Allowed

Sulthan Moinudin, v. The State of Telangana

Telangana HC7 Dec 2023WP/5390/2017

Case brief

AI extract

What is this about?

This judgment allows a writ petition filed by school assistants selected in 2003 but appointed in 2009 due to departmental litigation lapses. The court held they must be granted seniority from 2005 to prevent employer illegality. It relied on Supreme Court precedents establishing that candidates selected under the same notification are entitled to parity if the delay stems from the authority.

What did the court decide?

Petitioners accorded seniority and benefits from 2005 on par with DSC-2003 candidates appointed in 2005; impugned proceedings quashed.

Sulthan Moinudin, Vs The State of Telangana — Pension and Retirement Benefits | Telangana HC (2023)

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[³³⁸³ ]

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HIGH COURT FOR THE STATE^{OF TELANGANA} AT HYDERABAD (Special Original Jurisdiction)

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THURSDAY, THE SEVENTH^{DAYOF DECEMBER} TWO THOUSAND AND TWENTY^THREE

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PRESENT

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THE HON'BLE SRI JUSTICE^{LAXMINARAYANA ALISHETTY}

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WRIT PETI TION NO: 5390^{OF 2017}

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Between:

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Sulthan Moinudin,, Sio.Azeemuddin,^{aged 43 years, Occ School Assistant,} 7p.fi.Scnool, Kodair^{(M), R/o. H.No.-10-10, Sadath Street, Nagarkurnool} District.

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Z. - A.Siiana, fvf ,F. ff .Sctroof Reddy,, , iotn^{S/o.Rathnaiah, aged 42..years,} Battalion,^{Yerravalli, ltiklrala (M), Occ Jogulamba SchoolAssistant,Gadwal} District. Sagar Colony,^{WanaparthyDistrict.-} -

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S. ShivJ Ram"ulu,, Sio.Gourishankai,^{aged38 years,Occ School Assistant,} - 2-p.ff .Scnool, Maddur, R:io.H.No-.1-62, Kamsanpalli, Damargidda, Mahabubnagar District.

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+. M. Aoout wiaooO,,^{S/o. M. MohammedPasha,aged 41 years,OccSchool} Aisisiini, Z.P.H.S'chool,^{Kothapeta(V), HunwadaMandal, Mahabubnagar} District. Fi/o.5-4^{',87 12,} Makalabanda,^{Mahabubnagar District'}

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S. V.V-seetna Rama^{Rao,, S/o. VenkateswarRao, aged41 years,Occ School} Assistant, Govt. High School(MR),^{Yellandu, Khammam O'tt''"t....r..,r,o*=*,}

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AND

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l.TheStateofTelangana,Rep.byitsPrincipalSecretary,SchoolEducation Department, Secretariat^Buildings, fy!erq[ap.

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Th6 Commissioner^{and Director-ofSihool Education,, Government of} Telanoana. Hvderabad.

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The D'istrict Elucational^{Officer, Mahabubnagar District}

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...RESpoNDENrs

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Petition under Article^{226 ol the constitution of lndiaprayingthat in the} circumstances stated^{in the affidavit filedtherewith,the High court may be} pleased to issue a writ, order or^{direction more particularlyonein the nature of} writ of Mandamus declaring^{the impugnedaction of the respondentsin not} according to the seniority^{and other benefits fromthe year2005 on par with all} other candidates^{selectedand appointed in pursuance of DSC-2003 though} petitioners are not responsible for^{their belated appointmentsin the year 2009} and further action^{in rejecting the petitioners vide impugned proceedingsR.c.} No.82t1758t2015,^{dated ',l3.03.2015,on the file of the 3rd respondent as highly} illegal, violative of^{Article 14 of the constitutionof lndia, apart from the law laid} down by the Hon'ble^{supreme court and consequently direct the respondents to}

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a{-**EriJ'.

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./ accord seniority to the petitioners with effect from the date of appointment of all other candidates as per DSC-2003 with all attendant benefits including pay fixation and arrears thereof

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Counsel for the Petitioner: SRI G. V. SHIVAJI

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Counsel for Respondents: GP FOR SERVICES I

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The Court made the following: ORDER

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HONOURABLE SRI JUSTICE LAXMI NARAYANA ALISHET'TY

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WRIT PETITION NO.539O of 2Ol7

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ORDER:

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This writ petition is hled to declare the impugned action of the respondents in not according to the seniority and other benefits from the year 2005 on par with all other candidates selected and appointed in pursuance of DSC-20O3 and further action in rejecting the representation of the petitioners dated 18.02.7O4 vide impugned order dated 13.03.2015 as illegal and arbitrary and consequently, direct the respondents to accord seniority to the petitioners with effect from the date of appointment of all other candidates as per DSC-2OO3 along with all benehts.

