Andhra HC (Pre-Telangana)
Narravula Kotam Raju vs Regional Deputy Director Of Fisheries, ... on 10 April, 2001
Equivalent citations: 2001(3)ALD649, 2001(5)ALT245
Author: S.B. Sinha
Bench: S.B. Sinha
ORDER
S.B. Sinha, CJ
1. This writ petition is directed against a judgment dated 7-10-1999 in OA No.4213 of 1998 passed by A.P. Administrative Tribunal whereby and whereunder the original application filed by the petitioner herein questioning an order of the 3rd respondent as contained in memo dated 21-4-1998 whereby and whereunder inter se seniority between the petitioner and the unofficial respondents 4 to 9 was determined, had been dismissed.
2. The petitioner joined as record assistant on 11-7-1979. His Services were regularised subsequently. He was promoted as junior assistant in 1982 and as senior assistant in 1992. On or about 22-7-1997 the 7th respondent before the Tribunal submitted a representation to the effect that he had been assigned seniority at S.No.27 of the revised seniority list of Junior Assistants wherein the applicant was shown at S.No.20 and another person by name Sardhar Khan - applicant in OA No.4462 of 1998 was shown at S.No.22 although he was not qualified therefor at the relevant time as he did not have the requisite five years experience in the lower category prescribed under sub-rule (14)(b) of Rule 3 of the Andhra Pradesh Ministerial Service Rules, 1996.
3. A question was raised as regards delay in filing the said representation. The 3rd respondent called for a clarification from the 2nd respondent who by memo dated 16-9-1997 clarified that the respective seniority positions of the parties can be determined in terms of sub-rule (14) of Rule 3 of the Rules pursuant whereto order dated 18-10-1997 was issued revising the dates of regularisation of various persons including the petitioner herein and the said Sardar Khan by reason whereof they become juniors.
4. The A.P. Administrative Tribunal having been approached directed that a representation be filed by the petitioners which may be considered by the respondents. By reason of an order dated 21-4-1998 the 3rd respondent held that as per sub-rule (14)(b) of Rule 3 of the said Rules, record assistants were necessarily required to put in five years of service for consideration for promotion as junior assistant and, therefore, the 7th respondent should be promoted as senior assistant with effect from the date on which Sardar Khan and the applicant were promoted with all attendant benefits. The plea of delay was not acceded to.
5. The learned Tribunal relying on the judgment of the Apex Court in V. Subba Rao v. Secretary to Government and others, , held that as one has to put in a minimum period of five years' service for being considered for promotion and as the petitioner herein did not complete the said period, the order of promotion passed in his favour was irregular and the same being contrary to rules, the said Sardar Khan and the petitioner herein could not be held to be seniors.
6. The learned Counsel appearing on behalf of the petitioner raised a short question in support of this application. According to the learned Counsel, seniority having been fixed at several stages, the same could not have been reopened. Strong reliance in this connection is placed on M, Bucha Reddy v. V. Bhagyamma and others, 1996 (6) ALD 581. Sri J.R. Manohar Rao appearing on behalf of the unofficial respondents on the other hand submitted that the completion of the five years' service is a must for the purpose of grant of promotion and unless a person having the requisite qualification therefor is promoted, his seniority cannot be reckoned from the date of his joining. The learned Counsel would contend that the appointment of the petitioner is per se illegal and the period of unqualified service cannot be counted towards seniority.
7. Keeping in view the rival contentions as noticed hereinbefore the principal question which arises for consideration is as to whether the seniority list can be directed to be reopened after such a long delay.
8. It is not in dispute that the inter se seniority of the respective candidates had been fixed after due notice. Objections had been raised but the same had been rejected.
9. It is beyond any cavil of doubt that the claim of the unofficial respondents was a stale one.
10. Rule 26 of the A.P. State and Subordinate Services Rules, 1996 provides for an appeal and the period of limitation therefor has been specified as 90 days. It appears that at the relevant time the matter relating to inter se seniority was governed by Rule 27 of the A.P. Ministerial Services Rules, 1966.
11. The rules on the basis whereof the impugned order had been passed came into force in 1996 and only thereafter the representation had been filed for the first time in the year 1997. Keeping in view the aforementioned factors into consideration, there cannot be any doubt whatsoever that the question of inter se seniority must be governed by the rules as were existing at the relevant point of time. By reason of a subsequent amendment in rule and/or insertion of new rule whereby new rights and obligations are created, the unofficial respondents cannot be said to have derived any right to get the matter reopened after a long lapse of time particularly when, as indicated hereinbefore, the petitioner herein had not only been promoted to the post of junior assistant but also to the post of senior assistant as far back as in 1992. So far as the post of senior assistant is concerned, the inter se seniority has been fixed and thus the same cannot be reopened inter alia on the ground that the petitioner herein did not have the requisite qualification for being promoted to the cadre of senior assistants. If the same is directed to be done at this stage, it would amount to revocation of the order of promotion.
