S.M.Hashmi, Vs The State of Telangana — Writ and Judicial Review | Telangana HC (2025)

S.M.Hashmi, Vs The State of Telangana — Writ and Judicial Review | Telangana HC (2025)

What the court decided

AI extract

Outcome

Writ petition allowed without costs; the three impugned Government Memos (dt. 02.05.2017, 08.02.2017 and 20-07-2017) set aside; respondents directed to consider the Petitioner for retrospective promotion as Deputy Director of Marketing with seniority, fixation of pay and pensionary benefits within three months; pending miscellaneous petitions stand closed.

Issue for consideration

Whether the Petitioner is entitled to retrospective promotion to the post of Deputy Director of Marketing on par with his junior (3rd respondent) with consequential benefits such as seniority and promotion, notwithstanding the Government's refusal on the ground that his punishment was set aside 'not on merit'. +1 more

Court's answer

Since the punishment imposed on the Petitioner was ultimately set aside by the reviewing authority, he is entitled to the consequential benefits prayed for; the plea that the punishment was set aside 'not on merit' does not defeat this entitlement.

Ratio / Principle

The impugned Memos No. 273/MKT/II/2017-3 dt. 02.05.2017, No. 8018/Vig-2/2016 dt. 08.02.2017 and No. 273/MKT/II/2017/5 dt. 20-07-2017 are set aside.

Key takeaways

The Respondents are directed to consider the Petitioner's case for retrospective promotion to the post of Deputy Director of Marketing with all consequential benefits, including seniority, fixation of pay, and pensionary benefits, within a period of three months from receipt of a copy of the order.ratio¶49

Detailed headnote1 paragraphs

Service law - disciplinary proceedings - compulsory retirement penalty wholly set aside by reviewing authority and officer exonerated - denial of retrospective promotion as Deputy Director of Marketing and refusal to treat gap period of compulsory retirement as duty (Govt. Memos dt. 02.05.2017 and 08.02.2017; also Memo dt. 20-07-2017) set aside - respondents directed to consider retrospective promotion on par with junior with seniority, pay fixation and pensionary benefits within three months - reliance argued on FR 54(1)(b) and appeal/revision/review remedies under CCA Rules, 1991 - writ allowed, no costs. (Telangana High Court, Justice Nagesh Bheemapaka, W.P. No. 40700 of 2017, decided 18.03.2025.)

[³³⁰⁰ ]

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

TUESDAY, THE EIGHTEENTH^{DAY OF MARCH} TWO THOUSAND^{AND TWENTYFIVE}

PRESENT

THE HONOURABLE^{SRIJUSTICE NAGESHBHEEMAPAKA}

WRIT PETITION NO:^{407000F 2017}

Between:

S.M.Hashmi, S/o.^{SyedYaseen(Late} ),^{Aged about57 Occ Assistant} rvraiketingl-o/o.-DireCtoi^{ot AlricuitureMarketing,BRK Bhavan,} oiiu.to|. "i Tank bund, HYderabad,^T.S.

...PETITIONER

AND

1 . The State of Telangana,^{rep. by its APC (Agriculture Production} -. Commissioner ano s"i]bialviio^{go'"|.n'e"nt A andC-Department' D-Block'} 5""i"ir-t,rt, covernment^{of ielangana,Hyderabad-63'}

2 ih; Dl;;;r^{or Ag,i"u'iirre NlJrleting' Governmentof Telangana' BRKR} Buildings, HYderabad-63.

Buildings, HYderabad-63.

a. Sri. rr,f ffi.'fn"n^{aged JOl,t53 years,Dep-uty Director of Marketing' S o Sri} tr/td. Moinuddin rn"n tL-t6ib7o^{6i;"i;t6f ,(gricultural Marketing Hyderabad} 63

...RESPONDENTS

Petition under^{Article 226 of the Constitution of lndia praying that in the} circumstances^{stated in the affidavit filedtherewith' the High Court may be issue} a Writ, Order or^{direction more in the nature of Mandamus declaringthe ordersin} Govt. Memo.^{No.273lMktg-ll2017} -^{3 Dt: 02.05.2017andorders passed by the} Governmentinlvlemo.No.5050/A&CA/iglA2l2O21dated03.0B.2024whereinthe Respondent No. t^{has not consideredthe Petitioner'scase of retrospective} promotion in view of^{his discilplinaryproceedingswas set aside' The} Govt.Memo.No^{. 8O18Ntg-212016,Dt: 08 02 2017 whereinthe RespondentNo1} has not treated^{the gap period of compulsoryretirement as duty as illegal'} arbitraryandinviolatronofArticlel4,l6and2,lofConstitutionoflndiaandalso contrary to F.R.^{54 (1) (b) of the Fundamental Rules & Subsidiary Rules and also} contrary to Rule^{32,40& of Classification, Control and Appeal Rules'1991 and} setasidethesameanddirecttherespondentstoeffectpromotiononparwiththe junior i.e., 3rd Respondent and^{extend all consequently benefits such as}

seniority^{promotl('netr', in the interestsof justice and to p'ass suc l other orderor} orders^{as the Hor.'hl,:court may deem fit and proper in the c rcurrrstances of the} case

