Andhra HC (Pre-Telangana)
Andhra Pradesh State Road Transport ... vs M. Venkateswar Reddy And Ors. on 1 May, 2003
Equivalent citations: 2003(4)ALD201, 2003(4)ALT421
Author: Bilal Nazki
Bench: Bilal Nazki
JUDGMENT G. Yethirajulu, J.
1. This writ appeal is directed against the judgment of a learned Single Judge of this Court in W.P. No. 25875 of 1995.
2. The appellants' are respondents 1 and 2 in the writ petition filed under Article 226 of the Constitution of India. The writ petitioners 1 to 13 are respondents 1 to 13 and respondents 3 to 6 of the writ petition are respondents 14 to 17 of this appeal. The writ petition was filed praying to issue a writ of mandamus declaring Item No. 3 of Resolution No. 92/91 dated 31-5-1991 prescribing marks for the selection of Class I Senior Scale Officers, awarding marks as contrary to Regulation No. 4 (b) of A.P.S.R.T.C. Employees (Service) Regulations, 1964 ('the service regulations' for brevity) read with Item No. 3 of Class I Senior Scale Service of Section (b) of Annexure A of APSRTC Employees (Recruitment) Regulations, 1966 ('the recruitment regulations" for brevity) and for setting aside the selection list dated 11-4-1995 and the appointments of respondents 3 to 6 as Divisional Managers as illegal and void.
3. The writ petitioners are direct recruits. They were appointed as Assistant Mechanical Engineers. Their names are included in the seniority list of Assistant Mechanical Engineers dated 10-11-1994 at S.Nos. 17, 22, 27, 28, 30 to 37 and 39 respectively. Respondents 3 and 4 are Assistant Mechanical Engineers and their names are found at S.Nos. 3 and 7 and the names of respondents 5 and 6 are found at S.Nos. 40 and 41 of the said seniority list which was prepared as per the direction of a Division Bench of this Court in P. Komaraiah v. A. Yegneswarudu and Ors., , and confirmed by the Supreme Court. For Assistant Traffic Managers and Assistant Mechanical Engineers, the common promotional posts are of Divisional Manager of Class I Senior Scale. According to Regulation 4 (b)(i) of the service regulations, the promotion shall be made to the next cadre on the basis of merit and seniority being considered only where merit is approximately equal. As per Regulation No. 4 (b)(ii), the Scheduled Caste and Scheduled Tribe candidates would be entitled to be promoted to the next cadre only on the basis of seniority and suitability and the principle of merit does not apply to their case. The cases of petitioners are rejected for next promotion against respondents 3 to 6 on account of application of the method evolved on the basis of Item No. 3 of the Resolution No. 92/91 dated 31-5-1991. Therefore, the Resolution is discriminatory and violative of Articles 14 and 16 of the Constitution of India.
4. The main grievance of the petitioners is that the A.P. State Road Transport Corporation ('the Corporation' for brevity) has taken into account the seniority as the basis for selection. Though the posts of Divisional Managers are the posts for selection on merit only and the seniority is required to be considered only when the merit is approximately equal and not otherwise. According to Item No. 3 of the Resolution No. 92/91, out of 100 marks, 70 marks were allotted for merit rating and managerial ability, as reflected in the merit rating report, 20 marks were assigned for length of service in the feeder post and 10 marks for letters of appreciation or rewards given for exemplary/meritorious work. The writ petitioners contended that the service regulations prohibit the principle of seniority for these posts and awarding of 10 marks on the basis of merit certificates issued by the Chairman of the Corporation who is not competent to issue such certificates is illegal and arbitrary.
5. Petitioners 3 and 4 who belong to Scheduled Caste and Scheduled Tribe contended that in order to hold that they are found not suitable, adverse remarks have to be communicated to them, but no such adverse remarks were communicated to them, therefore, their non-selection is also illegal. The concerned authorities are supposed to maintain a combined seniority list of the officers in the feeder post. But, they prepared separate lists without preparing a consolidated or combined seniority list which is also illegal. Hence the writ petition challenging the selection of candidates made by selection committee.
