IN THE ANDHRA PRADESH ADMINISTRATIVE TRIBUNAL :: AT HYDERABAD
WEDNESDAY,THE ELEVENTH DAY OF DECEMBER ,TWO THOUSAND AND THIRTEEN
::CORAM::
THE HON'BLE SRI JUSTICE DR.G.YETHIRAJULU, CHAIRMAN
AND
THE HON'BLE SRI DEEPAK KUMAR PANWAR, MEMBER(ADMIN.)
OA.Nos. 1614/2012, OA.No.2382/2012, OA.No. 2797/2012,
OA.No. 5917/2012 and OA.No. 7117/2011
O.A.No.1614 of 2012
BETWEEN
M. Gangadharam, S/o. M. Krishnaiah,
Incharge Engineer-in-Chief, State Roads,
R & B Department, Erramanzil, Hyderabad,
R/o. Plot No. 14, Opp : Church, Vivekananda Nagar,
Kukatpally, Hyderabad.
APPLICANT
(BY MR. P. BALAKRISHNA MURTHY ,ADVOCATE)
AND
1. The Engineer-in-Chief (Admn. & NH),
TR & B Department, Erramanzil, Hyderabad.
2. The Government of A.P., Rep. By Its Principal
Secretary, Transport, Roads & Buildings (Ser.II)
Department, Secretariat, Hyderabad-500 022.
3. K.Siva Reddy,S/o. Late K. Subba Reddy,
I/c. Engineer-in-Chief (Admn & NH),
R & B Department, Erramanzil, Hyderabad.
4. K. Bikshapathi, S/o. K. Ramulu, Chief Engineer,
R&B (Incharge) on deputation to National Institute
for Smart Government, Nanakramguda, Hyderabad,
R/o. Plot No.5, Progressive Colony-II,
Manovikas Nagar, Secunderabad.
5. S. Nagabhushanam, S/o. Kistaiah, Occ: Chief
Engineer R&B (Incharge) on deputation as
Engineer-in-Chief (Tribal Welfare), DSS Bhavan,
Masab Tank,Hyderabad, R/o. Flat No.201, JRG
Residency, MLA’s Colony, Road No.12,
Banjara Hills, Hyderabad.
6. P. Ravinder Rao, S/o. P. Narayana Rao, Occ:
Superintending Engineer on deputation with NHAI,
O/o. Chief General Manager (Tech.), D.No. 8-2334/18, Road No.3, Banajara Hills, Hyderabad,
R/o. H.No. 8-2-310/B/6&7, Road No.14, Banjara
Hills, Hyderabad, R/o.H.No. 8-2-310/B/6&7,
Road No.14, Banjara Hills, Hyderabad.
Contd ……/
:: 2 ::
7. P. Ramgopal Rao, S/o. P. Kishan Rao,
(I/c. Superintending Engineer), Deputy Chief
Engineer (R&B), NABARD, Erramanzil, Hyderabad.
8. N. Ashok Kumar, S/o. N. Eshwar Raj,
(I/c. Superintending Engineer), Deputy Chief
Engineer, (R&B), (Roads,) Erramanzil, Hyderabad.
9. A. Rajeswar Rao, S/o. V.R. Avadhani,
(I/c. Superintending Engineer) (R&B), Deputy Chief
Engineer (R&B) (Admin), Erramanzil, Hyderabad.
10. A. Murali, S/o. A. Mallaiah, Occ: Chief Engineer,
R&B (Incharge), on deputation as Director
MGNREGS, Rural Development Department,
2nd Floor, Hermitage Complex, Hill Fort Road,
Hyderabad, R/o. Flat No.140, Excel Avenue
Apartment, Rajiv Nagar Colony, Yousufguda,
Hyderabad.
11. N. Rama Rao, S/o. N. Rattaiah, Occ: Incharge
Engineer-in-Chief, R&B Department, Erramanzil,
Hyderabad.
12. Dr. G.V.S.Suryanarayana Raju, S/o. G.V.
Satyanarayana Raju, Occ: Chief Engineer,
Roads & Buildings Dept., Erramanzil, Hyderabad,
R/o. Flat No.206, Swarna Heavens, Road No.14,
Banjara Hills, Hyderabad.
RESPONDENTS
(R.4 to R.11 are impleaded as per the orders of the Tribunal dt. 16.03.2012 in MAs.729/2012,
760/2012, 862/2012 and 881/2012 in OA.1614/2012)
(R.12, Party-in-person is impleaded as per the orders of the Tribunal dated 08.10.2012 in
MA.2239/2012 in OA.No. 1614/2012)
(BY GP FOR TRANSPORT (SER.) FOR R.Nos. 1 and 2)
(BY SRI R.V. MALLIKARJUNA RAO, ADVOCATE FOR R.No.3)
(BY SRI J.R. MANOHAR RAO, ADVOCATE FOR R.Nos.4 to 6)
(BY SRI M. RAMGOPAL RAO, ADVOCATE FOR R.Nos. 7 to 9)
(BY SRI S. SATYAM REDDY, ADVOCATE FOR R.No.10)
(BY SRI M. RATNA REDDY, ADVOCATE FOR R.No.11)
(BY SRI G.V.S. SURYANARAYANA RAJU, ADVOCATE FOR R.No.12)
Application filed under Section 19 of the Administrative Tribunals Act ,1985 praying
this Tribunal (1) to call for the records relating to and connected with the impugned final
seniority list of Deputy Executive Engineers (R & B) Zone-wise and integrated seniority list
through impugned Proc.No. 960/Ser.I(3)/2011, dt. 04.08.2011 issued by the 1st respondent
and confirmation orders of the Final Zone-wise and integrated seniority list of Deputy
Executive Engineers (R&B) issued by the 2nd respondent through G.O.Rt.No.36, TR&B
(Ser.II) Department, dt. 16.01.2012 and set-aside them as illegal, arbitrary and without
jurisdiction. 2) to call for the records relating to and connected with G.O.Rt.No.449, TR&B
Department, dt. 01.05.2012 and G.O.Ms.No.47, TR&B Department, dt. 14.05.2012 issued
by the 2nd respondent and quash the same. (2) to call for the records relating to and
connected with G.O.Rt.No.449, TR&B Department, dt. 14.05.2012 issued by the 2nd
respondent and quash the same.
(Amendment is carried out as per the orders of the Tribunal dt. 19.11.2012 in MA.No.
1685/2012 in OA.No. 1614/2012.)
Contd……../
:: 3 ::
O.A.No.2382 of 2012
BETWEEN
S.Rama Murthy, S/o. S. Kondaiah, Working as
Chief Engineer, R/o. No. 201, Srirama Nijayama,
Vengal Rao Nagar, Hyderabad.
APPLICANT
(BY MR. M. SURENDER RAO ,ADVOCATE)
AND
1. The Government of Andhra Pradesh,
Rep. By Its Principal Secretary, R & B Engineering
Department, Secretariat, Hyderabad.
2. The Engineer-in-Chief, R&B Engineering,
Erramanzil, Hyderabad.
3. K. Siva Reddy, Working as Incharge Engineer-in –
Chief, National High Ways, Administration and
RWS, Erramanzil, Hyderabad.
4. A.Murali, S/o. A. Mallaiah, Occ Chief Engineer R&B
(Incharge) on deputation as Director MGNREGS,
Rural Development Department, 2nd Floor,
Hermitage Complex, Hill Fort Road, Hyderabad,
R/o. Flat No.140, Excel Avenue Apartment, Rajiv
Nagar Colony, Yosufguda, Hyderabad.
RESPONDENTS
(R.No.4 is impleaded as per the orders of the Tribunal dt. 05.07.2012 in
MA.No. 1103/2012 in OA.No. 2382/2012.)
(BY GP for R&B (SER.) FOR R.Nos. 1 and 2)
(BY SRI R.V. MALLIKARJUNA RAO, ADVOCATE FOR R.No.3)
(BY SRI S. SATYAM REDDY, ADVOCATE FOR R.No.4)
Application filed under Section 19 of the Administrative Tribunals Act ,1985
praying this Tribunal to declare that the i) seniority list dated 4-8-2011 issued by the 2nd
respondent has no power, authority or jurisdiction; ii) further declare that the 2nd
respondent has no power to alter or undo the seniority list issued in G.O.Ms. No. 314 dated
29-4-1994, G.O.Ms. No. 37 dated 23-2-2002, G.O.Ms. No. 150 dated 31-8- 2002 and
G.O.Ms. No. 129 dated 17-9-2004; iii) declare that the seniority list dated 4-8-2011 is the
result of the bias of the 3rd respondent in his own cause.
Contd……../
:: 4 ::
O.A.No.2797 of 2012
BETWEEN
G. Jagannadha Rao, S/o. Sri GSN. Murthy,
I/c. Chief Engineer (R&B) Department,
PPP Projects, Errummanzil, Hyderabad
R/o. Flat No.504, R.V. Devakinandan Apartments,
3-4-695, Narayanguda, Hyderabad - 500029.
APPLICANT
(BY MR. C. SRINIVASA BABA ,ADVOCATE)
AND
1. The Government of Andhra Pradesh,
Represented By Its Principal Secretary to
Government, TR&B (Ser.II) Department,
A.P. Secretariat, Hyderabad - 500 022
2. The Engineer-in-Chief (R&B) Admn.,
R&B Department, Errummanzil, Hyderabad.
3. Sri.K.Siva Reddy, S/o Late Sri K. Subba Reddy,
Aged 58 Years, In-charge Engineer-in-Chief (R&B)
NH & Admn., Errummanzil, Hyderabad .
RESPONDENTS
4. A.Murali, S/o. A. Mallaiah, Occ Chief Engineer R&B
(Incharge) on deputation as Director MGNREGS,
Rural Development Department, 2nd Floor,
Hermitage Complex, Hill Fort Road, Hyderabad,
R/o. Flat No.140, Excel Avenue Apartment, Rajiv
Nagar Colony, Yosufguda, Hyderabad.
(R.No.4 is impleaded as per the orders of the Tribunal dt. 05.07.2012 in
MA.No. 1226/2012 in OA.No. 2797/2012.)
(BY GP FOR TRANSPORT (SER.) FOR R.Nos. 1 and 2)
(BY SRI R.V. MALLIKARJUNA RAO, ADVOCATE FOR R.No.3)
(BY SRI S. SATYAM REDDY, ADVOCATE FOR R.No.4)
Application filed under Section 19 of the Administrative Tribunals Act ,1985 praying
this Tribunal to call for the original records pertaining to Circular Memo. No.960/
Ser.I(3)/2011, Dated 4-8-2011 as confirmed in G.O. Rt. No.36, TR&B dated 16-1-2012
issued by the 1st respondent and set aside the integrated seniority in so far as 1982 batch
of Direct Recruits as arbitrary and as the same is not in accordance with the directions of
the APAT and as conceived by the 1st respondent - vide Govt. file relating to Govt. Memo.
No.1239/Ser.II(1)/2009-4, TR&B (Ser.II) Department dated 24-9-2009 apart from being
violative of Articles 14, 16 and 21 of the Constitution of India and as a consequence thereof
direct the 1st respondent to finalise the seniority of Dy.EEs. in accordance with the rules
duly assigning the notional dates to the concerned as per proviso to Rule 33(b) of AP State
and Subordinate Service Rules
Contd……../
:: 5 ::
O.A.No.5917 of 2012
BETWEEN
B. Madhava Rao, S/o. B. Tirumal Rao, Occ: Retired I/c.
Chief Engineer, R & B Department, R/o. H.No. 8,
Plot No. 108, R.K. Enclave, Tothi Colony,
A.O.C., Secunderabad-15 .
APPLICANT
(BY MR. P. BALAKRISHNA MURTHY ,ADVOCATE)
AND
1. K. Siva Reddy, S/o. Late K. Subba Reddy,
Aged about 58 Years, Occ : I/C. Engineer-in-Chief
(Admn & NH), R & B Department,
Erramanzil, Hyderabad.
2. The Government of A.P., Rep.By Its Principal
Secretary, Transport, Roads & Buildings (Ser.II)
Department, Secretariat, Hyderabad-500 022.
RESPONDENTS
(BY SRI R.V. MALLIKARJUNA RAO, ADVOCATE FOR R.No.1)
(BY GP FOR TRANSPORT (SER.) FOR R.No.2)
Application filed under Section 19 of the Administrative Tribunals Act ,1985
praying this Tribunal to: (a) to declare that the 1st respondent as he has no authority to hold
the post of Engineer-in-Chief, Administration, R & B Department on incharge basis in view of
the mandatory prohibition contained in Rule-10 (h) of the AP. State and Subordinate Service
Rules and declare that all his actions as Engineer-in-Chief are void, ab-initio. illegal and
without jurisdiction; (b) to call for the records relating to and connected with the seniority list
issued through Proc.No. 960/Ser.I(3)/2011, dt. 04.08.2011 and quash the same by declaring
that the 1st respondent has no jurisdiction in law to issue the same.
Contd……../
:: 6 ::
O.A.No.7117 of 2011
BETWEEN
1. Sri P.Rajendar Kumar, S/o. Samson, working as
Executive Engineer, R&B on OD with HGCL,
Hyderabad R/o 2-3-8, DSNR, Hyderabad
2. Sri V.Rama Chandra, S/o. V.R.G. Sastry, Working
as Executive Engineer, I/c Perkit, Nizambad
R/o 2-3, Main Road, Nizambad
3. Sri Haris Chandra, S/o. Potteiah, Working as l/c
Superintending Engineer, (R&B) on deputation
with Acharya NG Ranga Agricultural University,
Rajendra Nagar, Hyderabad, R/o. 4-15, Rajendra
Nagar, Hyderabad.
4. P.Satish, S/o. Narasimha Rao, Working as
Executive Engineer I/c R&B Dept, Guntur District,
Guntur, R/o. 4-8, Main Road, Guntur.
5. M.Lingaiah, S/o. Rama Chandraiah, Occ:Working
as Executive Engineer I/c. R&B Vikarabad,
R/o EE Quarters, Ananthagiri, Vikarabad.
(BY MR. M. SURENDER RAO ,ADVOCATE)
AND
APPLICANTS
1. The Government of Andhra Pradesh,
rep. By Its Principal Secretary, T R&B Department,
Secretariat, Hyderabad.
2. The Engineer-in-Chief, R&B Department,
Erramanzil, Hyderabad
3. Sri K. Shiva Reddy, Presently working as Engineerin-Chief R&B Department, Erramanzil, Hyderabad.
4. S.V.N.S.Sai Kumar, S/o. S. Rama Mohan Rao, Occ:
I/c. Executive Engineer, O/o/.Engineer-in-Chief
(R&B), Erramanzil, Hyderabad.
5. Katam.Venugopal Reddy, S/o. K. Bazar Reddy,
working as Incharge Executive Engineer (R&B)
Division, Pulivendula, Y.S.R.District,
R/o/ Sudhakar Reddy Colony, Pulivendula,
Y.S.R.Disttict.
RESPONDENTS
(BY GP for I & CAD (SER.) FOR R.Nos.1 and 2)
(BY MR. J. SUDHEER, ADVOCATE FOR R.No.4)
(BY SMT. K. RAJYA LAKSHMI, ADVOCATE FOR R.No.5)
Application filed under Section 19 of the Administrative Tribunals Act ,1985
praying this Tribunal to declare that 1). The Final Seniority List of Dy.Executive Engineers
issued by 2nd respondent (which office was held by 3rd respondent) in Proc.No.960/SerI(3)/2011 dt.4.8.2011 as illegal and arbitrary and is violative of Articles 14 & 16 of the
constitution of India. 2). That the Seniority List shall be prepared based on rank (marks)
secured at the selection held by APPSC.
These original applications having come up for hearing on 11.12.2012 and having
stood over for consideration till this day, the Tribunal made the following:
:: ORDER ::
As the issues involved in all these O.As. are identical,
they are heard together and a common Judgment is delivered.
O.A.No.1614 of 2012:
2)
The applicant in O.A.No.1614 of 2012 is seeking to set
aside the integrated seniority of Deputy Executive Engineers
communicated through Proceedings No.960/Ser.I (3)/2011, dated
4.8.2011 and the orders issued by the Government through
G.O.Rt.No.36, Transport, Roads & Buildings (Ser.II) Department,
dated 16.1.2012 confirming the above seniority list by declaring the
same as illegal, arbitrary and without jurisdiction.
3)
The applicant in O.A.No.1614/2012 is contending that he
was selected as Deputy Executive Engineer through A.P. Public
Service Commission and joined service in August, 1982. He belongs
to S.C. category.
The 3rd Respondent belongs to O.C. category.
The applicant and the 3rd Respondent were selected along with 33
others as Deputy Executive Engineers through A.P. Public Service
Commission and reported to duty in August and September, 1982
respectively.
The selections were made on state wide basis and the
selected candidates were allotted to various zones on the basis of
the options exercised by the respective candidates and the ranks
assigned to them.
Disputes arose between direct recruits and
promotees regarding implementation of the quota rule stipulated in
the Rules. The issue went upto the Supreme Court of India and the
Supreme Court in K. SIVA REDDY VS. STATE OF A.P, A.I.R 1988
SC 860 observed that the promotions were made in excess of
promotees quota and further observed as follows:
“
We are of the view that the regularization made in
respect of the promotees of the year 1972 to 1975 should
not at this point of time be disturbed particularly when
the regularization has been subsequent to the actual
commencement of continuous service in the post of
Assistant Engineer.”
