Telangana High Court
K. Parthasaradhi vs The State Of Telangana And 3 Others on 2 May, 2024
THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI
W.P.No. 33032 of 2022
ORDER:
In this writ petition, the petitioner is seeking a writ of mandamus
(a) to declare the order passed by the respondent No.1 vide Memo dated 04.04.2022 rejecting the appeal filed by the petitioner against allocation of new local cadre orders issued vide proceedings dated 27.12.2021 of the respondent No.2 including orders of the allocation made vide Proceedings dated 08.01.2022 of the respondent No.2 wherein allocating the services of the unofficial respondent by treating the respondent No.4 on par with Superintendents working in the Tribal Welfare Department, though he belongs to MADA, a Society and finalizing allotments on the basis of including the name of the unofficial respondent in the seniority list as illegal, arbitrary, unjust, colourable exercise of power, contrary to guidelines issued vide G.O.Ms.No.317 GA (SPF) Department, dated 06.12.2021 as well as statuary provisions and set aside or quash the same; and 2 TMD,J W.P.No. 33032 of 2022
(b) and in further holding that the petitioner is entitled for allocation to Zone-V Yadadri as per his option for preferences dated 15.12.2021 and 18.12.2021 under preferential spouse category without reference to the impugned orders dated 27.12.2021 of the respondent No.2 including appeal rejection order dated 04.04.2022 of the respondent No.1; and
(c) consequently to direct the respondents to forthwith reconsider the entire issue in the matter of allocating of petitioner services in the cadre of Superintendents /Administrative Officer in terms of instructions dated 09.12.2021, guidelines issued in G.O.Ms.No.317 GA (SPF) Department, dated 06.12.2021 by duly deleting the name of the unofficial respondent in the matter of allotting his services to that of persons working in the cadre of Superintendents working in the Tribal Welfare Department on the ground that the unofficial respondent is not at all a Government employee nor equivalent to the Superintendent category as per Service Rules and to pass such other order or orders in the interest of justice.
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2. Briefs facts leading to the filing of the present writ petition are that the petitioner was initially appointed as a Junior Assistant during the year 1992 and subsequently, was promoted as a Senior Assistant in the year 2002 and was further promoted as Superintendent/Administrative Officer w.e.f. 30.12.2015. It is stated that the respondent No.3 has issued G.O.Ms.No.317 GAD, dated 06.12.2021 for (organization of new local cadres and regulations of direct recruitment) order 2018 for allotment of persons holding posts required to be organized into new local cadres. Pursuant to the same, the respondent No.2 started the process of allocation of various categories including the cadre of superintendents/ Administrative Officers by inviting options from the individuals for allotment to newly organized zones. It is stated that after the formation of the State of Telangana, as per Section 3 of A.P.Reorganization Act, the Government has taken a decision for formation of 33 Districts by creating 23 new Districts in addition to the existing 10 Districts and consequently Articles 371-D of Constitution of India was also amended and new Presidential Order in 4 TMD,J W.P.No. 33032 of 2022 G.O.Ms.No.124, GAD (SPF-MC) Department, dated 30.08.2018 was therefore issued.
3. It is submitted that as per the guideline No.3 of G.O.Ms.No.317, prior to calling for options, seniority list along with the allocable posts in the respective cadre, has to be communicated to the individuals for the purpose of exercising their options to the allocable posts and accordingly, respondent No.2 has drawn seniority list of employees working in all Zones vide Memo Rc.No.A1/2771/2021, dated 09.12.2021, wherein the name of the petitioner figured at Serial No.6 by mentioning Zone-IV as his present place of working incorrectly, even though the petitioner was working in Zone-VI Nalgonda (which comes under erstwhile Zone-VI). It is submitted that the respondent No.2 has also included the name of the unofficial respondent in the list of Officers in the seniority list of Superintendents working in Zone-VI vide proceedings dated 12.02.2021 and in the said list, the petitioner name was included at Serial No.23, while respondent No.4 was placed above the petitioner, though the respondent No.4/unofficial respondent 5 TMD,J W.P.No. 33032 of 2022 is not at all a Government servant for any purposes as he was recruited in Modified Area Development Approach (MADA) (which is a Society registered under the Societies Act) and as on the date of the proceedings, no Service Rules were framed in respect of the persons working under MADA (Society) nor was any order issued by the Government recognizing his services as of a Government servant nor treating him as equivalent to that of the cadre of superintendents/ Administrative Officers working either Tribal Welfare/BC Welfare or Social Welfare Department. Therefore, according to the petitioner, allocation of the petitioner to Zone-IV was not only incorrect but consequential order in not allocating the petitioner to Zone-V as per his option under spouse category, was also illegal and arbitrary. Therefore, this Court finds that first and foremost issue to be decided in this case is whether the petitioner belongs to Zone-VII (i.e., erstwhile Zone-VI) as held by the respondents.
