Andhra Pradesh High Court Sets Aside Seniority Revision of Temple Employee Done 16 Years After Probation Declaration, Without Notice
Justice Balaji Medamalli quashed a 2023 seniority list that pushed a Senior Assistant from rank one to six, holding that long-settled seniority cannot be unsettled without notice or enquiry.
The High Court of Andhra Pradesh at Amaravati has quashed a final seniority list issued in May 2023 by the executive officer of a temple under the Endowments Department, which had displaced a Senior Assistant from the first position to the sixth on the eve of promotions to the post of Superintendent. Justice Balaji Medamalli, sitting singly, held that the revision was carried out without any notice to the affected employee and in plain disregard of the limitation periods prescribed under the AP State and Subordinate Service Rules, 1996. The court also set aside a consequential recovery order of Rs. 1,38,103/- and directed that the petitioner be restored to his appropriate seniority with all consequential benefits including promotion on par with his juniors.
The Dispute Before the Court
The petitioner, Karothu Surya Narayana, was appointed as a Junior Assistant on compassionate grounds in the third respondent temple on 17 October 2007. His probation was declared with effect from 18 October 2009 by proceedings dated 28 October 2010. He was promoted to the post of Senior Assistant on 24 March 2017 and has been working in that cadre since. Periodical increments were sanctioned to him on 24 November 2018. No objections were raised by any party — official or unofficial — either at the time of his promotion in 2017 or in the years that followed.
When the executive officer published a provisional seniority list for promotion to the post of Superintendent, the petitioner was placed at serial number 1. However, on objections raised by the unofficial respondents (his junior colleagues), the third respondent published a final seniority list on 27 May 2023 pushing the petitioner down to serial number 6. The stated reason was that his date of declaration of probation should be reckoned from 17 April 2015 — the date on which he passed the Accounts Test — rather than from 2009. This was done without issuing any notice to the petitioner or affording him any opportunity to respond.
Simultaneously, a recovery of Rs. 1,38,103/- was ordered against him as allegedly excess pay, and promotion orders were issued in favour of respondent nos. 4 and 5. The petitioner represented to the second respondent, who directed the third respondent to submit a report within 15 days. No such report was submitted. The writ petition followed.
The Legal Issue: Time Limits for Seniority Revision and the Right to a Hearing
The central question before the court was whether the executive officer of the temple could revise the petitioner's seniority and refix the date of his probation declaration more than 16 years after the original order, and without giving him an opportunity to be heard.
The petitioner's counsel relied on Rule 23 of the AP State and Subordinate Service Rules, 1996, which permits revision of an order appointing a member to a higher post only within six months of such order, and only by the authority to whom an appeal against dismissal would lie. Government may act after six months only for special and sufficient reasons recorded in writing. Rule 23 also mandates that no revision order shall be passed unless the person likely to be affected is given an opportunity to make his representation.
Rule 26(d) of the same Rules bars any appeal for restoration of seniority or assignment of notional seniority after a period of 90 days from the date on which the junior was promoted.
The counsel for the official respondents countered that on the date of his original probation declaration, the petitioner had not passed the Accounts Test, which was a mandatory special qualification under Rule 7(4) of the AP Charitable and Hindu Religious Institutions and Endowments Office Holders and Servants Service Rules, 2000. That rule allows the appointing authority to either terminate probation or extend it by up to two years if the probationer fails to acquire the prescribed qualifications within the probation period. They argued that the declaration of probation in 2010 was itself illegal, rendering all subsequent promotions and increments equally infirm. The provisional seniority list, they submitted, itself constituted notice to the petitioner.
The petitioner's counsel responded by drawing attention to Rule 2(f) of the 2000 Rules, which provides that expressions used in those Rules carry the same meaning as in the AP State and Subordinate Service Rules. Since the 2000 Rules contain no specific provision on revision of seniority or appeals, Rules 23 and 26 of the 1996 Rules apply. The authority was therefore bound by the six-month and 90-day limitation windows and lacked power to revise the seniority after their expiry.
How the Bench Reasoned
Justice Medamalli drew on three judgments of the Supreme Court placed by the petitioner's counsel.
The first was Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra, reported at (1990) 2 SCC 715. The court extracted the relevant passage at length: that the period of continuous officiation by a government servant, after appointment following the applicable rules for substantive appointments, must be counted for seniority; and that seniority cannot be determined on the sole test of confirmation, which is “one of the inglorious uncertainties of government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies.” The principle that inter se seniority must conform to Articles 14 and 16 was affirmed.
The second was Malcom Lawrence Cecil D'Souza v. Union of India, reported at (1976) 1 SCC 599, where the Supreme Court held that seniority determined long ago cannot be challenged after a lapse of 14 or 15 years, and that employees must act with due diligence and not allow stale claims to unsettle settled service conditions.
The third was V. Vincent Velankanni v. Union of India, reported at 2024 SCC Online SC 2642. The court drew on the proposition there reaffirmed: that once an incumbent is appointed to a post according to rules, seniority runs from the date of initial appointment and not the date of confirmation; and that services rendered during probation or on an officiating basis cannot be ignored while computing the length of service for the seniority list.
Applying these principles, the court found that the petitioner's probation was declared in 2010, his seniority in the cadre of Junior Assistant was never challenged, and he was promoted to Senior Assistant in 2017 after due consideration of that seniority. He has since served in that post for over six years. Neither the unofficial respondents nor the official authority questioned any of these steps at the time or within the limitation periods prescribed by the rules.
The court observed that the impugned action was taken without issuing any notice to the petitioner and without conducting any enquiry, and that everything was done behind his back. It held that this offended the principles of natural justice and violated the AP State and Subordinate Service Rules, 1996 read with the AP Charitable and Hindu Religious Institutions and Endowments Office Holders and Servants Service Rules, 2000.
On the respondents' argument that the original probation declaration was itself illegal because the petitioner had not passed the Accounts Test, the court took the view that the petitioner was not appointed contrary to the rules in any material sense. The only objection concerned the date of probation declaration by his predecessor. Having allowed him to serve in the cadre of Junior Assistant and Senior Assistant for more than 16 years, the authority could not now ignore that length of service on technical grounds. The court noted that the petitioner had in fact passed the departmental test in 2015, a fact within the knowledge of the third respondent when it was considering the unofficial respondents' objections.
The court also rejected the respondents' argument that the provisional seniority list itself amounted to notice. Publication of a provisional list, the court indicated, does not substitute for the specific opportunity to make a representation that Rule 23 requires before a revision order is passed.
Outcome
The writ petition was allowed. Proceedings in Rc.No.B1/106/2018 dated 27 May 2023 (the final seniority list) and the consequential proceedings in Rc.No.B1/106/2018 dated 01 June 2023 issued by the third respondent were set aside. The third respondent was directed to place the petitioner at his appropriate position in the seniority list and give effect to all consequential benefits, including promotion on par with his juniors. Miscellaneous applications pending in the matter, if any, were directed to stand closed.