4)
When Contempt Applications covered by C.A.No.294 of
1992 and batch were filed before the Supreme Court complaining
that the directions given in K. Siva Reddy’s case were not complied
with, therefore, the State Government was liable for contempt, the
said Contempt Applications were disposed of with the following
observations:
“
We are, therefore, more than satisfied that neither
the appointments nor the inter se seniority of those who
were appointed in the vacancies prior to 31.12.1982 was
to be disturbed at all while giving seniority to the direct
recruits, who were to be appointed as per the directions
given in Siva Reddy’s case (AIR 1988 SC 860) in the
vacancies existing on 31.12.1982 plus the vacancies
occurring thereafter till 31.12.1987……”
5)
The applicant further contends that inter se seniority
between direct recruits, promotees and transferees in the post of
Deputy Executive Engineers as determined upto 31.12.1982 shall
not be disturbed under any circumstances.
In Circular Memo
No.16/Ser.A/93-99, dated 21.4.1999 the State Government issued
specific instructions that the seniority lists already finalized by the
various authorities based upon the Court Judgments in individual
cases which have become final shall not be disturbed.
seniority
list,
dated
4.8.2011
issued
through
The final
proceedings
No.960/Ser.I(3)/2011 is therefore liable to be struck down.
The State Government issued final inter se seniority list of direct
recruits, transferees and promotees in the category of Deputy
Executive
Engineers
from
1.4.1965
to
31.12.1982
through
G.O.Ms.No.314, Transport, Roads & Buildings Department, dated
29.11.1994. When the above seniority list was sought to be watered
down by the Tribunal, the State Government approached the High
Court through W.P.No.5834 of 1998 and various Writ Petitions were
also filed by others before the High Court aggrieved by the Orders of
the Tribunal. A Division Bench of the High Court directed the
Government to scrutinize the orders issued in G.O.Ms.Nos.314, 38
and 147 once again and if they are found to be in consonance with
the directions of the High Court, they shall be treated as final or
else necessary modifications be made to be in tune with the
directions of the High Court within three months from the date of
receipt of the Order. The seniority lists were not reviewed within
the time stipulated by the High Court. The SLP filed against the
Judgment of the High Court was also dismissed. When the
Government tried to modify the said seniority list issued in
G.O.Ms.No.314, Transport, Roads & Buildings (Ser.III) Department,
dated 29.11.1994 through another final seniority list covered by
G.O.Ms.No.72, Transport, Roads & Buildings Department, dated
6.5.2000, the same was struck down by a Division Bench of the
High
Court
in
W.P.No.9077/2001
through
Judgment,
dated
24.8.2001 (M.SHYAMSUNDAR AND OTHERS VS. GOVERNMENT
OF A.P. reported in 2001 (6) ALD 87)
power
whatsoever
to
revise
the
G.O.Ms.No.314, dated 29.11.1994
The Government have no
seniority
and
the
list
issued
in
positions of the
applicant, 3rd Respondent and others as contained in the above
seniority list can never be altered and any such alteration is
contrary to the Judgments of the High Court in W.P.N.5834/1998
and batch, dated 23.7.1999 and W.P.No.9077/2001 & batch, dated
24.8.2001.
The official Respondents have no jurisdiction or
authority to re-open the inter se seniority positions of 1982 direct
recruit Deputy Executive Engineers, promotees and transferees
upto 31.12.1987.
The earlier seniority list finalized by the
Government through G.O.Ms.No.314, dated 29.11.1994 cannot be
superseded or a fresh seniority list could be drawn by the Engineerin-Chief, who is an inferior authority. The 3rd Respondent issued
impugned seniority list, dated 4.8.2011 as in-charge Engineer-inChief.
The applicant was placed at slot No.8 reserved
for S.T.
category in the panel of Executive Engineers fit for promotion as
Executive
Engineers
13.3.2003.
prepared
through
G.O.Ms.No.31,
dated
The 3rd Respondent is not able to reconcile to the
applicant occupying higher position to him as the 3rd Respondent
would be placed at Sl.No.55 in the said panel. The impugned
seniority list, dated 4.8.2011 was issued ignoring the final zonal
wise seniority list issued through G.O.Ms.No.314, dated 29.11.1994
and
the
final
integrated
seniority
G.O.Ms.No.129, dated 17.9.2004.
list
issued
through
The 3rd Respondent could not
have taken on himself to prepare the seniority list to buttress his
own
interest.
The
orders
issued
by
the
Government
in
G.O.Ms.No.230, General Administration (Ser.D) Department, dated
22.5.1999 and G.O.Ms.No.311,
General Administration (Ser.D)
Department, dated 17.10.2003 were not retrospective in nature and
they were only prospective in nature and applicable from the date of
issue of those orders. The final seniority list of Deputy Executive
Engineers in
G.O.Ms.No.314, dated 29.11.1994 was issued in
pursuance of the directions of the Tribunal and the Hon’ble
Supreme Court.
The 3rd Respondent was made incharge Chief
Engineer on 18.8.2005 even though he was not holding the post of
Superintending Engineer on substantive basis and he was also
made
as
in-charge
Engineer
in
Chief
(Admn.&NH)
through
G.O.Ms.No.905, Transport, Roads & Buildings Department, dated
31.8.2006. The 3rd Respondent was having full control over R & B
Department and he was able to manipulate everything and having
access to the corridors of power. Therefore, the applicant requests
to grant the reliefs as prayed for.
6)
The official Respondents filed a Counter in O.A.No.1614
of 2012 mentioning that as per the directions of the High Court in
W.P.No.5834 of 1998 and batch, dated 23.7.1999 and W.P.No.9077
of 2001 and batch, dated 24.8.2001 the seniority list of Deputy
Executive Engineers of direct recruits/promotees/transferees from
1.4.1965 to 31.12.1987 was prepared by the Government vide
G.O.Ms.No.37, Transport, Roads & Buildings Department, dated
23.3.2002, wherein it is clearly mentioned as follows:
“
The seniority list now approved is subject to
revision of seniority in the cadre of Deputy Executive
Engineer as per directions of Hon’ble Supreme Court in
C.A.Nos.2027-34/87 and batch, dated 16.7.1993 in
G.S. Venkata Reddy’s case and subject to disposal of
W.P.No.5973 of 2000 and batch filed by the Government
in Andhra Pradesh High Court and also subject to the
final disposal of court cases pending, if any, relevant to
the subject.”
7)
The seniority issue in the lower cadre i.e. Assistant
Executive Engineer (R & B) was examined by the Government and
found that the law laid down by the Hon’ble Supreme Court in the
case of G.S. VENKATA REDDY Vs. GOVERNMENT OF ANDHRA
PRADESH in C.A.No.2027-29/87 is to be implemented. Therefore,
the Government issued Memo, dated 18.10.2007 directing the
Engineer-in-Chief (R& B) Administration, Hyderabad to prepare
provisional seniority list of Junior Engineers (now Assistant
Executive Engineers) Roads & Buildings Department recruited after
28.2.1972 as per the directions of the Hon’ble Supreme Court in the
above
Judgment.
Accordingly
the
Engineer-in-Chief
(R&B)
Administration prepared the seniority list of Assistant Executive
Engineers through Circular Memo, dated 29.12.2010 duly reviving
the orders issued in G.O.Ms.No.134, Transport, Roads & Buildings
Department, dated 5.5.1980 and G.O.Ms.No.339, Transport, Roads
& Buildings Department, dated 16.10.1980 and the said seniority
list
was
confirmed
by
the
Government
vide
G.O.Ms.No.71,
Transport, Roads & Buildings (Ser.II) Department, dated 28.5.2011
by relaxing Rule 33 (b) of A.P. State and Subordinate Service Rules
in case of APPSC candidates and the batch of candidates covered
under G.O.Ms.No.647, General Administration Department, dated
14.9.1979. Consequent on finalization of seniority in the cadre of
Assistant Executive Engineer, the seniority list of Deputy Executive
Engineers was prepared and finalized by the Engineer-in-Chief
(R&B) Administration NH through Circular Memo, dated 4.8.2011.
On receipt of objections/representations against the finalized
seniority list prepared by Engineer-in-Chief, the Government as
appellate authority constituted a committee through G.O.Rt.No.904,
Transport, Roads & Buildings Department, dated 16.9.2011 to
examine
all
the
objections/representations
received
by
the
Government in detail in accordance with the existing service rules.
The committee after detailed examination submitted report on
26.12.2011. Subsequently, the Government confirmed the seniority
list of Deputy Executive Engineers vide G.O.Rt.No.38, Transport,
Roads & Buildings (Ser.II) Department, dated 16.1.2012. On the
basis of the finalized and confirmed seniority list of Deputy
Executive Engineers, year wise panels were prepared for promotion
to the cadre of Executive Engineer. Subsequently, the Government
have issued orders in G.O.Ms.No.47, Transport, Roads & Buildings
(Ser.I) Department, dated 14.5.2012 effecting promotions to the
cadre of Executive Engineer. Later, the Government approved the
year-wise panels of Executive Engineers (R&B) fit for promotion to
the cadre of Superintending Engineers (R & B) vide G.O.Ms.No.62,
Transport, Roads & Buildings Department, dated 22.6.2012.
Thereafter the Government issued orders in G.O.Rt.Nos.630, 631
and 632, Transport, Roads & Buildings (Ser.I) Department, dated
22.6.2012
promoting
the
Executive
Engineers
(R
&
B)
as
Superintending Engineers (R & B) on notional basis for the panel
years 1993-94 to 2010-2011.
8)
The official Respondents further contended that the
applicant was appointed as Deputy Executive Engineer through
A.P.Public Service Commission under S.T. quota in 1982 and he
was allotted to Zone-II. The 3rd Respondent was also appointed s
Deputy Executive Engineer through A.P. Public Service Commission
in the same batch and allotted to Zone-IV. The Hon’ble Supreme
Court in C.A.No.294/1992 and batch issued directions that neither
the appointment nor the inter se seniority of those who were
appointed in the vacancies prior to 31.12.1982 was to be disturbed
at all while giving seniority to the direct recruits, who were to be
appointed as per the directions given in K. SIVA REDDY’s case
(A.I.R. 1988 SC 860) in the vacancies existing on 31.12.1982 plus
the vacancies occurring thereafter till 31.12.1987. The above
directions of the Hon’ble Supreme Court were given in regard to the
seniority of direct recruit Deputy Executive Engineers vis-à-vis
promotee/transferee Deputy Executive Engineers. But in the
present
case
the
seniority
of
promotee/transferee
Assistant
Executive Engineers only which was envisaged in view of the
implement of the Judgment of the Hon’ble Supreme Court, dated
16.7.1993. Once the seniority in the cadre of Assistant Executive
Engineers is disturbed, it will have effect on the seniority lists of
higher
cadres
viz,
Deputy
Executive
Engineers,
Executive
Engineers, Superintending Engineers etc. Therefore, the applicant
cannot contend that the orders of the Hon’ble Supreme Court in
C.A.No.294 of 1992 have been violated as both the Judgments deal
with two different cadres. The seniority lists already finalized by the
various authorities on the basis of Court Judgments in individual
cases which have become final, shall not be disturbed. But in Roads
& Buildings Department, the seniority lists of Assistant Executive
Engineers, Assistant Engineers and Deputy Executive Engineers
were
never
finalized.
The
seniority
lists
of
direct
recruit/promote/transferee Deputy Executive Engineers approved
through G.O.Ms.No.314, Transport, Roads & Buildings Department,
dated 29.11.1994 and the subsequent seniority lists approved in
G.O.Ms.Nos.37, dated 23.3.2002, 150, dated 31.8.2002 and 129,
dated
17.9.2004
issued
by
Transport,
Roads
&
Buildings
Department, subject to revision of seniority in the cadre of Deputy
Executive Engineer after review of seniority in the lower cadre of
Assistant Executive Engineers as per the directions of the Hon’ble
Supreme Court in C.A.No.2027-34/87 and batch, dated 16.7.1993
in G.S. Venkat Reddy’s case and also subject to final disposal of the
cases pending, if any, on the relevant subject.
9)
The official Respondents also contended that the final
seniority list of Deputy Executive Engineers, dated 4.8.2011 was
prepared as per the directions of the Hon’ble Supreme Court, High
Court and Tribunal in various court cases given on different
occasions.
The said seniority list, dated 4.8.2011 was also
confirmed by the Government through G.O.Rt.No.36, Transport,
Roads
&
Buildings
Department,
dated
16.1.2012
and
G.O.Rt.No.449, Transport, Roads & Buildings Department, dated
1.5.2012. Revision of seniority list of Deputy Executive Engineers
and issuance of integrated seniority list of Deputy Executive
Engineers is inevitable as per the directions of the Hon’ble Supreme
Court. The revised seniority list of Deputy Executive Engineers and
the integrated seniority list of Deputy Executive Engineers were
prepared and finalized by the Engineer-in-Chief (R & B) Admn. &
NH in accordance with A.P. State and Subordinate Service Rules.
The same were examined and confirmed by the 2nd RespondentGovernment as an appellate authority on the basis of the report of
the expert committee.
Respondents
that
It is also contended by the official
earlier
the
applicant
was
considered
for
promotion to the post of Superintending Engineer in the panel year
2002-2003 as per the seniority list approved in G.O.Ms.No.314,
Transport, Roads & Buildings Department, dated 29.11.1994.
Subsequently the case of the applicant was considered as per the
revised
seniority
list
of
Deputy
Executive
Engineers
vide
G.O.MsNo.36, Transport, Roads & Buildings Department, dated
161.2012 and he was promoted as Superintending Engineer in the
panel year 2000-2001. Therefore, there is no loss or disadvantage
to the applicant due to revision of seniority list of Deputy Executive
Engineers. The rule of reservation in promotions is applicable only
from the panel year 2002-2003 as the Government issued orders in
this regard on 14.2.2003.
The applicant was also promoted as
Chief Engineer through G.O.Ms.No.141, Transport, Roads &
Buildings Department, dated 4.6.2007 w.e.f. 1.4.2003 on par with
his junior. He was also placed as incharge Engineer-in-chief vide
G.O.Ms.No.205, Transport, Roads & Buildings Department, dated
7.2.2009
on
the
basis
of
the
approved
seniority
list
vide
G.O.Ms.No.314, Transport, Roads & Buildings Department, dated
29.11.1994. The 3rd Respondent was promoted as Chief Engineer
(R & B)
vide
G.O.Ms.No.6,
Transport,
Roads &
Buildings
Department, dated 11.1.2011 on the basis of the approved seniority
list vide G.O.Ms.No.314, Transport, Roads & Buildings Department,
dated 29.11.1994.
The 3rd Respondent was not in-charge Chief
Engineer. Since the seniority lists of Deputy Executive Engineers
were prepared in accordance with the instructions issued by the
Government from time to time and as per the Judgments of the
Courts, no mala fides can be attributed to the 3rd Respondent. The
3rd Respondent has no influence of any external forces as stated by
the applicant. Therefore, requested to dismiss the Application as
devoid of merits.
10)
The 3rd Respondent filed a Counter Affidavit contending
that the Government being the principal employer is competent to
issue the seniority list and it can also delegate its power to a
suitable authority.
In the General Rules or Special Rules no
authority is specifically prescribed to issue a seniority list. Hence,
the Government can delegate the power to prepare the seniority list
to a suitable authority under its control and jurisdiction. The 3 rd
Respondent being in-charge Engineer-in-Chief and being the
appointing authority of Assistant Executive Engineers and Deputy
Executive Engineers, the Government entrusted the work of
preparation of final seniority list of Deputy Executive Engineer to
him which is perfectly legal. Accordingly he prepared the seniority
list and submitted the same to the Government for scrutiny and
approval.
11)
The 3rd Respondent further contended that the need to
prepare the seniority lists arose in view of the Orders of the Hon’ble
High Court and the Supreme Court.
The seniority list issued
through G.O.Ms.No.314, Transport, Roads & Buildings Department,
dated 29.11.1994 itself is inadequate list as the feeder category of
Assistant Executive Engineers is not integrated in each and every
zone as per G.S. VENKATA REDDY’s case and this legal infirmity
was also pointed out by the Hon’ble High Court in C.C.No.1114 of
2007 and batch.
The Government of Andhra Pradesh after
considering several representations and being conscious of the fact
that these objections are being raised time and again constituted a
Committee of senior most officers of various services through
G.O.Rt.No.804, Transport, Roads & Buildings Department, dated
16.9.2011 to scrutinize the impugned final seniority list. Therefore,
making baseless and mala fide allegations against the
3rd
Respondent is uncalled for. Citing of several names of those who
were pushed down to lower levels by the 3rd Respondent is totally
misleading and their positions were disturbed only because the
orders of the Hon’ble Supreme Court of India in G.S.Venkat Reddy’s
case
have
to
be
implemented
and
the
beneficiaries
under
G.O.Ms.No.647, dated 14.7.1979 had to yield place to regular
Assistants Executive Engineers.
The alteration or change in the
zonal list of an individual as Assistant Executive Engineers would
necessarily make a corresponding change in zonal seniority list of
Deputy Executive Engineers and also statewide seniority list of
Deputy Executive Engineers as a fall out. The number of vacancies
and persons to hold them were not reduced, but have been shown
in subsequent panel years. Issuing a final seniority list in order to
facilitate regular promotions is neither illegal nor mala fide.
