Andhra HC (Pre-Telangana)
T. Venkat Reddy vs Government Of A.P. on 18 March, 2005
Equivalent citations: 2005(3)ALD302, 2005(4)ALT220
JUDGMENT P.S. Narayana, J.
1. The short question, which this Court is called upon to adjudicate, is whether Rule 4, Rule 37 or Rule 33 of A.P. State and Subordinate Service Rules (in short hereinafter referred to as the Rules) would be applicable in cases of re-allotment. No doubt there is some controversy in respect of re-allotment on the ground that all the necessary ingredients in relation thereto are not satisfied.
2. 4th respondent-T. Venkata Reddy in OA No. 5206 of 2003 filed Writ Petition No. 401 of 2004 and the applicants in the said OA are arrayed as Respondents 4 and 5, viz., J. Dasaratha Ramaiah and Y. Rajendar Reddy, respectively in the aforesaid writ petition.
3. One Smt. Sarada filed Writ Petition No. 4759 of 2005 questioning the interim order made in OA No. 173 of 2005 dated 18.1.2005, wherein the applicants in OA No. 5206 of 2003 are shown as Respondents 5 and 6 respectively.
4. In OA No. 173 of 2005, the Andhra Pradesh Administrative Tribunal (in short referred to as the Tribunal hereunder) made the following order on 18.1.2005:
"The applicants (three in number) are Direct Recruit Co-operative Sub-Registrars in Zone VI. It is stated that there was a dispute about the number of vacancies of Co-operative Sub-Registrars in respect of direct recruits. After the number of posts have been arrived at, finally, the Andhra Pradesh Public Service Commission (APPSC) has prepared a revised merit list of Co-operative Sub-Registrars for appointment as such and recommended to the Registrar of Co-operative Societies by a letter dated 5.1.2005. According to the revised merit of the Co-operative Sub-Registrars, in the revised merit list, the name of the 1st applicant figures at Sl.No. 1, the name of the 2nd applicant figures at Sl.No. 3 and the name of the 3rd applicant figures at Sl.No. 4.
2. Learned Counsel for the applicants states that while considering for promotion, the inter se seniority i.e., placement in the merit list prepared by the APPSC and communicated to the 2nd respondent by a letter dated 5.1.2005 is not being taken into consideration and the promotions are being considered based on the earlier merit list communicated by the APPSC.
3. Heard the learned Government Pleader. Learned Government Pleader states that since the letter has been addressed by the APPSC on 5.1.2005, appropriate action will be taken to revise the seniority.
4. Admit. Issue notice to the respondents returnable in four weeks.
5. It is seen that the APPSC has addressed a letter dated 5.1.2005 to the Registrar of Co-operative Societies. The relevant portion of the said letter reads as follows:
"Having regard to the above order of APAT, the Commission herewith communicate the modified merit list of Cooperative Sub-Registrars of all Zones and request you to take further necessary action"
6 As the list has already been communicated by the APPSC, the inter se seniority of the direct recruits has to be fixed in terms of the proviso under Rule 33(b) of the A.P. State and Subordinate Service Rules, which reads as follows:
ovided further that the order of merit or order of preference indicated in a list of selected candidates prepared by the Public Service Commission or other selected authority, shall not be disturbed inter se with reference to the candidates position in such list or panel while determining the seniority in accordance with this rule and notional dates of commencement of probation to the extent necessary, shall be assigned to the persons concerned with reference to the order of merit or order of preference assigned to them in the said list"
7. It is, thus, seen that prima facie, there is a case that the claim of the applicant has to be considered for promotion with reference to the revised list communicated by the APPSC on 5.1.2005 insofar as direct recruits in that batch are concerned even though the earlier list was already communicated by the APPSC, prima facie, there is no justification for taking into consideration the earlier list in the fact of the revised given by the APPSC on 5.1.2005.
8. In view of the clear rule position as extracted above, the respondents are directed to consider the claims of the applicants for promotion to the next higher post based on the revised merit list communicated by the APPSC on 5.1.2005 pending further consideration of the OA subject to of course, their eligibility and sustainability in accordance with the rules. Above view shall not be considered as the final expression of the Tribunal.
9. As the learned Counsel for the applicants states that the DPC is likely to meet at 2 p.m., today, learned Government Pleader is directed to communicate the substance of this order orally by telephone to the authorities concerned".
Likewise in OA No. 5206 of 2003 the Tribunal made the following order:
Learned Counsel for the applicants submit that the applicants are Cooperative Sub-Registrars. They were appointed in pursuance to the selections held for Group-II-A examination conducted by the A.P. Public Service Commission. They submit that they belong to SC and OC categories respectively and they secured 426 and 456 marks. However, the applicants were allotted to Co-operative Department as Co-operative Sub-Registrars and ever since they are working. They submit that a provisional inter se seniority list was prepared on 27.4.2002 in which their names are figuring at Sl.Nos. 72 and 73. Aggrieved by the same, they filed objections stating that the ranking given by the APPSC has to be the basis for determining the seniority. However, the said request was negatived. Aggrieved by the said action, they have filed this OA.
Learned Counsel for the applicant further submits that the issue involved in this matter is squarely covered by the earlier orders of this Tribunal issued in OA Nos. 753/2003 and 848/2003 dated 4.4.2003.
