Andhra Pradesh High Court - Amravati
K. Muneendraiah, vs The District Collector Bcw on 8 November, 2019
Author: Cheekati Manavendranath Roy
Bench: Cheekati Manavendranath Roy
THE HON'BLE SRI JUSTICE A.V.SESHA SAI
AND
THE HON'BLE SRI JUSTICE CHEEKATI
MANAVENDRANATH ROY
WRIT PETITION Nos. 7969 of 2019 and 7985 of 2019
COMMON ORDER:
(per Hon'ble Sri Justice A.V.Sesha Sai) Since these two Writ Petitions are inter-related and as the parties are same, this Court deems it appropriate to dispose of these Writ Petitions by way of this common order.
2. The facts and circumstances, leading to filing of the present Writ Petitions, are as follows.
(a) The District Collector (Social Welfare), Chittoor issued proceedings RoC No.A1/159/90, dated 17.08.1991, appointing the writ petitioner and the respondents 5 and 6 as Hostel Welfare Officers Grade-II. The writ petitioner passed Accounts Test for Subordinate Officers Part-I on 21.05.1995.
Respondents 5 and 6 passed the said test on 14.11.1993 and 10.12.1991 respectively, i.e. within the period of probation of two years as per the condition imposed in the appointment order dated 17.08.1991. As per Rule 16 (h) of the Andhra Pradesh State and Subordinate Service Rules, 1996 (for short, 'the 1996 Rules'), the probation needs to be recommenced two years anterior to the date of passing the accounts test. In the provisional and final seniority list of Hostel Welfare Officers Grade-II issued by the District Collector, Chittoor in 2 the month of December, 1993 and 29.07.2000, the writ petitioner was shown at serial No.27 with the date of regularization as 21.05.1993, whereas respondents 5 and 6 were shown at serial Nos.24 and 25 with the date of regularization as 26.08.1991. In the Memo RoC No.A1/150/97, dated 29.07.2000, the District Collector, Chittoor indicated revised date of regularization of the writ petitioner as 21.05.1993, obviously taking into account the date of passing of the Accounts Test i.e. 21.05.1995, by him. The District Collector, Chittoor, vide proceedings RoC No.A/150/97, dated 21.01.2002, issued a confirmed common seniority list of Warden-Matron Grade-II wherein the writ petitioner stood at serial No.31, whereas respondents 5 and 6 stood at serial Nos. 26 and 24 respectively. Vide proceedings dated 19.02.2004, the District Collector issued a revised seniority list, showing the petitioner at serial No.30 and respondents 5 and 6 were shown at serial Nos. 26 and 24 respectively, with the same dates of regularization. Vide proceedings RoC No.A/150/97, dated 21.12.2005, the District Collector issued revised final seniority of Hostel Welfare Officers Grade-II wherein the writ petitioner stood at serial No.21 whereas respondents 5 and 6 at serial Nos. 26 and 30 respectively, and the date of regularization of the writ petitioner was shown as 26.09.1991.
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(b) In Original Application No.2970 of 2003, the Andhra Pradesh Administrative Tribunal had set aside the provisional seniority list of Hostel Welfare Officers Grade-II by way of order dated 09.11.2006, and the same was carried to the composite High Court at Hyderabad by way of Writ Petition No.13283 of 2007, and a Division Bench of this Court dismissed the said Writ Petition on 11.09.2007. Pursuant to the order of this Court in Writ Petition No.13283 of 2007, the Director of B.C. Welfare, vide proceedings Rc. No.A1/2757/2007, dated 11.10.2007, requested the District Collector, Chittoor to prepare separate seniority list of Hostel Welfare Officers Grade-II. Thereafter, vide Memo RoC No.A/272/2007, dated 05.11.2007, the District Collector, Chittoor prepared a tentative seniority list, calling for objections within 5 days, to prepare final seniority list wherein the writ petitioner stood at serial No.18 whereas respondents 5 and 6 stood at serial Nos.22 and 25 respectively, and their date of regularization was shown as 26.08.1991. Vide Memo RoC No.A/272/2007, dated 29.01.2008, the District B.C. Welfare Officer, Chittoor issued a fresh tentative seniority list of Hostel Welfare Officers Grade-II and called for objections. In the said list, writ petitioner was shown at serial No.32, whereas respondents 5 and 6 at serial Nos.31 and 30 respectively. Thereafter, the Commissioner of B.C. Welfare, Andhra Pradesh, vide Rc. 4 No.A1/9427/CTR/2009, dated 03.11.2009, addressed a letter requesting the Government to issue orders, revising the dates of regularization as proposed therein as per Rule 16 (h) of 1996 Rules. In the said proceedings dated 03.11.2009, the proposed date of regularization of the petitioner was shown as 22.05.1993. On 09.07.2012, the Director of B.C. Welfare made a request once again, vide proceedings dated 22.03.2013, to the Government to pass appropriate orders as per Rule 16 (h) of 1996 Rules to prepare seniority.