12)
The 3rd Respondent further contended that unsettlement
of the seniority list is necessitated in order to implement the
Judgment of the Supreme Court in G.S. Venkata Reddy’s case as
approved in C.C.No.1114/2009 and batch and the Orders of the
Hon’ble High Court in W.P.No.12317 of 2009. In all the seniority
lists and temporary panels the applicant in O.A.No.1614 of 2012 is
shown below the 3rd Respondent and his date of regularization is
earlier to the date of regularization of the applicant in the said O.A.
Even if the relative position of the applicant in the above O.A. and
the 3rd Respondent in G.O.Ms.No.314 and G.O.Ms.No.129 is taken,
he cannot claim seniority over the 3rd Respondent. There will be no
final seniority in the category of Deputy Executive Engineer unless
the seniority list in the category of Assistant Executive Engineer is
finalized. All the seniority lists in the category of Deputy Executive
Engineer and panels for further promotions to next higher posts
can only be temporary, pending finalization of seniority list in the
category of Assistant Executive Engineer as per G.S. Venkata
Reddy’s case which was amply made clear by G.O.Ms.No.129,
Transport, Roads & Buildings Department, dated 17-9-2004 and
other Judgments. The 3rd Respondent further contended that Rules
33, 34 and 36 of A.P. State and Subordinate Service Rules have
been scrupulously followed.
All the Officers in each zone were
arranged as per the directions of the Supreme Court of India in G.S.
Venkata Reddy’s case in order of seniority by applying Rule 34 and
Rule 36 of A.P. State and Subordinate Service Rules.
Therefore,
requested to dismiss O.A.No.1614 of 2012 as devoid of merits.
O.A.No.2797 of 2012:
13)
The applicant O.A.No.2797 of 2012 is seeking to set aside
the seniority list issued in proceedings No.960/Ser.I(3)/2011, dated
4.8.2011 confirmed through G.O.Rt.No.36, Transport, Roads &
Buildings Department, dated 16.1.2012 by declaring them as
illegal, arbitrary and violative of Articles 14, 16 and 21 of the
Constitution
of
India
and
consequently
direct
the
official
Respondents to finalise the seniority list of Deputy Executive
Engineers in accordance with Rules duly assigning notional dates to
the concerned as per Proviso to Rule 33 (b) of A.P. State and
Subordinate Service Rules.
14)
The applicant is contending that he was appointed as
Deputy Executive Engineer in Roads & Buildings Department in
Zone-II after selection by A.P. Public Service Commission in 1982
and joined duty on 16.8.1982 A.N. His probation was ordered to be
commenced with effect from 17.8.1982. The applicant is 3rd ranker
in the selection list.
He was promoted as Executive Engineer in
1991 and thereafter promoted as Superintending Engineer in June,
2003. Now he is acting as In-charge Chief Engineer with effect from
2.11.2007 because of non-settlement of seniority issue in the lower
categories.
As per Memo No.1239/Ser.II (1)/2008-4, Transport,
Roads & Buildings (Ser.II) Department, dated 24.9.2009
the
seniority of direct recruit Deputy Executive Engineer has to be fixed
in the zone as per the ranking assigned to them by A.P. Public
Service Commission. While fixing the seniority, if a person lower
in rank joined earlier than the higher rank holder, the person with
higher rank is to be granted ante date of appointment on par with
his junior in the merit list under the proviso to Rule 33 (b) of A.P.
State and Subordinate Service Rules. The integrated seniority list
of Deputy Executive Engineers has to be prepared on the basis of
date of regular appointment in the Zone without disturbing the
appointment in the zone and whose services are regularized earlier
will become senior in the list. The integrated seniority list of Deputy
Executive Engineers has to be prepared based on the date of
regular appointment in the zone without disturbing the seniority in
the zone and whoever regularized earlier will become senior in the
list.
As per Rule 33 (b) of A.P. State and Subordinate Service
Rules, notional dates are to be assigned to the seniors on par with
the date of joining of the junior in case the junior joins earlier to
such senior.
The 3rd Respondent has not followed uniform
procedure to all while finalizing the seniority. However, the
integrated seniority list, dated 4.8.2011 was prepared without
following the above principles and it is not in accordance with the
Rules.
No uniform procedure was followed while finalizing the
seniority list. Higher rankers who joined earlier were juniors in the
integrated seniority list.
Therefore, requested to set aside the
impugned integrated seniority list, dated 4.8.2011.
15)
Respondents
filed
a
Counter
mentioning
that
the
applicant was appointed as Deputy Executive Engineer through
direct recruitment in Zone-II as per G.O.Ms.No.224, Transport,
Roads & Buildings Department, dated 24.7.1982 and joined as
such on 16.8.1982. Subsequently he was promoted as Executive
Engineer and Superintending Engineer. He was place as in-charge
Chief Engineer. On the basis of the Judgments of the Hon’ble High
Court in W.P.No.5834 of 1998 and batch, dated 23.7.1999 and
W.P.No.9077 of 2001 and batch, the Government have issued fresh
final
seniority
list
of
Deputy
Executive
Engineers
through
G.O.Ms.No.37, dated 23.2.2002. On the basis of the said seniority
list,
the
Government
issued
integrated
seniority
through
G.O.Ms.No.150, Transport, Roads & Buildings Department dated
31.8.2002.
The integrated seniority list was modified through
G.O.Ms.No.129, Transport, Roads & Buildings Department, dated
17.9.2004 on the basis of zonal seniority list of Zone-IV issued in
G.O.Ms.No.56, Transport, Roads & Buildings Department, dated
17.5.2004.
The
applicant
along
with
others
submitted
representations requesting to revise the zone wise seniority list of
Deputy
Executive
Engineers
issued
in
G.O.Ms.No.37,
dated
23.2.2002 and integrated seniority list issued in G.O.Ms.No.129,
Transport, Roads & Buildings Department, dated 17.9.2004. The
representations of the applicant and others were disposed of by the
Government vide Memo, dated 6.12.2008 informing the applicant
that the seniority list will be finalized in accordance with General
Rules and other relevant rules after finalization of seniority in the
category of Assistant Executive Engineer as per the Judgment of the
Supreme Court in G.S.Venkat Reddy’s case.
16)
The Respondents further contended that the seniority
position and the dates of regularisation assigned to the promote
Deputy Executive Engineers (R & B) in G.O.Ms.No.314, Transport,
Roads & Buildings Department, dated 29.11.1994 and other
Government Orders have to be protected to the extent of vacancies
available. There is no change in the seniority of direct recruit
Deputy Executive Engineers of 1982 batch when compared to the
seniority assigned to them in G.O.Ms.No.314. There is no provision
in General Rules or A.P. Roads & Buildings Service Rules to follow
the ranking in the merit list of A.P. Public Service Commission
which is different from selection list made on zonal basis. The
selection list is prepared on zone wise basis by following Rule 22 of
A.P. State and Subordinate Service Rules.
It is not necessary to
follow the state wide merit of direct recruit Deputy Executive
Engineers for the purpose of integration and the zonal selection list
is the basis for the preparation of integrated seniority list.
17)
Orders
The Respondents further contended that as per the
of
the
Hon’ble
High
Court
of
Andhra
Pradesh
in
W.P.No.12316 of 2008, dated 3.11.2010 and W.P.Nos.24680 and
27568 of 2010, dated 10.11.2010 and as per G.O.Ms.No.71,
Transport, Roads & Buildings (Ser.I) Department, dated 28.5.2011
the seniority list of Assistant Executive Engineers was revised and
finalized through Circular Memo, dated 1.6.2011.
Subsequently
the seniority list of Deputy Executive Engineers was also revised
after examining the objections and the seniority list was finalized
through proceedings, dated 4.8.2011 and the same was confirmed
by the Government through G.O.Rt.No.36, Transport, Roads &
Buildings Department, dated 16.1.2011. On the basis of the said
seniority list year-wise panels were prepared for promotion to the
cadre of Executive Engineers and promotions were effected by the
Government through G.O.Ms.No.47, Transport, Roads & Buildings
Department, dated 14.5.2012.
The seniority lists issued earlier
through G.O.Ms.No.314 and G.O.Ms.No.129 were revised as per the
directions of the Supreme Court, dated 16.7.1993 in G.S.VENKAT
REDDY’s case and as per G.O.Ms.No.71, Transport, Roads &
Buildings Department, dated 28.5.2011. Subsequently, year-wise
panels were prepared for promotion to the cadre of Superintending
Engineer
duly
implementing
the
rule
of
reservation.
The
Government have approved the year wise panels of Superintending
Engineer
for
the
years
1993-94
to
2011-2012
through
G.O.Ms.No.62, Transport, Roads & Buildings Department, dated
22.6.2012. In this list the applicant stands at Sl.No.23 in the panel
year 2000-2001. Therefore, requested to dismiss the Application as
devoid of merits.
O.A.No.5917 of 2012:
18)
aside
The applicant in O.A.No.5917 of 2012 is seeking to set
the
seniority
list
issued
through
Proceedings
No.960/Ser.I(3)/2011, dated 4.8.2011 and also sought for a
declaration that the 1st Respondent has no authority hold the post
of Engineer-in-Chief, Administration, R & B Department on incharge basis in view of mandatory prohibition contained in Rule 10
(h) of A.P. State and Subordinate Service Rules and also declare
that all his actions as Engineer-in-Chief are void ab initio, illegal
and without jurisdiction.
19)
The applicant contends that he retired from service while
working as in-charge Chief Engineer in January, 2007. The 1st
Respondent was appointed as in-charge Engineer-in-Chief through
G.O.Rt.No.905, Transport, Roads & Buildings Department, dated
31.8.2006 contrary to Rules and has been functioning as such from
31.8.2006. Rule 10 (h) of A.P. State and Subordinate Service Rules
prohibits the practice of making in-charge arrangements. The 2nd
Respondent is bound by the statutory rules and cannot give any
preferential treatment to the 1st Respondent. The 1st Respondent
has no legal authority to discharge the functions or duties as incharge Engineer-in-Chief in view of legal prohibition contained in
Rule 10 (h) of A.P. State and Subordinate Service Rules. The
applicant belongs to Zone-V.
He was placed at Sl.No.237 in the
integrated seniority list of Deputy Executive Engineers issued by
the Government through G.O.Ms.No.129, Transport, Roads &
Buildings (Ser.II) Department, dated 17.9.2004. On that basis he
was promoted as Executive Engineer and Superintending Engineer.
The 1st Respondent, who has no right to hold the post of Engineerin-Chief, Administration, R & B Department under law issued the
seniority list of Deputy Executive Engineers through proceedings,
dated 4.8.2011, wherein the applicant was placed at Sl.No.657 by
pushing him down by 420 places. In the said seniority list, the
applicant who was included in the panel of 1980-81 for the purpose
of promotion to the post of Deputy Executive Engineer was brought
down to 1993-94 panel by pushing him down by 13 long years.
There is no rule or rhyme or any methodology adopted to alter the
years of panel and placements which have become final earlier
through zone wise as well as integrated seniority lists issued by the
2nd Respondent. Therefore, the seniority list, dated 4.8.2011 is
liable to be quashed.
O.A.No.2382 of 2012:
20)
The applicant in O.A.No.2382 of 2012 is seeking to
declare that the 2nd Respondent has no power, authority or
jurisdiction to issue the seniority list, dated 4.8.2011 and further
declare that the 2nd Respondent has no power to alter or undo the
seniority
list
issued
in
G.O.Ms.No.314,
dated
29.4.1994,
G.O.Ms.No.37, dated 23.2.2002, G.O.Ms.No.150, dated 31.8.2002
and G.O.Ms.No.129, dated 17.9.2004.
21)
The applicant is contending that he was selected and
appointed as Deputy Executive Engineer in R & B Department
through A.P. Public Service Commission. He joined service on
9.9.1986. He belongs to S.T. category.
He was promoted as
Executive Engineer on 24.7.2001. Subsequently he was promoted
as Superintending Engineer in pursuance of inclusion of his name
in the panel of 2003-2004 in a carry forward vacancy service for
S.T. category. He was kept in-charge of the post of Chief Engineer
with effect from 17.10.2007 and working in the said capacity. The
other averments made by the applicant are similar to that of the
applicant in O.A.No.1614 of 2012.
22)
The Respondents did not file any Counter in O.A.No.5917
of 2012 and O.A.No.2382 of 2012.
O.A.No.7117 of 2011:
23)
The applicants in O.A.No.7117 of 2012 are assailing the
seniority list issued by the 2nd Respondent issued through
proceedings No.960/Ser.I (3)/2011, dated 4.8.2011 and requested
to set aside the said seniority list by holding that it is illegal,
arbitrary and violative of Articles 14 and 16 of the Constitution of
India. The applicants further requested to direct the Respondents
to prepare the seniority list on the basis of rank secured at the time
of selection by A.P. Public Service Commission.
24)
The applicants are direct recruit Deputy Executive
Engineers of 1993 batch of Roads & Buildings Department.
The
post of Deputy Executive Engineer was earlier called as Assistant
Engineer. Then it was a specified gazetted category in terms of the
Presidential Order, 1975 and included in Schedule-III at Sl.No.43.
Paragraph 8 of the Presidential Order does not provide for
reservation in favour of local candidates in so far as it relates to
direct recruitment to the post of Deputy Executive Engineer in
R & B Engineering Department.
In terms of Para 5 (1) of the
Presidential Order each zone becomes separate unit.
The
applicants were selected for appointment to the post of Deputy
Executive Engineer by the A.P. Public Service Commission. The
selections were held on- the basis of state wide merit list and the
candidates selected were allotted to Zone-I to Zone-VII. Applicants
1 and 5 were assigned Rank No.41 and Rank No.35 respectively.
They were allotted to Zone-VI. The 1st applicant joined service on
23.9.1993.
Therefore, the probation of the 1st applicant should
have been commenced from the date of his joining i.e. 23.9.1993.
But his probation was commenced from 20.12.1993. The 5 th
applicant joined service on 24.9.1993, but his probation was
commenced from 20.12.1993. One V. Koteswara Rao, who assigned
25th rank was appointed against Roster Point No.13 (OC) and
allotted to Zone-VI and he joined service on 20.12.1993. On the
ground that the said Koteswar Rao joined service on 20.12.1993
and on the further ground that applicants 1 and 5 were appointed
against Roster Points 14 and 16, their probation was commenced
from the date of joining and commencement of probation of said V.
Koteswara Rao i.e. 20.12.1993.
The appointing authority has no
power of ignoring the service of a direct recruit from being reckoned
from the date of joining on the basis that a better rank holder or a
person appointed against earlier roster point joined later. The 4th
applicant was allotted to Zone-V and he joined service on
19.9.1993. His probation was commenced from 25.9.1993. He was
assigned Rank No.5. One Smt. V. Laxmi, who belongs to B.C.(B)
category
was
assigned
Rank
No.58.
She
was
allotted
for
appointment against Roster Point No.10 meant for B.C.(B) category.
On the ground that she was appointed against earlier roster point
and on the further ground that her probation was commenced from
25.9.1993, the probation of 4th Respondent was also shown to have
been commenced from 25.9.1993.
Applicants 2 and 3 secured
Rank No.8 and 31 respectively. They were allotted to Zone-I and
Zone-III respectively.
25)
The applicants also contended that the Respondents
have not prepared the seniority list of Deputy Executive Engineers
in respect of persons appointed from the panel year 1993-94 till
recently. The 2nd Respondent issued Circular Memo, dated 29-62011 referring to five Annexures containing the inter se seniority
list of Deputy Executive Engineers. The applicants are concerned
with Annexure-IV which relate to inter se seniority of Deputy
Executive Engineers appointed from 1.1.1983 to 31.12.1987
covering the batch of 1993 direct recruitee Deputy Executive
Engineers. In the above Memo the 2nd Respondent referred to the
orders passed by the Courts and mentioned that the seniority of
Deputy Executive Engineers of 1993 batch shall be prepared in
terms of Rule 36 (1) of A.P. State and Subordinate Service Rules.
There is no rationale in preparing the seniority list except the
motive of safeguarding the interest of the 3rd Respondent. The
seniority was not fixed in accordance with the ranks assigned by
A.P. Public Service Commission. It is also not fixed in terms of the
date of regularisation in the cadre of Deputy Executive Engineer.
There is no basis for changing the dates of regularisation of the
applicants. The Memo, dated 29.6.2011 does not indicate that it is
a provisional seniority list. The last paragraph of the said Memo
indicates that it is a draft revised zone wise and inter se seniority
list of Deputy Executive Engineers. The applicants submitted their
objections by contending that the seniority of the direct recruit
Deputy Executive Engineers shall be fixed on the basis of the rank
secured at the time of selection by A.P. Public Service Commission.
It shall not be fixed on the basis of either date of joining or date of
commencement of probation. Seniority also cannot be fixed or made
to depend on the roster point against which the candidates were
appointed. The 2nd Respondent finalized the seniority list through
proceedings, dated 4.8.2011 stating that the objections are found to
be unsustainable, therefore, they are rejected. The 2nd Respondent
has not answered the objections raised by the applicants.