Learned Counsel appearing on behalf of the party respondent submits that as per the counter of the APPSC, OA.3/93 is pending on the file of this Tribunal. Therefore, this OA cannot be disposed of.
This Tribunal has perused the orders passed in OAs.753/2003 and 848/2003 dated 4.4.2003 and convinced that the applicants are also entitled for similar relief.
Having regard to the facts and circumstances obtaining in this case, this OA is disposed of in terms of OAs.753/2003 and 848/2003 dated 4.4.2003.
Pending the exercise to be taken in pursuance of the directions of this Tribunal, the respondents shall maintain status quo with regard to filling up of the posts of Deputy Registrars".
5. A perusal of the above order though shows that it is an elaborate order, it is an order based on the orders made in OA Nos. 753 of 2003 with VMA No. 192 of 2003 and OA No. 848 of 2003 on 4.4.2003 and in view of the same the relevant portion of the said order may also be looked into for better appreciation of the facts of the case and in this regard Para 5 to 7 of the said order read as hereunder:
is case has got some chequered history. From the facts of this case it is seen that earlier as many as 533 vacancies were shown for recruitment of the post of Deputy Tahsildars as per the Notification. Later, on account of certain decisions taken by the Government such vacancies were reduced to 386 only. All the 386 Deputy Tahsildar vacancies were filled by way of direct recruitment even though 533 vacancies were shown as per the Notification. Thus, posting orders were not given to the 147 candidates who would have been given appointment orders to the post of Deputy Tahsildars provided selection was made in accordance with the vacancy position shown in the Notification. To the ill-luck of the applicants, as per their merit they were there in the said 147 numbers.
In the meanwhile those who got lesser marks than the applicants and those who opted for Inspectors/Sub-Inspectors of Prohibition and Excise were given posting orders. Later the Government issued posting orders to the applicants in the follow-up vacancies of other categories of Group-II A Services. Thus, both the applicants were given appointment orders as Sub-Inspectors of Prohibition and Excise. In this process there was abnormal delay and the applicants on account of their ill-luck were made to join as Sub-Inspectors of Prohibition and Excise of the same department later than their brethren who did join earlier even though they secured lesser merit than the applicants. As the ill-luck again daunted them, the respondents instead of giving seniority to the applicants strictly in accordance with Rule 33(b) of General Rules placed them in the provisional seniority list prepared by the 2nd respondent below some of their batch mates who secured lesser merit in the Group-II A post selections. Thus, they are before this Tribunal challenging the final seniority list dated 3.10.2002. When the applicants sought for their placements in the selection list as per their merit, the Deputy Commissioner of Prohibition and Excise, Guntur by his Ref.No. 108/2002/A2 dated 11.7.2002 stated that their representations were examined and accordingly they were informed that the names of direct recruit Sub-Inspectors would be placed in the provisional and final seniority list as per the list communicated by the AP Public Service Commission and their cases would be decided on receipt of further communication, if any, by the APPSC.
In fact, the respondent practically admitted all the contentions raised by the applicants, While accepting their contentions, the Respondents 1 and 2 came forward with a version that the impugned seniority list was drawn based on Rule 33(a) of General Rules. With due respect to them the stand taken by them is not in accordance with the Rules. Admittedly, the seniority ought to have been given to the applicants based on their merit in the rank list In short, they ought to have considered the cases of the applicants for placement in the seniority list as per Rule 33(b) of General Rules. The Government truly indicated in their counter stating that if the APPSC sends up the modified merit list, they have no objection to act on it. In Tejinder Singh Sandhu v. The State of Punjab and Ors., 1978 (2) SLR 115, the Apex Court held that taking charge on divergent dates based on mere fortuitous circumstances cannot effect the seniority of the respondents who got higher merit and they are entitled to their seniority over and above the appellant even though they did join later. In Syed Shamin Ahmed v. The State of Rajasthan and Ors., 1981 (1) SLR 100, the Division Bench Rajasthan High Court held that ranking in the list remains the same irrespective of date of joining. Thus, there cannot be any doubt that the date of joining shall not affect the seniority. Added to it, there is a statutory rule i.e., Rule 33(b) of General Rules in Andhra Pradesh State. Thus, the APPSC represented by its Secretary, R-3 is directed to issue modified merit list among the candidates who were appointed as Prohibition and Excise Sub-Inspectors, of course, based on rule of reservation within one month from the date of receipt of copy of this order. As and when such modified ranking list is received from the APPSC, the Respondents 1, 2 and 10 are directed to strictly adhere to it and accordingly modified that seniority list is to be drawn and issued. Apart from party respondents, if there are some other affected parties, the respondents are directed to put them on notice. This whole exercise shall be completed within three months from the date of receipt of copy of this order. Till this process is completed, the respondents are directed not to effect promotions to the post of Inspector of Prohibition and Excise. OAs. are accordingly allowed and VMA is dismissed."