(c) Respondents 5 and 6 filed Original Application No.2140 of 2016 before the Tribunal, questioning the action of the authorities in not considering their cases for promotion to the category of Hostel Welfare Officers Grade-I despite their eligibility and qualification as per Rule 16 (h) of 1996 Rules. Vide Order dated 14.06.2016, the said Original Application was disposed of by the Tribunal, directing the respondents therein to consider the cases of respondents 5 and 6 herein for promotion to the post of Hostel Welfare Officers Grade-I as per their seniority and other eligibility criteria under the Rules. Thereafter, the Director of B.C. Welfare, Andhra Pradesh issued a Memo No.E/2291/2016, dated 21.10.2016, asking the Deputy Directors/District B.C. Welfare Officers not to prepare seniority list of Hostel Welfare Officers Grade-II afresh in the event of their seniority being already settled and in the absence of specific orders of the Court/Director 5 /Government. As a consequence of the same, the District Collector issued proceedings Rc.No.A1/185/2016, dated 08.12.2016. As against the above referred proceedings dated 21.10.2016 and 08.12.2016, Original Application No.907 of 2017 was filed by respondents 5 and 6 herein. The District Collector, vide Memo No.A1/200/2017, dated 15.11.2017, cancelled the tentative seniority list dated 29.01.2008 in the light of the Government Memo dated 16.11.2015. Thereafter, vide proceedings Rc. No.A1/152/2016, dated 18.11.2017, the District Collector, Chittoor district, promoted the writ petitioner as Hostel Welfare Officer Grade-I. Questioning the Memo dated 15.11.2017 and the proceedings dated 18.11.2017, Original Application No.3302 of 2017 came to be filed by respondents 5 and 6 herein. In the said Original Application, the Tribunal passed interim order on 14.12.2017, suspending the proceedings dated 15.11.2017 and the consequential proceedings dated 18.11.2017, promoting the writ petitioner. Assailing the said interim order, the writ petitioner herein filed Writ Petition No.44195 of 2017 before the composite High Court at Hyderabad. The composite High Court passed an order dated 27.02.2018, setting aside the order dated 14.12.2017 passed in Original Application No.3302 of 2017, on the ground that no notice was issued and no opportunity was afforded to the writ petitioner therein despite filing caveat petition, while directing 6 the Tribunal to dispose of the Original Application expeditiously after hearing both the parties. Thereafter, the Tribunal, by way of a common order dated 16.05.2019, allowed the Original Application Nos. 907 of 2017 and 3302 of 2017, setting aside the orders impugned therein, with a further direction to the authorities to prepare seniority list of Hostel Welfare Officers Grade-II in terms of Rule 16 (h) of 1996 Rules and other relevant Rules and to promote respondents 5 and 6 herein as Hostel Welfare Officers Grade-I if any of the juniors in the seniority list dated 29.07.2000, 21.01.2002 and 19.02.2004 were promoted as Hostel Welfare Officers Grade-I. The Tribunal also directed that respondents 5 and 6 would be entitled for notional seniority and pay fixation from the date of promotion of their juniors and monetary benefits from the date of filing Original Application No.907 of 2017. In the above back ground, the present Writ Petitions came to be filed, questioning the order dated 16.05.2019 passed by the Tribunal in Original Application Nos. 907 of 2017 and 3302 of 2017.
3. With the consent of both the learned advocates, these Writ Petitions have been heard finally.
4. Heard Sri Santapur Satyanarayana Rao, learned counsel for petitioner, the learned Government Pleader for the 7 State and Sri P.Amarender, learned counsel for respondents 5 and 6/applicants.
5. The contentions/submissions of Sri Santapur Satyanarayana Rao, learned counsel for the petitioner, are as follows:
(i) The District Collector had drawn the revised final seniority list of Hostel Welfare Officers Grade-II on 21.12.2005 wherein name of the writ petitioner was shown over and above respondents 5 and 6;
(ii) Pursuant to the orders of this court in Writ Petition No.13283 of 2007, dated 11.09.2007, the District Collector prepared the final seniority list dated 05.11.2007 wherein the writ petitioner was shown as senior to respondents 5 and 6;
(iii) The writ petitioner was promoted vide order dated 18.11.2017 on the basis of the seniority list dated 05.11.2007 and the respondents 5 and 6, while challenging the promotion order of the writ petitioner dated 18.11.2017, did not challenge the basis for the same i.e. the seniority list dated 05.11.2007, as such, the same is fatal to the case of respondents 5 and 6;
(iv) Either as on the date of the promotion of the writ petitioner i.e. 18.11.2017, or as on today, the date of commencement of probation of the writ petitioner was/is not altered by any authority under Rule 16 (h) of 1996 Rules; 8
(v) Both the seniority lists dated 21.12.2005 and 05.11.2007 are intact and nobody challenged the same, as such, the District Collector correctly acted in accordance with the same and promoted the writ petitioner on 18.11.2017;
(vi) Without assailing the said seniority lists dated 21.12.2005 and 05.11.2007, respondents 5 and 6 cannot ask for preparation of a seniority list afresh without impleading the affected parties;
(vii) In other districts, the Government issued orders, revising the dates of commencement of probation of Hostel Welfare Officers Grade-II, who passed Accounts Test beyond probation period, in terms of Rule 16 (h) of 1996 Rules by invoking Rule 31 of the said Rules, and the same were set aside vide order dated 28.11.2011 in Original Application No.5119 of 2011 by the Tribunal, holding the said exercise as bad in law. Therefore, the other Co-ordinate Bench grossly erred in passing the impugned order to implement Rule 16 (h) of the 1996 Rules contrary to the orders passed in Original Application No.5119 of 2011.
In support of his submissions and contentions, the learned counsel places reliance on the following judgments.