The
seniority list is to be prepared in terms of merit ranking assigned at
the time of selection by A.P. Public Service Commission. Even if
integration is permissible under Rule 34 of A.P. State and
Subordinate Service Rules, the state wide rank assigned shall form
the basis and guide the fixation of seniority inter se and no other
basis will be permissible. There is a prohibition against the
authorities from disturbing the position of the candidate inter se in
the seniority list.
A better rank holder joining later shall be
assigned the date of lower rank holder joining earlier, but the 2nd
Respondent rejected the said contention. None of the applicant nor
any direct recruitee claimed seniority from a date anterior to the
date of order of appointment. When the first step for solving a
problem is wrong and defective, the other steps cannot lead to right
answer. The seniority of a person in a service shall depend upon
the date of first appointment to such service, class or category or
grade and it would depend upon the date of his order of
appointment to such service class or category or grade or the date
on which he joins such service, class, category or grade. Therefore,
the claim of the 2nd Respondent that the seniority list is prepared in
accordance with Rules 33 to 36 of A.P. State and Subordinate
Service Rules does not hold any water.
Therefore, requested to
grant the relief as prayed for.
26)
The official Respondents filed a Counter in O.A.No.7117
of 2012 contending that the applicants are direct recruit Deputy
Executive Engineers of 1993 batch selected through A.P. Public
Service Commission in R & B Department. They joined in the
Department on 23.9.1993, 24.9.1993, 7.10.1993, 19.9.1993 and
24.9.1993 respectively. Since the post of Deputy Executive Engineer
is a zonal post, the candidates in each zone are placed as per
APPSC ranking within the zone duly satisfying communal roster as
per Rule 33 (a) and (b) of A.P. State and Subordinate Service Rules,
1996 assigning notional dates to the extent necessary. The seniority
list of direct recruit Deputy Executive Engineers of 1993 batch was
prepared in accordance with Rule 33 of A.P. State and Subordinate
Service Rules, 1996 in accordance with zone wise list of selection by
A.P.
Public
Service
Commission
and
appointment
by
the
Government to the unit/zone without disturbing the order of
preference in that particular unit/zone as assigned by A.P. Public
Service Commission. The marks secured by the applicants were
indicated against their names in the seniority list of Deputy
Executive
Engineers,
dated
4.8.2011
as
confirmed
by
the
Government on 16.1.2012.
The zone wise seniority list and
integrated seniority list of Deputy Executive Engineers is prepared
in accordance with Rules 33 to 36 of A.P. State and Subordinate
Service Rules, 1996 as per the directions of the Hon’ble High Court
in W.P.No.24680 of 2010 and communicated to all the individuals
through proceedings, dated 4.8.2011.
Though the Government
communicated the inter se seniority of the Deputy Executive
Engineers in each zone through G.O.Ms.No.174, Transport, Roads
& Buildings Department, dated 10.8.1999, nobody filed any
objections. The integrated seniority list in the cadre of Deputy
Executive Engineer was finalized basing on the inter se seniority list
communicated
through
G.O.Ms.No.174,
Transport,
Roads
&
Buildings Department, dated 10.8.1999 as per Rule 34 of A.P. State
and Subordinate Service Rules. Hence, it is not open to the
applicants to question the basis of G.O.Ms.No.174 issued in the
year 1999 after a gap of nearly 12 years. Therefore, requested to
dismiss the Application as devoid of merits.
27)
The Respondents further contended that the Government
have constituted a committee to examine the individual objections
filed on the final seniority list through G.O.Rt.No.904, Transport,
Roads & Buildings Department, dated 16.9.2011. The Committee
has gone into the details of the final seniority list of Deputy
Executive Engineers and submitted a report on 26.12.2011.
Subsequently the Government have confirmed the seniority list of
Deputy Executive Engineers through G.O.Rt.No.36, Transport,
Roads & Buildings Department, dated 16.1.2012. On the basis of
the final and confirmed seniority list year wise panels were prepared
for promotion to the cadre of Executive Engineer and promotions
were effected to the cadre of Executive Engineers through
G.O.Ms.No.47, Transport, Roads & Buildings Department, dated
14.5.2012. The seniority of a direct recruit is to be determined only
from the date of his/her joining duty, but not from the date on
which the vacancy earmarked for direct recruitment arose.
Accordingly, the date of commencement of probation of the senior is
assigned
to
his next junior downward only.
Though the
Government communicated the inter se seniority of the Deputy
Executive Engineers in each zone vide G.O.Ms.No.174, Transport,
Roads & Buildings (Ser.II) Department, dated 10.8.1999, nobody
raised objections. The integrated seniority list of Deputy Executive
Engineers was finalized by the Government through G.O.Rt.No.36
Transport, Roads & Buildings (Ser.II) Department, dated 16.1.2012
on
the
basis
of inter se seniority list communicated
through
G.O.Ms.No.174, Transport, Roads & Buildings (Ser.II) Department,
dated 10.8.1999 as per Rule 34 of A.P. State and Subordinate
Service Rules. Therefore, it is not open to the applicants to question
the basis of G.O.Ms.No.174 issued in the year 1999 after a gap of
nearly 12 years. Therefore, requested to dismiss the Application as
devoid of merits.
28)
The unofficial Respondents filed Counters reiterating the
averments made by the official Respondents in their Counter.
29)
In the light of the contentions raised by both parties, the
following points are taken up for consideration:
1)
Whether the Applications are bad for non-joinder
of necessary parties?
2)
Whether the O.As are liable to be dismissed for
delay and latches?
3)
Whether the Order of the Supreme Court that the
seniority
list
of
Deputy
Executive
Engineers
as
determined upto 31.12.1982 became final and shall not
be disturbed, is not a bar for preparation of subsequent
seniority lists by the Government?
4)
Whether the 1st Respondent in the capacity of in-
charge Engineer-in-chief is not competent to issue
impugned integrated seniority list covering the period
from 1.4.1965 to 31.7.2002 through
proceedings
No.960/Ser.I (3)/2011, dated 4.8.2011 by which date
the 1st Respondent was not the competent authority?
5)
Whether the 3rd Respondent, who is party to the
litigation who has been asserting his rights in resisting
the litigation in various Courts is proper authority to
prepare the impugned seniority list, dated 4.8.2011 on
the principle of ‘no body should be a judge in his own
case’?
6)
Whether the 3rd Respondent has played fraud in
getting orders from the 2nd Respondent with mala fide
intention to deny the benefits of service to the applicant
as per due dates?
7)
Whether the impugned orders in proceedings
No.960/Ser.I
(3)/2011,
dated
4.8.2011
and
G.O.
Rt.No.449, Transport, Roads & Buildings Department,
dated 1.5.2012 and G.O.Ms.No.47, Transport, Roads &
Buildings Department, dated 14.5.2012 are illegal,
arbitrary contrary to the Judgments of the Supreme
Court and whether they are liable to be set aside?
8)
Whether
G.O.Ms.No.36,
dated
16.1.2012
and
Circular Memo No.960/Ser.I(3)/2011-1, dated 6.2.2012
are illegal and arbitrary and liable to be set aside?
9)
Whether the applicants are entitled for the relief as
prayed for?
POINT No.1:
Whether the Applications are bad for non-joinder of
necessary parties?
30)
The
Counsel
for
learned
the
Government
unofficial
Pleader
Respondents
and
the
submitted
learned
that
the
applicants filed these O.As seeking to set aside the integrated
seniority list, dated 4.8.2011 and if the prayer is conceded, it is
likely to affect many candidates in the seniority, therefore, all the
candidates referred in the seniority list ought to have been made as
party Respondents in these O.As and adjudicating the matters in
the absence of affected parties is likely to cause prejudice to those
candidates, therefore, the Applications are liable to be dismissed for
non-joinder of necessary parties.
31)
The learned Counsel for the applicants submitted that
the applicants are not seeking any relief against any one of the
candidates referred in the seniority list and the seniority list is
being challenged
on the ground that the in-charge Engineer-in-
Chief is not the competent authority to prepare the seniority list;
that he has not answered the objections filed by the applicants and
several others and that the seniority list was not prepared in
accordance with A.P. State and Subordinate Service Rules,
therefore, the contention of the Respondents that the O.As. are not
maintainable for non-joinder of necessary parties cannot be
sustained.
The learned Counsel for the applicants relied on the
following Judgments in support of the above contention:
i)
In GENERAL MANAGER, SOUTH CENTRAL RAILWAY,
SECUNDERABAD VS. A.V.R.SIDDHANTI, 1974 (4) SCC 335, the
Supreme Court held as follows:
“ The constitutionality of statutory rule regulating
seniority of a government servant is assailed as
being violative of Articles 14 and 16 of the
Constitution of India. In such proceedings the
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-à-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, were, at the most, proper parties
and not necessary parties, and their non-joinder
could not be fatal to the writ petition.”
ii)
In
K.
ESWARA
DUTT
VS.
CHAIRMAN,
FOOD
CORPORATION OF INDIA & OTHERS, 1998 (4) SLR 675 the
Hon’ble High Court of Andhra Pradesh held that whenever a criteria
adopted by the authorities is challenged without claiming any relief
against any person or persons, such other persons who would be
affected, would be proper parties, but they would not necessary
parties, and for not making such persons as a parties to the writ
petition the same cannot be dismissed as not maintainable.
iii)
In A. JANARDHANA VS. UNION OF INDIA, 1983 (3)
SCC 601, the Supreme Court observed as follows:
“
The
respondents
(original
petitioners)
are
impeaching the validity of the 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 servants is assailed.
In such proceedings, the 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. Approaching the matter from
this angle, it may be noticed that relief is sought only
against the Union of India and the concerned Ministry
and not against any individual nor any seniority is
claimed by anyone individual against another
particular individual and therefore, even if technically
32)
the direct recruits were not before the court, the
petition is not likely to fail on that ground.”
It is settled law that whenever a seniority list is assailed
there is no necessity to bring all the persons covered by the
seniority list as party Respondents. It is sufficient if some of them
are brought on record. In the light of the submissions made by the
learned Counsel for the applicants, bringing some of the affected
parties as respondents and in the light of the settled position of law,
we have no hesitation to hold that the Applications are not liable to
be dismissed for non joinder of necessary parties.
This point is
accordingly held in favour of the applicants.
Point No.2:
Whether the O.As. are liable to be dismissed for
delay and latches?
33)
In RABINDRA NATH BOSE AND OTHERS VS. UNION
OF INDIA AND OTHERS, A.I.R. 1970 SC 470, the Supreme Court
of India while dealing with the changes effected to the seniority
rules whether attacking them after 15 years is violative of Article 14
of the Constitution of India is permissible, observed as follows:
“ After carefully considering the matter, we are of
the view that no relief should be given to
Petitioners
who
without
any
reasonable
explanation approached this Court under Article
32 of the Constitution after inordinate delay. The
highest court in this land has been given Original
Jurisdiction to entertain petitions under Article 32
of the Constitution. It could not have been the
intention that this Court would go into stale
demands after a lapse of years. It is said that
Article 32 is itself a guaranteed right. So it is, but
it does not follow from this that it was the intention
of the Constitution makers that this Court should
discard all principles and grant relief in petitions
filed after inordinate delay…..It would be unjust to
deprive the respondents of the rights which have
accrued to them. Each person ought to be entitled
to sit back and consider that his appointment and
promotion effected a long time ago would not be set
aside after the lapse of number of years.”
34)
Y.V. RANGAIAH VS. J. SREENIVASA RAO, A.I.R 1983
SC 852. In the case covered by the above decision the Inspector
General of Registration & Stamps failed to prepare the panels of the
Sub Registrars from time to time, the delay in the preparation of the
panel as on 1st September, 1976 was not actuated by any motive,
but it was consequent upon the implementation of the new rules
whereunder the posts of Sub Registrars which were of statewide
cadres, were made zone wise with effect from 18th October, 1975
and the allocation of posts and personnel among the zones had to
be made by the Government.
The Hon’ble Supreme Court after
considering those aspects held as follows:
“ Having heard the counsel for the parties, we find
no force in either of the two contentions. Under
the old rules a panel had to be prepared every year
in September. Accordingly a panel should have
been prepared in the year 1976 and transfer or
promotion to the post of Sub Registrar Grade-II
should have been made out of that panel. In that
event the petitioners in the two representation
petitions who ranked higher than the respondent
Nos.3 to 15 would not have been deprived of their
rights of being considered for promotion. The
vacancies which occurred prior to the amended
rules would be governed by the old rules and not
by the amended rules. It is admitted by counsel for
both the parties that henceforth promotion to the
post of Sub Registrar Grade-II will be according to
the new rules on the zonal basis and not on the
statewide basis and therefore, there was no
question of challenging the new rules. But the
question is of filling the vacancies that occurred
prior to the amended rules. We have not the
slightest doubt that the posts which fell vacant
prior to the amended rules would be governed by
the old rules and not by the new rules.”
35)
The official Respondents are supposed to implement the
Orders of the Supreme Court in G.S. VENKATA REDDY’s case
within a reasonable time, but they failed do so. When they issued
the impugned seniority list by contending that it is prepared in
pursuance of G.S. VENKATA REDDY’s case, the applicants will have
every right to defend themselves and to oppose the impugned
seniority list.
Therefore, the Applications are not liable to be
dismissed for delay and latches. This point is accordingly held in
favour of the applicants.
Point No.3:
Whether the Order of the Supreme Court that the
seniority list of Deputy Executive Engineers as determined
upto 31.12.1982 became final and shall not be disturbed,
is not a bar for preparation of subsequent seniority lists for
the same period by the Government?
36)
The Supreme Court of India repeatedly held that the
seniority of Deputy Executive Engineers till 31.12.1982 shall not be
disturbed. The High Court of Andhra Pradesh also held that the
seniority
list
of Deputy
Executive
Engineers prepared
upto
31.12.1982 shall not be disturbed as held by the Supreme Court of
India and further held that after scrutiny of G.O.Ms.No.314, 38 and
147, if they are to be in consonance with the directions of the High
Court, they shall be treated as final or else necessary modifications
have to be made in tune with the directions given in Judgment,
dated 23.7.1999 in W.P.No.5834 of 1998 and batch.
The S.L.P.
filed against the above Judgment of the High Court was dismissed
by the Apex Court. But the 3rd Respondent disturbed the seniority
of Deputy Executive Engineers from 1965 by ignoring the repeated
directions of the Supreme Court. Therefore, preparation of seniority
list of Deputy Executive Engineers is against the Judgments of the
Supreme Court. The Hon’ble High Court carefully observed in M.
SHYAM SUNDER AND OTHERS VS. GOVERNMENT OF A.P. , 2001
(6) ALD 87 (DB) that in the event of any deviation from the
directions given by the High Court in preparing the seniority list
covered by G.O.Ms.No.314, 38,147 the list can be modified to that
extent only, but under any circumstances the seniority of the
Deputy Executive Engineers shall not be disturbed even if the
seniority among the Assistant Engineers whose services were
regularized after getting graduation in Engineering and whose
services were regularized under G.O.Ms.No.647 is to be arranged as
per the directions of the High Court of A.P. and Supreme Court.
The Supreme Court gave certain directions in G.S. VENKATA
REDDY’s case which was filed on account of seniority dispute
between the above categories of Assistant Engineers and to the
extent of applying the directions of the Supreme Court in G.S.
VENKAT REDDY’s case the seniority of such Engineers can be
verified whether it is in accordance with the Orders of the Supreme
Court, if not their places can be changed in the seniority list as
directed by the Courts. But the Respondents resorted to disturb
the placements of the direct recruit Deputy Executive Engineers
also on the pretext of the directions given by the Supreme Court in
G.S. VENKATA REDDY’s case and the directions given by the High
Court of A.P. in SHYAM SUNDAR’s case.
Therefore, we hold that
the seniority list of Deputy Executive Engineers shall not be
disturbed upto 31.12.1982 and it is a bar for preparation of
impugned seniority list, dated 4.8.2011 which is in violation of the
Orders of the Supreme Court in G.S. VENKATA REDDY’s case and
Orders of the High Court of A.P. in SHYAM SUNDAR’s case. This
point is accordingly answered against the Respondents.
Point No.4:
Whether the 1st Respondent in the capacity of incharge Engineer-in-chief is not competent to issue
impugned integrated seniority list of Deputy Executive
Engineers covering the period from 1.4.1965 to
31.7.2002 through proceedings No.960/Ser.I (3)/2011,
dated 4.8.2011 by which date the 1st Respondent was
not the competent authority?
37)
This
Tribunal
in
its
Order,
dated
10.6.2009
in
O.A.No.7858 of 2008 and batch dealt with the same issue and gave
the finding which reads as follows:
“ The Supreme Court of India in I.J.Divakar’s case
issued certain guidelines as to how the seniority has
to be fixed among employees from various sources
and in pursuance of the orders issued by the
Government on the basis of the Judgments of the
Supreme Court, the In-charge Engineer-in-Chief
issued the impugned seniority list. Therefore, the
seniority list cannot be treated as the list prepared by
the Engineer-in-Chief on his own volition, but only
on directions from the Supreme Court and
instructions of the Government of Andhra Pradesh.