(As per Court^{<rrder cated'1 8-03-2025vide lA.No1 of 2D24 in V/P No 40700of} 2017,^{PraYeris a'rertrled)}

r.A. NO:^{1 0F 201} .ru {.e^{rvlE,-_Noj_59530_9E2!lz}}

Petition^unrle r Section^{151 CPC praying that in the ci 'cun stances stated} in the affidavit^{ilr:d r support of the petition,the HighCourt mar" be pleased to} suspend^{l\rlemtr N() 273IMKT.ll 2A17-5dl. 20-07-2017ssu'rd by the 1st} respondent^{ancl tO efl'ect promotion to the post of Deputy Directrr of Marketing} forthwith^{on par r.t'itlr l'rd respondentin the interestof justice}

Counsel^{for ther Freli :ioner:SRI P.V.RAMANA} Counsel^{for ther Fler; rondent Nos.1 & 2: GP FORAGRICULTLIRE} Counsel^{for ther Fles rondent No.3:} -

The Court^{made t:hof cllowing: ORDER}

HON'BLE SRI JUSTICE^{NAGESH BHEEMAPAKA} WRIT PETITI ON No.4O7OO oF 2()L7

oRAL ORDER:

This writ petition is filed for the^{following relief:}

"to issue a writ, order or direction more particularly one in the nature of Writ^of Mandamus to call for the^{records pertaining to} the Govt. Memo. No.^{273/Mktg-L/2017-3 Dt:} O2.O5.2OL7 wherein the^{Respondent No.1has} not considered the Petitioner's^{case of} retrospective promotion in view^ofhis disciplinary^{proceedings was set aside. The Govt.} Memo. No.8018/Vig-2l2016, Dt:^08.O2.2017 wherein the Respondent No. t^{has not treated} the gap^period of compulsory^{retirement as duty} period is illegal arbitrary and^u nconstitutiona^I and its amounts to^{violation of Article14,16 & 2l} of the Constitution^{of India and also contraryto} F.R. 54(1) (b) of the^{Fundamental Rules &} Subsidiary Rules and also^{contrary to Rule 32.40} & 41 of Classification,^{Control and Appeal Rules} 19910 and set aside the^{same and direct the} respondents to effect^{promotionon par withthe} junior i.e., 3rd respondent and extend^all consequently benefits^{such asseniority} promotion etc., in the interest of^{justice and to} pass such other order or orders^{as the Hon'ble} Court may deem^fitand Proper^inthe circumstances of the^case,"

z. Heard learned counsel^{for the petitioner;and}

learned Government Pleader^{forAgriculture} appearing for respondent^{Nos.l and 2' Perused the}

record.

2

The^c,ase of the^petitioner is that respDndent No.1 has issued r Memo No. 273 / Mtfl.I /^',>_077-3, Dt: 02.05.20-.1'stating that the Petitioner carrnot be considereJ for promotion as Deputy Dirclctor of Marketing^(DDM) with retrospective effect from the date of^h s^{juniors'promotion,} as his punishrrrent was set aside or appeal, revision and review nclt on merit. The first re:;tondent has also not treated the gap period as duty^p'erirld vide Memo No. B01B/Vig-2/2(t16, Dt: 08.02.2017, during which the Petitioner was kept under compulsory retirement in view of the setting aside of punishment ty the same authority.

It s :; tbmitted that earlier the^petitiorrer was reinstated,¹¹ Lly setting aside the penalty of r:ornpulsory retiremert, e rrd was awarded a penalty of stoppage of two anntral grade increments with cumulative elTect by allowing lri:; Appeal^petition in the first instance. Thereaftelr. r:spondent No.1 reduced the sarid penalty

3

to stoppage of one^{annual grade incrementwithout} cumulative effect^{by allowingthe Petitioner'sRevision} Petition in the second^{instance. Finally, respondent} No.1 completely set^{aside the entire penalty by allowing} the Review Petition^{in the third instance.The entire} disciplinary case,^{along with the punishment/was} completely set^{aside, and the Petitioner was exonerated} from the charge.^{In such a case, the action of the first} respondent in not^{consideringhis case for retrospective} promotion is illegal, against^{natural justice, and} unconstitutional,^{amountingto violation of Articles 14,} 16 & 21 of the Constitution^{of India.}