6. Respondents 1 and 2 resisted the writ petition contending that the Board constituted by the Corporation framed certain guidelines in Resolution No. 92/91 dated 31-5-1991 and those guidelines are not inconsistent with Regulation No. 4 of the service regulations. Out of 14 Scheduled Caste and Scheduled Tribe candidates, only petitioners 3 and 4 were found not fit for promotion by the selection committee. The petitioners are not found suitable as they could not secure minimum marks for inclusion of their names in the panel. Hence the petition is liable to be dismissed as devoid of merits.
7. In the light of the averments made by both parties, the learned Single Judge took up six points for consideration and they are as follows;
(1) Whether Item No. 2 (iii) of the resolution No. 92/91 dated 31 -5-1991 is illegal, being contrary to Regulation 4(b) of Service Regulations and consequently whether the selection to the post of Divisional Manager Class-I Senior Scale dated 11-4-1995 is liable to be set aside?
(2) Whether the length of service of persons who were temporarily promoted to the Feeder post under Regulations 30 and 34 of the Recruitment Regulations, could be considered for the purpose of allotting 20 marks as per the impugned resolution?
(3) Whether awarding of 10 marks as per the impugned resolution on the basis of the certificate issued by the Chairman of the Board is proper and valid and if not whether selection list is liable to be set aside on that count also?
(4) Whether the action of the respondent-Corporation in relying upon the adverse remarks found in the service records, without communicating to the petitioners 3 and 4 is valid?
(5) Whether the selection to the post of Divisional Manager Class-I Senior Scale is illegal because of not preparing the combined seniority list of Assistant Mechanical Engineers and Assistant Traffic Managers - Feeder posts?
(6) What is the effect of selection of certain candidates who do not have the experience of 3 years out of five years prescribed as Depot Manager in terms of Item No. 3 of Annexure-A, pertaining to the post of Divisional Managers?
8. The learned Single Judge after taking into consideration the totality of the facts and circumstances of the case and the relevant case law allowed the writ petition through his order dated 24-8-1998 and consequently declared Clause 2 (iii) and (iv) of the impugned resolution No. 92/91 dated 31-5-1991 as illegal and contrary to Regulation 4 (b)(i) of the service regulations. The learned Single Judge also set aside the impugned selections dated 11-4-1995 to the post of Divisional Manager Class-I Senior Scale and directed the respondents to revert the persons who were promoted on the basis of the impugned selection. The learned Judge further directed the respondents- Corporation to re-process the whole selection to the post of Divisional Manager Class-I Senior Scale within a period of four months from the date of receipt of a copy of the order.
9. The respondents being aggrieved by the order of the learned Single Judge preferred this appeal requesting to set aside the findings of the learned Single Judge on all the points raised before him and to allow the writ appeal as prayed for.
10. In the light of the rival contentions, we wish to verify the findings of the learned Single Judge under Points 1 and 2 to test the validity or otherwise of the said findings.
11. Regulation 4(b)(i) of the service regulations reads as follows:
Promotion in a service or class to a Selection Category or to a Selection Grade shall be made on grounds of merit, seniority being considered only where merit is approximately equal.
12. Item (2) Clause (iii) of the Resolution No. 92/91 dated 31-5-1991 provides as under:
That the following criteria in apportionment of marks for selection of Senior Supervisors/ Managers, other than the candidates belonging to SC/ST communities, for promotion to the posts in Class-I Junior Scale and above be adopted for the purpose of uniformity :
Marks
(a) Merit rating and managerial ability reflected in the MRR 70
(b) Length of service in the feeder post 20
(c) Appreciations/Rewards given for exemplary/meritorious work 10 Total 100
13. The selection of the candidates was made as per the norms fixed under the above resolution. The respondents-writ petitioners impugned the said resolution on the ground that it is illegal as it is contrary to Regulation 4(b) of the service regulations. The writ petitioners contended that in pursuance of the resolution, a person having longer service than others in the feeder post would be entitled to 20 marks, which ultimately amounts to considering the seniority of the person in the feeder post, and, as the seniority has no relevancy for selection posts, the said norm prescribed under the Resolution is contrary to Regulation 4(b).
