Andhra HC (Pre-Telangana)
E.A.A. Charles (Smt.) vs A.P. Administrative Tribunal And Ors. on 31 December, 1997
Equivalent citations: 1998(1)ALD785, 1998(1)ALT814
Author: B. Subhashan Reddy
Bench: B. Subhashan Reddy, T. Ranga Rao
ORDER B. Subhashan Reddy, J.
1. As is not unusual, this batch of writ petitions has again raised an issue of inter se seniority among the Deputy Tahsildars - direct recruits on one side and the promotees on the other. Each time when issue of inter se seniority on integration of direct recruits and promotees came up, the Courts adjudicating the same thought of giving quietous to the said issue. But, it is not to be. The issue of inter se seniority between direct recruits and promotees is an ongoing legal battle. Here, we deal with such case of Deputy Tahsildars.
2. The post of Deputy Tahsildar is included in the A.P. Revenue Subordinate Service Rules framed in G.O.Ms.No.1279, General Administration Department, dated 12-10-1961. The appointment of this post is to be made both by direct recruitment and by transfer from among the members of the ministerial service in accordance with the said rules in the ratio of 1:1. Hitherto, the State was the unit, but after the enforcement of the Presidential Order under Article 371-D(1) in the year 1975, District was made the unit.
3. As there was no provision made with regard to seniority under the above special rules, Rule 33(a) of the A.P. State and Subordinate Service Rules operated which reads :
"The seniority of a person in a service, class, category or grade, shall unless he has been reduced to a lower rank as punishment, be determined by the date of his first appointment to such service, class, category or grade. If any portion of the service of such person does not count towards probation under Rule 10(a)(iv), 10(vi), 16, 37(d) or 42(d), his seniority shall be determined by the date of commencement of his service which counts towards probation.'' In the above special rules, there is also no specific provision to integrate and prepare the inter se seniority between the promotees and the direct recruits. As such, seniority was prepared basing upon Rule 33(a) of the A.P. State and Subordinate Service Rules mentioned supra.
4. Some of the Deputy Tahsildars who were directly recruited during the years 1962 and 1963 had filed W.P.No.1502/71 in this High Court disputing the seniority assigned to them below that of the promotees contending that though they had completed their probation long prior to the Upper Division Clerks who were appointed by transfer as Deputy Tahsildars and had become full members of the service upon confirmation in their posts, while none of the promotees had become full members, yet, the said directly recruited Deputy Tahsildars were being treated as juniors and that the same was liable to be remedied. A learned single Judge of this Court dismissed the writ petition by holding that the grievance of the directly recruited Deputy Tahsildars had no basis within the framework of the rules governing their service condition including that of inter se seniority and upholding the action of the Government in drawing the seniority list inter se direct recruits, and promotees basing on the date of appointment and the legal provision contained under Rule 33(a) of A.P. State and Subordinate Service Rules, 1962. The said view was confirmed by the Division Bench on Writ Appeal. Appeal filed against the said order before the Supreme Court was pending.
5. While the things stood thus, G.O.Ms.No.4582 Revenue (A) Department, dated 9-10-1980 was issued incorporating amended Rule 4(e) in the following terms :
"The inter se seniority between the direct recruits to the category of Deputy Tahsildars and the promotees to the category of Deputy Tahsildars shall be determined from the date of their confirmation in the substantive vacancy in that category in the proportion of 1:1 as provided in sub-rule (b) of Rule 3."
The above was in substitution of:
"The seniority of the Deputy Tahsildars shall be determined with reference to the ranking assigned to them by the A.P. Public Service Commission in the merit list of that selection.'' The above amended Rule 4(e) was given retrospective effect from 12-10-1961.
6. Aggrieved by the same, promotee Deputy Tahsildars assailed the validity of the above amended Rule 4(e) by filing RP.No.1988 of 1980 and batch in the Andhra Pradesh Administrative Tribunal (which was constituted under Article 371D of the Constitution of India) contending that the seniority already determined based on Rule 33 of the A.P. State and Subordinate Service Rules (General Rules) should not have been disturbed by the introduction of amended Rule 4(e). But, a Full Bench of the said Tribunal upheld the validity of amended Rule4(e) by order dated 30-10-19S4. The same was appealed against in Civil Appeal Nos.2935-38 of 1985 before the Supreme Court. The Supreme Court in K. V. Subba Rao v. Govt. of A.P., , had affirmed the judgment of the A.P. Administrative Tribunal, but with modification of striking down the retrospective operation. A direction, thus, was given to draw-up the seniority list following the amended Rule 4(e) prospectively from 9-10-1980.