It is further^{submitted that the appeal, revision,} and review are^{statutory provisions under CCA Rules,} 1991. The charged^{officer can avail all these remedies,} and there is no^{separate provision called "merit" under} the said Rules.^{The Government may at any time,} either on its own^{motion or otherwise, review any order}

1

4

passed lncer the CCA Rules, 1991, including an order passed i'r re,vision, if any new material or r:vicience has come^i:o rotice. The appellate authority, re,visionary authority, ;rrd reviewing authority are higher in cadre than the ciisciplinary authority, and the' orders passed by them rrust be implemented without hesitation. In the instanl case, though the Reviewing A,uthority set aside ther :unishment completely, the 2nd rer;;pondent (disciplinarl' authority) requested the 1st respcrndent to consider trer Petitioner's case under G.O.Ms.No.331. However, :re 1't respondent rejected the^pe[itioner,s case withc)ut examining the conditions stipr-rlated tn G.O.Ms N:..131. The contention that the purrishment was set err;i de not on merit is unjustif ed and unsupporl ecl by any law.

It is respectfully submitted that, in the ca:;;e of the Petitionr:r, tre Government set aside the penalty after examinirp l.he merits of the case. The contenticrn of the

5

first respondent treating the set-aside of^{penalty not on} merit is without^proper application^{of mind, as there is} no such concept under the CCA^{Rules. Due to the} respondents' inaction, the Petitioner^{suffered injustice} by having to work under 18 of his^{juniors since} December 2013 and he^retired on^{31.72-2077. This} situation is against natural^{justice. The general rules} will not apply when specific^{seniority rules framed} under Article 309 of the Constitution^{are in force (D'R.} Yadav and Another vs.^{R.K. Singh and Another, 2003} scc (L&s) ee3).

It is respectfully submitted that the^first respondent also did not apply^{mind while treating the} gap period of compulsory retirement.^{As per FR 54} (1)(b), when a punishment is set aside,^{the gap period} shall be treated as duty^period, and^{the pay and} allowances must be^paid accordingly.^{Since the} Petitioner was exonerated,^{the leave sanctioned earlier}

il

6

should tre 'ecast. Furthermore, it is submilted that contrary to the orders of the Hon'ble APAT in O.A. No. 9343/20l3 f iled by the Petitioner, the l'irst respondent rejected tl're Petitioner's case for retrospective promotion 1o DDM, citing non-availability cf vacancies, which is ill:gal, unconstitutional, and againsI service rules.

Learn=cl counsel for the petitioner subrrrits that there is no !'acancy to accommodate the petiti:ner and he is nc,t entitled for promotion with retr()spective effect as the grun s;lrment was set aside without ary nrerit and prayed tc, clisrmiss the writ petition.

HavinrT considered the submissions made by both the learnr:cl counsel, it is apparent on the record that ultimaterll, thre punishment imposed on th,: petitioner was set asiclt: by the reviewing authority, and therefore he is entitlerri for consequential benefits as prayed for.

1

1O. The impugned^{MemosNo' 273IMKT'U2O17-3' Dt:} 02.05.2017;^{No. 8018/Vig-2/20L6, Dt: 08'02'2017;} and No.^{273/MKT/U2077/5, Dt: 20-07'2017,are} hereby set aside.^{The Respondentsare directed to} consider the^{Petitioner's case forretrospective} promotion to the^{post of Deputy Director of Marketing} withallconsequentialbenefits,includingseniority' fixation of^{pay, and pensionary benefits,within a perlod} of three months^{from the date of receipt of a copy of} this order.

Accordingly,^{this writ petition is allowed'No costs'} Miscellaneous^{petitions, if any pending, shall also stand}

closed.

SD/.S. MAL LIKARJUNA^RAO AS ISTANT^REGISTRAR //TRUE^COPY/' SECTION^OFFICER To SEcretariat^to I riat, Government^of of Telangana,^BRKR 2 3 or the State^{of Telangana,} 4 at Hvderabad. [OUTI q Two'CD CoPies PSK. bs W

HIGH COUFIl'

DATED:181(13't?-025

ORDER

WP.No.40700 of 2017

--'-
,4, r. Iil:.5;
Y-
3 21,t ((,
(t,a r1

ALLOWING'TI.IE WRIT PETITION WITHOUT CI):5;'15

q
1
tI
b
al