Hence, it cannot be hold to be illegal. The applicants
did not say, whether there is any deviation from the
directions of the Supreme Court, but only contend
that the In-charge Engineer-in-Chief is not
competent to revise the list issued earlier. But
keeping in view the directions of the Supreme Court
the impugned seniority list was prepared and as
there were orders from the Government making incharge arrangement, in relaxation of Rule 10 (h) of
A.P. State and Subordinate Service Rules, it cannot
be held that the Incharge Engineer-in-Chief is not
competent to pass the impugned orders. Therefore,
we do not find any force in the contention of the
learned Counsel for the applicant that the Incharge
Engineer-in-Chief is not competent to issue the
impugned orders. The point is accordingly held
against the applicant and in favour of the
Respondents.”
38)
In RAMAKANT SHRIPAD SINAI ADVALPALKAR VS.
UNION OF INDIA AND OTHERS, A.I.R. 1991 SC 1145, the
Supreme Court held that an in-charge arrangement is not a
recognition of or is necessarily based on seniority and that,
therefore, no rights, equities or expectations could be built upon it.
Asking an officer who substantively holds a lower post merely to
discharge the duties of a higher post cannot be treated as a
promotion. The person continues to hold his substantive lower post
and only discharges the duties of the higher post essentially as a
stop gap arrangement.
39)
Though the Government was the competent authority to
prepare the seniority list previously, the power was vested with the
Engineer-in-Chief subsequently.
When once the power is vested
with the Engineer-in-Chief, whoever is in the position of Engineerin-Chief, he is competent to prepare the seniority list irrespective of
the fact whether the seniority list was prepared in accordance with
the orders of the Courts and the Rules in force, the competency of
the Engineer-in-Chief cannot be questioned. In the light of the
above circumstances, we do not find any force in the contention of
the applicants’ Counsel that the 1st Respondent is not competent to
issue the impugned seniority list, dated 4.8.2011. Therefore, the
impugned seniority list is not illegal on this count. This point is
accordingly answered against the applicants.
POINT Nos. 5 & 6:
Point No.5:
Whether the 3rd Respondent, who is party
to the litigation who has been asserting his rights in
resisting the litigation in various Courts is proper
authority to prepare the impugned seniority list, dated
4.8.2011 on the principle of ‘No body should be a Judge
in his own case’?
Point No.6:
Whether the 3rd Respondent has played
fraud in getting orders from the 2nd Respondent with
mala fide intention to deny the benefits of service to the
applicant as per due dates?
40)
The 3rd Respondent (K. Siva Reddy) approached the
Tribunal by filing O.A.No.5388 of 2008 in July, 2008 questioning
the applicability of Rule of reservation to the applicant in
O.A.No.1614 of 2012 and sought for quashing the orders issued by
the
Government
G.O.MsNo.141,
through
dated
G.O.Ms.No.50,
46.2007
and
dated
2.3.2007,
G.O.Ms.No.258,
dated
10.9.2007 and also sought for a direction to the Respondents to
regularize his services as Chief Engineer and Engineer-in-Chief with
effect from 18.8.2005 and 31.8.2006 respectively i.e. the dates on
which the applicant in O.A.No.1614 of 2012 have been working as
in-charge Chief Engineer and in-charge Engineer-in-Chief. He also
filed O.A.No.6582 of 2008 in August, 2008 seeking a direction to
the Respondents to prepare year-wise panels of Executive Engineers
fit for promotion as Superintending Engineers from 1995-1996
onwards and to consider his case for regularisation in the category
of Chief Engineer and Engineer-in-Chief and also sought for a
declaration that the rule of reservation in promotion should apply
prospectively only against the vacancies that arose after 2002-2003.
In both the above O.As. the applicant in O.A.No.1614 of 2012 was
impleaded as 3rd Respondent and 2nd Respondent respectively. The
above two O.As. were disposed of by the Tribunal along with
O.A.No.6783 of 2008 filed by the applicant in O.A.No.1614 of 2012
through Order, dated 29.4.2010.
The 3rd Respondent and the
applicant in O.A.No.1614 of 2012 challenged the above Orders of
the Tribunal before the High Court by filing W.P.No.10914 of 2011
and W.P.No.10901 of 2011 respectively.
The 3rd Respondent was
fighting tooth and nail regarding applicability of rule of reservation
to the applicant in O.A.No.1614 of 2012 and his appointment as
Superintending Engineer with notional date and notional promotion
as
Chief
Engineer
with
effect
from
1-4-2003
through
G.O.Ms.No.141, dated 4-6-2007. The 3rd Respondent deliberately,
designedly and with an ulterior motive brought down the number of
vacancies from 306 to 258 as contained in G.O.Ms.No.129, dated
17.9.2004 and the integrated seniority list, dated 4.8.2011 and by
reducing the number of vacancies the name of the applicant in
O.A.No.1614 of 2013 was changed from 2002-2003 panel to 20012002 panel in order to deny him the benefit of G.O.Ms.No.5, dated
14.2.2003.
41)
fighting
It is an undisputed fact that the 3rd Respondent is
against
the
applicant
in
O.A.No.1614
of
2012
by
vehemently opposing the relief sought by the applicant in the said
O.A.
From various proceedings it is disclosing that the 3rd
Respondent in his personal capacity is interested in getting better
place than the applicant in O.A.No.1614 of 2012. Therefore, the 3rd
Respondent is definitely an interested party on the principle of
‘Justice must not only be done, but it must manifestly seen to be
done’ and ‘Nobody should be a judge in his own case’ is squarely
applicable to the facts of the present O.As. However, fair the 3rd
Respondent may be, his action in preparing the seniority list and in
disturbing
the
seniority
of
direct
recruit Deputy
Executive
Engineers till 31.12.1982 and by way of consequential disturbance
for further period reflects a dent on his face and it further indicates
that he tried his best to project himself as a senior most in direct
recruit Engineers of 1982 batch by ignoring the zone wise seniority.
42)
In S. PRATAP SINGH VS. STATE OF PUNJAB, A.I.R.
1964 SC 72, the Supreme Court held as follows:
“ The only question which could be considered by
the Court is whether the authority vested with the
power has paid attention to or taken into account
circumstances, events or matters wholly extraneous
to the purpose for which the power was vested, or
whether the proceedings have been initiated mala
fide for satisfying a private or personal grudge of the
authority against the officer. If the act is in excess
of the power granted or is an abuse or misuse of
power, the matter is capable of interference and
rectification by the Court. In such an event the fact
that the authority concerned denies the charge of
mala fides, or asserts the absence of oblique
motives or of its having taken into consideration
improper or irrelevant matter does not preclude the
Courts from enquiring into the truth of the
allegations made against the authority and affording
appropriate reliefs to the party aggrieved by such
illegality or abuse of power or in the event of the
allegations being made out.”
43)
The Supreme Court further observed as follows:
“
Improper motive should be established only
direct evidence that is that it must be discernible from
the order impugned or must be shown from the notings
in the file which preceded the order. If bad faith would
vitiate the order, the same can, in our opinion be
deduced as a reasonable and inescapable inference from
proved facts.”
44)
Therefore, we hold that the 3rd Respondent ought to have
avoided preparing the seniority list in the light of his participation
as a party to the litigation regarding the seniority among the direct
recruits and it should have been done by some other competent
authority. The 3rd Respondent while disturbing the earlier seniority
list projected as if he is preparing the impugned seniority list in
pursuance of the directions of the Supreme Court in G.S. VENKATA
REDDY’s case and the directions of the High Court of A.P. in
SHYAM SUNDAR’s case. But when he deviated from the principles
laid down by the Courts, it impliedly indicates that he mislead the
Government by impressing that he prepared the impugned seniority
list as per the directions of the Courts.
45)
For the foregoing reasons we have no hesitation to hold
that the 3rd Respondent resorted to prepare the seniority list, dated
4.8.2011 in a biased attitude to affect the seniority of the applicant
in O.A.No.1614 of 2012 and similarly placed persons to have
advantage of keeping himself at the top of the list.
The 3 rd
Respondent played fraud in getting orders from the Government
with a mala fide intention to deny benefits of service to the
applicants. These points are accordingly held in favour of the
applicants.
POINT Nos. 7 and 8:
Point No.7:
Whether
the
impugned
orders
in
proceedings No.960/Ser.I (3)/2011, dated 4.8.2011 and
G.O.
Rt.No.449,
Department,
Transport,
dated
Transport,
Roads
14.5.2012
are
Roads
1.5.2012
&
illegal,
and
Buildings
arbitrary,
&
Buildings
G.O.Ms.No.47,
Department,
contrary
dated
to
the
Judgments of the Supreme Court and whether they are
liable to be set aside?
Point No.8:
and
Whether G.O.Ms.No.36, dated 16.1.2012
Circular
Memo
No.960/Ser.I(3)/2011-1,
dated
6.2.2012 are illegal and arbitrary and liable to be set
aside?
46)
The Respondents are expected to prepare the seniority list
from 1982 to 1996 as per State and Subordinate Service Rules,
1962 and from 1996 they are expected to prepare the seniority list
as per A.P. State and Subordinate Service Rules, 1996.
47)
Rule 33 of A.P. State and Subordinate Service Rules, 1962
deals with seniority. Rule 33 reads as follows:
“
(a) The seniority of a person in a service, class,
category or grade shall, unless he has 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. If any portion of the service of such
person does not count towards probation under Rule
10 (a), (iv), 10(c),16, 37 (d), or 42 (d) his seniority shall
be determined by the date of commencement of his
service which counts towards probation.
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
state wide gazetted posts and the 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 that for the purpose of promotion to the
next higher category of gazetted posts, the inter se
seniority of persons recruited direct to the subordinate
services during the period commencing on the 1st
November, 1956 and ending with 31st December, 1973,
separately in Andhra and Telengana Regions, shall be
determined by the ranking assigned by the A.P. Public
Service Commission in the common ranking list or by
the competent authority as the case may be, after
following the rule of reservation.
(c) 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 scale of pay shall not be
treated as first appointment to the later for the
purposes of seniority; and the seniority of a person so
transferred shall be determined with reference to the
date of his first appointment to the class or category
from which he was transferred. Where any difficulty
arises in applying the sub-rule, seniority shall be
determined by the appointing authority.
(d) Where a member of a service, class or category is
reduced for a specific period, to a lower service, class or
category or grade:(a) 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;
(b) in cases where the reduction operates to
postpone future increment, the seniority of such
member on re-promotion 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.
(c) in cases where an order of punishment passed prior
to June, 1963 does not specifically provide otherwise,
such member shall, on completion of such period, be
promoted automatically and his seniority shall be
determined in accordance with the provisions of clause
(a) or clause (b), as the case may be.
(e) The seniority of any person in a service or post of
the merged territory of Banaganapalle, who is absorbed
in a service or post under the composite Government of
Madras, and working under the Government of Andhra
Pradesh shall be determined as follows:
(i)
If he is absorbed in a post similar to that which he
was merely holding in the service of the merged
territory of Banaganapalle his seniority shall be
determined by the date from which he was holding the
former post continuously.
ii)
If he is absorbed in a post of higher cadre carrying
a higher scale of pay from that which he was formerly
holding in the services of the merged territory of
Banaganapalle his seniority shall be determined from
the date on which he joined the post under the
composite Government of Madras.
iii) If he is absorbed in a post other than those
specified in clause (i) and (ii), which does not improve
his cadre and scale of pay in the service of any of the
merged territory of Banaganapalle his seniority shall be
determined on the basis of merit.
f) The seniority of a member of a service, who was reemployed after having been retrenched by the erstwhile
Government of Hyderabad by the Government of
Andhra Pradesh owing to reduction of staff as a
measure of economy, shall be determined in
accordance with the date of his absorption in the
service.
Provided that the inter-se-seniority of such
members absorbed into the same service, class or
category shall be determined.
(a) in any case in which absorption 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
(b) 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.”
48)
Rule 33 of A.P. State and Subordinate Service Rules, 1996
deals with seniority. Rule 33 reads as follows:
33. Seniority (a) The seniority of a person in a service,
class, category or grade shall, unless he has 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
state wide gazetted posts and the 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. (This proviso
shall be in force till 31st October, 1996).
(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 other 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 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 scale of pay shall not be
treated as first appointment to the latter class or
category for the purpose of seniority; and the seniority
of a person so transferred shall be determined with
reference to the date of his regular in the class or
category from which he was transferred. Where any
difficulty arises in applying the 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 re-promotion 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 reappointed after having been retrenched, owing to
reduction of staff as a measure of economy, shall be
determined in accordance with the date of such
reappointment.
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.”
49)
Rule 34 deals with preparation of integrated or common
seniority list of persons belonging to different units of appointment.
Rule 34 reads as follows:
“
Preparation of integrated or common seniority
list of persons belonging to different units of
appointment.
Where an integrated or common seniority list of a
particular class, or category or grade in any service
belonging to different units of appointment has to be
prepared for the purpose of promotion or appointment
by transfer, to a class or category having different
units of appointment or for any other purpose, such
an integrated or common seniority list shall be
prepared with reference to the provision of sub-rule (a)
of rule 33, provided that the seniority list of the
persons inter-se belonging to the same units shall not
be disturbed.
Explanation: The principle specified in this rule
shall be applicable even where a common integrated
list is required to be prepared for categories in
different services classes or categories.”
50)
Rule 35 deals with fixation of seniority in the case of
transfers on request or on administration grounds. Rule 35 reads
as follows:
“
Fixation of seniority in the case of transfers on
request or on administration grounds.
(a) The seniority of a member of a service, class or
category transferred from one unit of appointment to
another unit of appointment, on administrative
grounds, shall be, determined with reference to the
date of seniority of such member in the former unit.
(b) The seniority of a member of a service, class or
category, who is transferred on his own request from
one unit of appointment to another unit of
appointment shall be fixed with reference to the date of
his joining duty in the latter unit of appointment.
51)
Rule 36 deals with inter se seniority where the dates of
commencement of probation are same. Rule 36 reads as follows:
“ Inter se seniority where the
commencement of probation are same.
dates
of
The seniority of the persons in the service shall be
determined as follows:(i) In respect of the candidate selected by the Andhra
Pradesh Public Service Commission or other selecting
authorities by direct recruitment, shall be with
reference to their ranking assigned irrespective of the
date of commencement of their probation in that
category.
(ii) In respect of the persons promoted or appointed
by transfer (involving promotion) the dates from which
they were placed on their probation;
(iii) In respect of persons covered under item (ii)
above, in case the date of commencement of probation
is the same, whoever is aged shall be the senior;
(iv) In respect of the persons appointed on transfer
on administrative grounds, shall be from the date on
which the individual was placed on probation in the
original department; and
(v) In respect of the persons appointed on request
transfer; the date of joining of such person in the new
department/unit.
52)
The proceedings No.960/Ser.I(3)/2011, dated 4.8.2011
issued by the Engineer-in-Chief (R&B) discloses that it is the
integrated seniority list of Deputy Executive Engineers from
1.4.1965 to 31.7.2002. Annexure-I of the said proceedings contain
the integrated seniority list of Deputy Executive Engineers
appointed from 1.4.1965 to 18.10.1975. Annexure-II contains the
integrated seniority list of Deputy Executive Engineers appointed
from
19.10.1975
to
31.12.1982.
Annexure-III
contains
the
integrated seniority list of Deputy Executive Engineers appointed
from 1.1.1983 to 31.12.1987. Annexure-IV contains the integrated
seniority list of Deputy Executive Engineers appointed from
1.1.1988 to 31.12.1993.
Annexure-V contains the integrated
seniority list of Deputy Executive Engineers appointed from
1.1.1994 to 31.7.2012.
53)
The official Respondents are contending that in order to
implement the Judgment of the Supreme Court of India in G.S.
Venkat Reddy’s case reported in A.I.R.1993 SC 2306, the impugned
seniority list, dated 4.8.2011 was prepared by following the
directions given by the Supreme Court. Therefore, the applicants
cannot have any objection for implementation of the Orders of the
Supreme Court. The Respondents further contended that though
the seniority list was prepared by the 3rd Respondent after collecting
data from the respective units, the impugned G.O. was issued by
the Government while approving the said seniority list. Therefore,
the contention of the applicants that the 3rd Respondent prepared
the seniority list without any authority, that their places in the
seniority list have been drastically changed leading to pushing them
down in the seniority list and the applicants will be further pushed
down not only from the seniority list but also the dates of promotion
will be changed holds no water.
54)
The learned Senior Advocate Sri P. Balakrishna Murthy
representing the applicants in O.A.Nos.1614 and 5917 of 2012
submitted that:
i)
The Supreme Court of India observed in K. SIVA REDDY VS.
STATE OF ANDHRA PRADESH, A.I.R. 1988 SC 860 that the
regularization made in respect of promotees of the year 1972 to
1975 at this point of time, should not be disturbed.
ii)
In Contempt Application No.294 of 1992 also the Supreme
Court of India observed that the inter se seniority of those who were
appointed in the vacancies prior to 31.12.1982 shall not be
disturbed while giving seniority to the direct recruits who are to be
appointed as per the directions given in K. SIVA REDDY’s case in
the vacancies existing as on 31.12.1982 plus the vacancies
occurring thereafter till 31.12.1987.
iii)
The Government issued Circular Memo No.16/Ser.A/93-
99, dated 21.4.1999 by way of instructions for preparation of
seniority lists specifically directing that the seniority lists already
finalized by the various authorities based upon the Court
Judgments in individual cases which have become final shall not be
disturbed.
iv)
In pursuance of the directions of the Tribunal and the
Supreme Court of India the State Government prepared final inter
se seniority list of direct recruits and promotee Deputy Executive
Engineers from 1.4.1965 to 31.12.1982 through G.O.Ms.No.314,
Transport, Roads & Buildings Department, dated 29.11.1994 has
approved the zonal final seniority list of Deputy Executive
Engineers.