6. Mr. E. Manohar, learned Senior Counsel representing the writ petitioner in Writ Petition No. 401 of 2004 would maintain that in the light of the pleadings it is a clear case of re-allotment and for which Rule 37 of the Rules would be applicable and not Rule 33 of the Rules. The learned Counsel also pointed out that the Tribunal made the order in OA Nos. 753 of 2003 and 848 of 2003 in the light of the ratio laid down in Tejinder Singh Sandhu v. The State of Punjab and Ors., 1978 (2) SLR 115 and Syed Shamin Ahmed v. The State of Rajasthan and Ors., 1981 (1) SLR 100 and the Counsel would maintain that these decisions are distinguishable and not applicable to the facts of the present case. The Counsel also further contended that in the provisional seniority list the Writ Petitioner was shown as No. 3 and Respondents 4 and 5 were shown as Nos. 72 and 73. Respondent No. 4 in fact had not filed any objections and no doubt 5th respondent filed objections, and the final seniority list was drawn, which had been not been challenged, but the provisional seniority list alone had been called in question. The learned Senior Counsel also had further pointed out to the contents of G.O. Rt. No. 47, Revenue (Ser.III) Department, dated 11.1.1996 and the other proceedings, which would point out that Rule 37 of the Rules alone would be applicable to the facts of this case. These submissions were virtually adopted and further elaborated by Mr. Nooty Ram Mohan Rao, the Counsel representing the implead petitioners and also Mr. Ashok Anand Kumar, the Counsel representing the writ petitioner in Writ Petition No. 4759 of 2005.
7. Mr. P.V. Subrahmanya Sarma, learned Counsel representing the contesting Respondents 4 and 5 in Writ Petition No. 401 of 2004 made elaborate submissions initially pointing out that these parties were non-parties to OA No. 3 of 1993 and Batch. The learned Counsel also would maintain that though the Tribunal proceeded on the assumption in the light of the pleadings that it is a matter of re-allotment, in fact it is not a case of re-allotment, but nonavailability of the posts. The learned Counsel also would maintain that here is a case where for no fault of these Respondents 4 and 5, they had been penalized and they were deprived of the seniority and in view of the same, the Tribunal arrived at a correct conclusion, which need not be disturbed. The learned Counsel also placed reliance on the Judgments of the Apex Court reported in P.S. Patrudu v. Union of India, and P. Srinivas v. M. Radhakrishna Murthy, 2004 (3) ALD 29 (SC) = AIR 2004 SC 2767, in this regard.
8. Ms. Bobba Vijaya Laxmi, learned Counsel representing Mr. Srinivas Reddy in Writ Petition No. 4759 of 2005 would explain that due to the belated appointment of this party, there was no occasion for him to raise objections to the seniority list. The learned Counsel also explained the circumstances under which he was appointed at a later point of time though covered by the same notification.
9. Mr. Y. Venkata Sastry, learned Counsel representing respondents in Writ Petition No. 4759 of 2005 would raise a preliminary objection stating that the very writ petition is not maintainable since the same had been preferred questioning an interim order. The learned Counsel also pointed out that it is not a case of re-allotment at all since none of the ingredients relating to re-allotment are satisfied. The learned Counsel also would maintain that the pleadings of the parties would be of no consequence, the Court may have to interpret and arrive at a conclusion whether, in fact, in the facts of the given case it would fall under re-allotment or not and hence the Counsel would maintain that since the essential ingredients relating to re-allotment are not satisfied, it cannot be said that Rule 37 of the Rules would be applicable.
10. The learned Government Pleader for Services-I on the other hand would contend that in the light of the undertakings and the affidavits filed by both these parties, it would not He in the mouth of Respondents 4 and 5 to contend that Rule 37 of the Rules is not applicable and on the contrary Rule 33 of the Rules would be applicable. The Counsel would also maintain that Rule 33 of the Rules is the general Rule whereas Rule 37 of the Rules is the specific Rule concerned with re-allotment and hence Rule 37 of the Rules alone would be applicable.
11. Heard the learned Counsel for the parties at length.
12. Respondents 4 and 5 in Writ Petition No. 401 of 2004 filed OA No. 5206 of 2003, wherein it was pleaded that Respondents 4 and 5 appeared for Group-II-A test as advertised by 3rd respondent in Advertisement No. 8/1990 and they were selected for the posts of Deputy Tahsildars. The marks of 4th respondent being 427 under SC category and that of 5th respondent being 456 under OC category. It is further stated that 533 candidates including these respondents were selected for Deputy Tahsildar posts. The process was taken upto the year 1995. When all the 533 candidates have taken an agitation, 386 candidates were issued with the appointment orders. 147 candidates were remained without appointment order and later 45 out of 147 have joined in non-joining Deputy Tahsildar posts. Finally 102 candidates were left without appointment orders as Deputy Tahsildars. Some similarly situated persons to the applicants filed OAs. and the Government was directed to allot the D.T. selected candidates to the other Departments. It is said that the said OA Nos. 3 of 1993, 670 of 2000 etc., are still pending. It is brought to the notice of this Court that at present these OAs. had been dismissed. It is further stated that both these respondents referred to above as applicants were allotted to Co-operative Department as Co-operative Sub-Registrars, under Group I-A category, while awaiting the result of the OA., filed for appointment as Deputy Tahsildars and they joined as C.S.Rs. along with other selected Deputy Tahsildars. While the matter stood thus, the 2nd respondent published a provisional inter se seniority list dated 27.4.2002, in which Respondents 4 and 5 were shown at Serial Nos. 72 and 73 respectively. It is further stated that both of them filed objections. Evidently it appears to be not a correct statement. It is further stated that the 2nd respondent sent a reply dated 23.1.2003 to the 5th respondent herein, which was served in the month of March, 2003. It is stated that the reply issued is not in a judicious manner rather it is illegal, arbitrary, unjust and clear violative of Articles 14, 15 and 16 of the Constitution of India. It is also stated that under what circumstances OA Nos. 3 of 1993 and 670 of 2000 were filed. It is further stated that the 2nd respondent in the OA made an attempt to promote the 4th respondent in the OA as Deputy Registrar of Co-operative Societies, even without issuing final seniority list and without looking into the objections filed by the applicants in the said OA. It was also stated that in similar circumstances suitable directions were issued in OA No. 753 of 2003 and in the light of the same, questioning the provisional seniority list OA No. 5206 of 2003 was filed by Respondents 4 and 5, and the order made by the Tribunal had been referred to supra. In the counter-affidavits filed opposing the OA, a specific stand was taken that inasmuch as it is a case of re-allotment, the question of giving seniority to Respondents 4 and 5 above the writ petitioner-4th respondent in the OA cannot be done. Evidently in the light of the orders made in the prior O.A. Nos. 753 and 848 of 2003, the Tribunal negatived the stand which had been taken by the writ petitioner-4th respondent in the said OA. In the said circumstances, the said writ petition was filed.