7. The Government of A.P. framed rules in G.O.Ms.No.990, dated 24-9-1992 relating to the cadre of Deputy Tahsildars in supersession of the earlier orders contained in G.O.Ms.No.1279, dated 12-10-1961 as also G.O.Ms.No.4582 dated 9-10-1980. Some of the earlier rules were reiterated in the same language and some are altered. Computation of seniority in the cadre of Deputy Tahsildars basing upon confirmation which was introduced by G.O.Ms.No.4582 dated 9-10-1980 was given a go-bye restoring the old mode of seniority as envisaged under Rule 33 of AP. Slate and Subordinate Service Rules. The quota of 1 : 1 was reduced to 70% and 30% for promotees and direct recruits respectively. It is apt to extract the rule relating to seniority.
"Direct recruitment of Deputy Tahsildars shall be made from the list of approved candidates, drawn up by the Andhra Pradesh Public Service Commission for each unit of appointment and sent up by the A.P. Public Service Commission to the Commissioner of Land Revenue. The Commissioner of Land Revenue shall allot candidates from this list to particular districts, in the order specified in Rule 4. A candidate so allotted to a district shall be regarded as permanently allotted to the District.
Notwithstanding anything contained in this rule, the seniority of a person appointed as Deputy Tahsildar shall be governed by General Rule 33 of the Andhra Pradesh State and Subordinate Service Rules."
8. It is pertinent to mention that for a long time before incorporation of Rule 4(e) by issuing GO.Ms.No.4582, dated 9-10-1980, there was no direct recruitment in the cadre of Deputy Tahsildars as the Andhra Pradesh Public Service Commission did not undertake such task excepting in the years 1963 to 1966 and because of the administrative exigencies, the promotions were effected in the later years Even later to G.O.Ms.No.4582 dated 9-10-1980, direct recruitment was made to the cadre of Deputy Tahsildars only twice i.e. in the years 1985 and 1990. There was a tussle between direct recruits and promotees as the former insisted the framing of seniority list in accordance with Rule 4(e) which was incorporated by G.O.Ms.No.4582, dated 9-10-1980, while promotees were agitating for following G.O.Ms.No.990, dated 24-9-1992 ignoring the previous rules including the new Rule 4(e) on the ground that in view of supersession of all such rules and framing ofnew rules under G.O.Ms.No.990, dated 24-9-1992, the previous rules including Rule 4(e) had become non est in law. Ultimately, the said dispute landed before the A.P. Administrative Tribunal, which by its judgment dated 20-8-1997 has upheld the validity of G.O.Ms.No.990, Revenue Department, dated 24-9-1992 but holding that the same is prospective in operation and that the seniority list in the cadre of Deputy Tahsildars has to be drawn-up in accordance with G.O.Ms.No.1279, from 12-10-1961 upto 8-10-1980 and according to Rule 4(e) incorporated in G.O.Ms.No.4582 from 9-l 0-1980 till 23-9-1992 and in accordance with G.O.Ms.No.990 from 24-9-1992 onwards. The result in this batch of writ petitions.
9. For promotees, senior Counsel - Sri E. Manohar and Sri M.V. Ramana Reddy led the arguments while for direct recruits Sri S. Ramachandra Rao made his submissions. While the promotees assailed the judgment of the Tribunal asserting that seniority list can be prepared all through only in accordance with G.O.Ms.No.990, dated 24-9-1992, the direct recruits assailed the above G.O.Ms. holding that it is Rule 4(e) which governs the seniority list inter se direct recruits and promotees and that direct recruits will take their places in the slots provided to them in the ratio of 1:1 and in accordance with the Supreme Court judgment and reiterating that since the Supreme Court has not only upheld the Rule 4(e) even prospectivety, but also issued directions to follow the said rule by framing seniority list in accordance with the same and since a Mandamus was issued, the same has got to be obeyed and that the impugned G.O.Ms. makes in-roads into the sphere of judicial decision and as the same is affront to the judicial verdict of the Supreme Court, it is a nullity and cannot be acted upon. On the other hand, it is the contention of the learned Counsel for the promotees and also of the learned Government Pleader that the impugned G.O.990 does not amount to encroachment on the judicial power of the State and does not overrule the judgment of the Supreme Court and it merely removes the basis of the judgment by amending the rule and rather restoring the old rule of seniority, as in the implementation, it was felt that there was a lot of heart-burning, confusion, contradictions and also creating strain between direct recruit-Deputy Tahsildars and promotee Deputy Tahsildars, apart from the fact that direct recruits make undue march over the promotees appointed long years before the selection of direct recruits. Decisions have been cited by either Counsel mostly of the Supreme Curt as also the judgment rendered by one of us (Justice B. Subhashan Reddy) in Telugunadu Workcharged Employees v. Govt. of India, .
