1. This writ petition is filed seeking a writ of mandamus declaring the action of respondent No.3 in issuing the proceedings vide Proc. No.TSTDC/Admn/P1/55/2014 dated 20.01.2021 rejecting the claim of the petitioner seeking restoration of his seniority in the cadre of common category of Junior Accountants and consequential promotion to the post of Assistant General Manager (Accounts) on par with respondent No.4, as illegal, arbitrary and unconstitutional and consequently direct respondent Nos.2 and 3 to revise petitioner’s seniority by giving notional promotion with effect from the date on which respondents No.4 and 6 have been promoted and by granting all benefits attendant thereto by virtue of the said promotion and fixing of petitioner seniority on par with the unofficial respondents and to pass such other order or orders.
2. Brief facts leading to the filing of the present writ petition are that the petitioner was appointed as a Junior Accountant under the Common Category of Junior Assistants on 20.04.2002 against the SC/ST backlog vacancies recruited vide notification dated 11.12.2001 issued by respondent No.1 subsequent to issuance of G.O.Ms. No.214, dated 08.05.2001. It is the case of the petitioner that he was selected after due process of selection and was placed at Serial No.1 in the merit list. It is further submitted that while the petitioner was discharging his duties without any adverse remarks or complaints, respondent No.1 issued proceedings in Rc.No.TDC/Adm/SA(E)15/2005-II, dated 17.05.2005, publishing the provisional seniority list of Junior Accountants along with other categories. In the said provisional seniority list, the petitioner was placed at Serial No.4, whereas respondents Nos.4 to 6 were placed above him and since the petitioner was not aware of the merit list and his position therein, he did not raise any objections thereto. However, according to the petitioner, such placement was contrary to the applicable rules and was illegal.
2(i). It is further contended that one N.Ramesh Naik was not mentioned in the provisional seniority list. Therefore, according to the petitioner, the provisional seniority list was prepared in violation of Articles 14 and 16(1) of the Constitution of India and Rule 33(b) of the relevant Service Rules. Despite his name not being reflected in the provisional seniority list, the said N.Ramesh Naik was subsequently promoted ahead of all others to the post of Assistant General Manager in the year 2015. The petitioner contends that seniority ought not to have been determined on the basis of the date of joining duty but should have been fixed on the basis of the merit ranking assigned at the time of selection. According to him, the provisional seniority list was prepared in complete deviation from the applicable rules by taking into consideration the date of joining instead of the merit position, rendering the same as arbitrary and is thus liable to be set aside.
2(ii) It is further submitted that after obtaining information under the Right to Information Act on 15.06.2016, relating to the list of appointees to the post of Junior Accountant pursuant to the notification issued in the year 2001, that the petitioner came to know that he had secured the first position in the merit list, i.e., above respondents Nos.4 to 6. It is submitted that immediately thereafter, the petitioner submitted representations dated 04.06.2017 and later on also to respondents Nos.2 and 3 requesting correction of his seniority. However, the said representations were not considered. Aggrieved thereby, the petitioner filed W.P. No.675 of 2018, which was disposed of directing respondents Nos.2 and 3 to consider and dispose of the petitioner's representations.
2(iii) The petitioner further submits that respondent No.4, S.Rajeshwar, was promoted as Assistant Manager on 23.02.2011, as Deputy Manager (Accounts) on 10.10.2013, and thereafter as Joint Manager on 31.07.2019. According to the petitioner, he became aware of his superior merit position over respondent No.4 only after receiving the information furnished under the Right to Information Act on 15.10.2016.It is further alleged that respondents Nos.4 and 6 were promoted as Joint Manager (Accounts) and Assistant General Manager, respectively, and respondent No.7 was also promoted as Assistant General Manager, despite the petitioner having raised objections regarding his seniority. According to the petitioner, respondent No.7 was appointed only in the year 2003, nearly one year after the petitioner's appointment, yet he was placed above the petitioner in the seniority list and granted promotions ahead of him.Thus, the petitioner contends that he has been unlawfully deprived of his rightful seniority and the consequential promotions to which he was entitled. Challenging the action of the respondents in preparing the provisional seniority list and granting promotions on the basis thereof, the present writ petition has been filed.