(a) Order of composite High Court dated 23.07.2008 in Writ Petition No.3171 of 2006;
(b) Order of the composite High Court dated 18.03.2013 in Writ Petition No.16607 of 2007; 9
(c) Order of the Hon'ble Supreme Court dated 03.03.2017 in SLP (C) No.39037 of 2013 preferred against the order dated 18.03.2013 in Writ Petition No.16607 of 2007;
(d) Order of the Tribunal dated 18.10.2002 in Original Application No.5119 of 2011;
(e) In S.Sreedhar Reddy & others v. Government of Andhra Pradesh & others1;
(f) In Amarjeet Singh & others v. Devi Ratan & others2;
6. On the other hand, the contentions/submissions of Sri P.Amarender, learned counsel for respondents 5 and 6 are as follows:
(i) Earlier, 3 final seniority lists in the category of Hostel Welfare Officers Grade-II were prepared on 29.07.2000, 21.01.2002 and 09.02.2004, wherein the writ petitioner was shown as junior to respondents 5 and 6;
(ii) The writ petitioner filed affidavit, stating that his services were regularized with effect from 17.08.1991, which is totally incorrect, and in fact, regularization of his services was modified with effect from 21.05.1993 vide Memo dated 29.07.2000 and he did not challenge the same and the same had become final;
(iii) The writ petitioner claims that his promotion is based on settled seniority list dated 05.11.2007, but the same is 1 (2017) 3 Supreme Court Cases 681 2 (2010) 1 Supreme Court Cases 417 10 also incorrect, and in fact, the said seniority list is provisional list and the Government, in its counter affidavit, stated that the District Collector failed to understand the instructions of the Government while promoting the writ petitioner;
(iv) The final seniority list dated 21.12.2005 was not communicated and the same was contrary to Rule 16 (h) of the general Rules and also the special Rules, and there were three final seniority lists prepared on 29.07.2000, 21.01.2002 and 09.02.2004 earlier, which attained finalty, wherein the petitioner was shown as junior to respondents 5 and 6;
(v) The Head of Department filed a counter, stating that the seniority list dated 21.12.2005 became in fructuous and the seniority list dated 09.02.2004 is a settled seniority list;
(vi) As per Rule 11 (b) of the Andhra Pradesh Backward Classes Welfare Subordinate Service Rules, notified vide G.O.Ms. No.36, BCW Department, dated 09.07.1996, it is mandatory that the Hostel Welfare Officers Grade-II shall pass Accounts Test within the period of probation and as per Rule 16 (h) of 1996 Rules, if an employee fails to pass Accounts Test within the period of probation, the Government alone is competent authority to pass orders on recommencement and seniority is required to be determined with reference to the date to be fixed by the Government, and in the instant case, no such orders have been passed by the Government so far.
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In support of his submissions and contentions, the learned counsel places reliance on the following judgments.
(a) In S.P.Badrinath v. Government of Andhra Pradesh3;
(b) In Om Prakash Shrivastava v. State of M.P.4;
(c) In R.Prabha Devi & others v. Government of India & others5;
(d) Common judgment of a Division Bench of the composite High Court dated 12.11.2018 in Writ Appeal Nos. 1724 of 2017 and 1915 of 2017.
7. In the above back drop, now, the issues that emerge for consideration and adjudication by this Court, are as infra:
"(1) Whether the orders passed by the Tribunal, which are impugned in the present Writ Petitions, are sustainable and tenable ?
(2) Whether failure on the part of the applicants respondents 5 and 6/applicants in assailing the seniority lists dated 21.12.2005 and 05.11.2007 is fatal to their case ?
(3) Whether the order of the Tribunal in Original Application No.5119 of 2011 would come to the rescue of the petitioner?
(4) Whether the impugned orders warrant any interference of this Court, under Article 226 of the Constitution of India ?"3
2003 Law Suit (SC) 899 4 2005 Law Suit (SC) 727 5 (1988) 2 Supreme Court Cases 233 12 Issues 1 to 3:
8. There is absolutely no controversy with regard to the date of appointment and the dates of passing of the Accounts Test by the parties to the present litigation. Admittedly, the writ petitioner did not get through the Accounts Test within the period of probation and passed the same on 21.05.1995. In this context, it may be appropriate to refer to the Rules relevant for the cases on hand. The post of Hostel Welfare Officer Grade-II is governed by the Andhra Pradesh Backward Classes Welfare Subordinate Service Rules, notified vide G.O.Ms. No.36, BCW Department, dated 09.07.1996. Rule 11 (b) of the said Rules, reads as follows.
"11. Tests. (a) xxxxxxx
(b) Every person appointed by direct recruitment as Warden, Grade-II/Matron, Grade-II or Teacher shall pass during the period of probation, the Accounts Test for Subordinate Officers Part-I and such other test (S) as prescribed by the Government."
Rules 8 and 16 of the Andhra Pradesh State and Subordinate Service Rules, 1996, read as follows:
"8. Eligibility for promotions or appointment by transfer: -
For appointment to a higher post either by promotion from one category to another within a service or by appointment by transfer from one service to another service, a member of a service or class of a service, shall have satisfactorily completed his probation in the 13 category from which he is proposed to be promoted or appointed by transfer to such higher post.
xxx
16. (a) Commencement of probation for direct recruits: -
A person appointed in accordance with the rules, otherwise than under rule 10, by direct recruitment shall commence his probation from the date of his joining the duty or from such other date as may be specified by the appointing authority:
Provided that a person having been appointed temporarily under Rule10 to a post in any service, class or category or having been so appointed otherwise than in accordance with the rules governing appointment to such post, is subsequently appointed to the same post, in the same service or class or category, in the same unit of appointment, in accordance with the rules, shall commence his probation from thedate of such subsequent appointment or from such earlier date as the appointing authority may determine, subject to the condition that his commencement of probation from an earlier date shall not adversely affect any person who has been appointed earlier or simultaneously, to the same service, class or category in the same unit.