10. Two important points arise for consideration in view of the pleadings and submissions by either party, namely;
(1) Whether G.O.Ms.No.990, dated 24-9-1992 is an affront to the decision rendered by the Supreme Court in K. V. Subba Rao v. Govt. of A.P., (supra); and (2) Whether the seniority is a vested right so as not to be divested by a later rule.
11. Our Constitution has assigned the Courts the function of determining as to whether the laws made by the legislative bodies including that of Rules under Article 309 are in conformity with the provisions of the Constitution. If a decision is rendered by the Court of law, the said decision has got to be followed and cannot be nullified by any legislative or executive act. But, nothing precludes the legislative authority to frame law so as to remove the basis of the judgment. From the plethora of precedents including that of Pruthvi Cotton Mills v. Broach Borough Muni, , Ahmedabad Corporation v. New S.S. & WVG. Co., , Indira Nehru Gandhi v. Raj Narain, , MM. Pathak v. Union of India, , In the matter of Cauvery Water Disputes Tribunal,, State of Haryana v. Kamal Co-op. Farmers' Society Ltd., , G.C. Kanungo v. State of Orissa, and S.R. Bhagat v. State of Mysore, (1955) 6 SCC 16. The said statement of law is clear and consistent, the latest being P. Kannadasan v. State of T.N., . In Telugunadu Workcharged Employees v. Govt. of India (supra), the said ratio was applied and as in that case, the law permitted the executive Government to annul a decision of the judicial authority, the same was held to be violative of the basic structure of Constitution and the offending provision contained in Section 17A(1) of Industrial Disputes Act, 1947 was struck down. But, such a situation does not arise in the instant case. G.O.Ms.No.990, dated 24-9-1992 cannot be read as an affront to the judgment rendered by the Supreme Court in K.V. Subba Rao v. Govt. of A.P., (supra). The judgment in K.V. Subba Rao's case was based on the then existing Rule 4(e) which was incorporated by amendment in G.O.Ms.No.4582, dated 9-10-1980. That was on the basis of the right to legislate and to bringforth the said amendment as being within the domain of the State Government permitted under proviso to Article 309 of the Constitution.
12. As already stated above, the original rule framed in G.O.Ms.No. 1279, dated 12-10-1961 relating to seniority was based upon the first appointment as contained in Rule 33(a) of A.P. State and Subordinate Service Rules and basing on the said rule, the inter se seniority of direct recruits and promotees on integration was upheld by this Court and the State Government thought that date of confirmation in the post of Deputy Tahsildar should be the criteria for the seniority. But, in view of hardships and anomalies caused in the working of the said amended, rule in G.O.Ms.No.4582, dated 9-10-1980, the old rule of seniority basing on the first appointment regardless of the date of confirmation in the cadre of Deputy Tahsildars was restored by issuing the impugned GO.Ms-No.990, dated 24-9-1992 in addition to reduction in the ratio of direct recruits to 30% from 50% and also providing preference to women to the extent of 30% in each of categories in O.C., B.C., S.C., and ST quota. The S.B. Patwardhan v. State of Maharashtra, , a Three-Judge Bench of the Supreme Court had upheld the argument of fixation of seniority basing on the first appointment holding that seniority cannot be made dependent upon the fortuitous circumstance of confirmation. On similar lines, there are several other judgments, but, suffice it to mention the judgment of the Constitution Bench in Direct Recruits Class II Engg. Officers' Association v. State of Maharashtra, . The said judgment had unanimously laid down the following ratio :
(1) Once an incumbent is appointed to a post according to the 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.