13. The other writ petition no doubt is filed questioning the interim order, which is only a consequential order, which would be dependant on the result of the main Writ Petition No. 401 of 2004.
14. At the first instance it may be appropriate to have a look at G.O. Rt. No. 47, Revenue (Ser.III) Department, dated 11.1.1996, which reads as hereunder:
GOVERNMENT OF ANDHRA PRADESH ABSTRACT DIRECT RECRUITMENT-Direct recruitment to the post of Pro. Deputy Tahsildars for 1990-91 - Allotment of 533 candidates by the A.P. Public Service Commission - appointment of 386 candidates as Pro. Deputy Tahsildars - Issue of posting orders to the balance of 147 selected candidates against the fall-out vacancies of Deputy Tahsildars and the fall-out vacancies in other categories of Group A Services - Orders - Issued.
REVENUE (SER.III) DEPARTMENT G.O. Rt. No. 47 Dated 11.01.1996 Read the following:
1. Orders of A.P. Administrative Tribunal in O.A.No. 3/93, 180/93 & batch cases, dated 15.6.1995.
2. Govt. D.O. Lr.No. 7997/Ser.III.2/93-18, dated 16.6.95.
3. Govt. D.O.Lr.No. 79997/Ser.III.2/93-19, dated 5.7.95.
4. Commissioner, Land Revenue's Ref.No. X4/3551/92, dated 11.10.1995.
5. Representation of the selected Deputy Tahsildars Forum, Hyderabad, dated 10.10.1995.
ORDER:
The A.P. Public Service Commission, Hyderabad has selected 533 candidates for the post of Pro. Deputy Tahsildars under Group II(A) Services for the year 1990-91, whereas only (386) vacancies of Pro. Deputy Tahsildars were existing by that time. The Tribunal in its order 1st read above among other things has directed the Government to appoint all the 540 persons (7 vacancies were not considered due to non-availability of S.T. candidates) as Pro. Deputy Tahsildars, if not already done, within a period of 2 weeks from the date of receipt of the orders.
Government have examined the matter carefully and directed the Commissioner, Land Revenue, Hyderabad, to appoint 386 selected candidates as Pro, Deputy Tahsildars vide D.O. Letter 2nd read above. The Commissioner, Land Revenue, Hyderabad has also been requested to file a Review Petition before the Tribunal against the judgment of the A.P.A.T. 1st read above. Accordingly, the Commissioner, Land Rvenue, Hyderabad has filed a Review Petition before the Tribunal and it is pending adjudication.
In the representation 5th read above, the Convenor and two others of selected Deputy Tahsildars Forum have requested the Government to appoint the balance of 147 candidates selected for the post of Pro. Deputy Tahsildars against the fallout vacancies in other categories under Group-II(A) Services including fall-out vacancies of Deputy Tahsildars. They have contended that the candidates who secured less marks when compared to them have been appointed in other categories of posts under Group-II(A).
The Commissioner, Land Revenue, Hyderabad, in the reference 4th read above, has reported that 50 candidates out of 386 appointed to the post of Pro. Deputy Tahsildars in pursuance of the Government orders in the D.O. letter 2nd read above, have not reported for duty within the stipulated period.
Government after re-examination of the entire issue with reference to the orders of the A.P. Administrative Tribunal and the request made by the Pro. Deputy Tahsildars Forum, issue the following orders:-
1. The non-joined 50 vacancies of Pro. Deputy Tahsildars be filled from out of the balance 147 candidates selected by the A.P. Public Service Commission in consultation with A.P. Public Service Commission with reference to merit, rule of reservation, observation of local and non-local cadres and maintaining of 30% reservation for Women etc.
2. The Commissioner, Land Revenue shall address the A.P. Public Service Commission to take expeditious steps to obtain the particulars of fall-out vacancies from the remaining Heads of Departments/Unit Officers under Group-II(A) Services, from whom the particulars are not year received so as to accommodate the balance number of candidates in the other categories of Group-II(A) Services.
