Andhra HC (Pre-Telangana)
S. Sabapathi And Ors. vs The Government Of Andhra Pradesh, Rep. ... on 5 December, 2001
JUDGMENT L. Narasimha Reddy, J.
1. A common question of fact and law arises in these writ petitions. Hence, they are disposed of through this common judgment.
2. Both the writ petitions are directed against the common judgment of the Andhra Pradesh Administrative Tribunal, Hyderabad (hereinafter referred to as 'the Tribunal') dated 18-9-1998 in OA.No.5420/96 and batch. While WP.No.28245/98 is filed by respondents 4 and 5 in OA.NO.5420/96, wp.NO.19636/99 is filed by the Government of Andhra Pradesh, 1st respondent in OA.No.5855/96.Through its common judgment in the batch of OAs, the Tribunal had set aside G.O.Ms.No.711 Revenue (CT-III) Department dated 28-8-1996 and G.O.Ms.No.714 Revenue (CT-III) Department dated 29-8-1996.
3. Respondents 3,4 and 5 filed OA.No.5855/96 alleging that the Government of Andhra Pradesh, through G.O.Ms.No.617 GA (Services-A) Department, dated 16-8-1976, brought the posts of L.D.Cs./Typists in Group-IV Services within the purview of District Selection Committee (hereinafter referred to as 'the DSC') headed by the Collector of the concerned Districts; the DSC conducted the direct recruitment test in the year 1976; they along with the others were selected and were appointed to the posts of L.D.Cs; and later their services were regularised. The cadres of L.D.Cs., in the Chittoor and Cuddapah districts were to be integrated for the purpose of effecting promotion to the next higher posts of Senior Assistants for the Chittoor Division of Commercial Tax Department. Since certain discrepancies arose, cases were filed in the Tribunal, which in turn directed preparation of integrated seniority list by maintaining the ratio of 1 : 1 for both the districts and this was adopted by the Government in its order in G.O.Ms.No.980 dated 31-10-1991. A provisional seniority list was prepared. In the meanwhile, the Tribunal through its order dated 4-4-1994 in OA.No.3631/93 and batch, directed the Government to take immediate steps to finalise the seniority list.
4. At a time when the final seniority list was about to be issued in accordance with the parameters fixed by the Government in pursuance of the directions of the Tribunal, the Government issued G.O.Ms.No.711 Revenue (CT-III) Department dated 28-8-1996. In this G.O., the Government had stipulated that irrespective of the fact whether any LDC or Steno was selected by the DSC or not, the date of his initial appointment shall be taken into account for the purpose of fixing the seniority.While G.O.Ms.No.711 is general in nature, G.O.Ms.No.714 dated 29-8-1996 was issued in respect of Chittoor district, applying the principle or the criteria laid down in G.O.Ms.No.711.According to respondents 4 to 6, the orders of the Government cannot be sustained either on facts or in law. Similarly, O. As. 5420, 5432, 5433, 5439, 5593, 5758, 5308, 5811, 6066, 6116, 6138, 6367 of 1996 and 440, 1583, 3310 and 4572 of 1997 were also filed by several affected persons. The Government as well as the other respondents arrayed therein resisted the challenge to the two G. Os. referred to above. The Tribunal has, after discussing the matter at length and having referred to various orders passed by it on earlier occasions on the matter, through its order dated 18-9-1998 allowed the O.As and set aside the two G. Os referred to above. That judgment is in challenge in these two writ petitions.
5. We have heard Sri M. Rama Rao, the learned counsel for the petitioners in WP.No.28245/98 and the learned Government Pleader for Services for the petitioners in W.P.No.19636/99 and also Sri M. Ratna Reddy, the learned counsel appearing for some of the respondents in both the writ petitions.
6. Before proceeding further, it needs to be noted that about 16 Original Applications were filed before the Tribunal challenging the validity of the G.O. Ms.Nos.711 and 714. While in some, only one G.O., was challenged, in others, both the G. Os., were challenged. The Government was party to all the O.As. It has chosen to file only one writ petition i.e., W.P. no.19636/99, that too, challenging the order in O.A. No. 5420/96 alone. In other words, it has permitted the judgment in the other O. As. to become final. In a way, the Government is precluded from challenging the common judgment with reference to O.A.No.5420/96 alone. However, we do not propose to close the matter on this short ground.