When the above seniority list was sought to be watered
down by the Tribunal, the State Government challenged the Orders
of the Tribunal by filing W.P.No.5834 of 1978 and several other Writ
Petitions were also filed and a Division Bench of the Hon’ble High
Court observed in Para 18 (7) of the Judgment directed thus:
“
The Government Orders issued in G.O.Ms.Nos.314,
38 and 147, shall be scrutinized once again and if they
are found to be in consonance with our directives
above, they shall be treated as final or else necessary
modifications be made to be in tune with the directions
given in the Judgment within three months from the
date of receipt of the Order.”
But no review was done by the Respondents within the time
stipulated by the Hon’ble High Court and the Order of the Hon’ble
High Court in W.P.No.5834 of 1998 was confirmed by the Supreme
Court by dismissing the S.L.P. filed against the Judgment in the
said W.P.
v)
When the State Government tried to modify the said
seniority list by issuing another final seniority list through
G.O.Ms.No.72, Transport, Roads & Buildings Department, dated
6.5.2000, the same was struck down by the Hon’ble High Court in
W.P.No.9077 of 2001 through Judgment, dated 24.8.2001 reported
in 2001 (6) ALD 87.
vi)
It is well settled principle of law that when once the
seniority list has become final, it cannot be re-opened. The 2nd
Respondent has no power to revise and re-issue the seniority list of
Deputy Executive Engineers and the positions of the applicants and
the 3rd Respondent can never be altered as it would amount to
violation of the directions given by the High Court in W.P.No.5834
of 1998 and batch and W.P.No.9077 of 2001 and batch.
vii)
The 3rd Respondent, who is officiating as in-charge
Engineer-in-chief is not competent to issue final seniority list
ignoring the seniority lists which have become final.
The 2nd
Respondent has no jurisdiction or competency to re-open the
seniority positions of the applicant and other direct recruit Deputy
Executive Engineers of 1982 batch as shown in the final seniority
list issued through G.O.Ms.No.314, dated 29.11.1994 issued in
pursuance of the directions of the Hon’ble Supreme Court which
was upheld by two Division Benches of the Hon’ble High Court.
Preparation of final seniority list again from 1.4.1965 is against the
statutory rules and contrary to the law declared by the Hon’ble High
Court.
Therefore, requested to set aside the impugned final
seniority list issued through Proceedings, dated 4.8.2011.
55)
The learned Advocate Sri M. Surender Rao representing
the applicants in O.A.No.7117 of 2011 submitted that:
i)
The direct recruit Deputy Executive Engineers are entitled to
get their seniority counted from the date of appointment as per Rule
33 (a) of A.P. State and Subordinate Service Rules. For purpose of
determining seniority in terms of Rule 33 (a) of A.P. State and
Subordinate Service Rules, date of commencement of probation is
irrelevant.
ii)
The impugned final seniority list, dated 4.8.2011 is contrary
to Rule 33 (b) of A.P. State and Subordinate Service Rules. Rule 34
of A.P. State and Subordinate Service Rules does not apply to the
cases of the applicants.
iii)
The 3rd Respondent in order to come to the level of No.1
intentionally did not show any promotees above him in Zone-IV.
iv)
Preparation of seniority list shall be in terms of merit ranking
irrespective of allotment of the candidates to various zones. Since
the Notification issued by Public Service Commission in 1982 was
silent about the reservation of local candidates, the selection is
open to all, subject to communal reservation. Therefore, it can be
called as a state wide selection duly allotting the zones preferred by
the candidates.
56)
The learned Counsel Sri M. Surender Rao also submitted
that the seniority of the directly recruited Deputy Executive
Engineers shall be fixed on the basis of the rank secured by them at
the time of selection by A.P. Public Service Commission. The
seniority shall not be fixed on the basis of either dates of joining or
date of commencement of probation. The 2nd Respondent finalized
the seniority list with one stroke without taking into consideration
the rule position and the Judgments rendered by the Courts. The
2nd Respondent did not properly answered the objections filed by
the applicants and others. Even if integration is permissible under
Rule 34, the state wide rank assigned shall form basis for fixing the
inter se seniority. Notional dates shall be assigned to the candidates
to their advantage, but not to their disadvantage. A better rank
holder joining later shall be assigned the date of lower rank holder
joining earlier. In the impugned seniority list, the 3rd Respondent
unilaterally altered his date of regularisation to his advantage as
19.8.1982. The date of joining of 2nd rank holder who was allotted
to Zone-V was 18.8.1982. Without giving any reason his date of
regularisation was shown as 19.8.1982 by showing him at Sl.No.14.
At Sl.No.15 one N.Rama Rao, who was allotted to Zone-III and who
secured Rank No.115 (SC) and whose date of regularisation is
23.8.2002 was shown.
At Sl.No.16 one B. Narapareddy, who
secured 26th rank and who was allotted to Zone-III was shown. His
date of regularisation was shown as 21.8.1982.
At Sl.No.17 a
person, who secured Rank No.153 and whose date of regularisation
is 25.8.1982 is shown, whereas at Sl. No.21, a person whose rank
is 23 and whose date of regularisation is 18.8.1982 is shown. The
above details clearly disclose that neither ranking nor the date of
commencement of probation formed the basis for determination of
seniority. A better rank holder with earlier date of regularisation is
shown
as
junior.
regularisation
is
One
Jagannadha
17.8.1982
is
shown
Rao,
at
whose
date
of
Sl.No.35.
One
M.
Ramaswamy Iyengar, who secured 29th rank and whose date of
regularisation is 17.8.1982 was shown at Sl.24.
However two
persons whose dates of regularation is 17.8.1982 were shown at
Sl.Nos.39 and 53. Thus the impugned seniority list is not prepared
either on the basis of ranks, date of commencement of probation or
roster.
The dates of commencement of probation of the applicants
were not correctly fixed in terms of proviso to Rule 33 (b) of A.P.
State and Subordinate Service Rules. Therefore, requested to set
aside the impugned seniority list, dated 4.8.2011 issued by the 34d
Respondent and consequential orders issued by the Government.
57)
The learned Counsel Sri C. Srinivasa Baba representing
the applicant in O.A. No.2797 of 2012 submitted that:
i)
The impugned final seniority list, dated 4.8.2011 is neither
in accordance with Rules nor in consonance with the undertaking
given by the Government through Memo No.1239/Ser.II(1)/2009-4,
Transport Roads & Buildings (Ser.II) Department, dated 24.9.2009.
ii)
The impugned seniority list is against the principles of
natural Justice as the 3rd Respondent is also a party to the seniority
list. The 3rd Respondent prepared the seniority list in a biased
manner without following the rules and the directions given by the
Courts with the sole object of keeping his position above all the
directly recruited Deputy Executive Engineers in the seniority list.
iii)
As per Rule 33 (b) of A.P. State and Subordinate Service
Rules, notional dates are to be assigned to the seniors on par with
the date of joining of the junior in case the junior joins earlier to the
seniority. But the 3rd Respondent has applied different yardsticks
and procedure while finalizing the seniority list.
The learned
Counsel pointed out the irregularities in this regard by way of a
table which are as follows:
Position Zone and panel year/Name Date
of
in
the of the Officer
regularisapanel
tion
Zone-I (1981-82)
2
S.Sreerama Murthy
4
T. Suryanarayana (DR)
Remarks
5-3-1986
30.8.1982
But placed at Sl.No.46 in
the panel 1981-82 in the
integrated panel
Direct recruit of 1982
batch
But placed at Sl.No.35 in
the panel 1981-82 in the
integrated
panel
confining him to that of
date of regularisation of
his senior.
Zone-II (1981-82)
4
K. Gnana Raju (DR)
2-9-1982
5
G. Jagannadha Rao (DR)
17.8.1982
Zone-IV (1980-81)
14
K. Rama Mohana Sarma
16.7.1984
Placed at Sl.No.17 in the
1980-81 panel
19-8-1982
Though the date of
regularisation of K. Rama
Mohana Sarma in the
earlier panel was in
1984, the yardstick of
confining the date of
regularisation with that
of the senior has not
been followed only to
safeguard his position at
the top among 1982
1981-82 panel (31.12.1982)
1
K. Siva Reddy
direct recruits.
Zone-VI (1981-82)
7
11
P. Padma Reddy
31.8.1982
D. Laxminarayana Rao
18.8.1982
In the integrated list
D.Laxminarayana
Rao
was shown at Sl. No.21
in the panel year 198182 confining his date
with that of his senior.
Zone-VII (1981-82)
5
Mohd. Fiyazuddin
14.7.1986
7
R. Srinivasa Rao
17.8.1982
In the integrated list he
was shown at Sl.No.53 in
the panel year 1981-82
confining his date with
that of his senior.
Thus the 3rd Respondent has adopted different yardsticks to
different persons without any authority or rationale in order to
protect his position in the top of the list of 1982 direct recruits and
intentionally ignored the directions given by the Courts.
Therefore,
the impugned seniority list, dated 4.8.2011 issued by the 3rd
Respondent
and
the
consequential
orders
issued
by
the
Government are liable to be set aside and requested to grant the
reliefs as prayed for.
58)
Before
examining
the
legality
and
validity
of
the
impugned seniority lists, We have to refer to various Judgments
rendered by the Supreme Court regarding the seniority issue
between promotees and direct recruits.
59)
In K. SIVA REDDY VS. STATE OF ANDHRA PRADESH,
A.I.R. 1988 SC 860,
the Hon’ble Supreme Court dealt with the
group of Writ Petitions filed by directly recruited Assistant
Engineers (re-designated as Deputy Executive Engineers) of 1982
batch in the Engineering Service of R & B Department, challenging
the order of the Chief Engineer (R&B), dated 8.6.1984 regularising
the services of promotees covered by panel years 1972-73, 1973-74
and 1974-75 in the cadre of Assistant Engineers (Deputy Executive
Engineers) The Petitioners therein contended that the retrospective
regularization of the promotees made by the Chief Engineer is
without authority and is in gross violation of the prescription of the
rules. The direct recruits have been agitating about the non
enforcement of Rule 3 (3) of A.P. (R&B) Engineering Service Rules
which provides that 37 ½% of the substantive vacancies were to be
filled by direct recruitment, but the Government have turned their
deaf ear. At least from 1982 the dispute had been systematically
raised and by the impugned decisions the Tribunal had called upon
the State to work out the said rule properly.
In the light of the
above circumstances, the Hon’ble Supreme Court held as follows:
“
Reopening the question of inter se seniority on
the basis of non-enforcement of the rules from the very
beginning may create hardship and that would be
difficult to mitigate but we see no justification as to why
the benefit of the scheme under the rules should not be
made available to direct recruits at least from 1982.
When the State Government by rules duly framed
prescribed the method of recruitment and put the
scheme into operation it had the obligation to comply
with it. The explanation offered by the State Government
for non-compliance of the requirements of the rules does
not at all impress us. We, therefore, direct that as on
31.12.1982, the State Government must ascertain the
exact substantive vacancies in the category of Assistant
Engineers in the service. On the basis that 37 ½% of
such vacancies were to be filled up by direct
recruitment, the position should be worked out.
Promotees should be confined to 62½% of the
substantive vacancies and in regard to 37½% of the
vacancies the shortfall should be filled up by direct
recruitment. General Rules shall not be applied to the
posts within the limits of 37 ½% of the substantive
vacancies and even if promotees are placed in those
posts, no seniority shall be counted. The State
Government shall take steps to make recruitment of the
shortfall in the direct recruitment vacancies within the
limit of 37 ½% of the total substantive vacancies up to
31.12.1987 within four months from today by following
the normal method of recruitment for direct recruits.
The seniority list in the cadre of Assistant Engineers
shall be redrawn up, as directed by the Tribunal, by the
end of September, 1988, keeping the directions referred
to above in view. There shall be a direction issued to the
State of Andhra Pradesh to make recruitment to the
category of Assistant Engineers by strict compliance of
Special Rules hence forth.
In view of what we have stated above and following
the principle indicated in the connected Civil Appeal
which we have seperately disposed of today, we are of
the view that the regularisation made in respect of the
promotees of the years 1972 to 1975 should not at this
point of time be disturbed particularly when the
regularisation has been subsequent to the actual
commencement of continuous service in the post of
Assistant Engineer. We would, however, reiterate that
the directions given in Writ Petition No. 12401 of 1985
is equally applicable to the petitioners in the group and
the State Government is directed to give effect to the
judgment with meticulous care.”
60)
C. RADHAKRISHNA REDDY AND OTHERS VS. STATE
OF A.P. AND OTHERS, 1990 (1) SLR 136. This Writ Petition was
filed by the promotee Engineers of R & B Wing of A.P. Engineering
Service under Article 32 of the Constitution of India challenging the
Circular, dated 12.8.1988 issued by the Government of Andhra
Pradesh fixing guidelines for drawing up of seniority lists pursuant
to the directions issued by the Supreme Court in a batch of Writ
Petitions in K.Siva Reddy’s case. The main contention of the
petitioners was that by 1982, the promotee Engineers had put in
continuous service of six to seven years, and that their services
having been regularised as Deputy Executive Engineers in the year
1974-75, the direct recruits appointed in the year 1982 cannot be
placed above them. While referring to the Judgment rendered in K.
Siva Reddy’s case, the Supreme Court upheld the guidelines issued
through the above Circular and dismissed the Writ Petition by
making the following observations:
“.....Taking into consideration the fact that
regularisation had been done after the promotees
had put in some years of service and disturbing
regularisation would considerably affect the
officers
concerned,
regularisation
was
not
interfered with. This Court's intention obviously
was not to take away the benefit of regularisation
in respect of the officers belonging to the promotee
group in excess of their quota but the Court did
not intend to allow such regularised officers in
excess of the quota to also have the benefit of such
service for purposes of seniority....
61)
The Hon’ble Supreme Court rendered another Judgment
in D. HANUMANTHA RAO & OTHERS VS. STATE OF A.P. 1991
(3) S.L.R. 3.
The Writ Petitions were filed before the Supreme
Court of India under Article 32 of the Constitution of India by the
promotee-Engineers of the Roads & Buildings Wing of the Andhra
Pradesh Engineering Service
challenging mainly certain earlier
decisions of the Supreme Court resolving similar disputes and the
guidelines formulated by the State Government in the matter of
drawing up of the seniority list by way of implementation of
directions of the Supreme Court. The Judgment was rendered by a
three Judge Bench of the Supreme Court in the above case.
62)
In pursuance of the Judgment of the Supreme Court in
K. Siva Reddy’s case, the State Government came forward to
implement the direction and published the draft seniority list drawn
up on the basis of discussed guidelines. In the said seniority list
1982 direct recruits were placed from Sl Nos. 234 to 269 without
disturbing promotees upto Sl.No.233 and the remainder of
promotees, who were given promotion prior to 1982 were placed
against Sl.Nos.270 to 300. Earlier, W.P.No.369 of 1989 was filed by
C. Radhakrishna Reddy and others raising the same dispute. The
Supreme Court dismissed the said W.P. by Judgment, dated
10.11.1989.
63)
It was submitted before the Supreme Court by the Counsel
for the Petitioners that some of the direct recruits had been given
the benefit of seniority by counting service prior to their actual
recruitment and relied upon observations made by the Supreme
Court in some cases to the effect that for computation of length of
service the period prior to selection was being counted by a deeming
position of employment prior to recruitment. When called upon to
substantiate his allegation, the Counsel for the Petitioner has not
been able to do so.
64)
The Supreme Court earlier had taken a very equitable
view in not disturbing the regularisation contrary to the quota and
had taken every care to ensure that the cause of justice was not
made to suffer and a balance was maintained by an appropriate
admixture of relief by confining the reconsideration for a period
after 1982. The year 1982 was fixed by taking into consideration
the fact that regular disputes had been raised from that time; and
that a period of 5 to 6 years was not too long a period to give rise to
a sense of conclusiveness generated by long lapse of time.
Supreme Court observed thus:
“
Promotee-Engineers should have been happy
and thankful to their lot that their regularisation
was not disturbed and even seniority prior to 1982
was not being affected. Oblivious of these benefits
The
which they have retained though acquired out of
turn, they have proceeded on the footing that their
cause has been affected and justice to them has
been denied by placing a group of them below the
1982 recruits. We do not think that for dismissing
this group of petitions anything more should be
said excepting to quote with approval what this
Court had said in Dr. G. Marulasiddaiah v. Dr.
T.G. Siddapparadhya & others [1971] 1 SCC 568:
"
The canker of litigiousness has spread even
to a sphere of life where discipline should check
ambition concerning personal preferment."
A government servant is justified in taking
legal action when he feels that a stigma or
punishment is undeserved but he is expected to
bear with fortitude and reconcile himself to his lot
suppressing disappointment when he finds a coworker raised to a position which he himself
aspired after….”
The Supreme Court made the above comments by dismissing the
Writ Petitions.
65)
Subsequently the Supreme Court of India rendered a
Judgment
in
G.S.
VENKAT
REDDY
&
OTHERS
VS.