3. That an undertaking in the form of an affidavit from the Office bearers of the selected Deputy Tahsildars Forum and individual affidavits from each individual candidate to be appointed against the non-joined posts in Group-II(A) Services to the effect that they are willing to be appointed against any non-joined posts in Group-II(A) Services after adjusting the (50) vacancies in the posts of Deputy Tahsildars should be obtained prior to the issue of appointment orders.
The Commissioner, Land Revenue, Hyderabad, shall take immediate necessary action to issue appointment orders in accordance with the above orders to all the balance 147 selected candidates.
(BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH) M. MADANA MOHAN REDDY, SECRETARY TO GOVERNMENT (SS)
15. It is not in controversy that Respondents 4 and 5 had filed an undertaking in the form of affidavit. The letter dated 6.3.1996 also will be relevant in this context, which is extracted below:
GOVERNMENT OF ANDHRA PRADESH REVENUE (SER.III) DEPARTMENT From N. Madan Mohan Reddy, IAS Secretary to Government (SS), Revenue Department, Hyderabad.
To The Secretary, APPSC, Hyderabad, Lr.No. 65988/Ser.III.2/95-12, dated Sir, Sub: Direct Recruitment to the post of Pro. D.Ts. for 1990 - Allotment of 533 candidates by the APPSC - Appointment of (386) candidates of Pro. D.Ts. - Allotment of balance (102) candidates against the non-joining vacancies in other categories under Group-II(A) Services - Reg.' Ref: 1. G.O.Rt.No. 47, Revenue (Ser.III) Department, Dated 11.1.1996.
2. Govt.Lr.No. 65988/Ser.III.2/95, dated 11.1.1996.
3. Your Lr.No. 126/96, dated 6.2.1996 addressed to the C.L.R. Hyderabad.
Government after re-examination of the entire issue with reference to the orders of Andhra Pradesh Administrative Tribunal in OA Nos. 3/93, 180/93 and batch cases and the request made by the Pro. D.Ts. Forum issued the following orders in G.O. first cited.
1. The non-joined 50 vacancies of Prl. D.Ts. be filled from out of the balance 147 candidates selected by APPSC in consultation with APPSC with reference to merit, rule of reservation, observation of local and non-local cadres and maintaining of reservation of women etc.
2. The CLR shall address the APPSC to take expeditious steps to obtain the particulars of fallout vacancies from the remaining Heads of Departments/ Unit Officers under Group-II(A) Services, from whom the particulars are not yet received so as to accommodate the balance number of candidates in the other categories of Group-II(A) Services.
3. That an undertaking in the form of an affidavit from the office bearers of the selected D.Ts. Forum and individual affidavits from each individual candidate to be appointed against the non-joined posts in Group-II(A) Services to the effect that they are willing to be appointed against any non-joined posts in Group-II(A) Services after adjusting the 50 vacancies in the posts of D.Ts. should be obtained prior to the issue of appointment orders.
4. In the other letter 2nd cited, it was requested to take expeditious steps to obtain the fallout vacancies from the Heads of Departments/Unit Officers under Group-II(A) Services, so as to accommodate the remaining candidates.
5. The Commissioner of Land Revenue, Hyderabad, has already taken action to issue appointment orders in respect of (44) candidates from out of the balance (147) candidates selected for the post of Pro. D.Ts. and also addressed the Commission to allot (6) ST candidates from wait list, so as to appoint them in the remaining (6) fallout vacancies as no ST candidates are available.
6. The Commission in its DO letter 3rd cited, has furnished the list of fallout vacancies existing in the respective departments and there are (117) vacancies in other departments after utilizing the (9) vacancies as per the Court order etc.
7. Out of the remaining 102 candidates selected for Pro. D.Ts. and not given appointment orders, (65) candidates have given their willingness in the form of an affidavit to take appointment either as Pro. D.Ts. or in any one of the existing vacancies of various categories of posts under Group-II(A) Services. The list of (65) candidates is enclosed.
8. I am, therefore, to request you to take expeditious steps to re-allot the (65) candidates as per the list who are selected for the post of Pro. D.Ts. from out of the (117) fallout vacancies available in the Departments of Commercial Taxes, Excise, Social Welfare, Cooperation, Labour etc., to enable the Departments concerned to issue appointment order to the (65) candidates duly following the merit, rule of reservation, local and nonlocal cadres and 30% reservation for women etc., as per the orders of the Government issued in G.O. Rt. No. 47, Revenue (Ser.III) Department, dated 11.1.1996.
A copy of the re-allotment orders may be furnished to Government Yours faithfully, Sd/-
Secretary to Government (SS)
16. In RC.No. 24887/96-E4, dated 20.6.1996 at Para 8 it was specifically stated thus--
"That the appointment is also subject to other conditions mentioned herein and does not confer on him any right or preferential treatment in the matter of regular appointments and seniority. Orders regarding seniority will be issued in due course after he/she fulfils the conditions stipulated above".
17. Apart from the proceedings referred to supra, it may be relevant to have a look at the relevant Rules. Rule 33 Of the Rules dealing with seniority reads as hereunder:
"Seniority: (a) The seniority of a person in a service, class, category or grade, shall unless he had been reduced to a lower rank as a punishment, be determined by the date of his first appointment to such service, class, category or grade.