(2) 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.
(3) 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.
(4) If it becomes impossible to adhere to the existing quota rules, 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 irresistable that the quota rule had broken down.
(5) 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 below the appointees from the other source inducted in the service at a later date.
This much is relevant for this case. This ratio was relied in several cases and the latest on the proposition being in Jagdish Lal v. State of Haryana, in which it was held that it is a settled legal position that confirmation is an inglorious uncertainty and that seniority gets counted from the date of initial appointment by direct recruitment/ promotion/transfer to the cadre/post, if appointed according to the rules. Of course, there are judgments as stated in D.P. Sharma v. Union of India, and Municipal Corporation, Raipur v. Ashok Kumar Mishra, that when the seniority is made dependent upon confirmation, the seniority should be counted from the said date of confirmation. But, the statement of law mentioned supra is not relevant in the instant case for the reason that in exercise of its legislative power contained under proviso to Article 309 of the Constitution, the impugned rules were issued, which we have already held, do not amount to nullifying the judgment rendered by the Supreme Court in K. V. Subba Rao v. Govt. of A.P., (supra), but only removing the basis of the said judgment.
13. In the matter relating to seniority, it is open to the State to lay-down any criteria and it is not competent for the Court to strike down such a rule except on the ground that it is arbitrary or results in inequality of opportunity amongst employees belonging to the same class which would offend Articles 14 or 16 of the Constitution. What criteria should be the basis of the seniority is a matter of administrative policy and the Government is free to change such policy from time to time. The Government which is carrying on the administration has got such choice to change the rules relating to seniority by introduction of new principle to regulate the same. As already stated above, the Court cannot interfere with that power unless it is arbitrary, perverse or mala fide or extraneous to administrative exigencies. We do not see any such arbitrariness or mala fides or reasons extraneous to administrative exigencies. The Government has rationalised the inter se seniority to meet different situations as employees are appointed from different sources and to avoid any inequitous consideration due to fortuitous circumstance. The Government wanted the consistent rule of seniority basing on the date of appointment on the length of continuous service and not the date of confirmation, which in fact is the settled law and which we cannot find fault with.
14. In fact, the above stand of the Government is perfectly in consonance with the authoritative and the latest judgment of the Supreme Court in S.S. Bola v. B.D. Sardana, 1997 (5) Scale 90. It is a Three-Judge Bench judgment consisting of K. Ramaswamy, S. Saghir Ahmed and G.B. Pattanaik, JJ. The Supreme Court was considering the constitutional validity of Haryana Service Engineers Class I Public Works Department (Buildings and Roads Branch), (Public Health Branch) (Irrigation Branch) Act, 1995. There also, as is the case in hand, the dispute was inter se seniority between direct recruits and promotees of Engineers working in the Public Health Branch Roads and Buildings Branch and Irrigation Branch in the State of Haryana. Similar provision existed for fixing the seniority of the promotees basing on their confirmation, while for direct recruit, the seniority starts from the date he starts discharging the duly attached to the post and even if he is on probation, on successfully completing the probation and declaration thereof at a later date, his appointment dates back to the date of his initial appointment. Basing on the said rules, the Supreme Court earlier in two cases in A.N. Seghal and Ors. v. Raja Ram Sheoram and Ors., (1992) Supp. 1 SCC 304 and S.L. Chopra and Ors. v. State of Haryana and Ors., (1992) Supp. 1 SCC 391, directed the Government of Haryana to determine the inter se seniority between the promotees and direct recruits in the respective quota cadre. As the said directive was resulting in inequities creating lot of administrative problems with certain very junior officers getting undue seniority and becoming senior to the officers under whom they were previously working thereby creating severe groupism and tension between the officers of the department in their day-to-day working and in order to have a consistent and firm date for reckoning seniority, the length of continuous service in the cadre was made the criterion for seniority inter se direct recruits and promotees, on integration. The rule of fortuitous circumstance was thus dispensed with. This was done by the State of Haryana by enacting the above Act, namely, Haryana Service Engineers Class 1 Public Works Department (Buildings and Roads Branch), (Public Health Branch), (Irrigation Branch) Act, 1995. Minority judgment was rendered by K. Ramaswamy, J holding the said Act as a fraud on the Constitution as being affront to the decisions rendered by the Supreme Court in Sehgal's case (supra) and Chopra's case (supra) and that the said directives of the Supreme Court have to be obeyed by drawing of the seniority list in accordance with the decision rendered therein, result of which would be by placing direct recruits even though appointed later in time, much above than the promotees, who had been holding posts from the period much earlier than the recruitment of the direct recruits. G.B. Pattanaik, J delivered majority judgment to which view S. Saghir Ahmed, J has subscribed in all respects. The majority judgment sustains the Act excepting Section 25 thereof, which is not pertinent for adjudication in the instant cases. The majority view is that the directions, which have been issued by the Supreme Court in the cases of Sehgal and Chopra (supra), were based on the then existing rules and the present Act mentioned above only removes the basis of the said judgments by abrogating those rules and substituting the same with other legal provisions and particularly one relating to seniority not dependent upon the date of confirmation in the case of promotees, but uniformly making it basing upon the date of appointment and the length of continuous service. It was held by the majority that the Act does not nullify the judgments rendered by the Supreme Court in Sehgal's case and Chopra's case (supra), but only removes the basis of the same and as such, is perfectly valid and intra vires the Constitution.