4. As seen from the final seniority list of Superintendents of Zone-VI dated 12.02.2021, the name of the petitioner was shown at Serial No.3 and he was shown to 6 TMD,J W.P.No. 33032 of 2022 be working in the Office of DTWO, Nalgonda and as per Annexure-I of G.O.Ms.No.317, dated 06.12.2021, the details of new district to which the erstwhile district cadre employees was given, at Serial No.7 was Nalgonda and new districts to which the erstwhile district cadre employees are eligible for allotment are Nalgonda, Suryapet & Yadadri-Bhongir and Annexure-II thereof provides the details of new Multi Zones and new Zones to which the erstwhile Zonal cadre employees are eligible for allotment: Erstwhile Zone-VI consisted of Hyderabad, Ranga Reddy, Nizamabad, Mahabubnagar, Medak, Nalgonda; while new Zone-V consisted of Suryapet, Nalgonda, Yadadri-Bhongir and fell within the Multi Zone-II. The learned counsel for the petitioner submitted that he has been shown as working in Zone-IV, which consists of new district i.e., Bhadradri-Kothagudem, Khammam, Mahabubabad, Warangal, Hanumakonda, which fell within the Multi Zone-I. Thus, according to him, the petitioner has been wrongly shown as belonging to Zone-IV instead of Zone- VI.
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5. As seen from the Memo dated 09.12.2021 and the list of the Officers mentioned in the list attached thereto, the petitioner had given Nalgonda, Yadadri-Bhongiri and Nagarkarnool respectively as order of his preferences within the erstwhile local cadre and Zones-V, VII, VI, III & II respectively as order of his preference for allotment to Zones. Instead, the petitioner was allotted to Zone-VII Jogulamba, vide proceedings dated 27.12.2021, and the erstwhile local cadre was mentioned as Zone-VI. The petitioner preferred an appeal against the allocation of new local cadre stating that due to inclusion of the name of respondent No.4 by name Md.Jaffar, MADA (TRICOR) Corporation employee in the seniority prepared for local cadre of Superintendents by the Tribal Welfare Department, the petitioner has lost his first preference chance for allotment to Zone-V Yadadri. However, the same was not considered by the respondents and therefore, the petitioner filed a W.P.No.2336 of 2022, and vide orders dated 19.01.2022 in I.A.No.1 of 2022, this Court had directed the respondents to dispose of the appeal of the petitioner on or before 09.03.2022 in accordance with law, after putting the respondent No.4 also on notice. In 8 TMD,J W.P.No. 33032 of 2022 compliance with the said directions, vide memo dated 04.04.2022 the impugned order has been passed.
6. The respondent No.2 has filed a counter affidavit and inspite of service of notice, there is no representation on behalf of the respondent No.4.
7. It is noticed that while preparing the final seniority list of Superintendents working in Zone-VI, before implementing G.O.Ms.No.317, the petitioner was shown to have been working in Zone-VI i.e., in the office of DTWO, Nalgonda, after his promotion as Superintendent on 31.12.2015 i.e., as on 12.02.2021. As per Annexures-I & II of G.O.Ms.No.317, the employees of erstwhile Nalgonda District are eligible for allotment only to new districts i.e., Nalgonda, Suryapet and Yadadri-Bhongiri. In respect Zonal posts, Nalgonda which was in Zone-VI earlier as become Zone-V Yadadri, which included districts of Suryapet, Nalgonda, Yadadri-Bhongiri. Therefore, the petitioner has to be considered as working in Zone-VI and if at all he has to be allotted, he can only be allotted to new districts of Suryapet, Nalgonda or Yadadri-Bhongiri.
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8. However, as per G.O.Ms.No.124, the new Presidential Order dated 30.08.2018, Zone-V Yadadri included Suryapet, Nalgonda, Bhongiri-Yadadri and Janagoan districts, while Zone-VII Jogulamba consisted of Vikarabad, Mahabubnagar, Jogulamba-Gadwal, Wanaparthi, Nagarkurnool districts and this was applicable to all the departments except police department. These two Zones come under Multi Zone-II. It is seen that while preparing the seniority and allocation as per the Presidential Order, the petitioner was shown at Serial No.6 and the erstwhile Zone is shown as Zone-IV instead of Zone-VI and the petitioner was placed at Serial No.6, and this was clearly incorrect. The petitioner has given his preferences of Zone-V Yadadri as his first preference and Zone-VII Jogulamba as his second preference, but instead, he has been shown as erstwhile local cadre Zone-VI, but allotted to new local cadre of Zone-VII Jagulamba. In the order of rejection of appeal filed by the petitioner, dated 04.04.2022, the respondents have correctly observed that the petitioner has given his first preference to Yadadri Zone-V and second preference given to Jogulamba Zone VII, but his preference was not considered because the 10 TMD,J W.P.No. 33032 of 2022 respondent No.4 Md.Jaffar, MADA employee was included in the seniority list of Superintendents, therefore, the petitioner lost his first preference chance for allotment to Zone-V Yadadri. The appellate authority has also considered that the petitioner's wife was working as a School Assistant in Thipparthy Mandal of Nalgonda District and on spouse grounds also he claims Zone-V. The appellate authority has considered that the petitioner was at Serial No.3 in the seniority list of Superintendents and that there are two vacancies only in Zone-V and hence, as per the options given, employees at Serial No.1 & 2 in the seniority list, were allotted to Zone-V and the petitioner was allotted to his second preference i.e., Zone-VII. In respect of the petitioner's objections in considering the Md.Jaffar, MADA (TRICOR) employee as a Superintendent, the appellate authority has observed that against ten sanctioned posts of Superintendents, fifteen individuals were working and five individual were promoted as Superintendent against the posts of MADA Managers/Managers (Accounts) treating them as equivalent posts. Similarly, when the posts were reorganized on formation of new districts also, 11 TMD,J W.P.No. 33032 of 2022 Superintendents and MADA Managers/Managers (Accounts) were treated as equivalent posts and MADA staff was allotted to non MADA districts for administrative convenience and therefore, while allotment of local cadres combined seniority list was prepared and allotment was made accordingly following the seniority. As regards the third ground it was observed that his request under spouse grounds was not considered due to want of vacancy in Zone-V.