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The brief facts leading to filing of the present writ petition are that, petitioners applied for selection to the post of School Assistants pursuant to the notiflcation issued in ttrc year 2003. Originally, the recruitment notification for DSC-2O03 was issued in the year 2003 lor selection of posts of School Assistants. After issuance of notihcation, 2"d respondent had issued circular granting relaxation in favour ol the candidates possessing single subject certificate in English and directed them to be considered for promotions a.[so. In view of the consideration of candidates with single subject certifrcate holders from

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LN/1J ttP Na.53q0^oI)A17

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vu'ho are other$'ise^{ineiigible'the} Dr.B.R.Ambedkar^{OPen UniversitY'} of selections,^{though they are} petitioners^{lost their opportunity} meritorious.

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Aggrieved^{thereby, petitioners hled O A'No'9635of2002 and} batch,^{however, the said O A No 9635 of2OO2 ar.d batch were} dismissed.^{Aggrievedbv the same' petitionershled W'PNo 9O73 of 2022} andbatch.TheHon,bleHighCourtvidejudgmentdated06.0l.2006 held that^{relaxing the qualificationsin favour of singlesubject certi{icate} holders^{is illegal and unsrr slainable}

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In the light^{of above judgment'the candidates who were appointed} on the^{basis of suchsingle subject certificatesale liable to be removed} and^{petitioners ought to have beenappointedin their places'however'} respondents^{did not take anlr actionTherefore' petitionersapproached} this Hon'ble^{High Court vide W'P No 2 0426 of 2006and during the} course^{of hearing,this High Court had taken a seriousview against the} action of^{respondentsTherefore' the Government has takena decision} to appoint^{the petitioners' accordingly' petitioners were appointedvide} proceedings^{dated 23'032OO9 The successful candidates in DSC-2003} were appointed^{vide proceedings dated2a'12'2OO5'Thus' petitionersare} deprived of^{servicesand seniority and all otherbenefits for a period of} four years.^{The delay in appoinlment of the petitioners is only due to}

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LNA..I wP No.5t90 of 20t7 3

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the illegal action o[ the respondents and no[ on account of any reason attributable to the petitioners. Therefore, petitioners are entitled to seniority and other benehts on par with the all other candidates appointed in the year 2O05 in pursuance of notihcation in DSC-20O3.

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Petitioners made representation dated 20.06.2O13, however, respondents did not take any action on the said representation. Petitioners hled O.A. No.68 of 2014 seeking for notiona.l seniority arrd pay frxation to the petitioners on par with all other candidates appointed in the year 20O5. The Hon'ble Tribunal vide order dated 03.O1.2O14 granted interim direction permitting the petitioners to submit fresh representation for seniority and notional increments on par with DSC2003 candidates arrd the respondents are directed to consider the representation. Accordingly, petitioners submitted detailed representation on 18.02.2074, but the respondents did not take any action and therefore, the petitioners filed contempt cases. The 3.4 respondent issued impugned proceedings 13.03.2015 rejecting the representations of the petitioners on the ground that petitioners were appointed pursuant to the interim orders dated 28.09.2006 passed in WPMP No.25826 of 2006 in W.P.No.2O426 of 2006. Therefore, petitioners cannot be given seniority along with DSC-2O03 candidates and also for the other reason that if notional seniority is given to the

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LNA,J w P Na 5190 of2017

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petitioners, it^{n'ill adverselyaffect the seniorityol School Assistants'} Aggrieved^{by the same,the presentr'r'rit petition is filed}

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Respondents^{filed counter and contended that petitionershave} been appointed^{as School Assistants(English)in DSC-20O3with the} single subject^{certif-rcate of Dr. B R AmbedkarOpen University'on} 23.O3.2OO}^{in vierv of the interim orders daLed28'09 2006 of the} Hon'ble^{High Courtpassed in W P No 20426 of 2O06 The contentionof} thepetitionerstofixseniorityonparwithotherselectedcandidatesof DSC-20O3^{is not convincingand no groundis madeup as selectionsof} thepetitionerswashitbylitigationofHon,bleTribunalandHonbleHigh Court alrd^{there spondents have implemented the orders of the Hon'ble} courts from^{time to time to avoid contempt of court. Moreover,for the} recruitment of^{SchoolAssistantpost, district is the unit and the} petitioners cannot^{compare theirsenioritywith the counterparts of the} other districts,^{wherethere is no suchlitigation'}