3. Respondents Nos.2 and 3 have filed a counter-affidavit as well as an additional counter-affidavit. The petitioner has also filed a reply affidavit in response to the counter-affidavit filed by respondents Nos.2 and 3.
4. The unofficial respondents, though served with notices, have not entered appearance in this matter. In the counter-affidavit filed by respondent No.3 on behalf of respondents No.2 and 3, it is submitted that the petitioner and others were appointed against backlog vacancies reserved for Scheduled Castes and Scheduled Tribes as a Junior Accountant vide proceedings dated 23.03.2002 and that the petitioner joined service on 22.04.2002 and upon completion of the prescribed probation period of two years, his probation was declared vide proceedings dated 29.06.2007. It is submitted that a provisional seniority list of the employees in the Finance and Accounts Department in the cadre of Junior Accountant was published in the year 2005, wherein respondent No.4 was placed at Sl. No.1, respondent No.5 at Sl.No.3, and the petitioner at Sl. No.4 and that the employees who had any objections to the same were required to submit their objections, within a period of 20 days from the date of receipt of the communication dated 17.05.2005. It is submitted that the petitioner however, did not file any objections to the provisional seniority list. Thereafter, the final seniority list was also published vide proceedings Rc. No.TDC/Admn/SA(E)/15/2005-II-1, dated 12.07.2005, wherein the petitioner was placed at Sl. No.4.
4(i). It is submitted that the petitioner was promoted subsequently to the post of Senior Accountant on 22.02.2009 and was further promoted to the post of Assistant Manager (Accounts) vide order dated 26.05.2012 and assumed charge as Assistant Manager (Accounts) on 06.06.2012. It is submitted that respondent No.4, Sri S.Rajeshwar, was appointed as a Junior Accountant vide proceedings dated 23.03.2002 and joined service on 02.04.2002 and that he was promoted to the post of Senior Accountant on 22.02.2008 along with the petitioner and respondent No.5 and was further promoted to the post of Assistant Manager (Accounts) on 23.02.2011. It is further submitted that respondent No.5, Sri M.Kumara Swamy, was promoted as Assistant Manager (Accounts) on 28.07.2011, whereas the petitioner was promoted to the said post on 06.06.2012. It is submitted that as per the applicable rules, seniority in the cadre is reckoned from the date of first appointment to the service, class, or grade and therefore, respondents No.4 and 5 are senior to the petitioner in the cadre of Assistant Manager (Accounts). It is further submitted that respondent No.4 was promoted as Deputy Manager (Accounts) on 10.10.2013 and respondent No.5 was promoted to the said post on 30.12.2014, whereas the petitioner continued to serve as Assistant Manager (Accounts).
4(ii) As regards respondent No.6, Sri N.Ramesh Naik, it is submitted that he was appointed to the post of Junior Assistant in the Administration Department, whereas the petitioner was appointed as Junior Accountant in the Finance Department. Therefore, the petitioner cannot compare himself with respondent No.6, as the two posts belong to different departments and have distinct promotional channels. As regards respondent No.7, Sri N.Ravindra Naik, it is submitted that he was working as Assistant General Manager (Accounts) in the Administration Department, whereas the writ petitioner is working in the Finance and Accounts Department. Therefore, the petitioner cannot compare himself with respondent No.7 either. It is further submitted that, pursuant to the directions of this Hon'ble Court to consider the representation of the petitioner dated 14.06.2017 regarding his seniority and consequential promotions, the respondents duly considered the same and issued proceedings dated 20.01.2021 stating that the writ petitioner had not submitted any objections at the time of fixation of seniority in the cadre of Junior Accountant vide proceedings dated 12.07.2005, and therefore, the said seniority list attained finality. It was further stated that the petitioner did not raise any objections when he was promoted to the posts of Senior Accountant and Assistant Manager (Accounts), nor did he challenge the promotions of respondents No.4 and 5. It is submitted that, although the writ petitioner is eligible for promotion to the post of Deputy Manager (Accounts), he has not been promoted as no vacancy is presently available in accordance with his seniority. It is therefore, submitted that the impugned proceedings are legal, valid, and fully justified.