14. In support of the contentions raised under Point No. 2, the learned Counsel for the petitioners relied on the following judgments:
15. In Jai Narain v. State of Bihar, 1970 SLR (SC) 923, the Supreme Court held that where promotion is for a selection post, the seniority was not relevant in making the selection.
16. In Kailash Chand Sharma v. State of Rajasthan, 2002 Lab.IC, the Supreme Court held that weightage given to residents of districts and rural areas of district is unconstitutional as it cannot be permitted at the instance of protective discrimination in the absence of relevant material showing that rural people are less represented in State service or are economically weak.
17. In the case covered by the above decision, a Circular was issued by the Government granting bonus marks to residents of Districts and rural areas of the District for appointment as primary teacher classifying persons residing in rural areas and towns merely on the basis of residence, is held unsustainable.
18. The learned Single Judge while considering the above plea held that the Board erred in giving 20 marks for seniority, including those who are temporarily promoted under Regulations 20 and 30 of the recruitment regulations, despite a judgment of this Court in Komaraiah (supra) holding that the service of the persons temporarily promoted under Regulations 20 and 30 cannot be counted for the purpose of seniority. The learned Single Judge further held that Item (2) Clause (iii) (b) of the impugned resolution is contrary to Resolution No. 4 (b)(i) of the service regulations and the Corporation is not entitled to prescribe a criterion for selection, which is contrary to the service regulations. The learned Judge further observed that the contention of the Corporation that length of service is taken only for ascertaining the experience of a person cannot be accepted. The learned Single Judge also observed that the length of service of a person either temporarily or permanently in the feeder post could not have been a basis for the purpose of the impugned selection in terms of Item 3 of the Resolution and consequently he held that the selection post on such a criteria or principle is illegal. The learned Single Judge while coming to the above conclusion relied on the judgments of the Supreme Court in N.D. Mitra v. Union of India, , and M. Ramjayaram v. General Manager, 1996 (2) SLR 655. After carefully going through the judgment of the learned Single Judge, the material placed by both parties and the law governing the field, we are of the firm view that the learned Single Judge rightly held that Item No. 3 of Resolution No. 92/91 dated 31-5-1991 is illegal and consequentially the selection made on such criteria is also illegal. The finding of the learned Single Judge on Points 1 and 2 is accordingly upheld.
19. Regarding Point No. 3 relating to allotment of 10 marks on the basis of the certificates issued by the Chairman of the Board, the writ petitioners contended that the Chairman is not the competent authority to issue any certificate of merit or appreciation. Therefore, they ought not have been taken into consideration while allotting the marks under the head "appreciation or rewards given for exemplary or meritorious work". In support of the above contention, the learned Counsel for the writ petitioners drew the attention of this Court to a Circular of the Corporation vide Circular No. 35/91 dated 24-2-1991 which prescribed certain authorities for issuing appreciation letters. As per the said circular, the authority competent to give appreciation letters is the concerned functional Executive Director in respect of all Junior Scale Officers.
20. In the case on hand, the officers relating to feeder category are Junior Scale Officers who were considered for promotion to the post of Divisional Manager Class-I Senior Scale. For such officers, the authority competent to issue appreciation letters is the concerned functional Executive Director under whose supervision the Junior Scale Officers would work.
21. The learned Single Judge observed that though the marks assigned for meritorious or exemplary work cannot be said to be arbitrary, the competent authority for issuing such certificates is the concerned functional Executive Director and not the Chairman of the Board. Therefore, the Chairman cannot exercise the said power contrary to the power conferred under a statute for issuing of such certificates. The learned Single Judge accordingly answered Point No. 3 in favour of the writ petitioners.
22. In the light of the above discussion, we fully agree with the view expressed by the learned Single Judge on this point. The finding of the learned Single Judge on Point No. 3 is accordingly affirmed.
23. Regarding Point No. 4, the writ petitioners submitted that the Scheduled Castes and Scheduled Tribe candidates need not compete with other candidates on the basis of comparative merit and the selection of such candidates shall be only on the basis of suitability.
