K Eswara Rao Vs the State of Andhra Pradesh

K ESWARA RAO, S/O APPALA RAJU, AGED ABOUT 37 YEARS, OCC. SECONDARY GRADE TEACHER, M.P.U.P.S, GADDAPUVALASA VILLAGE, GARIVIDI MANDAL, VIZIANAGARAM DISTRICT.

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G PADMAJA, D/O KRISHNA MURTHY, AGED ABOUT 33 YEARS, OCC. SECONDARY GRADE TEACHER, M.P.P.S, LAXMIPURAM1 VILLAGE, SALURU MANDAL, VIZIANAGARAM DISTRICT.

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V SRINIVASA RAO, S/O LAKSHMANA RAO, AGED ABOUT 42 YEARS, OCC. SECONDARY GRADE TEACHER, M.P.P.S, NEELAGEDDAPETA VILLAGE, PUSAPATIREGA MANDAL, VIZIANAGARAM DISTRICT

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R SRINU, S/O APPARAO, AGED ABOUT 40 YEARS, OCC. SECONDARY GRADE TEACHER, M.P.P.S, ATHAVA VILLAGE, VEPADA MANDAL, VIZIANAGARAM DISTRICT.

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N RAMA RAO, S/O RAMA MURTHY, AGED ABOUT 37 YEARS, OCC. SECONDARY GRADE TEACHER, M.P.P.S, DABBIRAJUPETA VILLAGE, VEPADA MANDAL, VIZIANAGARAM DISTRICT.

...PETITIONER(S)

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THE STATE OF ANDHRA PRADESH, REP. BY ITS PRINCIPAL SECRETARY TO GOVERNMENT, SCHOOL EDUCATION DEPARTMENT, SECRETARIAT, VELAGAPUDI, GUNTUR DISTRICT.

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THE COMMISSIONER AND DIRECTOR OF SCHOOL EDUCATION DEPARTMENT, GOVERNMENT OF ANDHRA PRADESH, IBRAHIMPATNAM, KRISHNA DISTRICT.

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THE DISTRICT EDUCATIONAL OFFICER, VIZIANAGARAM DISTRICT AT VIZIANAGARAM

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...RESPONDENT(S):

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Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue an appropriate Writ, Order or Direction, more particularly one in the nature of Writ of Mandamus, declare the Impugned proceedings vide proc. No.Rc.No.91/B1/ 2018(B2) Dated 13.08.2019 issued by 3rd respondent in so far as awarding notional date of seniority w.e.f.12.11.2010 instead of 28.06.2010 purported to have implemented the orders of the Hon'ble Courts to avoid contempt proceedings in a casual manner without verifying the dates of joining of counterparts, despite no counter part of DSC-2008 recruitee has never been appointed or joined on the above said date in Vizianagaram district and fixing seniority on non-existing date is totally illegal, irrational, and unjust and consequently direct the respondents to alter the date of notional seniority as 28.06.2010 according to date of joining of the first phase counterparts in DSC-2008 in the place of the dt.12.11.2010 and revise the seniority by granting all consequential benefits and pass such other order.

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IA NO: 1 OF 2023

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to direct the respondents to re-examine the claim of the petitioner for modification of date of notional seniority from 12.11.2010 to 28.06.2010 by disposing the representation pending disposal of the main writ petition and pass such other order.

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Counsel for the Petitioner(S):

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1.SRINIVASA RAO MADIRAJU

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Counsel for the Respondent(S):

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1.GP FOR SERVICES III

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The Court made the following:

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HON’BLE SRI JUSTICE NYAPATHY VIJAY

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WRIT PETITION No.10764 of 2023

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ORDER:

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The present Writ Petition is filed questioning the impugned proceedings issued vide Proc.No.Rc.No.91/B1/2018(B2), dated 13.08.2019 by Respondent No.3 awarding notional date of seniority to the Petitioners w.e.f. ‘12.11.2010’ instead of ‘28.06.2010’, as illegal and arbitrary.

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The brief facts of the case are as follows;

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The DSC Notification for recruitment of various categories was issued in the year 2008. The Petitioners had been selected in Vizianagaram District, but the appointment orders were not issued in the first phase of counselling due to lack of vacancies. However, similarly placed employees were appointed on 28.06.2010. After adjusting the vacancies, appointment orders were issued and the Petitioners joined in service on 23.01.2012. It is stated that in view of the delay in appointing the Petitioners, the colleagues of Petitioners, who were selected under the very same notification, became their seniors and the same was the scenario in other districts also i.e. Nizamabad, Karimnagar, Medak, Rangareddy, Srikakulam, Kadapa etc.,

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The delay in issuing appointments was on account of the failure of the Respondents in assessing the vacancies and in the absence of verification of vacancy position and the Respondents having noticed the mistake had undertaken correctional measures and accordingly adjusted the selected candidates in a phased manner by taking into consideration of retirement and promotion vacancies.

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In that context, the persons, who were similarly situated as the Petitioners, ventilated their grievance with regard to loss of pay and seniority. As the issues were not addressed by the Respondents, a batch of O.As were filed before then Andhra Pradesh Administrative Tribunal, Hyderabad (for short “ A.P.A.T ”) like O.A.Nos.4800 of 2013 and batch and it is stated that the A.P.A.T allowed the above O.As on 05.11.2015. It is further stated that the persons similarly placed as Petitioners had filed O.A.No.3490 of 2017, which was disposed of in terms of the orders passed in W.A.No.4800 of 2013, dated 05.11.2015.