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6.1. It is^{contendedthat petitioners are the candidates of DSC-2OO3} and they^{were appointedin DSC-20O3selectionsin March,20O9 due to} the litigation^{pending before the Hon'bleCourts and now they submitted} representations in^{2014 for consideringtheir claim to count seniority} from the date on^which their^{counter-pa-rtsappointed and working} already in 2O05 i.e., four^{yearsprior to their date of joiningin the}

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LNA.J wP No.i390 ol20t7

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present posts. The petitioners are the candidates of DSC-2003 and who are the litigants in both rhe Hon'ble ApAT and this Court in W.P.No.2O426 /2006 and batch, wherein this Hon'ble Court did not interfere with the orders issued in G.O.Rt.No.556, dated O4.10.20O5 and also dismissed the W.P.No.2O426 of 2006 and batch al1d hence, the petitioners have no basis to claim seniority on par with the counterparts ofDSC-2003 who were already appointed in 2005.

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6.2. It is further contended that the Hon'ble Apex Court in a similar case vide judgment dated 25. 10.2013 in Commissioner & Director of Agriculture vs. P.Sudhakar Rao case in SLP (C) No.3O636/20O9, held that seniority of the selected candidates who would be reckoned from the date of their appointment only. Therefore, in the light of above judgment, extending of notional seniority or monetary benehts to the petitioners in the present writ petition on par with other selected candidates in 2OO5 does not arise and fina1ly, prayed for dismissal of the writ petition.

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Heard learned counsel Sri G.V.Shivaji for the petitioners and the learned Government Pleader for Services-l for respondents.

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The main issue in the present writ petition is with regard to claim of seniority of candidates selected in DSC-2OO3, but were appointed in

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2O09. Petitioners hled O.A.No.6g of 2Ot4 before the ApAT praying to declare that the petitioners are cntitled to seniority in the cadre of School Assistants \ rith effect from the date on which their counter parts were appointed in DSC_2O03 i.e., in 2005 and above the Schoo1 Assistants appointed in subsequent DSCs.

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The petitioners urged before the Tribunal and this Hon,ble Court that though they were selected and appointed as Schoor Assistants as per their merit in DSC-2O03, they were not treated as part of DSC_2003 merit list, treated their selection as separate selection a,d claimed that they are entitled to reckon their seniority as per the panel or selection list prepared for DSC-2003.

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10- ln support of his contention, learned counsel for petitioners placed relialce on the following decisions:

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(i) Batwant Singh ltarwal aud ot-hers vs. State of Haryaaa and othersl; (ii) Order of this Honble High Court in W.p.No.15167 of 2O2t dated 6.12.2021; and

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(iii) Order of this Hon'ble High Court in Wp No. 15185 of 2O21 dated 06. t2.2O2I

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i1. Per contra, according to the respondents, the petitioners were appointed in DSC-2003 selections in March, 2OO9 of DCS-20O3 selection due to litigation pending before the Hon'ble Courts and, ' lzoot; r scc zza

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therefore, they cannot be compared on with the other selected persons appointed in DSC-20O3 in the year 20O5. Respondents have also raised the plea of delay and latches as petitioner filed litigation before the Hon'ble Courts instituted in the year 2006, which underwent in both courts upto 2O.O2.2OOa Further, it was also urged that if notional seniority is extended to the petitioners, it would adversely impact others, unsettling the settled issue and possibility of spate of litigation. The petitioners a-lso contended that if notional appointment is extended to petitioners, they have to be paid regular pay scales from 2003 onwa-rds and arrears and monetary benefits also have to be paid.

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The Tribunal vide interim orders dated 03.01.2014 passed in O.A.No.68 of 2014 held that petitioners are permitted to submit fresh representations regarding their claim for seniority and notional increments on par with DSC-2OO3 caldidates and the respondents are directed to pass appropriate orders on the said representation within a period of six weeks from the date of receipt of the representation.

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Learned Government Pleader would contend that date ofjoining in service is much later to the date of joining DSC-20O3 candidates i.e., in the year 2005 and from DSC-2003, there are more than lour DSC recnritments were made. Therefore, the petitioners are not entitled to tlaim seniority on par with DSC-20O3 candidates. According to the

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Assistant Government Pleader, for direct recruits, inter se seniority is based on merit secured in the recruitment and date of joining in service. He would submit that direct recruitee commences his service when he joins in service and that shall be the date of commencement of probation and to assign seniority and no direct recruitee can claim a date anterior to the da[e of appointment for the purpose of computation of service for seniority. Therefore, petitioners cannot compare themselves to DSC-2OO3 candidates.