(b)Minimum service for commencement of probation:- A person appointed to a service, class or category, in accordance with the rules, otherwise than by direct recruitment, shall,if he is required to be on probation in such service, class or category, be deemed to have commenced his probation in such service, class or category from the date from which he has been continuously on duty in such service, class or category for a periodof not less than 60 days from the date of joining duty after having been appointed to such 14 service, class or category on regular basis in accordance with rules:
Provided that this rule shall not apply to a person appointed to a post in a service, class or category whose appointment is made in consultation with the Andhra Pradesh Public Service Commission or D.P.C or any other agency for requirement specified by Government.
(c) Period of Probation:-Unless otherwise stated in the special rules or in these rules, the period of probation shall be as follows:
(i) Every person appointed by direct recruitment to any post shall, from the date on which he commences his probation be on probation for a period of two years on duty within a continuous period of three years.
(ii)Every person appointed to any post either by promotion or by transfer (not by transfer on tenue) shall, from the date on which he commences his probation, be on probation for a period of one year on duty within a continuous period of two years.
(iii) A probationer in any category, class or service shall be eligible to count for probation his service in a higher category of the same service or class, as the case may be, or in any other service (State or Subordinate Service) towards hisprobation in the former service, to the extent of the period of duty performed by him in the latter service during which he would have held the post in the former service but for such appointment in the latter service.
(d) In regard to the persons appointed to any class or category of a service by promotion or appointment by transfer, in respect of whom the special rules of the service applicable to the higher post do not prescribe a period of probation, in the class or category to which they have beenpromoted or appointed by transfer, the provisions in this part shall be construed as if the 15 expression "probation" and "probationer"/"approved probationer" mean "officiating service" and "person officiating" respectively.
(e)Tests to be passed during probation:- A person who has commenced his probation in a service, class or category shall, within the period of probation, if so required in the special rules of these rules, pass such tests or acquire such qualifications as may be prescribed in these rules or in the special rules applicable to such service, class or category.
(f) (i) If within the period of probation a candidate fails to pass such tests or acquire such qualifications as may be prescribed in these rules or in the special rules, the appointing authority shall, by orders, discharge him from the service unless the period of probation is extended under the sub-rule (b) of rule 17 and if within such extended period also, the candidate fails to pass such tests or acquire such special qualifications, the appointing authority shall discharge him from service.
(ii)If within the period of probation or within the extended period of probation, as the case may be, a probationer has appeared for any such test or any examination in connection with the passing of such prescribed tests or with the acquisition of the prescribed qualifications and the results of such tests or examinations for which he hasso appeared are not known before the expiry of the probation period, he shall continue to be on probation until the publication of results of such tests or examinations for which he has appeared, or the first of them in which he fails to pass, as the case may be.
(iii)In case the probationer fails to pass any of the tests or examinations for which he has so appeared, the appointing authority shall, by an order, discharge him from service.16
Any delay in the issue of the order discharging the probationer under clause (i) of clause (iii) of this sub- rule shall not entitle him to be deemed to have satisfactorilycompleted his probation.
(g)Exemption from special qualifications to be acquired or special tests to be passed during probation:- Where a probationer has before he commenced his probation, already acquired any special qualification or passed any special test prescribed in these or in the special rules, or has acquired such other qualification as may be considered by the State Government or by the appointing authority, with the approval of the State Government to be equivalent to the special qualification or special test, he shall not be required to acquire the said special qualification or to pass the said special test again, after the commencement of his probation.
(h)Change of date of commencement of probation:- Notwithstanding anything contained in the special rules or sub-rules (a) and (b) of Rule 33, a probationer who does not pass the prescribed tests or acquire the prescribed special qualifications within a period of probation or within the extended period of probation under Rule 17 and whose probation is further extended by the Government by an order under Rule 32, till the date of his passing such tests or acquiring such qualifications, shall be deemed to have commenced the probation with effect from the date to be fixed by the Government, whichwould be anterior to a date to his passing such tests or acquiring such special qualifications, so, however, that the interval between the two dates shall be equivalent to the prescribed period of probation, whether on duty or otherwise and seniority of such probationer shall be determined with reference to the date so fixed. 17
Provided that nothing in this sub-rule shall apply in the cases of persons appointed to the class, category or grade in a service prior to the 9thMarch, 1981 and whose seniority in the said class, category or grade was fixed under sub-rule(b) of Rule 33 prior to the said date."
