Andhra HC (Pre-Telangana)
D. Satyanarayana And Ors. vs Secretary To Government, Legislature ... on 8 November, 1996
Equivalent citations: 1997(1)ALT374
Author: Saadatulla Hussaini
Bench: Saadatulla Hussaini
ORDER Saadatulla Hussaini, J.
1. This Writ Appeal is preferred assailing the Judgment of the learned Single Judge rendered in W.P. No. 3603 of 1982, dated 17-9-1986 as illegal and not sustainable in law.
2. The Appellants' Counsel submits that the appellants who were working as Typists in the Ist respondent-A.P. Legislature Secretariat have challenged the office orders issued by the Ist Respondent dated 17-9-1979 and 11-11-1981 regularising the services of respondents 2 to 8 and sought for a direction to effect promotions to the post of Assistants (redesignated as Assistant Section Officers) after preparing a common seniority list of Typists and Assistants.
3. It is submitted that pursuant to passing the examination conducted by the A.P. Public Service Commission in December, 1976, the appellants were appointed as Typists on different dates in August, 1978 under Category V of the A.P. Legislature Secretariat Service Rules (hereinafter referred to as "Rules"). They have completed probation period on various dates in August, 1980. Respondents 2 to 18 were initially recruited temporary as Assistants in 1977. During the said period, a large number of employees were working temporary in various Departments of Secretariat and other Heads of Departments in the posts of Junior Assistants, LD.Cs., Typists and Steno-Typists and as there was no regular examination conducted by the Public Service Commission, the Government on the representations of the Service Associations thought it fit to conduct a Special qualifying test in respect of such temporary employees who were in service as on 12-4-1978 in order to regularise their services, and, accordingly, issued orders in G.O.Ms.No 380, General Administration (Services - A) Department, dated 2-6-1978. Respondents-2 to 18 appeared for the Special qualifying test held by the Public Service Commission in 1979 and after passing the said test, their services were regularised with effect from 17-9-1979 by office order No. 446/ OP. I /79, dated 17-9-1979 issued by the Ist respondent in the order of preference indicated by the Service Commission. A second office order No. 519/OP. I/1981 dated 11-11-1981 was issued regularising the services of respondents 2 to 18 in the category of Assistants with effect from the date of their first appointment as temporary Assistants subject to the condition that such date not being earlier to the date of the last regular appointment in that category.
4. It is contended by the appellants that by issuing of the above two orders by the Ist respondent, their seniority has been affected without notice and that as both the Assistants and Typists are eligible for promotion to the next higher post of Senior Assistant, the retrospective regularisation of the services of respondents 2 to 18 had impeded their chances of promotion in the absence of common seniority list between the both categories. As such, it is violative of Articles 14 and 16 of the Constitution of India. In view of this, respondents 2 to 18 ought not to have been permitted to appear for the Special qualifying test in the year 1979 by virtue of the embargo contained in Rule 2 which is to the effect that there shall be no recruitment to the post of Junior assistants with effect from 21 -2-1977. As such, the orders issued in G.O.Ms.No. 380, dated 2-6-1978, by which the State Government directed holding of Special qualifying test by the A.P. Public Service Commission for regularisation of services of temporary employees, has no application to the temporary employees working in the A.P. Legislature Secretariat, since the same is not a Department of State Government. They have also placed reliance on the Division Bench Judgment pf this Court in Jayalakshmi v. Secretary, A.P. Legislature, 1980 (2) An.W.R. 202 wherein the Bench held that the Rules infringe Article 187 (1) of the Constitution of India. The orders issued by the State Government to the employees of A.P. Legislature Secretariat, are not applicable. Aggrieved by the said Judgment, an appeal has been preferred by the 1st respondent before the Supreme Court of India and the same is pending. In view of this, the orders issued in G.CMs. No. 380, dated 2-6-1978, by which Special qualifying tests were held by the Public Service Commission, must be declared to have no application.
5. We have considered the above submissions of the appellants. The learned Single Judge has considered the submissions and rejected the same as devoid of substance.
6. The learned Single Judge, on the afore-said reasoning held that there is no prayer in the writ petition for quashing G.O.Ms.No. 380, dated 2-6-1978 issued by the State Government nor there is specific challenge to the A.P. State Legislature Secretariat Service Rules issued in G.O.Ms.No. 43, dated 15-6-1978. The learned Single Judge held that by G.O.Ms.No. 1536 General Administration (Services) Department, dated 17-8-1965, the Legislature Secretariat was treated as a Department of the Secretariat having all the privileges and powers of any other Department of the Secretariat. Secretary to the State Legislature will be Head of the Legislature Department just as Secretaries to the other Departments of Secretariat and he will have the similar status and powers. He also held that Rule-5 specifies the method of appointment to the services and Rule 6 specifies qualifications. Under these Rules, by Rule 8, the post of Assistant is a selection post. Promotion to which shall be made on grounds of merit and ability, seniority being considered only where merit and ability are approximately equal. In view of mis, it is clear that more than one category of employees are eligible for promotion to the post of Assistant and that it is a selection post. The rules are silent with regard to the ratio between direct remittees and promoters in the category of Assistants; nor do the rules specify the ratio between Junior Assistants, Typists, Steno-Typists and Telephone Operators for promotion to the post of Assistant, nor do they lay down any ratio for appointment of Upper Division Stenographer or Second Grade Stenographers to the said post.