7. The matter relating to selection and appointment to the post of L.D.Cs and Stenos in the past in 1976 has been the subject matter of numerous proceedings in the Tribunal, not to speak of equal number of administrative proceedings in the Government. The controversy arose in the following circumstances:
Inasmuch the recruitment in accordance with the A.P. State and Subordinate Service Rules (hereinafter referred to as 'the Rules') to the post of L.D.Cs could not take place during the years 1974 to 1976 for variety of reasons, temporary adhoc appointments under Rule 10(a)(i) of the Rules were undertaken by the Government depending on the exigencies of services. The power to make recruitment to the posts of L.D.Cs and Stenos was made over to the DSCs to be headed by the District Collector of the concerned districts. In all the districts, the DSCs had undertaken selections. Apart from those who were already appointed on adhoc basis, fresh candidates also appeared in these selections. On the basis of the selections so effected, orders of appointment were issued in accordance with the ranking assigned by the DSC.
8. R.P.No.230/76 and batch came to be filed by certain candidates who were appointed on adhoc basis, but were not selected by the DSC. In support of their claim, they alleged certain irregularities in the process of selection. The Tribunal, through its judgment dated 14-11-1978, made certain observations to the effect that the procedure adopted by the DSCs of certain districts like Guntur, Hyderabad and Kurnool, was not proper.Normally, if any Court or Tribunal finds that the selections undertaken by a particular agency was not in accordance with the Rules or were otherwise vitiated, the course to be adopted is to set aside the selection and to direct the concerned agency to undertake fresh selections confining the process to those candidates who participated in the selections. Curiously, the Tribunal had not only directed that those candidates who were not selected by the respective DSCs shall be deemed to have been selected, but also conferred a further premium upon them that there they shall be deemed to have been continued with effect from the dates of their initial temporary appointment under Rule 10(a)(i) of the Rules. These directions were confined to the three districts referred to above.
9. It needs to be mentioned that the Tribunal, which passed these orders, was the one constituted under Article 371 D of the Constitution of India. The present Tribunal is constituted under Article 323A of the Constitution. Clause (v) of Article 371D provided that the orders of the Administrative Tribunal shall become effective only upon its confirmation by the Government. This position continued till the Supreme Court declared the said clause unconstitutional and void though its judgment in T.SAMBA MURTHY vs. STATE OF ANDHRA PRADESH (AIR 1987 SC 663). Up to 1987, the Government was in fact refusing to confirm the orders of the Tribunal, which were not to its liking or which led to anomalous situation. However, for reasons best known to it, the Government had accepted the judgment of the Tribunal in RP.No.230/76 and batch. The fact remains that no such grievance as to irregularities in the selection or discrepancies in assignment of ranks was complained of by the candidates from other districts. If at all anything, the judgment of the Tribunal in RP.No.230/96 and batch and the consequential administrative action of the respondents in accepting the same had only become a perennial source and basis for unsettling the seniority lists of LDCs/Stenos of 1976 batch of various districts, obviously, depending upon the strength of the pressure working behind it.
10. On the ground that discrepancies have arisen on account of adopting various standards in different districts, for the purpose of fixation of seniority in the cadre of LDCs/UDCs in the Commercial department, seniority list was not prepared even after a lapse of two decades from the date of selections. In its order in OA.No.5339/93 and batch, the Tribunal had observed as under:
"Till today, all appointments even to higher posts in this department viz., Deputy Commissioners are being made on adhoc basis due to the lack of seniority lists. In view of the long delay of two decades in preparing seniority lists, it is necessary that a provisional seniority in the district cadre is finalized in accordance with law and a notice issued to the persons affected containing the relevant parameters and particulars of persons included in it and inviting their objections. Any objections received must be disposed of by a speaking order and list of District Cadre finalized at the earliest. The seniority lists of all the districts in the Zone (division in this case) shall be integrated and this should be utilised for making promotion to the post of senior Assistants."
11. Similarly, in OA.No.3631/93 and batch, comprising of 40 cases, the Tribunal had observed as follows:
"Practically, every other day , we come across orders passed by the Government relaxing some rules or other because of some alleged injustice in preparing district cadre seniority list of Junior Assistants resulting in attaining the promotion in higher cadres of ACTO/DCTO/CTO. All appointments by promotion or transfer are treated to be adhoc on the basis of adhoc panels till today. The effect of alleged injustice in adhoc panel or adhoc promotion can be decided after final lists are available and promotions made in accordance with law. We, therefore, consider it appropriate that the respondents will take immediate steps for preparing provisional seniority lists of district cadre posts particularly of Junior Assistants within one month from the date of receipt of this order, if it has not been done already, such a provisional seniority list will indicate the parameters followed and the relevant particulars of the persons included in it."