9. Learned counsel for the petitioner submitted that the respondent No.4 cannot be treated as a Government servant because he was appointed under Rule10(a) of Telangana State and Subordinate Service Rules, 1996 and that too as staff of MADA and therefore, he could have been considered as a probationer in such service, class or category or be entitled by reason only of such appointment to any preferential claim to future appointments to such service, class or category. Therefore, he could not have made any claim to the cadre of Superintendents in the Tribal Welfare Department. Though the respondents have equated the Superintendents and Administrative Officers MADA 12 TMD,J W.P.No. 33032 of 2022 Managers/Managers (Account), there are no proceedings in support of the same. It is noticed that vide G.O.Rt.No.753, dated 11.10.2016, the respondent No.4 was shown to be working in the office of DTWO, Mahabubnagar and was ordered to serve at Nagarkurnool, which was erstwhile Zone- VI and now falls in the new Zone-VII. He had given the option of Zone-V Yadadri and therefore, his request has been considered on the basis of his seniority. However, as pointed out by the learned counsel for the petitioner, the employee of MADA cannot be considered as a Government employee and it is only the employees of the Government who can be allotted to new local cadres under G.O.Ms.No.317.
10. In respect of the respondent No.4, it is observed that he was appointed under Compassionate grounds on the death of this father while in service and was temporarily appointed under Rule 10(a)(1) of A.P.State and Subordinate Services Rules, as a Junior Assistant and was posted in the office of the Project Officer, MADA, PTG, Nalgonda. The employees who were appointed under Rule 10(a) shall be treated as purely temporary and shall be replaced as soon as 13 TMD,J W.P.No. 33032 of 2022 possible by the member of the service, who was entitled to appointment under the rules. Therefore, unless and until the services of the employee are directed to be treated as regular service in the Government, he will continue to be under Rule 10(a) of Telangana State and Subordinate Services rules and therefore, MADA employee cannot be considered as a regular employee unless his services have been regularized. The respondents in the counter affidavit have not stated anything about the regularization of the services of respondent No.4, but have only made reference to G.O.Rt.No.738-762, TW(Ser- II) Department, dated 11.10.2016 under which the Government has issued orders to serve to all district employees of Tribal Welfare Department, MADA staff and TRICOR staff by re-designating the posts i.e., DD, OSD(TW), PO MADA, DTWO, APO MADA as District Tribal Development Officer (DTDO) and Assistant Tribal Welfare Officers as Assistant Tribal Development Officer (ATDO) and Superintendents/Managers as Administrative Officers (AO), Senior Asst/Senior Inspectors as Senior Assistants, Junior Assts/Jr.Asst.cum Typists/Typists/ Loan Inspectors as Junior Assistants, Office Subordinates/Watchman/ 14 TMD,J W.P.No. 33032 of 2022 Watchman/Watchmen cum helpers/Sevak as Office Subordinates. It is also stated that district wise statements of posts allocated/shifted and sanctioned filled and vacant position and officiating/FAC arrangements to the above posts are enclosed in Annexures along with G.O.Ms.No.140, Finance (HRM-I) Department, dated 11.10.2016 for necessary action.
11. In view of the same, even if it is held that the MADA staff have been deputed to the Tribal Welfare Department, but they cannot be treated as regular employees of the Government. As seen from Annexure-II to the proceedings dated 19.11.2016, the post of Superintendent, O/o. DTWO, Medak, has been re-designated as Administrative Officer (AO) and new location of the post is Yadadri District.
12. Therefore, the respondents are directed to consider the option of the petitioner by considering him at Seniority No.2 and consider his preferences before making allotment. This Court holds that the petitioner is entitled for allotment to Zone-V Yadadri District by considering him at 15 TMD,J W.P.No. 33032 of 2022 Serial No.2 and the respondents are directed to pass orders accordingly.
13. Accordingly, this writ petition is allowed. There shall be no order as to costs.
14. Miscellaneous petitions, if any, pending in this writ petition, shall stand closed.
____________________________ JUSTICE T.MADHAVI DEVI Date: 02.05.2024 bak