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He would submit that that DSC 2003 candidates, who were appointed in the year 2005 are not made parties in this writ petition. However, if the claim of the petitioners is accepted, they have to be placed above DSC-2O05 and subsequent DSC selected candidates in the seniority list. No such steps can be taken to assess higher seniority affecting right of DSC-2005 candidates and subsequent DSC candidates. The issue of inter se seniority between DSC-2005 and subsequent DSC caldidates is settled long ago and settled things cannot be un-settled after long lapse of time.

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Issue for consideration is whether petitioners are entitled to claim seniority on par with all other candidates as per DSC-2O03 with a1l attendant benefits including pay and fixation and arrears thereof ?

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I-NA J tuP No ;t90 of )0t7

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Consideration:

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Before adverting to^{merits and rival contentions of boththe} parties, it is appropriate to refer to^the vlew taken by the Hon'ble Supreme Court and this^{Hon'ble Court on the} claim to seniority by persons though selected^pursuant to^{earlier recruitmentnotihcation,} but appointed later to^{appointmentsmade as persubsequent} recruitment notihcations.

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In Balwant Singh Narwal^{(supra), merit list drawnby PublicService} Commission including^{3O nameswaschallengedon the ground that} though the indent^{was for 18 vacancies only,inclusion of larger number} of candidates in the^{selectionlist was illegal before High Court The} learned single Judge of Punjab^{and Haryana High Court upheld the} challenge and same was^{a,fhrmedby the Division Bench also' H} Pursuant to the decision of the^{High Court, 16 candidates were} appointed by an order dated^{02.06.1994- The order of the Division} Bench was chatlenged before the^{Hon'bleSupremeCourt and the} Honble Supreme Court, at the^{interlocutory stage, passed orders} directing the respondents not to hlt up^{12 vacancies.Ultimately, the} Appeals were disposed of by an^{order dated 06.72.1999by the Hon'ble} Supreme Court reversing the decision^{of the High Court and dismissing} \ the wr(^petitions hled before^{the High Court. The Hon'ble Supreme} Court held^{that the Governmentrequisitioned 37 posts, therefore,there}

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was no bar on the power o[ the Commission to recommend 3O names. Pursuant to the said judgment, 13 persons were appointed as Principals by order datecl 26.05.2000. Afte r appointments, l3 persons submitted representations for fixing their seniority as per the merit list drawn by the Public Service Commission on 1.10.1993. They contended that but for the litigation. they would have been appointed along with other 16 candidates and as their selection was with regard to the vacancies notified in January, 1992, they'should be given seniority above those rvho r(crc appointed against subsequent vacancies. The State Government accepted their plea and fixed their positions immediately after the 16 candidates appointed from the same merit list ar.rd they lvere shoq'n above the later appointees. The challenge made by the later appointees was rejected by the High Court.

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Considering a similar situat.ion in Surendra Narain Singh Vs State of Bihar2, the Hon'ble Supreme Court held that candidates selected against earlier vacancies, but could not be appointed along with others of the same batch due to certain technical difficulties, when appointed subsequently, would have to be placed above those who were appointed again st subsequent vacancies.

: 1998 (5) scc 246

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In C.Jayachandran vs. State of Kerala and others3, issue was similar to Balwant Singh Narwal (supra). The selection [ist was challenged with reference to minimum age and the Kerala High Court struck down the eligibility with reference to minimum age and the same was afhrmed by the Hon'ble Supreme Court. Consequently, four cardidates were selected against general merit vacancies and 3 others against reserved vacancy category. The selection was disputed by non_ selected candidates before the Hon,ble Supreme Court and the Hon,ble Supreme Court granted liberty to file writ petition. Consequently, a writ petition was filed before the High Court challenging the gran t of moderation/grace marks to the candidates appointed on 3O.O3.2O09 and sought for appointment as District and Sessions Judge. The writ petition was allowed by the Division Bench. The ground of moderation of marks was found to be unsustainable, therefore, High Court directed to recast the select list.