15. Dealing with the important aspect of seniority, the majority view is that seniority list within a cadre can neither be said to be accrued or vested right of a Government servant and losing some places in the seniority list within the cadre does not amount to reduction in rank even though the future chances of promotion gets delayed thereby. The view taken by the Supreme Court in the State of Maharashtra and another v. Chandmkant Anant Kulkarni and others, that mere chances of promotion are not conditions of service and the fact that there was reduction in the chances of promotion did not tantamount to a change in the conditions of service and that a right to be considered for promotion is a term of service, but mere chances of promotion are not, was quoted with approval and so also the another judgment of the Supreme Court in K. Jagadeesan v. Union of India and others, which held that the amendment of the rules affecting the chances of promotion or right to be considered for promotion to the higher post cannot be assailed. In fact, to come to the conclusion that to have a particular position in the seniority list is not an accrued or vested right. The Supreme Court in S.B. Sola's case (supra) made a comprehensive scrutiny of the earlier judgments of the Supreme Court and rendered authoritative pronouncement on the said aspect. Even the minority judgment of K. Ramaswamy, J says that the rules/provision in an Act merely affecting the chances of promotion would not be regarded as varying the conditions of service, that the chances of promotion are not conditions of service and that a rule which merely affects the chances of promotion does not amount to change in the conditions of service. But, the learned . Judge held that once a declaration of law, on the basis of the said Rules, is made by a Constitutional Court and a Mandamus is issued or direction given for its enforcement by preparing the seniority list, operation of the declaration of law and the Mandamus and directions issued by the Court is the result of the declaration of law, but not the operation of the rules perse. On this ground, the learned Judge directed to draw-up the seniority list in accordance with the judgments rendered in Sehgal's case and Chopra's case (supra). But, that was on the premise that the Act was affront to the judgments rendered by the Supreme Court in the above 2 cases, which was not accepted by the majority view and it is needless to mention that the majority view forms the ratio decidendi and is a binding law under Article 141 of the Constitution of India. As such, we apply the said ratio laid down by the majority in S.S. Bola's case (supra).
16. In view of what is stated supra, we hold as follows :
(i) G.O.Ms.No.990, Revenue Department, dated 24-9-1992 is valid and intra vires the Constitution;
(ii) The direct recruitments made and the promotions effected in the cadre of Deputy Tahsildars upto 23-9-1992 are valid and binding;.
(iii) From 24-9-1992 onwards, the recruitment in the cadre of Deputy Tahsildars shall be made in the ratio of 70%:30% respectively for promotees and direct recruits;
(iv) The seniority list in the cadre of Deputy Tahsildars be drawn up in accordance with Rule 33(a) of the A.P. State and Subordinate Service Rules 1962 basing on the length of service without reference to the date of confirmation and without reference to G.O.Ms. No.4582, Revenue Department, dated 9-10-1980; and
(v) The above exercise of drawing-up of seniority list shall be made within a period of 4 months from the date of receipt of acopy of this order.
Accordingly, the Writ Petitions are disposed of No order as to costs.