5. In the additional counter-affidavit filed by respondent No.3, it is contended that the writ petition is not maintainable, as respondents No.2 and 3 are arrayed as Chairman of TDC and Managing Director of TSDC, respectively, and are not authorities falling within the definition of "State" under Article 12 of the Constitution of India. Therefore, it is submitted that the writ petition is not maintainable against such designated authorities. Further, on merits, it is submitted that, upon publication of the provisional seniority list, the concerned employees were required to file their objections within a period of 20 days from the date of receipt of the communication, failing which the seniority list would attain finality. It is further submitted that the final seniority list was thereafter published, and even at that stage, no objections were raised by the petitioner. It is further submitted that, for the purpose of fixing the seniority of Junior Accountants appointed against SC and BC backlog vacancies, the date of joining into service was taken as the criterion, since no selection process was conducted at the time of recruitment. It is stated that the seniority of respondents No.4 to 6 and the petitioner is accordingly, fixed as under:
(1) S. Rajeshwar – 02.04.2002;
(2) V. Chinna Hussaini – 03.04.2002;
(3) M. Kumara Swamy – 09.04.2002;
(4) T. Kumara Swamy (writ petitioner) – 22.04.2002; and
(5) M. Muralidhar Naik – 30.10.2003.
6. It is further submitted that all the other contentions raised in the counter-affidavit are reiterated in the additional counter-affidavit.
7. Learned counsel for the respondents has also placed reliance upon the following judgments in support of his contentions:
i. S. Govindarajulu v. High Court of A.P., Hyderabad and others, reported in 2007 SCC OnLine AP 232;
ii. Shiba Shankar Mohapatra v. State of Orissa and others, reported in (2010) 12 SCC 471.
8. In the reply affidavit, learned counsel for the petitioner submits that, in cases of direct recruitment, seniority has to be determined based on the merit secured in the selection process and not on the basis of the date of joining the service. He placed reliance upon Rule 33(b) of the Telangana State Sub-ordinate Service Rules, 1996, in support of his contention.
8(i). With regard to the delay in raising objections, it is submitted that the delay occurred due to the suppression of relevant facts by the Department and was not on account of any negligence on the part of the petitioner. Learned counsel further refers to the merit position reflected in the selection list, as stated in paragraph No.3 of the reply affidavit dated 20.06.2024, to demonstrate that the petitioner stood as the No.1 candidate in the merit list.
9. Having regard to the rival contentions made by the learned counsel appearing for both sides and the material placed on record, this Court finds that the issue which falls for consideration is as to the criteria to be adopted for fixing the seniority of candidates appointed through direct recruitment. The question that arises for consideration is whether the seniority has to be fixed based on the merit position secured by the candidates in the selection list or based on the date of joining the service. According to the petitioner, in the case of direct recruitment, seniority has to be determined with reference to the merit position in the selection list, as contemplated under Rule 33(b) of the Service Rules, 1996. On the other hand, the learned Senior Counsel appearing for the respondents contends that seniority has to be reckoned from the date of joining the service and not from the merit position in the selection process. For the purposes of appreciation of legal position and ready reference the relevant Rule i.e, Rule 33(b) of Telangana State Sub-ordinate Service Rules, 1996 is reproduced here under:
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 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.
and Clause 4(b) also reads as under:
The appointing authority may, at the time of passing an order appointing two or more persons simultaneously to a service fix the order of preference among them and where such order has been fixed seniority shall be determined in accordance with it.