24. Rule 4(b)(ii) of the service regulations reads as follows:
In case of Scheduled Caste/Scheduled Tribe candidates, so long as such candidate is considered fit for promotion or appointment in a service or class to a Selection Category or to a Selection Grade it shall be made according to seniority and a Scheduled Caste/ Scheduled Tribe candidate should be superseded only where the appointing authority comes to the conclusion that the candidate is unfit to hold the post. A Scheduled Caste/Scheduled Tribe candidate does not have to compete with others on the basis of comparative merit. No Scheduled Caste/Scheduled Tribe candidate, who is fit for promotion/appointment can be superseded by any junior on the ground that the later possesses superior merit and ability. This concession holds good as long as the concession granted to Scheduled Caste/ Scheduled Tribe candidate in the matter of employment under Regulation is valid.
25. The petitioners 3 and 4 were found not suitable for consideration to promote on the ground that certain adverse entries were made in their service records. The learned Counsel for the petitioners submitted that the Committee which made the selections found petitioners 3 and 4 not suitable for promotion on the ground that there were adverse entries in their service records and the said adverse entries were not communicated to petitioners 3 and 4 and no opportunity was given to them to defend themselves. The learned Counsel for the petitioners in support of the above contention, relied on the following judgments of the Supreme Court:
26. In Gurdial Singh v. State of Punjab, , the Supreme Court held as follows:
The principle is well-settled and is in accordance with the rules of natural justice, an adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned, so that he has an opportunity to prove his work and conduct or to explain the circumstances leading to the report. Such an opportunity is not an empty formality, its object, partially, being to enable the superior authorities to decide on a consideration of the explanation offered by the person concerned, whether the adverse report is justified.
27. In State of U.P. v. Yamuna Shanker Misra, , the Supreme Court held that the object of writing the confidential reports and making entries in them is to give an opportunity to a public servant to improve excellence. Article 51-A(j) enjoins upon every citizen the primary duty to constantly endeavour prove excellence, individually and collectively, as a member of the group. Before forming an opinion to make adverse entries in confidential reports, the reporting/ reviewing officers should share the information which is not a part of the record, with the officer concerned. This amount to an opportunity given to the erring/corrupt officer to correct the errors of the judgment, conduct, behaviour, integrity or corrupt proclivity. Since the candidate was not eo nomine to the proceedings and had no opportunity to explain the position, it would be violative of the principle of natural justice.
28. The Corporation neither specifically denies the contention raised by the petitioners nor contends that such adverse entries were not taken into account at the time of selections. Petitioners 3 and 4 were admittedly seniors to other selected persons. In para 3 of the counter, the appellants-respondents simply mentioned that the Selection Committee on perusal of the records held that petitioners 3 and 4 are not fit for promotion and their cases were not recommended for promotion. On verification of the record it is noticed that in the earlier selections of the years 1991 and 1992 the Corporation produced the selection file wherein the reasons for finding certain candidates not fit were mentioned whereas in the selection of 1995 such details are not finding place in the selection file to enable the Court to find whether the reasons mentioned therein are sufficient to hold that petitioners 3 and 4 are not fit for consideration. The learned Single Judge rightly held that the Selection Committee relied upon the adverse entries, which were not communicated to petitioners 3 and 4 by giving an opportunity to defend them. Therefore, the non-selection on the basis of uncommunicated adverse remarks is illegal as per law. After hearing the Counsel for both parties, we concur with the view expressed by the learned Single Judge and we find no ground to interfere with these findings.
29. In respect of Point No. 5 regarding the preparation of joint seniority list of Assistant Mechanical Engineers and Assistant Traffic Managers, the writ petitioners contended that the Board could not have initiated the impugned selection process for promotion to the next cadre of Divisional Managers Class-I Senior Scale without preparing a combined seniority list of Assistant Mechanical Engineers and Assistant Traffic Managers. Therefore, the non-preparation of the combined list caused prejudice to the petitioners who would have been considered on the basis of seniority when the merit was approximately equal. In support of the above contention, the learned Counsel for the writ petitioners relied on the judgment of the Supreme Court in Sarat Kumar Dash v. Biswajit Patnaik, 1995 Suppl. (1) SCC 434, wherein the Supreme Court held as under:
8. In case of merit-cum-suitability, the seniority should have no role to play when the candidates were found to be meritorious and suitable for higher posts. Even a juniormost man may steal a march over his seniors and jump the queue for accelerated promotion. This principle inculcates dedicated service, and accelerates ability and encourages merit to improve excellence. Seniority would have its due place only where the merit and ability are approximately equal or where it is not possible to assess inter se merit and suitability of two equally eligible competing candidates who come very close in the order of merit and ability. Under those circumstances, seniority will play its due role and will be called in aid for consideration. But in case where the relative merit and suitability or ability have been considered and evaluated, then seniority has no role to play.