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In W.P.No.36266 ol 2013 also similar issue has come for consideration before Honble Division Bench of this Court. pursuant to District Selection Committee 20O1 selections, 9 SG.l.s were appointed on 04.7O.2OO2, whereas others were appointed on 1g.O1.20O2. Nine SGTs filed O.A., before the Tribunal and sought for notional seniority from 18.01.2002 on par with first batch of 2OOl caldidates. The Tribunal ' lzozo;^{s scc} z:o

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allowed O.A., holding that the applicants were entitled to notional seniority as per their ranking in merit list oi 2O0l on par with the teachers appointed on I8.01.2002 by relying upon the decision of Balwant Singh Narwal. Follo'"ving the decision of Balwant Singh Narwal, the Division Bcnch of this Court upheld the Tribunal's directions.

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[n substance, it is consistently held by Honble Supreme Court and this Court that from among the persons selected in pursuant to the same recruitment notification, if some persons were appointed earlier and some persons were appointed later and the delay occasioned due to administrativc lapses. the persons appointed later are entitled to claim seniorit]' on par u.ith thc persons appointed earlier and over and above candidates appointed in the subsequent selections.

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Thc learned Division Bench of this Court in The Government of Andhra Pradesh, rep.by its Secretary to School Education Department, Vs. B.Aswathama and otheis (WP Nos.2 170 I &, 22Ol I of 2O 1 1 datcd 29.O7 .2022) following the principles law laid down in Balwant Singh Narwal (supra), Surendra Narain Singh (supra) and C.Jayachandran, held as under:

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"38 In the case on hand, issue is not about inler se seniority of DSC 1998 batch. The respondents are seeking to place them en-masse belou' thc first batch. Though by the time they were appointed the candidates selected in pursuant to subsequent DSCS were already appointed such appointments were contrary to the directions issued bv the^-fribunai. As noticed above, Tribunal clearly directed to draw

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merit_list and appoint respondents before appointjng DSC_2OOO candidates. Though respondents were successfui in estailishrng their clarm, but employer was dragging its feet leading io it...-."""O" "f lrtrgatron. Denying seniority to respondents would amount to illesaliry commirted by rhe.mptoy".. rt il unlusr to !::T:l.l,lic ",h: oeprrve the truits o[ success in the litigation merely because of the lapses of employer and for no fault oirespondents. A}ght has accrued_to. respondents by virtue of decraration and direcii,cns rssued by the Tribunal and affirmed by the High Court to t.."i-tt"-." belonging to DSC-i998 selection proceis and thrs rigit should lo^Bically result in according seniority on par with lr.st bat'J ot OSC1998.

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It is also appropriate to note that the delay in appointment of petitioners, on the ground of pending litigation, is not attributable to them, but to the employer. The principle of law laid down in Balwant

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singh Narwal (supra), Sutendra Narain Singh (supra) C.Jayachandran (supra) and B.Aswathama (supra), squarely apply to the facts of this CASC

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In the case on hand, issue is to f,lx the seniority and other benehts from the year 2o05 on par with all other candidates serected and appointed in pursuance of DSC-2003 though the petitioners are not responsible for their belated appointments in the year 2O09. Though petitioners were successful in establishing their claim, but employer was dragging its feet leading to litigation. Denying seniority to petitioners would amount to perpetrating the illegality committed by the employer. The petitioners cannot be deprived of their seniority merely because of delay in litigation, and for no fault of petitioners. A right has accrued to pctitioners by virtue of declaration and directions issued by the Tribunal

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LitA.J trP !)o.il90 ol :01'

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and by the High Court to treat them as belonging to DSC-2003 selection process and this right should logically result in according seniority on par with selection candidates in 20O3, who were appointed in the year 2005.

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It is not in disputc that the appointments of the petitioners were delayed owing to the lapse on the part of the respondent-authorities in the same DSC-2003 selcctions.

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Conclusion:

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On due consideration of the above facts and circumstances and legal position, this Court is of the view that petitioners are entitled to the seniority and othcr benefits from the year 20O5 on par with all other candidates selected and appointed in pursuance of DSC-2OO3. Accordingly, this Writ Petition is allowed, setting aside the impugned proceedings dated 13.03.2015 of the 3.d respondent. There shall be no order as to costs.

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Pending miscellaneous petitions if any shall stand closed

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That the Rule^{Nisi has beenmade absoluteas above'}

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Witness THE^{HON'BLE165 CHIEF JUSTICEALOK ARADHE,on this} ft ur"di,, tft" SlvJnth^{dayof December, TwoThousand andTwenty Three'}

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SD/- A.PRATHI

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ASSISTANT REGIST

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//TRUE^cOPY//