12. This only reflects the fluid situation, which either existed or was permitted to remain.
13. Ultimately, in pursuance of these directions, the concerned authorities viz., respondents 1 and 2, started taking steps to bring about uniformity in the matter. The 2nd respondent issued orders dated 5-8-1994 stipulating the parameters to be followed in preparing the seniority list. Some of the salient parameters are as under:
"1.The cadre strength as on the date of Presidential order should be indicated in the preamble and the subsequent additions to the cadre by specifying the number of posts by indicating the G. Os and the nature of appointment of each candidate in the remarks column.
2.The seniority of junior assistants should be according to the rank assigned by the Andhra Pradesh Public Service Commissioner/District Selection Committee or any other appointing authority in respect of Junior Assistants including Typists, Junior Stenos and other equivalent posts.
3.In cases where the A.P.A.T has allowed regularization from a different date than what is arrived at by the Deputy Commissioner, the APAT orders shall be followed.
4.In respect of persons transferred from other departments at their request, they should be given seniority from the date of their entering the Commercial Taxes Department taking the last rank among the full member/approved probationer or probationer as the case may be."
14. In accordance with the above parameters, some of the Units have already issued final seniority lists duly following the procedure. At this stage, the Government came forward with G.O.Ms.No.711 dated 28-8-1996 setting at naught the entire exercise undertaken by the 2nd respondent in accordance with the directions of the Tribunal. A reading of the said G.O., does not indicate as to whether the 2nd respondent was taken into confidence before issuing the same, whether there was any defect in the procedure adopted and parameters fixed in the matter and how the same were not practicable or acceptable. In fact, it has not even chosen to refer to the orders of the Tribunal in OA.Nos.5339/93 and batch and 3631/93 and batch as well as the steps taken thereafter. The representation dated 24-6-1996 made by the A.P. Commercial Tax Non Gazetted Officers Association after 20 years, constituted cause of action for the Government topsy-turvy the entire process hitherto undertaken. Having complied with the directions contained in RP.No.230/76 dated 14-11-1978, which on the face of it are unsustainable in law, it wanted to spread the same malady in other districts even where there were no allegations of irregularities in the selection process.
15. Sri M. Rama Rao, the learned counsel for the petitioners as well as the learned Government Pleader for Services, submits that since the benefit of temporary service rendered by certain candidates prior to their selection by the DSC was accorded to similarly placed candidates in other districts and in some cases even those candidates who were not successful before the DSC were conferred the benefit of the temporary service prior to 1976 for the purpose of seniority, there is no reason why others should not be extended the same benefit. In support of his contentions, Sri Rama Rao places reliance upon Rule 23(a) of the Rules, which enables the appointing authority to commence the probation of an employee who was initially appointed on temporary basis under Rule 10(a)(i) and appointed on regular basis at a later date; to commence the probation on the date of such subsequent appointment or a date earlier thereto. He also submits that Rule 47 of the Rules enables the Governor to pass such orders, which appear to him as just and equitable in case of any class or cadre of persons appointed to any civil post.According to him, G.O.Ms.No.711 should be deemed to have been passed in exercise of the powers under Rule 47 of the Rules. He also relied upon the judgments in VENKAT SWAMY vs. GOVT. OFA.P. (1) ; MOHD. ASHFAQ AHMED KHAN vs. STATE OFA.P. (2); I.J.DIVAKAR vs. GOVT. OF AP (3); and J & K PUBLIC SERVICE COMMISSION vs. NARINDER MOHAN (4.
The arguments of the learned Government Pleader are almost on the similar lines.