GOVERNMENT OF ANDHRA PRADESH, A.I.R. 1993 SC 2306. A
three Judge Bench rendered the Judgment in the above matter on
16-7-1993. In the appeals covered by the above decision, the
controversy relates to the determination of seniority between 1) the
appellants
who
entered
service
in
the
various
engineering
departments of the State initially as Supervisors and who on
acquiring a degree in engineering were re-designated as Junior
Engineers and 2) those graduate Junior Engineers who were
temporarily appointed on ad hoc basis under Rule 10(a)(i)(1) of the
Andhra Pradesh State and Subordinate Service Rules and whose
services were later regularised under G.O. Ms. No. 647 dated
14.9.1979.
66)
The Respondents therein were recruited directly by the
Government and not by the Andhra Pradesh Public Service
Commission within whose purview the post of Junior Engineers fell
as there was a ban under G.O. Ms. No. 682, dated 9-9-1970 against
regular appointments through Public Service Commission.
To
overcome the ban different departments resorted to temporary
recruitment under Rule 10(a)(i) (1) of the General Rules to fill up
vacancies in their respective engineering services. The unofficial
Respondents were accordingly recruited on temporary and ad hoc
basis as Junior Engineers. Subsequently the Government took a
decision to regularise their services by lifting the ban on direct
recruitment and framing special rules under the proviso to Article
309 of the Constitution providing for their regularisation through a
Special Qualifying Test (SQT) to be conducted by the Public Service
Commission with a condition that
only those temporary Junior
Engineers who had completed not less than two years' service as on
January 1, 1973 alone were made eligible to attend the Special
Qualifying Test. Pursuant thereto the Public Service Commission
issued a notification inviting applications from eligible candidates
for admission to the Special Qualifying Test to have their services
regularised. In pursuance of the said Notification, Junior Engineers
serving in different departments of the State Government viz.,
Roads and Buildings department, Public Health and Municipal
Engineering Department. Panchayat Raj Engineering Department,
etc.,
who
were
eligible
under
the
special
rules
submitted
applications. However, those temporary Junior Engineers who were
not eligible to appear for the Special Qualifying Test on account of
the two years rule questioned the same through Writ Petitions filed
under Article 226 of the Constitution of India.
A learned Single
Judge allowed the said Writ Petitions holding that the condition of
minimum
two
years
service
as
on
January
1,
1973
was
unconstitutional. Against the Judgment of the learned Single Judge
Writ Appeals were filed and the Division Bench allowed the Writ
Appeals and dismissed the Writ Petitions through a Common
Judgment, dated 29-7-1975.
67)
Those who successfully cleared the Special Qualifying
Test were absorbed in regular service and no dispute was raised
about their seniority. The temporary Junior Engineers who failed to
clear
the
Special
Qualifying
Test,
including
the
unofficial
Respondents and those who were ineligible to appear for the Special
Qualifying Test because of the two year rule made representation to
the Government for their regularization. Other temporary ad hoc
employees serving in administrative and other branches of the State
Government also pressed for regularisation of their services.
Pursuant thereto the Government issued orders in G.O. Ms. 646
dated September 14, 1979 that all temporary employees appointed
by direct recruitment in any category of posts at all levels and
continuing in service as on August 9, 1979 shall be regularised
without subjecting them to any written or oral test. Subsequently,
the Government issued another G.O. covered by G.O. Ms. No. 647
of even date directing that
(i) the services of all temporary
Government employees who were appointed by direct recruitment to
any category of post and are continuing in service as on 9.8.1979
should be regularised without subjecting them to any test written or
oral. The above orders are general in nature and cover the cases of
unofficial Respondents and all similarly placed employees.
The
unofficial Respondents, who were appointed as Junior Engineers
on a temporary basis under Rule 10(a)(i)(1) of the General Rules
between 1971 and 1973 but who had not passed the Special
Qualifying Test became entitled to be regularised under the above
G.O. Their seniority has to be determined in the light of these
orders, Rule 33(a) of General Rules and other related rules. The
validity of the above G.Os. was upheld by the Apex Court in I.J.
Diwakar v. State of Andhra Pradesh (1983) 3 SCC 341. The posts of
Supervisors and Junior Engineers were non-gazetted posts till the
Junior Engineers were made gazetted by Government Orders, dated
7-6-1976 with effect from 28-2-1972.
Thereupon the said post
ceased to belong to the Subordinate Service of the State from that
date. Supervisors who acquired a degree in Engineering were redesignated as Junior Engineers.
68)
The appellants in the above appeals contended that till
gazetted status was conferred on graduates, a common seniority list
of Supervisors and Junior Engineers was maintained.However, after
conferment
of
redesignation
gazetted
of
status
Supervisors
as
the
rule
Junior
which
provided
Engineers
on
or
their
graduation was omitted with effect from February 28, 1972. The
appellants further contended that the net effect of these changes
introduced
retrospectively
was
that
Supervisors
who
were
designated Junior Engineers on their graduation prior to February
28,1972
acquired
gazetted
status,
whereas
those
who
had
graduated after February 28, 1972 but before June 7,1976 and
were redesignated Junior Engineers were placed in the category of
non-gazetted and continued to belong to the subordinate service of
the State. Supervisors could thenceforth become Junior Engineers
by transfer only.
The further vertical movement to the post of
Assistant Engineers was on the basis of the percentage or quota
fixed for Supervisors and Junior Engineers subject of course to the
experience criteria.
69)
When
representations
were
made
by
the
affected
Supervisors-Junior Engineers for continuance of the benefit of
upgradation, the Government reconsidered the matter and felt that
some consideration should be shown to the Supervisors who had
graduated while in service. It was, therefore, decided that such
Supervisors who had acquired graduate qualification while in
service should be appointed temporarily as Junior Engineers with
effect from 10-6-1976
vide G.O. Ms. No. 451 and 459,
dated
10.6.1976 and 25-9-1976. Similar orders were issued in respect of
engineering services in other departments also. This necessitated
the Government to clarify matters relating to weightage, seniority,
etc.
Therefore, the Government issued orders through G.O. Ms.
Nos.559 and 658 dated 18-7-1977 and 22-10-1977 and similar
orders pertaining to other departments. It is clarified therein that a
Supervisor, who is appointed as Junior Engineers shall be entitled
to count l/3rd of the service rendered by him as Supervisor, before
his appointment as Junior Engineer, subject to a maximum of four
years, for the purpose of computing the service as Junior Engineer,
which will render him eligible for consideration for promotion as
Assistant Engineers; and that the seniority of the Supervisors, who
are appointed as Junior Engineers, shall be fixed with reference to
the notional date arrived at after giving weightage of service. By
G.O.Ms.No. 428 dated 30-3-1979 the Government made a provision
for appointment of Supervisors as Junior Engineers by transfer.
70)
It is contended before the Supreme Court that Supervisors
who had acquired graduate qualification after 28-2-1972 and had
been designated Junior Engineers but were on account of the
retrospective operation of the Government orders referred to earlier
re-designated Junior Engineers (non-gazetted) were reinstated as
Junior Engineers (gazetted) with effect from the original dates of
their entry into that cadre and hence they became entitled to count
l/3rd of the Service rendered as Supervisor, subject to a maximum
of four years for computing their seniority. The Government fixed
the inter-se seniority on that basis and showed the upgraded Junior
Engineers as seniors to the Junior Engineers regularised under
G.O. Ms. No. 647 both in the provisional seniority list dated 7-11982 and the final seniority list dated 7-7-1982. These lists were
successfully challenged by the unofficial Respondents before the
Tribunal.
71)
The State Government as well as the Junior Engineers
who had initially joined as Supervisors have challenged the orders
of the Tribunal before the Supreme Court by filing the above
Appeals. The Tribunal has taken a view that since regularization
through Special Qualifying Test (SQT) could not be described as
general recruitment for limited recruitment, the very basis for
limited recruitmet was contrary to Rule 22 (c) of A.P. State and
Subordinate Service Rules.
The Tribunal further held that such
limited recruitment cannot be said to be normal recruitment and
hence cannot be equated to regular appointment referred to under
G.O.Ms.No.647, dated 14.9.1979. The Supreme Court disapproved
the view taken by the Tribunal by observing that large number of
temporary employees got absorbed into the service through the
State PSC. Such appointments were regular, backed by rules and it
is for the reason that they were given seniority over those absorbed
by the thrust of G.O. Ms. No. 647. Therefore, the Supreme Court
held that
“We have, therefore, no hesitation in holding that the
appointments of the afore-named two candidates belonging to the
SC/ST group through the PSc under Rule 22(e) were perfectly in
order and normal and would attract 'the regular appointment'
expression employed in G.O. Ms. 647.”
72)
By taking into consideration all the above aspects the
Supreme Court came to the following conclusions:
“ 15.
To summarise : The candidates who have
entered service after passing the SQT shall rank
immediately
after
the
regularly
appointed
candidates who had entered service before the
selection of the successful SOT candidates. Next to
the SQT candidates will rank those who are
governed by this Court's directive in the last
paragraph of Diwakar's Case (supra). Thereafter
the seniority will be fixed between the candidates
covered under G.O. Ms. No. 647, the upgraded
supervisors and the SC/ST candidates recruited
under the Rule 22(e) limited recruitment scheme in
the list of this judgment. The judgment and order
of the Tribunal will stand modified to the extent it
concerns the SC/ST candidates recruited under
the Rule 22(e) limited recruitment scheme. If as a
consequence of this modification readjustment of
inter-se seniority between a candidate governed by
G.O. Ms. No. 647 and an upgraded supervisor
becomes necessary it will be effected in the terms
of this judgment. Fresh order consistent with this
judgment may be issued, if necessary Except for
the modification made in regard to recruitment
under the limited recruitment scheme, the
Tribunal's order is upheld.
16. Consequently C.A. Nos. 2027-34 of 1987 and
appeals arising from SLP(C) Nos 5878 of 1987, and
2592 of 1989 will stand dismissed with no order as
to costs except in relation to the aforenamed
SC/ST candidates who entered through the limited
recruitment test undertaken by the State PSC. The
appeal arising from SLP (C) No. 8312 of 1988 will
also stand disposed of and the seniority of the
incumbent will be determined afresh in terms of
the ratio of this judgment. Writ Petition No. 367 of
1988 is allowed as prayed for. In view of the
disposal of this batch of cases, the interim orders
made by this Court in different I.As. and C.M. Ps.
will stand vacated but since the State Government
will have to revise the seniority list in the light of
the Tribunal's order as modified hereinabove, the
State Government will be well advised not to effect
any reversions till then and if on the revision of the
seniority list reversions become inevitable the State
Government may consider protecting such
employees by creating supernumerary posts, if
need be, to avoid heartburns and disturbances to
service and to those who have been working on
those posts for long spells and who were promoted
on the seniority lists prepared by the State
Government.
73)
The Hon’ble Supreme Court observed in G.S.VENKATA
REDDY’S case that next to the SQT candidates will rank those who
are governed by the last Para of I.J. DIVAKAR’s case.
74)
In I.J. DIVAKAR AND OTHERS VS. GOVERNMENT OF
A.P. AND ANOTHER, A.I.R. 1982 S.C. 1555, the petitioners
appeared for direct recruitment for the post of Junior Engineer in
pursuance of the Notification issued by A.P. Public Service
Commission. All eligible candidates were asked to appear for viva
voce test between November, 1978 and March, 1979.
After the
conclusion of the viva voce test the Commission was in the process
of finalizing the select list. On 14.9-1979 the Government of Andhra
Pradesh issued G.O.Ms.Nos.646 and 647 in exercise of the power
conferred by the proviso to Sub-clause (3) of Article 320 of the
Constitution. By G.O.Ms.No.646, the Government excluded from
the purview of the Commission all appointments made by direct
recruitment to any posts in any category at all levels in the State
and Subordinate Services and which were continuing temporarily
on 9.8.1979. By G.O.Ms.No.647 orders were issued to regularize
the services of all temporary Government servants who were
appointed by direct recruitment to any category of posts and were
continuing in service as on 9.8.1979 without subjecting them to
any test, written or oral, subject to certain conditions.
The
appellants along with several others filed a Representation Petition
No. 1636 of 1979 in the Andhra Pradesh Administrative Tribunal at
Hyderabad seeking a direction to the 2nd respondent to finalise the
select list of candidates from amongst the candidates who had
applied for the post of Junior Engineer and who had appeared at
the viva voce test and for a further direction to the 1st respondent
to make the appointments of those finding their place in the select
list from amongst the appellants. The Tribunal passed an order on
11.9.1981 dismissing the above R.P. with an observation that in
the event there are vacancies and the select list is finalised and if
any of the appellants finds his place within the zone of selection he
may be appointed or may be permitted to appear at an examination
relaxing the age bar, if any, he or she has suffered. Against the said
Order of the Tribunal Civil Appeal No.2487 of 1982 was filed before
the Supreme Court of India.
75)
The Supreme Court in the above Judgment observed as
follows:
"
We are broadly in agreement with the Tribunal that
the Government had the power to regularize services.
Looking to the circumstances set out in the affidavit in
opposition filed on behalf of the State that it had
become compelling necessity to regularize services of
such temporary servants for peace and harmony in
service, we are satisfied that the action of the
Government was justified and was in consonance with
the Rules. We find, therefore, no substance in the
contention that the regularisation of services of
temporary Government servants was in contravention
or violation of statutory rules.”
76)
The Supreme Court held in the last Para of the Judgment
as follows:
“
In order to do justice between the parties and
not to leave the appellants, fresh young engineering
graduates, in lurch, we direct that the commission
shall proceed to finalise the list of selection on the
basis of the viva voce tests conducted and marks
assigned and forward the same to the Government
within two months from today. If the appellants or any
one of them fall within the zone of selection, they must
be first appointed according to their place in the select
list before any outsider is appointed hereafter to the
post of the Junior Engineer in any branch of Andhra
Pradesh Engineering Service and this must be
irrespective of the Department in which post of Junior
Engineer is available. The appeal to the extent herein
indicated is allowed. There will be no order as to costs.”
77)
In J. CHANDRASEKHAR REDDY VS. D. ARORA, CHIEF
SECRETARY TO GOVERNMENT OF ANDHRA PRADESH, 1994
(1) SCC 228, the Supreme Court dealt with the Contempt Petitions
contending that the Government committed breach of the directions
issued in K. SIVA REDDY’s case. The Supreme Court while
dismissing the Contempt Petitions, observed as follows:
“
8. Therefore, the observations made in Writ
Petition No. 369 of 1989 decided on November 10,
1989 (reported in 1989 Supp (2) SCR 140) and on
which reliance is placed by the learned counsel are
obviously inconsistent with the earlier portion of the
very same decision as well as the decision in Siva
Reddy case (AIR 1988 SC 860). Further, these
observations have been explained in the decision given
in D. Hanmanth Rao v. State of A.P. [Writ Petition No.
1275 of 1989 and other petitions decided on April 25,
1990]. Those petitions were filed by the promoteeEngineers challenging the earlier decision on the point
including the directions given in Siva Reddy case'. In
the third last paragraph of the decision, the Court
observed as follows:
"
The promotee-Engineers should have
been happy and thankful to their lot that their
regularisation was not disturbed and even
seniority prior to 1982 was not being affected.
Oblivious of these benefits which they have
retained though acquired out of turn, they
have proceeded on the footing that their cause
has been affected and justice to them has been
denied by placing a group of them below the
1982 recruits (direct recruits)."
9.
Any ambiguity on the point as to whether the
seniority of those who were appointed prior to 1982
whether as direct recruits or promotees was to be
disturbed or not, has been thus finally set at rest by
the aforesaid observation.
10. We are, therefore, more than satisfied that neither
the appointments nor the inter se seniority of those
who were appointed in the vacancies prior to December
31, 1982 was to be disturbed at all while giving
seniority to the direct recruits who were to be
appointed as per the directions given in Siva Reddy
case' in the vacancies existing on December 31, 1982
plus the vacancies occurring thereafter till December
31, 1987. There is nothing brought to our notice which
the State Government has done so far to commit the
breach of the direction given in Siva Reddy case' as
interpreted by this Court earlier and by us as above.
We have noted above the statement of the learned
Additional Solicitor General that while appointing the
direct recruits for adjusting them in their quota in the
vacancies from December 31, 1982 to December 31,
1987, the State Government will take into
consideration the vacancies that existed on December
31, 1982 as well.”
11.
Hence the contempt petitions are dismissed and
rules granted therein are discharged.
78)
A Division Bench of Hon’ble High Court A.P. rendered a
Judgment in W.P.No.5834 of 1998 and batch on 23.7.1999
(GOVERNMENT OF ANDHRA PRADESH AND OTHERS VS. M.
SANGAIAH AND OTHERS) relating to R & B Department in respect
of the seniority dispute between direct recruits and promotees in
the cadre of Deputy Executive Engineers. The relevant portion of
the Judgment reads as follows:
“
As already stated above, the lis which had started
with D. RAMA RAO’s case (1 supra) in the apex Court has
concluded with J. CHANDRASEKHAR REDDY’s case (5th
supra) and the final interpretation laid by the Supreme
Court in J. CHANDRASEKHAR REDDY’s case (5 supra) is
the criteria for deciding the inter se seniority of direct
recruits and promotees/transferees. The purport of the
Judgment in D. RAMA RAO’s case and K. SIVA REDDY’S
case relating to the Deputy Executive Engineers of Roads
& Buildings Department and K.R.PRASAD’s case relating
to the Deputy Executive Engineers of Deputy Executive
Engineers of Irrigation Department is to the effect that
even if the promotees had occupied the vacancies in
excess of their quota, such of those promotees whose
services were regularized as Deputy Executive Engineers
for the period upto 31.12.1982, cannot be disturbed and
their seniority has to be reckoned basing on their length
of service in the said post of Deputy Executive Engineers.
