank Roster
point
Respondent 43-BC-
No.7 D(G)
Respondent
2 M. Padma(OC) 78 113 50-OC-W
No.8
M. Laxman (BC- Respondent
3 83 26 51-OC-G
D) No.6
B. Vinay Kumar 60-BC-
(BC-B) B(G)
B. Saraswathi Respondent
5 73 104 81-BC-B-W
(BC-B) No.9
As submitted above, the promotion to the
respondents No.6 to 9 was considered as Senior
Assistant vide Proc. No. A2/2009/2014-2,
dt.06.04.2017 and the promotion to the writ
petitioner was considered as Senior Assistant vide
Proc.No. A2/2009/2014, dt.28.12.2017 by the 3rd
respondent herein keeping in view the seniority
and eligibility."
DISCUSSION AND CONCLUSION:
9. A bare perusal of the averments made at paragraph
Nos.4, 5 and 7 in the counter affidavit filed on behalf of the
respondent No.3, clearly indicate that admittedly the
petitioner secured more marks than unofficial respondents
herein, however, the petitioner was considered for
promotion as Senior Assistant vide proceedings
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No.A2/2009/14 dated 28.12.2017 by the respondent No.3,
whereas respondent Nos.6 to 9 were promoted duly
considering their cases for promotion as Senior Assistant
vide proceedings No.A2/2009/2014/2 dated 06.04.2017
much earlier to the promotion of the petitioner herein
though the petitioner as borne on record secured 83 marks
and obtained 23th rank in the selection process for
appointment to the post of Village Revenue Officer (referred
to and extracted above).
10. Rule 33 (b) of State & Subordinate Service
Rules, 1996 is extracted hereunder:
"33. Seniority:- (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. 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
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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."
11. A bare perusal of the above Rule position clearly
indicates that the same had not been followed in the
present case, and giving a go-by to the said procedure
as provided for Under Rule 33 (b) in the present case
without preparing the seniority list, the respondent
authorities effected the promotions to the next level
in clear violation of the legal provision, referred to
and extracted above.
12. The judgment of the Apex Court reported in
2003 SCC 604 in "Bimlesh Tanwar Vs. State of
Haryana" in particular, in paragraph No.52 it is
observed as under:
"52. In this case also, although there does not
exist any statutory rule but the practice of
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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 v. Ananda Chandra Das,
reported in (1994) 6 SCC 301:1994 SCC (L &
S) 1384: (1994) 28 ATC 293, this Court held:
(SCC p. 301, para 2)
"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
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direct recruitment and length of service on
its basis."
13. This Court, vide its judgment dated 04.02.2023,
passed orders in W.P.No.1608 of 2020 dealing with
identical situation and in particular, at paragraph No.8
of the said order observed as under:
"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."
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14. This Court opines that the seniority list should
be based on merit and not on roster points while
following rule 33(b) of the Rules as per the ratio laid
down by the Apex Court in the judgments (referred to
and extracted above), since the order of merit or
order of preference indicated in a list of selected
candidates prepared by the TSPSC or the appointing
authority shall not be disturbed inter se with
reference to the candidates position in such list.
15. Taking into consideration:
a) The aforesaid facts and circumstances of
the case,
b) The submissions made by the learned
counsel appearing on behalf of the petitioner and the
learned Government Pleader for Services-II,
appearing on behalf of the respondents,
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and 7 in the counter affidavit filed on behalf of the
respondent No.3 (referred to and extracted above),
d) Rule 33 (b) of State & Subordinate Service
Rules, 1996 (referred to and extracted above) and,
e) The observations of the Apex Court in the
judgments (referred to and extracted above),
The writ petition is allowed and the respondents
are directed to consider the specific plea of the
petitioner for grant of notional seniority for promotion
in the cadre of Senior Assistant with effect from
06.04.2017 on par with the unofficial respondents
Nos.6 to 9 herein duly taking into consideration the
merit obtained by the petitioner in the selection
process to the post of Village Revenue Officer by
preparing the seniority list in the cadre of Senior
Assistant in terms of Rule 33 (b) of State &
Subordinate Service Rules, 1996 duly following the
law laid down by the Apex Court in the judgments
(referred to and extracted above) and pass
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appropriate orders in accordance to law within a
period of four(4) weeks from the date of receipt of a
copy of this order. However, there shall be no order
as to costs.
As a sequel, the miscellaneous petitions, if any,
pending in the Writ Petition shall also stand closed.
___________________________
MRS. JUSTICE SUREPALLI NANDA
Date: 19.03.2025
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