16. Sri Ratna Reddy, the learned counsel for the contesting respondents, on the other hand, submits that Rule 33(a) of the Rules is very specific as to the procedure to be adopted in fixation of the seniority of a person in any service and that the service rendered by any person appointed under Rule 10(a)(i) does not count for seniority or other benefits as is evident from a reading of Rule 10(a)(iv). It is his further contention that so far as the Districts of Chittoor and Cuddapah are concerned, the matter relating to the seniority of the Junior Assistants that have been selected in the year 1976 has been the subject matter of the cases before the Tribunal in R.P.Nos.1555/84 and 4054/87 and in pursuance of the directions issued therein, the Government passed orders in G.O.Ms.No.980 dated 31-10-1981 fixing the ratio of 1:1 between the Junior Assistants of Cuddapah and Chittoor districts and there was absolutely no justification or reason to issue G.O.Ms.No.711. G.O.Ms.No.714, which, in effect supercedes G.O. Ms. No. 980 of 1981. He submits that no reference was made either to G.O.Ms.No.980 or the orders of the Tribunal in RP.Nos.1555/84 and 4054/87, which specifically relate to the districts of Cuddapah and Chittoor. He placed reliance upon the judgments in V.SREENIVASA REDDY vs. GOVT.OFA.P. (5); B.S.BAJWA vs. STATE OF PUNJAB (6); DAVINDER BATHIA vs. UNION OF INDIA (7); N.KOTAM RAJU vs. REGIONAL DY.DIRECTOR OF FISHERIES, KAKINADA (8); and DIRECT RECRUIT CLASS II ENGG. OFFICERS' ASSOCIATION Vs. STATE OF MAHARASHTRA (9).
17. The sole basis for the Government to issue G.O.Ms.No.711 appears to be the representation submitted by the Andhra Pradesh Commercial Tax Non Gazetted Officers' Association dated 24-6-1996. This representation was submitted two decades after the selections that took place in the year 1976. The basis for this representation was the orders of the Tribunal in RP.No.230/76 and batch dated 14-11-1978. As indicated earlier, the orders of the Tribunal in RC.No.230/76 related to certain districts where there were allegations of irregularities in the procedure adopted by the respective DSCs. Whatever may be the correctness of the finding of the Tribunal, the directions contained therein do not conform to settled principles of law. Be that as it may, at no point of time, there were any allegations of any irregularities in any other districts. Even if there existed any, no one had come forward to complain about the same. The employees selected by the DSCs of the rest of the districts have accepted the ranking assigned to them by the DSCs. They have earned promotions and other benefits in service. In passing orders in G.O.Ms.No.711, the Government appears to have been guided by the outcome of the orders in R.P.No.230/76 and batch. When the factual basis does not exist in respect of other districts, there was no justification for the Government in issuing these orders. Even if there existed any such objections, no law permits the same to be corrected after a period of 20 years when the so called affected persons have acquiesced in the state of affairs and did not choose to protest at the earliest point of time. The law does not permit the settled things to be unsettled at the whims and fancies of those who are vested with the powers.
18. Rule 23(a) of the Rules enables the appointing authority to commence the probation of an existing temporary employee, who was subsequently appointed on regular basis, from the date of such regular appointment or such earlier date as the authority may determine. Basically, this exercise has to be undertaken by the appointing authority himself and by no-body-else. Secondly, the type of orders that are to be passed in respect of each employee depends on facts and circumstances of each case, such as, the date of commencement of probation of the person who was place above him by the Selection Committee, the nature of services rendered by such employee and method of selection undertaken by the authorities at the time of appointment of an employee on temporary basis, etc. By no stretch of imagination, the Government can be said to be possessing the power to pass general orders under Rule 23(a) of the Rules. Admittedly, no order was passed by the concerned appointing authority commencing the probation of respondents 4, 5 and 6 or any other similarly situated employees in exercise of powers conferred under Rule 23(a) of the Rules.
19. A reading of Rule 23(a) also does not indicate that if the probation of an employee is commenced from a date earlier to the date of appointment, that by itself would confer seniority to such an employee vis--vis others. Commencement of probation is a matter, which is exclusive in relation to the employee; Seniority is another which is relative and comparative, as between or among the employees of the same cadre. While the former is governed by Rule 23(a), the latter is by Rule 33. The date of commencement of probation, per se is not a decisive factor in fixation of inter se seniority. At the most, it is one of several factors. While the date of commencement of probation depends on factors like existence of vacancy, the place in the seniority depends on factors like the ranking assigned by the Selection Committee or Agency.
20. The judgment in Venkat Swamy's case (1 supra), apart from not being of any help to the writ petitions, would only negative their contention. The purport of Rule 23(a) was explained by the Court as under:
"The appointments (made under Rule 10(a)(i)) are not regular and, under the provisions of Rule 10 such appointments do not give any right to the persons so appointed for claiming any preferential rights to future promotions to the said service of category. Further, under rule 10(a)(v), a person appointed under that rule shall not be regarded as a probationer in such service. All these factors are to be taken into consideration by the Government while fixing a date for starting of probation under rule 23(1) of the general rules."