9. It is very much manifest from a reading of the above referred Rules that one must be an approved probationer in order to claim promotion and one must pass Accounts Test within the period of probation. In respect of those, who do not pass Accounts Test within the period of probation, the Government alone is competent to pass orders on recommencement of the probation. It is absolutely not in controversy that no orders have been passed by the Government so far in respect of the writ petitioner under Rule 16 (h) of 1996 Rules. The reality remains that in the confirmed/final seniority list dated 29.07.2000, the confirmed list of integrated / common seniority list of Warden-Matron Grade-II dated 21.02.2002 and revised seniority list of Warden-Matron Grade-II dated 09.02.2004, issued by the District Collector, the writ petitioner was shown as junior to respondents 5 and 6, and his date of regularization was shown as 21.05.1993. Obviously, for the first time, though it is the case of respondents 5 and 6 that it was not communicated to them, the District Collector, vide proceedings RoC No.A/150/97, dated 21.12.2005, issued a 18 confirmed list of seniority of Hostel Welfare Officers Grade-II, showing the writ petitioner at serial No.21 and the respondents 5 and 6 at serial Nos. 26 and 30 respectively, and showing the date of regularization of the writ petitioner and the respondents 5 and 6 as 26.08.1991.
10. It is to be noted that the Tribunal, vide the order dated 09.11.2006 in Original Application No.2970 of 2003, had set aside the provisional seniority list of Hostel Welfare Officers Grade-II and the same was assailed in Writ Petition No.13283 of 2007, and the composite High Court, vide order dated 11.09.2007, dismissed the said Writ Petition, and the operative portion of the said order reads as follows:
"The contention of the learned Government Pleader that the 1996 Rules nowhere provides that Grade II Wardens/Matrons are two different categories is not correct. In fact the Special Rules, 1996 nowhere provides for preparation of a seniority list. But the general rule is that separate seniority list has to be prepared for each category unless the rules provide for preparation of a common seniority list in respect of two categories. When there is a clear distinction between the feeder categories i.e., categories 3(a)and 3(b), the department cannot maintain a common seniority list of Wardens and Matrons. The Tribunal, therefore, taking all the aspects into consideration, rightly dismissed the O.As.In the circumstances, we do not find any reason to interfere with the impugned orders passed by the Tribunal. The writ petition fails and the same is accordingly dismissed. No costs."19
Pursuant to the said order of this Court, the Director of B.C. Welfare, vide proceedings Rc. No.A1/2757/2007, dated 11.10.2007, requested the District Collector, Chittoor to prepare separate seniority list of Hostel Welfare Officers Grade-II (mala/female). In pursuance of the said order dated 11.10.2007, the District Collector prepared a tentative seniority list vide Memo RoC No.A/272/2007, dated 05.11.2007, showing the writ petitioner as senior to respondents 5 and 6 and the date of his regularization as 26.08.1991.
11. It is significant to note that vide Memo No.4392/A/2004-3, Backward Classes Welfare (A) Department, dated 29.03.2005, the State Government directed adherence to Rule 16 (h) of 1996 Rules and also requested the Commissioner of B.C. Welfare to take necessary action for fixation of responsibility on the persons concerned in having continued the probationers beyond the period of probation for not passing the tests and send action taken report to the Government. In this context, it would be appropriate and apposite to refer to the counter of the Director of B.C. Welfare, filed before the Tribunal in O.A. No.3302 of 2017. (paragraph Nos. 7, 8, 10 and 11).
"7. In reply to para 6 (e) & (f) of the affidavit, it is respectfully submitted that one Sri R.Nagendra Raju, 20 HWO Gr-II at Sl.No.28 challenged the common integrated seniority list dated: 21-1-2002 before the Hon'ble APAT by filing O.A.No.7486/2003 on the grounds of erroneous fixation of inter-se-seniority in terms of Rule 36(i) of APSSSR, 1996 and the Hon'ble APAT in its orders, dated: 24-11-2003 while disposing of the OA, directed the 1st respondent i.e., Dist.Collector, Chittoor, to examine the representation made by the applicant on 7-5-2003 and pass appropriate orders thereon as per rules and also as per service particulars. Basing on the APAT orders, final seniority list was revised and published vide Procgs.Rc.No.A/150/1997, dated: 19-2-2004 in which the applicant Abdul Khuddus and K. Suresh Babu seniority positions was shown at Sl.No.24 and Sl.No.26 whereas the 5th respondent seniority position was shown at Sl.No.30.
8. Further, it is respectfully submitted that Government have issued G.O.Rt.No.77, BCW(A2) Dept., dated: 29-3-2004, consequently, Director, BC Welfare has issued instructions in Memo.Rc.No.A1/705/2004, dated 22-4-2004 for preparation and finalisation of seniority lists of Hostel Welfare Officers in terms of Rule 33(a) of APSSS,1996. Accordingly, the final seniority list of Gr-II HWOs was published vide Procgs.Rc.No.A/150/1997, dated: 21-12-2005 of the 3rd respondent i.e., Dist.Collector, Chittoor, in which, the seniority of 5th respondent (Sri Munidraiah) was shown at Sl.No.21 and the seniority of K.Suresh Babu and Abdul Khuddus was shown at Sl.No.26 and Sl.No.30. However, the Government orders issued in G.O.Rt.No.77, BCW(A2) Dept., dated: 29-3-2004, consequent, instructions of the Director, BC Welfare issued in Memo. Rc.No.A1/705/2004, dated: 22-4-2004 was challenged by Smt. K.K.Kruthika and 7 others 21 HWO Gr-II (Female) in the Hon'ble APAT by filing O.A.No.2970/2003 with VMA No.701/2004 and O.A.No.3173/2004 and the Hon'ble APAT in its orders, dated: 09-11-2006 have set aside the Government orders issued in G.O.Rt.No.77, BCW(A2) Dept., dated:
29-3-2004, consequent, instructions of the Director, BC Welfare issued in Memo Rc.No.A1/705/2004, dated: 22- 4-2004 as these orders are contrary to the AP BC Welfare Subordinate Service Rules, 1996. The orders of the APAT was challenged by the 2nd and 4th respondents of this O.A. by filing Writ Petition No.13283/2007 in the Hon'ble High Court and the Hon'ble High Court in its order, dated: 11-9-2007 has upheld the APAT orders dated: 9-11-2006 in OA No.2970/2003 with VMA No.701/2004 and O.A. No.3173/2004. Therefore, the final seniority list dated: 21-12-2005 became infructuous and the seniority list dated: 19-2-2004 becomes valid and settled.