30. The learned Single Judge in the light of the facts and circumstances of the case and the judgment of the Supreme Court in Sarat Kumar Dash case (supra) observed that though the internal seniority of such petitioners is not relevant, their seniority will have to be taken into consideration when the merit is approximately equal. The learned Single Judge therefore held that the selection proceedings are illegal for not preparing the combined seniority list of Assistant Mechanical Engineers and Assistant Traffic Engineers.
31. After carefully going through the findings of the learned Single Judge and the principle laid down by the Supreme Court in the case referred supra, we agree with the view expressed by the learned Single Judge and hold that the appellants-Corporation could not make out a ground to reverse the finding of the learned Single Judge on this point.
32. Regarding Point No. 6, the writ petitioners contended that in order to consider the Officers for promotion to the post of Divisional Manager, the candidates should have experience for three (3) years as Depot Managers, which is also a criterion to consider the candidate's merit. They further contended that since some of the selected candidates did not complete three (3) years service as Depot Managers, they ought not have been considered for promotion. In support of the above contention, the learned Counsel for the petitioners relied on a Division Bench judgment of this Court in C. Muralikrishna and Ors. v, Telugu University, Hyderabad., (DB), wherein a Division Bench of this Court held that when a selected candidate does not possess the prescribed qualifications and experience, the Selection Committee cannot select when he does not satisfy the prescribed qualifications and experience on the mere ground that he possess other qualifications or other kind of experience, which is equal or superior to that prescribed under the rules. It is not for the Selection Committee to replace the prescribed qualifications and experience by other types of qualifications and experience. Selection cannot therefore be sustained.
33. The learned Single Judge observed that the Selection Committee is expected to comply with what is prescribed in Item No. 3 of Annexure-A appended to the recruitment regulations while making promotions by selection to the posts of Divisional Managers Class-I Senior Scale. Since the Selection Committee did not consider the said requirement, the selection is bad.
34. On verification of the selection file it is noticed that the Selection Committee after taking stock of the situation felt that if they apply the criterion of three (3) years experience as Depot Managers strictly, they were not getting sufficient number of candidates for selection. Therefore, it was incorporated in the Resolution of the Selection Committee that the criterion of 3 years experience as Depot Managers was relaxed.
35. According to the recruitment regulations, for promotion to the post of Divisional Managers, the candidate should have the experience of 3 years as Depot Managers. The Selection Committee instead of relaxing the said period of experience ought to have addressed the rule making authority to amend the regulations or issue revised instructions relaxing the criterion of 3 years experience as Depot Managers. In the light of the above legal position, the learned Single Judge rightly observed that the Selection Committee was expected to comply with what was prescribed in Item No. 3 of Annexure-A appended to the recruitment regulations. We are in full agreement with the view expressed by the learned Single Judge and the finding of the learned Single Judge is accordingly affirmed.
36. The appellant-Corporation raised before the learned Single Judge as well as before us regarding the non-bringing of the selected candidates as parties to the writ petition.
37. The learned Counsel for the writ petitioners, who are respondents herein, cited certain judgments of the Supreme Court and other High Courts on the aspect of non-inclusion of the candidates in the selected list as parties to the lis.
38. In Ramachandra Sankar Deodhar v. State of 'Maharashtra, , the Supreme Court held that where procedure for promotion is challenged, it is not necessary to join all persons in the cadre affected by change.