21. The other decision relied upon by the learned counsel Sri Rama Rao is of a Division Bench of this Court in Ashfaq Ahmed's case (2 supra). This decision, if at all anything, only suggests as to how fallacious the judgment in RP.No.230/76 and batch has been. Incidentally, it was the judgment in RP.No.230/76 and batch that constituted the basis of the G. Os., in question. In paragraph 14 of its judgment, the Division Bench of this Court summed up the principles as under:
"(i)Once an incumbent is appointed to a post according to rules, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. ;
(ii)If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regulariation of his service in accordance with the rules, the period of officiating service will be counted.
(iii)Temporary appointments made under Rule 10(a)(i)(1) of the A.P. State and Subordinate Service Rules are not appointments in accordance with the rules for the purpose of determining the seniority and they are not members of the service until they are duly appointed and their services subsequently regularised. (1995 Supp (1) SCC 572 para 32).
(iv)Direct recruits take seniority from the date on which he starts discharging the duty of the post borne on the cadre while a temporary appointee appointed de hors the rules or on ad hoc basis gets seniority from the date of regular appointment. (1995 Supp (1) SCC 572 para 14).
(v) While regularising the servicesof a temporary employee appointed under Rule 19(a)(i)(1) and under Rule 23(a) of A.P.State and Subordinate Services Rules, the appointing authority has been invested with the discretion to fix the date of initial appointment or subsequent date as the commencement of the date of the probation.(1955 Supp (1) SCC 572 para 31).
(vi)An employee cannot be appointed with retrospective effect with effect from the date on which he did not occupy the post and notional seniority cannot be given with retrospective effect when it affects the seniority of those who have already entered into service. (1994(1) SLR 37).
(vii)No person can be promoted with retrospective effect from the date when he was not borne in the cadre as to adversely affect the others (1992 (3) SLR 95) (1995 (7) SLR 713)."
22. The issuance of G.O.Ms.Nos.711 and 714 cannot be sustained on the touchstone of these principles.
23. In Diwakar's case (3 supra), the Supreme Court had only upheld the power of the Government to regularise the services of those who were appointed under Rule 10(a)(i) of the Rules at a later stage. There is no indication in that judgment that such persons can be given precedence over those who were regularly selected.
24. On the other hand, it has to be noted that the Supreme Court, in B.S. Bajwa's case (6 supra), held that rights which crystallized inter se between various employees cannot be reopened after long lapse of time. To the same effect is the judgment in Kotam Raju's case (8 supra), rendered by a Division Bench of this Court in which one of us (SR Nayak, J) is a party.
25. It has already been observed that after several rounds of litigation, the Government had fixed certain parameters in fixation of seniority of the Junior Assistants recruited during 1976 and those parameters are in accordance with law.
26. There is nothing in the impugned G.Os to indicate that they were issued by the Government under Rule 47 of the Rules, as contended by the learned counsel for the petitioners.Even if it is to be inferred that they were issued in exercise of the said power, still they cannot be sustained. Firstly, Rules 23(a) and 33, which are stumbling blocks in the matter of indiscriminate conferring of seniority, anterior to the date of selection, were not even referred to, much less relaxed, in the G.Os. Secondly, even where any provision of law confers power on the authority, such power has to be exercised only when the circumstances exist, warranting a decision. The existence of power, by itself, is not a justification for the exercise of it. The authority is expected to take into account not only those factors, which enable it exercise the power, but also those, which render the exercise unsustainable, whether on the grounds of law or propriety. As we observed earlier, there was neither factual, nor legal basis for the Government to issue the said two G.Os.
27. We find no justification for the Government in issuing G.O.Ms.No.711 dated 28-8-1996 and G.O.Ms.No.714 dated 29-8-1996. The same cannot be sustained either on facts or in law. The Tribunal had rightly set aside G.O.Ms.No.711 as well as G.O.Ms.No.714, which is nothing but a sequel to G.O. Ms. No. 711. We do not find any reason or justification to interfere with the orders of the Tribunal. Hence, we dismiss these two writ petitions, but in the facts and circumstances of the case, without costs.