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Taking note of the orders in O.A.No.4800 of 2013, dated 05.11.2015 and O.A.No.4336 of 2016, dated 26.07.2010, the Government awarded the notional date of seniority taking into consideration the date indicated in the orders passed by the A.P.A.T. The Petitioner further contends that the said date is irrational and contrary to the date of joining of counterpart in Vizianagaram district and fixation of such date would not

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be useful to them because the date i.e. 12.11.2010 belongs to the date of joining of the counterparts in other districts and on the said date never been appointed or joined in Vizianagaram district.

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Therefore, the Respondents ought to have relied on the principle laid down in the orders i.e. award of notional seniority instead of relying on the date where it does not belongs to the Vizianagaram district. The Petitioners therefore sought for notional seniority from ‘28.06.2010’ instead of ‘12.11.2020’. The Petitioners gave representations for alteration of the date of notional seniority as mentioned above. However, vide impugned order the Respondent authorities fixed the notional seniority of the Petitioners as SGTs in DSC-2008 from ‘12.11.2020’. Hence, the present Writ Petition came to be filed.

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In the Counter Affidavit filed by Respondent No.3, it is stated that notional seniority was given w.e.f. 12.11.2010 implementing the orders of A.P. Administrative Tribunal passed in O.A.Nos.3320 of 2017, 3490 of 2017 and 694 of 2018, dated 13.12.2017. It is further stated that Respondent No.3 on consideration of the request of the applicants therein awarded notional seniority w.e.f. 12.11.2010 on par with the date of joining of the counterparts in initial counselling as directed by the A.P.A.T in O.As referred above.

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It is also stated that the Government had issued notification through DSC for filling vacant teacher posts through DSC-2008 vide G.O.Ms.No.161, Education Ser (VI) Department, dated 06.12.2008, notifying the vacancies 10% in excess to the existing vacancies available at the time of notification. Thereafter, the Government amended G.O.Ms.No.161, Education Ser (VI) Department, dated 06.12.2008 vide G.O.Ms.No.28, SE Dept., dated 29.01.2009 and provided 30% special quota for D.Ed., candidates for the Secondary Grade Teacher posts in the DSC-2008.

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It is further stated that thereafter G.O.Ms.No.27, SE Dept., dated 21.06.2010 was issued permitting Respondent No.2 to complete the recruitment process to appoint eligible candidates for Secondary Grade Teacher (SGT) posts strictly in accordance with the notification issued vide G.O.Ms.No.161, Education Ser (VI) Department, dated 06.12.2008. It is also stated that pursuant to interim orders passed by A.P.A.T in O.A.No.4035 of 2010 and batch, dated 28.06.2010, the Government had issued G.O.Ms.No.62, SE. Dept., dated 29.10.2010 permitting Respondent No.2 to complete the recruitment selection to appoint eligible candidates for the post of Secondary Grade Teacher (SGT) posts in terms of the orders passed in G.O.Ms.No.161, Education Ser (VI) Department, dated 06.12.2008 and amended orders issued in G.O.Ms.No.28, SE. Dept., dated 29.01.2009. Pursuant thereto, initial

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counselling was conducted and posting orders were issued. It is stated that the joining date was taken as the date for fixing notional seniority and any further alteration would cause administrative issues to the Respondents.

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Heard learned Senior Counsel Sri M. Surender Rao appearing for Sri M. Srinivasa Rao, learned counsel for the Petitioners and Sri D. Vamsi Krishna, learned Government Pleader for Services-III appearing for Respondents.

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12. Reasoning :

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The Petitioners were appointed on 23.01.2012 and their counterparts under the same notification joined the department on 28.06.2010. The Petitioners never questioned their date of appointment vis-a-vis their counter-parts by filing any O.A in the Tribunal prior to this Writ Petition. The impugned proceedings were issued on 13.08.2019 taking note of the Government instructions and orders of A.P. Administrative Tribunal in O.A.No.3320 of 2017 and batch filed by certain Secondary Grade Teachers who were selected under “Hamipatrah” in DSC-2008. As per the impugned order, the notional seniority was permitted from 12.11.2010.

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The Petitioners are also benefitted by the impugned proceedings as their date of appointment of 23.01.2012 stood altered to the notional date i.e. 12.11.2010. However, not satisfied with the benefit in spite of not filing any O.A, the Petitioners now seek for notional date of 28.06.2010 at par with counter-parts who joined service. It is pertinent to note that applicants who filed O.A.No.3320 of 2017 and batch and at whose instance, the notional date of seniority was altered to 12.11.2020 under the impugned proceedings appear to have accepted the notional date.

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The claim of notional date from 28.06.2010 was always available to the Petitioners from the date of their appointment i.e. 23.01.2012 and this claim is independent of the impugned proceedings. In the Writ Affidavit not a syllable was referred explaining the delay of more than 11 years from the date of cause of action i.e. 23.01.2012.

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The Writ Petition is clearly a speculative one and fit case to impose exemplary costs. However, considering the fact that Petitioners are teachers and imposition of costs would have a bearing on their credentials, this Court is not imposing costs.

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Further, the impugned order is dated 13.08.2019 and the Writ Petition is filed in April, 2023 i.e. after a gap of four (4) years. Therefore, in the opinion of this Court, the Writ Petition suffers on account of latches as well as on merits.

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