12. We may notice that it is a matter of record that the respondent No.7 was promoted to the post of senior assistant only in the year 1983. Therefore, even being aware of the legal position at that point of time, he did not question the same. It is, therefore, not a case where it can be inferred that the respondents were not aware of the said fact.
13. Furthermore, it appears that Rule 3(17) of the AP Ministerial Services Rules, 1966 was inserted on 19-11-1986. By reason of the said rule only a minimum service of five years in the last grade for promotion to the post of junior assistant in the ministerial service was brought it. The petitioner herein was promoted prior to the said amendment. It may be noticed that in the said decision itself Rule 4(2) of the Rules has been quoted which provides "no member of the service shall on or after 12-2-1979, be eligible for promotion from the lower category or post to the next higher category or post unless he has ordinarily put in a service for a minimum period of three years in the category from which he is to be promoted but in no case shall it be less that two years in the category from which such promotion is made". Thus, unlike the position as was brought in by reason of an amendment on 19-11-1986 the minimum period of five years is a must for being promoted to the post of junior assistant; what was absolutely necessary at the relevant time was only two years service in the said category.
14. In Prafulla Kumar Swain v. Prakash Chandra Misra, 1993 Suppl. (3) SCC 181, the law has been laid down in the following terms:
Now comes the proverbial last straw on the camel's back.
There have been laches on the part of the direct recruits in seeking the remedy. When the list was published in 1985 nothing prevented them to approach earlier. This is the point to be put against them.
That this position was known to the direct recruit (Prakash Chandra Mishra) is clear from paragraph 18 of his petition before the Tribunal. It reads thus:
Therefore, placement of respondents 42 to 94 as per Civil List corrected up to 1982 published in the year 1985 by the State Government who are promotees from amongst the Forest Rangers in Subordinate Service to Class II Service as Assistant Conservator of Forests in the year 1980 when this applicant was undergoing training at Burnihat, Assam, is patently illegal and an act without jurisdiction by the State Government of Orissa.
We do not want to unsettle settled matters which will lead to several complications.
15. Seniority is a civil right. A person enjoying a civil right should not be deprived therefrom after a long lapse of time.
In S.B. Dogra v. Slate of Himachal Pradesh, 1993 (2) All SLJ 92, the Apex Court held:
".........For that a tentative or provisional gradation list was directed to be prepared with a view to giving an opportunity to the officers whose seniority was determined in the list to make their representations in order to satisfy the Government regarding any mistake or error that may have crept in. If the employee concerned did not file his representation within the period prescribed after the date of the publication of the provisional gradation list, then his representation should have been rejected outright. It is erroneous to contend that the employee concerned should have waited for filing his representation or objection until the final gradation list was published. Therefore, the representation filed by the respondent long after the expiry of the time mentioned in the gazette publishing the provisional gradation list was rejected as related. The observations made in this judgment apply with all force to the fact situation in the case before us."
16. Yet again, in M Bucha Reddy's case (supra) a Division Bench of this Court noticed:
In Ashok Kumar Yadav v. State of Haryana, , the Supreme Court while holding that allocation of 33-3 per cent of marks for viva voce test as arbitrary, however, did not interfere with the appointments made and instead directed the Haryana Public Service Commission to give one more chance to the aggrieved candidates. In State of U.P. v. Rafiquddin, , the Apex Court declined to quash the appointment made by the UPPSC to the cadre of District Munsifs though a finding, was recorded that the recruitment was contrary to the Rules. Likewise, in Miss Shainda Hasan v. State of U.P., , though the age relaxation given to a principal of a college was held to be illegal, the Hon'ble Supreme Court, still declined to strike down the appointment, but, however, directed the Vice-Chancellor of the Lucknow University to grant necessary approval for the appointment of the appellant therein as the Principal of the. Girls College, Lucknow. In all these cases, the fact that the respective parties were working in the post for considerable time weighed with the Hon'ble Supreme Court in not interfering with the appointments.
17. For the reasons aforementioned, the impugned order cannot be sustained which is set aside accordingly. The writ petition is allowed. There shall be no order as to costs.