10. It is not in dispute that the petitioner stood at Sl.No.1 in the merit list and that all the candidates appointed along with the petitioner were selected pursuant to the notification dated 08.05.2001. Though no written examination was conducted, the candidates were assigned ranks based on the marks secured by them in the qualifying examination, and the merit list was prepared accordingly. Admittedly, the merit list of the selected candidates was not published. Therefore, the contention of the petitioner that he was not aware of his position in the merit list assumes significance. In the counter affidavit as well as the additional counter affidavit filed by the respondents, there is no specific averment that the merit list was published or that the same was made known or made available to the candidates. Even though the selection process did not involve any written examination, the respondents themselves adopted the criteria of selecting candidates based on the marks obtained in the qualifying examination. Once the selection was made on the basis of merit, the respondents were required to follow the order of merit while fixing the seniority and could not adopt the date of joining as the sole criterion. A perusal of the proceedings dated 23.02.2002, which are the common proceedings issued in favour of all the selected candidates, shows that the selected candidates were directed to join the post of Junior Accountant within a period of 20 days from the date of receipt of the appointment orders, failing which the appointment orders were liable to be cancelled without further notice or intimation. Therefore, when the respondents themselves granted a period of 20 days for joining duty from the date of receipt of the appointment orders, the date of joining cannot be treated as the basis for determining the inter-se seniority of candidates appointed pursuant to the same selection process. In such circumstances, the respondents are required to follow Rule 33(b) of the Service Rules, 1996, while fixing the seniority of the candidates appointed through direct recruitment. Accordingly, the petitioner, being the candidate placed at Sl.No.1 in the merit list, is entitled to be placed at the top of the seniority list in the provisional seniority list. The contention of the petitioner that he could not raise objections earlier as he was not aware of his position in the merit list has to be taken into consideration.
11. Learned Senior Counsel appearing for the respondents has placed reliance upon the judgment of the Division Bench of this Court in S.Govindarajulu v. High Court of A.P. in support of his contention that the date of joining service has to be taken as the criterion for determining seniority. This Court finds that the said judgment was rendered in the context of judicial service, wherein the appointment order itself specifically stipulated that the appointment of the officer would take effect from the date on which he assumed charge. In view of such specific condition contained in the appointment order, the Division Bench had held that the petitioner therein was not entitled to claim seniority from the date of issuance of the appointment order. Therefore, the said judgment is distinguishable on facts and is not applicable to the case on hand. As regards the judgment of the Hon’ble Supreme Court in Shiba Shankar Mohapatra and others v. State of Orissa and others, this Court finds that it dealt with the issue of delay in challenging the seniority list. The Hon’ble Supreme Court reiterated the settled legal principle that once seniority has been fixed and the same has remained in existence for a considerable period, a belated challenge to such seniority should not ordinarily be entertained as a seniority list which has remained unchallenged for a period of three to four years ought not to be unsettled, as it would adversely affect the settled rights of other employees. In the present case, it is an admitted position that the provisional seniority list was issued in the year 2005. Subsequently, the petitioner was promoted as Senior Accountant and thereafter as Assistant Manager (Accounts). However, the petitioner did not raise any objection to the seniority position either at the time of issuance of the provisional seniority list or thereafter, and the seniority list attained finality.
12. Therefore, though the issue regarding the criteria for determination of seniority on merits appears to be in favour of the petitioner, the petitioner cannot be granted the relief sought for on account of the inordinate delay in challenging the seniority position and the settled seniority of the unofficial respondents and others would be affected as the seniority list had attained finality and particularly after the petitioner had accepted subsequent promotions also based on such seniority.
13. Accordingly, the writ petition is partly allowed. No order as to costs.
As a sequel thereto, all miscellaneous applications, if any, pending in this Writ Petition shall stand closed.