Provided that the seniority of a probationer or approved probationer in a service, class or category from which he stood reverted on the 1st November, 1956 or prior to that date, shall be determined in the statewide gazetted posts and non-gazetted posts in the Departments of the Secretariat and the offices of the heads of departments with reference to the notional date of continuous officiation with or without breaks in that service, class or category prior to the 1st November, 1956 to the date of re-appointment made thereafter, but it shall not disturb the inter-seniority which obtained in the Andhra State.
(b) The appointing authority may, at the time of passing an order appointing two or more persons simultaneously to a service, fix either for the purpose of satisfying the rule of reservation of appointments or for any other reason the order of preference among them; and where such order has been fixed, seniority shall be determined in accordance with it;
Provided further that the order of merit or order of preference indicated in a list of selected candidates prepared by the Public Service Commission or other selecting authority, shall not be disturbed inter se with reference to the candidates position in such list or panel while determining the seniority in accordance with this rule and notional dates of commencement of probation to the extent necessary, shall be assigned to the persons concerned, with reference to the order of merit or order of preference assigned to them in the said list.
(c) Whenever notional date of promotion is assigned, such date of notional promotion shall be taken into consideration for computing the qualifying length of service in the feeder category for promotion to the next higher category and that the notional service shall be counted for the purpose of declaration of probation also in the feeder category.
(d) The transfer of a person from one class or category of a service to another class or category of the same service carrying the same pay or scale of pay shall not be treated as first appointment to the latter class or category for purpose of seniority and the seniority of a person so transferred shall be determined with reference to the date of his regular appointment in the class or category from which he was transferred. Where any difficulty arises in applying this sub-rule, seniority shall be determined by the Government, if they are the appointing authority and in other cases, the authority next higher to the appointing authority shall determine the seniority.
(e) Where a member of a service, class or category is reduced for a specific period, to a lower service, class or category or grade:
(i) in cases where the reduction does not operate to postpone future increment, the seniority of such member on re-promotion shall, unless the terms of the order of punishment provides otherwise, be fixed in the higher service, class or category at which it would have been fixed but for his reduction;
(ii) in cases where the reduction operates to postpone future increment, the seniority of such member on repromotion shall, unless the terms of the order of punishment provide otherwise, be fixed by giving credit for the period of service earlier rendered by him in the higher service, class or category.
(f) Seniority of a retrenched and reappointed person.--The seniority of a member of a service who is re-appointed after having been retrenched, owing to reduction of staff as a measure of economy, shall be determined in accordance with the date of such re-appointment:
Provided that the inter se seniority of such members absorbed in the same service, class or category shall be determined--
(i) in any case in which re-appointment of such members was made in consultation with Public Service Commission or the other selecting authority, in accordance with the order of merit or the order of preference indicated by the said Public Service Commission or other selecting authority; and
(ii) in any other case, in accordance with the total length of service, in the same equivalent or higher service, class or category put in by such member prior to retrenchment.
(g) The seniority of an approved candidate who takes up military service before joining his appointment to any service, class or category shall, on his appointment to such service, class or category, on his return from the said military service, be determined in accordance with the order of preference shown in the authoritative list of candidates approved for appointment to the service, class or category."
18. It is needless to say that Rule 33 of the Rules is a general Rule. Rule 4 of the Rules deals with method of appointment. Rule 4(c) of the Rules dealing with re-allotment of candidates selected by Public Service Commission, which reads thus--
"Re-allotment of candidates selected by the Public Service Commission.--The re-allotment of candidates selected by the Andhra Pradesh Public Service Commission for appointment, from one unit to another unit, either in the same service and district/zone or in any other service of district/zone shall be made with the mutual consent of the appointing authorities concerned and with the prior concurrence of the Commission. The order of re-allotment shall be issued by the appointing authority to whose unit the candidate was first allotted by the Commission:
Provided that such re-allotment shall be strictly in conformity with the provisions of the Presidential Order".
Rule 37 of the Rules dealing with seniority of directly recruited candidates, re-allotted in consultation with APPSC, which reads thus--
"seniority of directly recruited candidates, re-allotted in consultation with APPSC:-The candidates re-allotted under Sub-rule (c) of Rule 4 shall be assigned seniority below the last regular candidate in the concerned class or category in the unit to which such candidate is re-allotted"
19. Rule 37 of the Rules is a special rule covering re-allotment. No doubt there is some controversy in this regard. In the light of the pleadings of the parties, this aspect need not farther detain this Court any longer. It was specifically pointed out that the parties proceeded on the ground that it is re-allotment and this aspect was specifically pleaded in the counter-affidavit too. It is needless to say that when it is a case of re-allotment, the special rule covering re-allotment, Rule 37 alone would be applicable and not the general Rule 33 of the Rules.
