Andhra HC (Pre-Telangana)
G. Dharma Veera Reddy And 3 Ors. vs The Government Of A.P., Rep., The ... on 18 June, 2001
Equivalent citations: 2001(4)ALT338
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, C.J.
1. The petitioners herein who are four in number and working as Assistant Engineers in the Panchayat Raj Department by reason of this writ petition seek seniority from the date of their initial appointment and not on the basis of their rankings accorded by the Public Service Commission. The petitioners have originally been appointed on ad hoc basis as supervisors on 27.1.1969 and they joined their duties soon thereafter. Pursuant to a direction issued by this Court their services were regularised on or about 27.11.1974. In the year 1975 they were subjected to selection by the Public Service Commission. On or about 21.11.1977 G.O.Ms.No.254 was issued directing regularization of their services which was followed by G.O.Ms.No.923, dated 31.8.1978 extending the same principle to all concerned. Validity of the said G.O.Ms.No.923 was questioned which was upheld by the Tribunal as also by the Apex Court. Although several other Government orders had been issued but it is not necessary for us to delve deep into the matter as admittedly a seniority list was prepared.
A dispute as regards seniority arose among the direct recruits who were selected through Public Service Commission, those who passed special qualifying test and the petitioners. In the year 1985 a provisional seniority list of the Assistant Engineers was issued wherein ranking of the petitioners had been shown with reference to their date of joining duly maintaining Public Service Commission ranking as the State has relaxed Rule 33 (a) of the A.P. State and Subordinate Services Rules in favour of those candidates who had been selected by the Public Service Commission. A petition was filed by G. Ramakrishna Rao and others in the Apex Court which was marked as Writ Petition (Civil) No.11787 of 1985 and by judgment dated 5.12.1994 the said petition was allowed pursuant whereto another provisional seniority list was prepared in the year 1996 having regard thereto as also in terms of the instructions issued by the State vide G.O.Ms.No.702 PR dated 20.6.1978 upon considering the objections filed by the concerned employees. In the said provisional seniority list, the placement of the petitioners had been made as per the ranking assigned by the Public Service Commission. The Assistant Engineers belonging to the SQT batch filed their objections whereafter the confirmed seniority list was published on 26.12.1997 wherein promotee Assistant Engineers and the SQT Assistant Engineers were arranged duly interspersing with reference to the date of joining subject to maintenance of Public Service Commission ranking. The petitioners were shown as juniors except in the case of respondent No.5 who had earlier been promoted to the post of Deputy Executive Engineer. Several applications were filed before the Tribunal being O.A.Nos.642, 666, 863, 960, 1220, 1227, 2414, 1372, 2994, 4278, 4298 and 4299 of 1998. By reason of the order dated 10.2.1999 the Tribunal held:
We are, therefore, of the considered view that the seniority fixed in Memo No. DI(2)/36676/96, dated 26.12.1997 of the Engineer-in-chief, PR, Hyderabad based on the norms in Memo No.DI/36672/96, dated 13.12.1996 is in accordance with the rules and directions of the Supreme Court, except norm (6). For the reasons stated in the foregoing paragraphs, we hold that the law laid down by the Supreme Court in G.S. Venkata Reddy's case has to be followed in fixing the seniority of the direct recruits, promotee and SQT candidates. The official respondents are directed to take necessary action accordingly by fixing the seniority in accordance with G.S. Venkata Reddy's case .
2. Thereafter another confirmed seniority list was published wherein the ranking of the petitioners vis--vis the unofficial respondents is as follows:
Sl No Name S.No. in provisional list of 1985 S.No.in provisional list of 1996 S.No. in confirmed list of 1997 S.No. in revised provisional seniority list of 1999 Petitioners
1.
G.Dharma Veera Reddy 224 233 24 233
2. C.Prakasa Rao 186 195 187 196
3. K.Prabhakar 204 213 205 214 Respondents 4 & 5
4. M.Arjun Reddy 115 122 143 123
5. G.Butchi Lakshmi 137 145 237 146
3. The learned counsel appearing on behalf of the petitioners submitted that having regard to the fact that the services of the petitioners had been regularised from the date of their initial appointment, the impugned order cannot be sustained. Strong reliance in this connection has been placed on DIRECT RECRUIT CLASS II ENGG. OFFICERS' ASSOCN v STATE OF MAHARASHTRA1.