7. The appellants were appointed as Typists and in the post of Typists, their services were regularised. There was no complaint mat inter-se their ranks were disturbed without reference to the order of merit fixed by the Public Service Commission. Seniority list will have to be maintained in respect of each category of employees. There cannot be a seniority list of employees holding posts in different categories. The mere feet mat more than one post is treated as a feeder post does not lead to the conclusion that in the absence of a combined seniority list relating to all feeder posts, no selection can take place to the higher post. The Rules do not provide such seniority list. The posts are of distinct and different categories. The nature of the duties, responsibilities and the functions, the employees are discharging, are neither similar nor common. As such, there is no arbitrariness or illegality for making appointment to the next higher post.
8. The other contention of the appellants that without notice to them, their seniority was altered, is not tenable. For the appellants are holding the posts of Typists and respondents 2 to 18 are holding the posts of Assistants, the retrospective regularisation of the latter would not affect the seniority of the former. Therefore, the question of issuing any notice to the appellants before regularising the services of respondents 2 to 18, does not arise.
9. Even assuming the arguments of the appellants that there were no rules governing the appointments of the appellants and respondents 2 to 18, the case of the appellants will have to be decided with reference to Articles 14 and 16 (1) of the Constitution of India. Then the other question would be is there any discrimination in regularising the services of respondents 2 to 18 directing them to appear for the qualifying test and whether the appellants have been denied equality of opportunity in matters relating to employment or appointment under Article 16(1) of the Constitution of India. To this, the answer would be 'no' in such circumstances.
10. We have given our serious consideration to the above submissions. The appellants having not challenged the validity of Rule-3 of A.P. Legislature , Secretariat Service Rules, under which A.P. State and Subordinate Service Rules, the A.P. Civil Services (Conduct) Rules, 1964 and the A.P; Civil Services (Classification, Control and Appeal) Rules apply to the members of this service as they apply to members of any other State Service and that the benefits extended to temporary employees by the State Government in G.O.Ms. No. 380, dated 2-6-1978, have been approved by the Supreme Court of India, in the circumstances in G.S. Venkata Reddy v. Government of Andhra Pradesh, wherein it is held at Para-10 thus:
"Rule-10(a)(i) (1) provides that where it is necessary in the public interest to fill emergently a vacancy in the post borne on the cadre of a service, class or category and if the filling of such vacancy in accordance with the rules is likely to result in undue delay, the appointing authority may appoint a person temporarily otherwise than in accordance with the said rules. Sub-rule (2) thereof emphasises that such appointment should not ordinarily be made of a person who does not possess the qualifications for the said service, class or category. Rule 23(a) provides that if such an appointee is subsequently appointed to any service, class or category in accordance with the rules, he shall commence his probation from the date of such subsequent appointment or from such earlier date as the appointing authority may determine. Rule 33(a) next provides that the seniority of a person in a service, class, category or grade shall be determined by the date of his first appointment to such service, class, category or grade. If any portion of the service of such person does not count towards probation under the rules, his seniority shall be determined by the date of commencement of his service which counts towards probation. Now, in view of the ban imposed by G.O.Ms.No.682 dated August, 18, 1970 against direct recruitment pending the recommendations of the Backward Classes Commission, the Government was forced to resort to temporary recruitment in the public interest to meet the exigencies of service caused by vacancies. Such appointments were specifically permitted by Rule 10 (a)(i)(1) of the General Rules framed under Article 309 of the Constitution and could not therefore, be said to be illegal or de hors the rules but such employees would not be members of the service. Ordinarily such appointments would be at stop-gap arrangement till regular appointments are made. But as the ban continued for several years a demand for regularisation of such temporary employees who were otherwise qualified was raised by service associations as well as such employees. Consequently the Government after partially lifting the ban directed the PSC to conduct the SQT with a view to regularising the services of such temporary employees and those who successfully cleared the test were regularised and became members of the service. Since this satisfied only a small number, the pressure on the Government continued. In 1978 the PSC conducted another test but before the results were announced G.O.Ms.Nos. 646 and 647 saw the light of the day. By G.O. Ms. No. 646 the posts in question were taken out of the purview of the PSC by exercising power under Article 320(3) of the Constitution and thereafter the services were regularised by executive order G.O.Ms.No. 647, relevant part whereof is extracted earlier. The services of the temporary employees who had joined on or before August 9, 1979 thus stood governed under the said orders. Under Rule 23(a) since the power to fix the date of commencement of probation was with the appointing authority, the probation was directed to commence from the date of appointment. On the successful completion of the probation the appointing authority terminated the probation whereupon the probationers became the full members of the service vide Rule 25 of the General Rules. Now, under : G.O.Ms.No. 647, while deciding on regularisation of all temporary employees appointed directly and continuing in service as on August 9, 1979 without subjecting them to any written or oral test, it was provided that their regularisation shall take effect from the next date following the date on which the last regular appointment, whichever is later."
11. We have not been persuaded to take a different view and we have good reasons to agree with the reasoning of the learned Single Judge in negativing the contentions of the appellants. There has been no violation of Article 14 of the Constitution of India. The judgment of the learned Single Judge does not warrant any interference.
12. We, therefore, affirm the judgment of the learned Single Judge rendered in W.P.No. 3603 of 1982, dated 17-9-1986 and dismiss the Writ appeal. No costs.