20. Strong reliance was placed on the judgment reported in P. Srinivas v. M. Radhakrishna Murthy (supra), wherein the Apex Court held in Paras 10 and 11 as follows:
"We find that the G.O. Ms. No. 822 dated 18.9.1967 issued by the Government of Andhra Pradesh was dealing with the question of fixing the time limit for the candidates selected by the Commission to join when they were to be appointed by direct recruitment. Taking the factual position as prevailing then, it was indicated that the time limit to be normally 60 days. It was further, stipulated therein that in case they did not join within stipulated time, their names could be removed from list of selected candidates. Service Commission was enabled to extend and give further time for joining before deleting the name of the candidate concerned from the select list for not joining in time. The power of extending time given to the Commission under the G.O. was not in relation to any statutory prescription, and cannot be also said to be in derogation of the powers of the State Government as the ultimate repository of all Executive power. On the other hand, the Government itself provided that the time could be extended if the Commission considered it necessary. This was merely an enabling power conferred by the Government only and the G.O. cannot be construed to be self destructive of the power of the Government, in the absence of any statutory rules as such, in this regard. The Commission appears to have been enabled to grant time to effectively monitor the operation of the main list as well as the waiting list (in order of merit) without any undue lapse of time, in case the selected candidates did not join within the indicated time period. It was an executive decision of the Government. When the Government itself extended the time, in case of the petitioner, on the basis of the reasonableness of the request it cannot be said that in the absence of any order passed by the Commission extending the time, the extension granted by the Government was without authority in law.
It can be also looked at from another angle. The appellant was granted extension upto 31.7.1987 to join. It was open to the Service Commission or Government at that stage to direct removal of his name from the list of selected candidates. Neither the Commission nor the Government thought it appropriate to do so. On the other hand, the Government extended the joining period and the appellant joined the post In several periodical seniority lists thereafter the appellant's name was placed higher than Respondent No. 1. For more than a decade, Respondent No. 1 did not question that position. After a very long period it was not open to Respondent No. 1 to turn around and say that the extension of time to the appellant was not in accordance with law. It is undisputed that both the appellant and Respondent No. 1 were selected in the same selection and the appellant was more meritorious in terms of marks secured by him in the selection process and ranked above the 1st respondent and the inter se ranking and consequent inter se seniority cannot be disturbed and rights flowing from such ranking cannot be denied merely because there was some delay in joining-all the more so when such delay was only of 8 days and also on account of getting relieved from the Central Government, for reasons beyond his control, which only seems to have weighed with the State Government to accord extension of time also. The High Court seems to have lost sight of the fact that it was not a case where reasons were absent in the order of the Government extending the joining time. On the contrary, the order itself indicates the reasons why the appellant had sought for extension. The Government taking note of the factual position highlighted therein had granted extension. High Court has erroneously held that no reasons were indicated."
21. The learned Counsel representing the contesting respondents also placed strong reliance on the judgment P.S. Patrudu v. Union of India (supra), wherein it was held as follows:
"It is contended by the learned Counsel for the petitioners that since the inter se seniority as assistant Engineers was left open in the order, the directions given by the Tribunal to consider the case as 'Executive Engineer and determine his seniority on the basis of the promotion, is not valid in law. We find no force in the contention. Once he is found to be eligible according to the rules, then his seniority is required to be determined as per the procedure prescribed in the rules in vogue. It is further contended that the fifth respondent was not qualified since he had not completed 8 years of required service. The Tribunal has recorded a finding that two years period is relaxable in the case of the reserved candidates. The inter se seniority as Assistant Executive Engineer is required to be determined; he joined service in 1981 and, therefore, he did not have the requisite service. We find no force in the contention. Since he was selected by direct recruitment, he is entitled to be appointed according to rule. His appointment was delayed for no fault of his and he came to be appointed in 1981, he is, therefore, entitled to the ranking given in the select list and appointment made accordingly. Under these circumstances, we do not find any illegality in the order".
22. In K.S. Vora v. State of Gujarat, 1987 (5) SLR 674, it was held that the rules of seniority are a matter for the employer to frame and even though the prospects of promotion in future were likely to be prejudiced by introduction of a new set of rules to regulate seniority, if the rules were made bona fide and to meet exigencies of the service, no entertainable grievance could be made in this regard.
23. In Rana Randhir Singh v. State of War Pradesh, 1989(1) SLR 1, it was held that if there is rule to regulate seniority, seniority shall be regulated by the same.
24. In O.S. Singh v. Union of India, 1995 (5) SLR 626, the aspect of re-allotment, the promotions and the method to be adopted in this regard had been dealt within detail.
25. It may be appropriate to have a look at Ground No. (f) in OA No. 753 of 2003, which reads as hereunder:
"That, alternatively, it is also submitted that under Rule 37 of State and Subordinate Service Rules it is stated that the candidates re-allotted under Sub-rule (c) of Rule 4 shall be assigned seniority below the last regular candidate. A reading of Sub-rule (c) of Rule 4 shows that the present situation is a re-allotment from one service to another and in this view of the matter alternatively it is prayed that the applicant herein should be placed below the last regular candidate, but, in the present case he is pushed down much below the last regular candidates"
It is also pertinent to note that on the strength of this order, the order impugned in Writ Petition No. 401 of 2004 was made.
26. Reliance was placed on the judgment in Syed Shamin Ahmed v. State of Rajasthan and Ors. (supra) and also in N.K. Singh v. State of Rajasthan, 1978 (2) SLR 13. In the judgment Syed Shamin Ahmed's case (supra) the Rajasthan High Court while dealing with the Rajasthan Secretariat Ministerial Staff Rules, 1956 regarding inter se seniority, it was held that the inter se seniority of employees appointed as LDCs, list prepared by the Commission ranking in the list remains the same irrespective of the date of joining, the date of joining not to affect the seniority.