39. In G.M, South Central Rly. v. A.V.R. Siddhanti, 1974 SLJ 576, writ petitions were filed by some employees of the South Central Railway in the High Court of Andhra Pradesh for issuance of a writ of mandamus directing the General Manager, South Central Railway and the Secretary, Railway Board to fix the inter se seniority of the writ petitioners as per certain proceedings of the Railway Board and to give certain further directions. In the writ petition about 120 employees who were likely to be affected by the decision in the case were not impleaded as parties. It was contended that the failure to implead the said employees was fatal to the writ petition. Repealing the said contention, Their Lordships of Supreme Court observed in paragraph 20 as follows:
As regards the second objection, it is to be noted that the decisions of the Railway Board impugned in the writ petition contain administrative rules of general application, regulating absorption in permanent departments, fixation of seniority, pay etc., of the employees of the erstwhile Grain-Shop Departments. The respondents petitioners are impeaching the validity of those policy decisions on the ground of their being violative of Articles 14 and 16 of the Constitution. The proceedings are analogous to those in which the constitutionality of a statutory rule regulating seniority of Government servant is assailed. In such proceedings necessary parties to be impleaded are those against whom the relief is sought, and in whose absence no effective decision can be rendered by the Court. In the present case, the relief is claimed only against the Railway, which has been impleaded through its representative. No list or order fixing seniority of the petitioners vis-a-vis particular individuals, pursuant to the impugned decisions, is being challenged. The employees who were likely to be affected as a result of the re-adjustment of the petitioner's seniority in accordance with the principles laid down in the Board's decision of October 16, 1952, were, at the most, proper parties and not necessary parties, and their non-joinder could not be fatal to the writ petition.
40. In Dr. Dhrubashkaran v. Osmania University, Hyderabad, 1980 All India Service Law Journal 153, a learned Single Judge of this Court held that in a writ petition challenging a promotion for selection, non-impleading of all selected parties is not fatal to the writ petition.
41. In V.P. Shrivastava v. State of M.P., 1996 (1) SLR 819, the Administrative Tribunal held that non-inclusion of affected parties is fatal to the appellants case and the application is unsustainable under law. The Supreme Court observed that the relief is claimed against the Union Government and not against any particular individual. The appellants did not challenge the so-called ad hoc appointments over the appellants in the seniority list. The principle of determination of seniority made by the State Government is not challenged. Therefore, the State is a necessary party. The employees who are likely to be affected as a result of the readjustment of the petitioner's seniority in accordance with the principles laid down in the Board's decision were, at the most, proper parties and not necessary parties, and their non-joinder could not be fatal to the writ petition.
42. The (earned Single Judge after referring to a reported judgment of this Court in K.Eswar Dutt v. Chairman, F.C.I., , and the case law governing the field, held that though the affected parties may be proper parties, they would not be the necessary parties, and as such, the writ petition is not hit by non-joinder of necessary parties. The learned Single Judge accordingly held that the non-joining of the selected candidates is not fatal to the maintainability of the writ petition.
43. In the light of the above case law it is made clear in cases like the one on hand, the affected persons are not necessary parties and the non-adding of such persons as parties to the petition is not fatal. Hence the writ petition is maintainable under law.
44. The learned Single Judge by taking into consideration all the points raised by both parties allowed the writ petition by declaring Clause (2) (iii) and (iv) of the impugned Resolution No. 92/91 as illegal and arbitrary, which is contrary to Regulation No. 4 (b)(i) of the service regulations. The learned Single Judge consequently set aside the impugned selections dated 11-4-1995 to the post of Divisional Managers Class-I Senior Scale and directed the respondents that consequent upon the selection, if any persons are promoted, such persons are liable to be reverted. The learned Single Judge further directed the respondents to re-process the whole selection to the post of Divisional Managers Class-I Senior Scale within a period of four (4) months from the date of receipt of a copy of the order.
45. In the light of the findings given by us under various points, we do not find any compelling reasons to differ with the findings given by the learned single Judge. The judgment of the learned Single Judge is accordingly upheld. The appeal is dismissed by confirming the judgment of the learned Single Judge dated 24-8-1998, except under Point No. 6.
46. Before concluding, we wish to clarify that the period of four (4) months fixed by the learned Single Judge for completing the process is applicable from the date of receipt of this judgment. Each party to bear its own costs.