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10. In reply to para 6(h) of the affidavit, it is respectfully submitted that the Director, BC Welfare, in its Memo No.E/2291/2016, dated: 21-10-2016 read with Lr.Rc.No.E/3113/2017, dated: 12-1-2018 have categorically stated that the seniority list shall not be prepared afresh. Out of the settled seniority list which is existing prior to the Hon'ble High Court Orders, dated: 11-9-2007 in W.P.No.13283/2007 a separate seniority list has to be prepared for HWO Gr-II Male and Female without disturbing their places. But, the 1st respondent understood the instructions of the 2nd respondent in an erroneous way and taken the provisional seniority list dated: 5-11-2007, (which is yet to be settled) into consideration for effecting promotion of the 5th respondent. The 1st respondent should have 22 taken the settled seniority list dated: 19-2-2004 into consideration for effecting promotions.
11. In reply to para 6(i) of the affidavit, it is respectfully submitted that, the seniority list dated: 19-
2-2004 is considered as settled seniority list of Chittoor Dist. and there after provisional seniority list dated: 5- 11-2007 and 29-1-2008 are yet to be finalised and hence, they are not considered as settled final seniority list. The instructions contained in Memo.No.E/2291 /2016, dated: 21-10-2016 read with Lr.No.E/3113/2017, dated: 21-1-2018 have stated that a separate seniority list is to be prepared by segregating HWO Gr-II Male and Female from the settled seniority list which is existing prior to Hon'ble High Court Orders, dated: 11-9-2007 in W.P.No.13283/2007. The 2nd respondent never issued instructions to the 1st respondent to follow the confirmed seniority list dated:
21-12-2005 which became infructuous in the light of APAT orders dated: 9-11-2006 in OA No.2970/2003 with VMA No.701/2004 and O.A. No.3173/2004 and confirmed by the Hon'ble High Court orders dated: 11- 9-2007 in W.P.No.13283/2007. However, the action of the 1st respondent in cancelling the seniority list dated:
29-1-2008 is justifiable since the said seniority list is a tentative seniority list prepared and published by the 3rd respondent who is not competent authority to do so."
12. The principal contention advanced by the learned counsel for the writ petitioner that since seniority lists dated 21.12.2005 and 05.11.2007 are not under challenge and have attained finalty, seniority of the writ petitioner cannot be altered nor his date of regularization, falls to the ground, as perusal of the seniority list dated 05.11.2007 discloses, in 23 vivid and clear terms, that the same is only a tentative seniority list. The reliance sought to be placed by the writ petitioner over the seniority list dated 21.12.2005 also cannot be sustained in view of the orders of this Court in Writ Petition No.13283 of 2007, dated 11.09.2007, confirming the orders of the Tribunal in Original Application No.2970 of 2003. Therefore, the contentions advanced contra are neither sustainable nor tenable in the eye of law. It is not in dispute that no orders have been passed by the State Government so far in favour of the writ petitioner under Rule 16 (h) of 1996 Rules. The contention that the petitioner's seniority needs to be reckoned from the date of his initial appointment and not from the date of passing of Account Test, for the purpose of seniority, is highly misconceived. The reliance sought to be placed by the petitioners on the proceedings of the District Collector bearing No.A1/119/96, dated 24.02.1997, cannot be sustained, and in the considered opinion of this Court, the said order would be of no assistance to the petitioner, having regard to the provisions of Rule 16 (h) of 1996 Rules. In fact, the Tribunal, after thoroughly analyzing all the issues elaborately and meticulously, allowed the Original Applications.
13. Coming to the judgments cited by the learned counsel for the writ petitioner-in State of Andhra Pradesh and 24 another v. P.M.Subhani and others(in order dated 23.07.2008 in Writ Petition No.3171 of 2006), a Division Bench of composite High Court considered the effect of service put in, on temporary basis under Rule 10 of 1996 Rules. In the considered opinion of this Court, the said judgment has absolutely no relevance to the case on hand. In the order dated 18.03.2013 in Writ Petition No.16607 of 2007, the composite High Court followed the earlier judgment in Writ Petition No.3171 of 2006. But, the facts in the said judgment are not forthcoming. Coming to the order of the Tribunal dated 18.10.2002 in Original Application No.5119 of 2011, in the definite opinion of this court, the said judgment also would not render any assistance to the writ petitioner. In fact, in the Writ Petition filed against the said order, this Court granted order of status quo. The other judgment cited by the writ petitioner in S.Sreedhar Reddy & others v. Government of Andhra Pradesh & others (1 supra) and Amarjeet Singh & others v. Devi Ratan & others (2 supra), also would not render any assistance to the case of the writ petitioner.