4. The learned counsel appearing on behalf of the respondents, on the other hand, would submit that the seniority list has been prepared in terms of the decision of the Apex Court in G.S.VENKAT REDDY v GOVERNMENT OF A.P.2.
5. Having regard to the order proposed to be passed by us it is not necessary to consider all the contentions raised in the Bar. Suffice it to say that the decision of the Apex Court in VENKAT REDDY's case (supra) was binding upon the State. Revised provisional seniority list was prepared with the following norms:
1. Regular promotee Assistant Engineers/Absorbed Assistant Engineers from other departments in regular basis are placed in the order of their seniority.
2. The Supervisors (Assistant Engineers) selected through Public Service Commission (PSC) during the year of 1964 are placed in the seniority list as per the ranking assigned by the PSC and the date of their commencement is revised with reference to their ranking.
3. As per G.O.Ms.No.206, PR & RD (E-II) Dept., dated 18.3.87, the regular promotee Assistant Engineers from the cadre of Overseer/Draughtsmen in between 30.10.65 to 31.8.68 are placed immediately below the PSC batch of 1964.
4. Further as per the said G.O. the Assistant Engineers who were originally selected for Public Works Department through PSC and re-allotted to this department are placed below the last regular Assistant Engineer working in this department as on 31.8.68.
5. Later the regular promotee Assistant Engineers from the cadre of Overseer/Draughtsmen after 31.8.68 are placed immediately below the PSC 1965 re-allottees.
6. In pursuance of G.O.Ms.No.702, PR & RD, dt 20.6.78, the Assistant Engineers working in the department on temporary capacity and appeared SQT 1974, their placement is arranged based on the ranking of PSC and date of their commencement of probation is considered w.e.f. the date of their first appointment as Assistant Engineers in relaxation of General Rules 33 (a) of State and Subordinate Service Rules.
6. As noticed hereinbefore, the Tribunal in its judgment dated 10.2.1999 in O.A.No.642 of 1998 and batch found that norm No.6 aforementioned had not been followed. As the said judgment has already been implemented by drawing up a fresh seniority list on or about 4.10.1999 upon taking into consideration the said norm No.6 wherein the decision of the Apex Court in VENKAT REDDY's case (2 supra) has been followed we are of the opinion that there being a subsequent cause of action the petitioners cannot question the seniority list which is operative in the field.
7. The submission of the learned counsel for the petitioners to the effect that the decision in VENKAT REDDY's case is not applicable in the facts of the case cannot be accepted.
8. It is one thing to say that the services of a person have been regularised for certain purposes but that by itself may not mean that they would rank senior to others who have been appointed following the procedure laid down under the statutory rules. Those, it is well known, who were appointed de hors the rules cannot claim their seniority unless their services are regularised. This aspect of the matter has been considered by the Apex Court in V.SREENIVASA REDDY & ORS v GOVT OF A.P. & ORS3 wherein the Apex Court has laid down the law in the following terms:
It is now well settled law that appointment/promotion must be in accordance with the Rules, direct recruit takes his 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 or to a fortuitous vacancy gets seniority from the date of regular appointment.
It is settled law by the judgment of the Constitution Bench in Direct Recruits Class II Officers Association v. State of Maharashtra, , that appointment in accordance with Rules is a condition precedent to count seniority. Temporary or ad hoc or fortuitous appointments etc. is not an appointment in accordance with the Rules and the temporary service cannot be counted towards the seniority.
9. The decision of the Apex Court in DIRECT RECRUITS' case (1 supra) must be considered in the aforementioned context wherein the Apex Court has laid down:
(A) Once an incumbent is appointed to a post according to rule, 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.
(B) 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 regularisation of his service in accordance with the rules, the period of officiating service will be counted.
(C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly.
(D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down.
(E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date.
(F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule.
(G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the; subject., (H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instruction has ceased to remain operative.
(I) The posts held by the permanent Deputy Engineers as well as the officiating Deputy Engineers under the State of Maharashtra belonged to the single cadre of Deputy Engineers.
(J) The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than scrutinised for finding out any possible error. It is not in the interest of Service to unsettle a settled position.
10. In this view of the matter, we are of the opinion that the Tribunal cannot be said to have erred in passing the impugned order. This writ petition is, therefore, dismissed with the aforementioned observations. There shall be no order as to costs.