27. On a careful scrutiny of the facts of this case, the matter is definitely distinguishable on facts. Even otherwise this decision may not be a binding decision on this Court. Further, strong reliance was placed on the judgment Tejinder Singh Sandhu v. State of Punjab and Ors. (supra), wherein the Apex Court while dealing with seniority/promotion under Rule 16 of Punjab Agricultural Service, Class I, Rules, 1947, held as follows:
"Appellant and Respondents 2 and 3 originally belonged to Class III Service of the Pepsu State. They were later appointed by direct recruitment as Class II Officers in the Agriculture Department of the State with effect from September 24, 1956, July 13, 1956 and May 1, 1956 respectively. It is, therefore, dear and not disputed that in the cadre of Class II Officers in the Pepsu Agriculture Department appellant was junior to Respondents 2 and 3. After the merger of Pepsu with Punjab they were all absorbed in Class II Service of the Punjab Agriculture Department. Appellant and Respondent 3 were latter promoted to Class I Service of the Punjab Government on the same date, that is to say, on August 2, 1965. On the date of promotion, appellant, happened to be working at Chandigarh itself and was therefore able to take charge of his new post immediately after the date of his appointment viz., August 4, 1965. Respondent 3, on the other hand, was working as an Assistant Horticulturist at Kulu and therefore, he could not take charge of his post until he was relieved of the post which he was holding. He was able to take over as Deputy Director at Hansi on August 18, 1965, which was 14 days after the appellant had taken charge of his post. Respondent 2 was promoted as a Deputy Director in 1966 but, that was for the reason that he was working on deputation with the Ludhiana Agriculture University and until the Government permitted its officers working on deputation with the University to revert to the State Service, Respondent 2, though eligible for being appointed as a Deputy Director, could not be so appointed. Thus the circumstance that the appellant and Respondents 2 and 3 took charge of their respective posts in Class I Service on divergent dates is purely fortuitous and cannot effect their seniority.
All the three were appointed as Class I officers on a purely ad hoc basis. The permanent vacancies in that cadre occurred in 1971 and it is in reference to the state of affairs obtaining at that point of time that the question of seniority of the three officers has to be considered. On the date on which permanent, vacancies occurred in the Class I cadre, the appellant and Respondents 2 and 3 had all completed their probationary period satisfactorily. They were, therefore, eligible and perhaps entitled to be confirmed in Class I post But the confirmation had to be made in the order in which they ranked in seniority in their Class II posts. We have no doubt that since all of them were appointed to Class I on an ad hoc basis and since they had all completed their probation in Class I posts when permanent vacancies occurred in that cadre, their seniority in Class II has to prevail in their ranking. In Class I. But that criterion, there can be no doubt that the appellant must take his place below Respondents 2 and 3".
28. On a careful scrutiny of the facts of the above case, they are distinguishable on facts in the present case. The reason being that there are specific rules governing the seniority in relation to re-allotment in this regard. In the light of the clear language in Rules 4(c) and 37 of the Rules, these decisions may not be of any help to Respondents 4 and 5. Precedent would have to be applied in the context and these are not binding precedents on the point in controversy in the facts of the present case. Contextual application of a precedent always would be desirable. Suffice it to say that evidently this was not done by the Tribunal and following such a decision, the impugned order was made in OA No. 5206 of 2003, which had been impugned in Writ Petition No. 401 of 2004. In the light of the views expressed supra, this Court is of the considered opinion that in case of re-allotment, Rule 37 of the Rules alone would be applicable and hence the Writ Petitioner-4th respondent in the aforesaid O.A.No. 5206 of 2003 is bound to succeed. Even on facts also, if the dates of appointment are taken, the fixation of seniority cannot be found fault with.
29. Coming to the other writ petition, viz., Writ Petition No. 4759 of 2005, it is no doubt true, that an interim order had been questioned and in the normal circumstances if the said interim order is not dependant on the decision of the Writ Petition No. 401 of 2004, this Court would have directed the Tribunal to decide the OA, but on a careful scrutiny, without bringing it to the notice of the Tribunal the pendency of Writ Petition No. 401 of 2004, it appears some directions had been obtained by way of an interim order and on a reading of the interim order, referred to supra, it is clear that the said interim order whether to be continued or whether to be set aside would definitely depend upon the result of the Writ Petition No. 401 of 2004. In the light of the same, inasmuch as the aspect of seniority as fixed is being upheld by this Court, there is no point in remitting the matter or directing the Tribunal to dispose of OA No. 173 of 2005 on merits. In the light of the same, the interim order granted by the Tribunal is liable to be set aside. In the light of the views expressed in relation to Writ Petition No. 401 of 2004, it is needless to state that O.A. No. 173 of 2005 is bound to fail and accordingly the same shall stand dismissed.
30. Accordingly Writ Petition No. 401 of 2004 is allowed. No costs.
31. In view of the dismissal of OA No. 173 of 2005, no orders need be passed in Writ Petition No. 4759 of 2005. Accordingly Writ Petition No. 4759 of 2005 is closed. No costs.