14. Coming to the judgments cited by the learned counsel for respondents 5 and 6-in Om Prakash Shrivastava 25 v. State of M.P. (4 supra), the Hon'ble Supreme Court, at paragraph Nos. 9 to 11, held as under:
"Rule 13 of Madhya Pradesh Civil Services (Executive) Classification, Recruitment and Conditions of Services Rules, 1975 (in short 'Executive Rules') reads as follows:
"13. Probation- (1) Every person directly recruited to the service shall be appointed on probation for a period of two years.
(2) The appointing authority may, for sufficient reasons, extend the period of probation by a further period not exceeding one year.
(3) The probationer shall undergo the prescribed training and pass the prescribed departmental examination by the higher standard during the period of his probation.
(4) The services of the probationer may be terminated during the period of probation, if in the opinion of the appointing authority, he is not likely to shape into suitable government servant.
(5) The services of a probationer who does not pass the prescribed departmental examination or who is found unsuitable for the service also be terminated at the end of the period of probation.
(6) On successful completion of probation and the passing of the prescribed departmental examinations, the probationer shall be confirmed in the service provided permanent vacancies exist for him otherwise a certificate shall be issued in his favour by the appointing authority to the effect that the probationer would have been confirmed but for the non-availability 26 of the permanent post and as soon as permanent post becomes available he will be confirmed. The probationer shall not draw any increments until he is confirmed. On confirmation his pay will be fixed with reference to the total length of service. If the probationary period is extended, government will decide at the time of confirmation whether arrears of increments shall be paid or not. Such arrears shall ordinarily be paid when the extension of the probationary period is due to no fault of the probationer.
(7) A probationer who has neither been confirmed, nor a certificate issued in his favour under sub-rule (6) above, nor discharged from service under sub- rules (4) and (5) above, shall be deemed to have been appointed as a temporary government servant with effect from the date of expiry of probation and his conditions of service shall be governed by the Madhya Pradesh (Temporary and Quasi-Permanent Service) Rules, 1960."
A bare reading of sub-clause (ii) of Clause (a) of Rule 12 makes the position clear that the appointing authority has to decide as to from what date the direct recruit is to be assigned. It has to be decided whether seniority as assigned to him if he had been confirmed on the expiry of the normal period of probation or whether he should be assigned a lower seniority. The original probation period is two years. Therefore, a combined reading of Rules 8, 12 of the Rules and 13 of Executive Rules makes the position clear that seniority can be assigned by taking the relevant date to be the date of expiry of normal period of probation. In the case of Ram Rao Bhosley, it was 8.5.1992. So far as the appellant is concerned, the appointing authority has been given power to determine the date from which the candidate should be assigned seniority if the period of 27 probation of any direct recruit is extended depending on the date of his passing the departmental examination. As was noted in M.P. Chandoria's case (supra), until the probation period is completed, and he is confirmed in the post, the employee does not become a member of the service on successful completion of the probation and passing of the prescribed tests or conditions precedent to declaration of completion of the probation period. Mere completion of one year period does not entitle the person to be a member of the service. He continues to be in temporary service on the completion of probation period. The appointing authority is to confirm him in a pending post available or grant him a quasi-permanent status. Unless he passes departmental examination, there is no question of completion of probation and for all practical purposes the employee continues to be in temporary service.
Reiterating the principles in M.P. Chadoria's case (supra), it was held in Ramkinkar Gupta's case (supra) that if a person does not pass the test then the appointing authority is empowered to assign seniority in a lower level than one which has been assigned by the Public Service Commission. A person who has neither been confirmed, nor had a certificate in his favour in terms of sub-rule (6), nor discharged from service under sub-rule (4) would fall within the category of those officers referred to in sub-rule (7) of Rule 8 of the Rules. In other words, he is to be deemed to be a temporary government servant with effect from the date of expiry of probation. The position is different in case of an officer, who passes the departmental examination within extended period of probation."
28
In R.Prabha Devi & others v. Government of India & others (5 supra), the Hon'ble Supreme Court, at paragraph No.15, held thus:
"The rule-making authority is competent to frame rules laying down eligibility condition for promotion to a higher post. When such an eligibility condition has been laid down by service rules, it cannot be said that a direct recruit who is senior to the promotees is not required to comply with the eligibility condition and he is entitled to be considered for promotion to the higher post merely on the basis of his seniority. The amended rule in question has specified a period of eight years' approved service in the grade of Section officer as a condition of eligibility for being considered for promotion to Grade I post of C.S.S. This rule is equally applicable to both the direct recruit Section officers as well as the promotee Section officers. The submission that a senior Section officer has a right to be considered for promotion to Grade I post when his juniors who have fulfilled the eligibility condition are being considered for promotion to the higher post, Grade I, is wholly unsustainable. The prescribing of an eligibility condition for entitlement for consideration for promotion is within the competence of the rule-making authority. This eligibility condition has to be fulfilled by the Section officers including senior direct recruits in order to be eligible for being considered for promotion. When qualifications for appointment to a post in a particular cadre are prescribed, the same have to be satisfied before a person can be considered for appointment. Seniority in a particular cadre does not entitle a public servant for promotion to a higher post unless he fulfils the eligibility condition prescribed by the relevant rules.29
A person must be eligible for promotion having regard to the qualifications prescribed for the post before he can be considered for promotion. Seniority will be relevant only amongst persons eligible. Seniority cannot be substituted for eligibility nor it can over-ride it in the matter of promotion to the next higher post. The rule in question which prescribes an uniform period of qualified service cannot be said to be arbitrary or unjust violative of Articles 14 or 16 of the Constitution. It has been rightly held by the Tribunal:
"When certain length of service in a particular cadre can validly be prescribed and is so prescribed, unless a person possesses that qualification, he cannot be considered eligible for appointment. There is no law which lays down that a senior in service would automatically be eligible for promotion. Seniority by itself does not outweigh experience."
It has also been observed:
"In any event, the appropriate Rule making Authority is the best judge in this regard. The Rule making Authority is certainly competent to amend the Rule and extend the period from 6 years to 8 years so as to make the direct recruits more experienced and suitable for the higher post. That is a matter for the Rule making Authority; the Tribunal cannot sit in judgment over the opinion of the Rule making Authority. No Court or Tribunal can substitute its own view in a matter such as this. Such a Rule framed by a competent Authority cannot be struck down unless it is shown to be violative of any Fundamental Right guaranteed to a citizen under the Constitution.""30
In Common judgment dated 12.11.2018 in Writ Appeal Nos. 1724 of 2017 and 1915 of 2017, the composite High Court held thus:
"The aforestated discussion clearly demonstrates that the observations made by the Supreme Court were conditioned and greatly influenced by the Note appended to Rule 8(c) of the Special Rules. In fact, the Supreme Court went to the extent of holding that in the light of this Note, it was not even necessary for the authorities to exercise power under the General Rules. Therefore, these observations must be understood in the context in which they were made and cannot be construed or applied generally. Be it noted that Rule 16(h) specifically speaks of seniority of the probationer being determined with reference to the altered date of commencement of probation in the event he does not pass the prescribed tests within the period of probation and therefore, a distinction has already been drawn by the rule making authority between these two disparate sets of probationers - those who pass the departmental tests within the period of probation as opposed to those who did not do so and required extension of their probation. This part of Rule 16(h) was not adverted to at all in R.VENKATA RAMUDU {(2016) 16 SCC 464}. These are aspects which would have to be considered in detail in the pending writ petition. However, as matters stand, it is not disputed before us that Rule 16(h) has not been subjected to challenge, be it by the parties to these appeals or by any other party, and therefore, it would necessarily have to be acted upon as per the clear language used therein. The observations of the Supreme Court in R.VENKATA RAMUDU {(2016) 16 SCC 464} in the context of the Special Rules which were under consideration, and more particularly the Note appended 31 to Rule 8(c) thereof, cannot be twisted out of context and be made applicable across the board to all cases. Therefore, when it is an admitted fact that G.Chakrapani required alteration of the date of commencement of his probation and it is not in dispute that the probation of Anugu Kishan Rao required no such extension and was declared earlier, he would have to be treated as senior to G.Chakrapani in terms of Rule 16(h) of the Rules of 1996. As long as the said Rule remains unchallenged and unaltered, it would have to be given effect to as per its clear language and the observations made in R.VENKATA RAMUDU {(2016) 16 SCC 464} cannot have the effect of overriding the Rule or diluting it to the extent of ignoring the concluding portion thereof, dealing with the altered seniority of the probationer covered thereby.
W.A.No.1724 of 2017 is accordingly dismissed and W.A.No.1915 of 2017 is disposed of directing the authorities to act strictly in accordance with Rule 16(h) of the Rules of 1996. In terms thereof, Anugu Kishan Rao would have to be treated as senior to G.Chakrapani and he is entitled to be considered for promotion to the post of HWO Grade-I over and above him. The authorities shall therefore take action upon his representation dated 17.05.2017 in accordance with rules. This exercise shall be completed expeditiously and in any event, not later than four weeks from the date of receipt of a copy of this order. The direction of the learned Judge to the effect that no further promotions should be effected till the controversy vis-à- vis Rule 16(h) is decided in W.P.No.39728 of 2012 is however set aside and the authorities are at liberty to make promotions as and when required strictly in keeping with the applicable rules."32
Having regard to the principles laid down in the above referred judgments cited by the learned counsel for respondents 5 and 6 and the findings recorded in the preceding paragraphs, issue Nos. 1 to 3 are answered in favour of respondents 5 and 6.
Issue No.4:
15. It is a settled and well established principle of law that unless order/action impugned suffers from jurisdictional error, patent perversity and passed/taken in violation of the principles of natural justice, a writ in the nature of writ of certiorari cannot be issued under Article 226 of the Constitution of India, as held by Constitution Bench of the Hon'ble Supreme Court in Syed Rakoob v. K.S.Radha6. This Court does not find any such contingencies in the impugned order which warrant interference of this Court for issuing writ of certiorari, as such, this Court has no scintilla of hesitation to hold that there are no merits in the case on hand. Therefore, the issue No.4 is also answered in favour of respondents 5 and 6.
16. For the aforesaid reasons, the Writ Petitions are dismissed. There shall be no order as to costs of the Writ Petitions.
6 AIR 1964 SC 477 33 Miscellaneous petitions, if any pending, in the Writ Petitions, shall stand closed.
____________ AVSS, J ____________ CMR, J 08.11.2019 DRK 34 THE HON'BLE SRI JUSTICE A.V.SESHA SAI AND THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY COMMON ORDER IN WRIT PETITION Nos. 7969 of 2019 and 7985 of 2019 08.11.2019 DRK\