Of course, in C. RADHA KRISHNA REDDY & OTHERS
VS. STATE OF A.P. & OTHERS (1990 (1) SLR 136), there
are some observations by the Supreme Court indicating
some deviation from the dicta laid down in SIVA REDDY’s
case. But, in the case of D. HANMANTHA RAO, a
different note was struck down by the Supreme Court
which is quite in consonance with SIVA REDDY’s case
and this way rightly pointed out by the later Supreme
Court Judgment in CHANDRASEKHAR REDDY’s case.
The direct recruits had been harbouring under the false
notion that every vacancy is a substantive vacancy. As
already stated above, substantive vacancy has got
relevance only in so far as direct recruitment is
concerned and all vacancies need not be substantive
vacancies, as occurrence of vacancies has no relevance to
the seniority of person which is governed by
appointment. The rule is that 37 ½% of the substantive
vacancies in the permanent cadre shall be filled by direct
recruitment and the action of the Government in not
resorting to direct recruitment conforming to the quota of
37 ½ % was already condoned by the Supreme Court in
D. RAMA RAO’s case, K. SIVAREDDY’s case as also D.
HANMANTHA RAO’s case. In fact, J. CHANDRASEKHAR
REDDY’s case has specifically overruled the Judgment in
C. RADHAKRISHNA REDDY’s case in which some
observations were made against the promotees relating to
their seniority. The said judgment also makes it clear
that every post (vacancy) is not a substantive vacancy
and that said substantive vacancies which remained
unfilled as on 31.12.1982 shall be reckoned adding the
vacancies further arising in between the period i.e.
31.12.1982 and 31.12.1987 for the purpose of applying
the quota rule strictly. As such, there cannot be any
deviation of quota rule for the above posts. The direct
recruits of pre 31.12.1982 period are no way concerned
with such vacancies and their seniority in the cadre of
Deputy Executive Engineers shall be counted only from
the date of their entry into service pursuant to their
direct recruitment from the respective dates before
31.12.1982 and they cannot claim seniority anterior to
the said dates of their respective entry into the service in
the cadre of Deputy Executive Engineers.
In view of the foregoing discussion, we hold as
follows:
“
That the promotions of the personnel borne on
Andhra Pradesh Roads and Buildings Engineering
Service to the posts of Deputy Executive Engineers even
in excess of the quota of 62 ½% for the period from
1.4.1965 to 31-12-1982 cannot be disturbed and the
direct recruits appointed during the said period i.e.,
1.4.1965 to 31-12-1982 will get seniority only from the
respective dates of their appointments and the said issue
of seniority for the above period inter se direct recruits
and promotees shall not be reopened.
2)
The finding of the Tribunal that the deficiency
in direct recruitment conforming to 37 ½% in A.P.
R&B Engineering Service is liable to be reopened for
the period from 1-4-1965 to 31-12-1982 is set aside.
3) The finding of the Tribunal that the personnel
promoted to the posts of Deputy Executive Engineers
of A.P. R&B Engineering Service are not entitled to
count their seniority from their first entry into service
in the cadre, but have to wait for their turn in the
vacancies meant for their quota of 62 ½% right from
1-4-1965 to 31-12-1987, is set aside.
4)
That the Deputy Executive Engineers in R&B
Department of State of Andhra Pradesh regardless of
their source of recruitment, be it direct or
promotion/ transfer and regardless of their quota,
are entitled to retain promotions effected and their
relevant inter se seniority basing on their first entry
in to service for the period from 1-4-1965 to
31.12.1982.
5) That the Engineer-in-Chief of the Roads and
Buildings Department and the Government shall
identify the unfilled vacancies as on 31-12-1982 in
the category of Deputy Executive Engineers of A.P.
Roads and Buildings Engineering Service.
6) Such unfilled vacancies mentioned in paragraph
18 (5) supra shall be added to the vacancies which
arose upto the period 31-12-1987 and the deficiency
in the direct recruitment can be made up only out of
such vacancies as mentioned in paragraph 18 (5)
and (6).
7) The Governmental orders issued in G.O. Ms.
Nos.314, 38 and 147 shall be scrutinised again and
if they are found to be in consonance with our
directives above, they shall be treated as final, or
else, necessary modifications be made to be in tune
with the above directives. This exercise shall be made
within a period of three months from the date of
receipt of a copy of this order.
8) All other directives issued by the Tribunal which
run contra to the directives issued by this Court
mentioned above from 18 (1) to (6) stand set aside.
The Writ Petitions are disposed of accordingly.
Each party shall bear their own costs.”
79)
The above Judgment of the Hon’ble High Court in
W.P.No.5834 of 1998 and batch was challenged before the Hon’ble
Supreme Court of India by filing S.L.P. (Civil) No.6980 and 6981 of
1999 and the S.L.Ps. were dismissed by holding that the Judgment
of the High Court is in conformity with the decisions of the Supreme
Court and no interference is called for.
80)
In
M.
SHYAM
SUNDER
GOVERNMENT OF A.P. AND OTHERS,
AND
OTHERS
VS.
2001 (6) ALD 87, a
Division Bench of the Hon’ble High Court made certain observations
which reads as follows:
“ 5.
A Full Bench of the Tribunal heard a batch of
OAs, O.A.Nos.41796 of 1991 and batch and disposed of
by common order dated 29-10-1997 with the following
directions.
(i)
The position of appointments and consequent
inter se seniority before 31-12-1982 should not be
disturbed at any cost.
(ii) While implementing the quota rule, for
purposes of filling up the shortfall vacancies,
vacancies meant for direct recruits should be
calculated from 1-4-1965 and not 31-12-1982, till
31-12-1987.
(iii) Government have the power to make
retrospective regularisation as per Rule 23 of the
General Rules. Notional dates of promotion can be
assigned to promotees before 31-12-1982 as per
law, but subject to the condition that inter se
seniority between promotees and direct recruits is
not altered.
(iv) Direct recruitment in our State is governed by
Article 371-D(2) as decided by the Supreme Court
in Suryanarayana Rao's case vide A.I.R.1991 SC
2113.
(v) As a corollary, no promotee who is occupying
direct recruits vacancy can get the benefit of such
service for seniority and consequently for
promotion. Because of the specific direction,
promotees even occupying wrongly the vacancies
meant for direct recruits before 31-12-1982 cannot
be reverted, but such service till they are
regularised in a vacancy meant for their stream
will be purely temporary.
(vi)
The promotees occupying the slots meant for
direct recruits after 31-12-1982 can be reverted for
want of vacancies meant for their stream. The
1986 direct recruits will be positioned in the
seniority list as per their dates of appointment,
being recruited against substantive vacancies
meant for their stream.
6. When the OA Nos.41796 of 1991 and batch were
pending before the Tribunal, the Government issued G.O.
Ms. No.314 Transport, Roads and Buildings (Services-II)
Department dated 29-11-1994 approving the final zonewise seniority list of DEEs in the Department who were
appointed after 1-4-1965 subject to the out come of the
cases pending before the Supreme Court in CA Nos.7592
and 7593 of 1993. Therefore, the Tribunal also issued
another direction as follows :
“
Government should verify whether correct
dates of regularisation have been assigned in
G.O.Ms.No.314 and G.O. Ms. Nos.38 and 147 as
per the principles laid down in this judgment particularly in Part-Ill Point 3(A)(d) and (e) - and
wherever necessary amendments to G.O. Ms.
No.314 should be issued indicating the correct
position, in seniority list, as per law, of both direct
recruits and promotees strictly as per principles
laid down herein.
…
…
…
…
9.
The Judgment of the Full Bench of the Tribunal in
OA No.41796 and 41797 of 1991 dated 29-10-1997 was
challenged before this Court in WP No.5834 of 1998 and
batch by the Government as well as other aggrieved
parties. A Division Bench of this Court by order dated 237-1999 while disposing of the writ petitions upheld the
validity of the final seniority list issued in G.O. Ms. No.
314, G.O. Ms. No.38 and G.O. Ms. No.147 giving liberty to
the Government to scrutinize the same again if the said
Government Order is not in consonance with the
directions issued by the Division Bench in paragraph 18 it
is apposite to excerpt these directions.
(18). 1. That the promotions of the personnel borne
on Andhra Pradesh Roads and Buildings
Engineering Service to the posts of Deputy
Executive Engineers even in excess of the quota of
62 ½% for the period from 1-4-1965 to 31.12.1982
cannot be disturbed and the direct recruits
appointed during the said period i.e., 1-4-1965 to
31-12-1982 will get seniority only from the
respective dates of their appointments and the said
issue of seniority for the above period inter se
direct recruits and promotees shall not be
reopened.
2.
The finding of the Tribunal that the deficiency
in direct recruitment conforming to 371/2% in A.P.
R&B Engineering Service is liable to be reopened
for the period from 1-4-1965 to 31-12-1982 is set
aside.
3. The finding of the Tribunal that the personnel
promoted to the posts of Deputy Executive
Engineers of A.P. R&B Engineering Service are not
entitled to count their seniority from their first
entry into service in the cadre, but have to wait for
their turn in the vacancies meant for their quota of
62 ½% right from 1-4-1965 to 31-12-1987, is set
aside.
4.
That the Deputy Executive Engineers in R&B
Department of State of Andhra Pradesh regardless
of their source of recruitment, be it direct or
promotion/ transfer and regardless of their quota,
are entitled to retain promotions effected and their
relevant inter se seniority basing on their first
entry in to service for the period from 1-4-1965 to
31-12-1982.
5.The Engineer-in-Chief of the Roads and
Buildings Department and the Government shall
identify the unfilled vacancies as on 31-12-1982 in
the category of Deputy Executive Engineers of A.P.
Roads and Buildings Engineering Service.
6. Such unfilled vacancies mentioned in paragraph
18 (5) supra shall be added to the vacancies which
arose upto the period 31-12-1987 and the
deficiency in the direct recruitment can be made
up only out of such vacancies as mentioned in
paragraph 18 (5) and (6).
7. The Governmental orders issued in G.O. Ms.
Nos.314, 38 and 147 shall be scrutinised again
and if they are found to be in consonance with our
directives above, they shall be treated as final, or
else, necessary modifications be made to be in tune
with the above directives. This exercise shall be
made within a period of three months from the
date of receipt of a copy of this order.
8. All other directives issued by the Tribunal which
run contra to the directives issued by this Court
mentioned above from 18 (1) to (6) stand set aside.
10. Against the judgment of the Division Bench in WP
Nos.5834 of 1998 and batch dated 23-7-1999, one Mr.
Ravinder Rao, who was 7th respondent in WP No.23020
of 1998 (one of the batch cases) preferred a Special
Leave Petition being SLP (Civil) No.6980 and 6981 of
1999. The Supreme Court dismissed the SLP holding
that "the judgment of the High Court is in conformity
with the decisions of the Supreme Court and no
interference is called for."
11. The Government which issued G.O. Ms. No.3I4 (final
seniority list) and which defended its action by filing writ
petitions before this Court being WP No.5834 of 1998
instead of limiting the exercise for reviewing the seniority
list only with regard to DEEs, whose placement was not in
conformity with directions of this Court again restarted
the whole exercise. In furtherance thereof, the
Government issued a Memo No.1827/Ser.11 1/93-39
dated 6-3-2000 proposing to fix inter se seniority between
the direct recruit engineers and promotee engineers for
the period from 1-4-1965 to 31-12-1982 and from
1.1.1983
to
31-12-1987.
By
the
said
Memo
objections/suggestions were called for from all the DEEs
to the proposed seniority list. No notice, however, was
issued either proposing to nullify Government Orders in
G.O. Ms. No.259 and 260 dated 22-12-1993 or to set aside
the final seniority list issued list issued in G.O. Ms.
No.314 dated 29-11-1994 and other such Government
Orders. There was no indication in the show-cause notice
i.e., Memo dated 6-3-2000 that petitioners date of
regularisation will be changed.
…
….
….
68. When a person completes his period of probation
satisfactorily as per the provisions of Rule 23 of the
General Rules, he shall be deemed to have been
regularised in the service from the day when he is
appointed to a service though such employee might have
completed period of probation at a later date. Further,
Rule 23(a) enables the appointing authority to determine
the date of commencement of probation either from the
date of appointment or from such earlier date as the
appointing authority may determine, in which event the
person shall be deemed to have been regularised from
such earlier and/or anterior date as decided by the
appointing authority. When once a person is regularised
in the service, that is to say, when the period of probation
is satisfactorily completed, and deemed to have been
completed from a date anterior to the date of appointment
to a service, the date of commencement of probation which
is either the actual date of appointment of service or such
earlier date as is determined by the appointing authority
can legitimately be the relevant date for the purpose of
Rule 33(a) also which speaks of fixing of seniority. When
once the appointing authority declares the date of
regularisation, it is final and the same cannot ordinarily
be altered or changed. Even when the seniority list is
reviewed under Rule 36 of the General Rules, to which a
reference has already been made, the date of
regularisation cannot be changed or altered. But having
regard to the rule position, where inter se seniority is fixed
among direct recruits and promotees, the seniority
position can be changed subject to maintaining inter se
seniority placement in category, that is to say, either
direct recruit category or promotee category. To say in
other words, when a person belongs to promotee category,
his date of regularisation, and his place in the seniority
list remain unchanged.
…
…
…
71. It is not denied by all the parties before us that G.O.
Ms. No.314 was never challenged either before the
Tribunal or before this Court. In fact G.O. Ms. No.3!4 was
upheld by Full Bench of the Tribunal as well as a Division
Bench of this Court, however so, giving liberty to the
Government to verify G.O. Ms. No.314, and review any
mistakes that might have crept in having regard to the
principles laid down by the Division Bench of this Court.
To what extent the Government could do so, is again
governed by various judgments of the Supreme Court
referred to hereinabove as well as the orders of the
Tribunal….
74. Whether the observations made by the Tribunal in OA
No.2335 of 1993 and batch upholding the validity of G.O. Ms.
Nos.259 and 260 as well as the directions issued by the Full
Bench of the Tribunal in OA Nos.41376-97, and the Division
Bench of this Court in 5834 to the effect that it is open to the
Government to rectify the mistakes in G.O. Ms. No.314,
enables the Government to revise and/or change the dates of
regularisation and seniority of the petitioners? In our opinion,
this is not permissible. When the Tribunal and this Court had
observed that placing the petitioners in respective panel years
having regard to Para 13 of the Presidential Order would be
subject to review at the time of preparation of seniority list.
By that, they only meant the inter se seniority of promotees
and inter se seniority of promotees as well as direct recruits
of a particular panel year and not with reference to general
seniority. Did the Tribunal and this Court intended to deprive
the petitioners their respective dates of regularisation? Our
answer is in the negative. Our view is supported by a
judgment of the Supreme Court in Government of Andhra
Pradesh v. A.K. Jaiswal,2001 AIR SCW 101= (2001) 4 SCC
748.
…
…
…
76. In K.S. Reddy v. Principal Secretary to Government of
A.P., 2001 AIR SCW 2508, the direct recruits to the post of
DEEs in the Department of Irrigation again assailed the
principles applied for determining inter se seniority between
them and promotees. Before the Supreme Court, it was
contended that in Prasad, Radhakrishna Reddy, Hanmanth
Rao and Chandrashekar Reddy cases (supra), the Supreme
Court only protected the faction of promotion in respect of
promotees prior to 31-12-1982, but not their seniority, and
when promotion was not disturbed by compassion, such a
promotee cannot get seniority also on that score. The
Supreme Court repelled this contention and held:
.....the original decision had been rendered by UN.
Mishra (as His Lordship then was) and the very
learned Judge in the subsequent decision had also
interpreted as to what has been held in the first
decision and has categorically said that promotees
prior to 31-10-1982 even beyond the quota meant for
them will be allowed to continue in the promotional
post and also their seniority infer se will not be
disturbed in any manner. It must be stated insofar
as all the persons is concerned, it is not governed by
Recruitment Rules, but by the A.P. State
Subordinate Service Rules.......... Having examined
all the decisions placed before us, we do not find that
in any decision a view has been taken that only the
Court has protected the promotion and not their
seniority, and possibly that is the reason why '
recently a Bench of this Court in the case of J.
Chandrashekar Reddy (supra) did not interfere with
on being approached by direct recruits of R&B
Department.
77. In WP No.5834 of 1998, the Government filed detailed
counter. In paras 15 and 16 of the said counter, affirmed by
the Secretary to Government in the R&B Department, it was
averred that G.O. Ms. No.314, 38 and 147, reflect the
clarification issued by the Supreme Court in its judgment
dated 7-10-1993, as observed in judgment dated 16-4-1996
in the contempt case filed by one Sreedhar, that G.O. Ms.
No.314, 38 and 147 are in accordance with the orders of the
Hon'ble Supreme Court as well as various orders issued by
the Tribunal. It is not shown before us by the learned
Advocate-General or other Counsel appearing on behalf of
respondents or proposed respondents as to how the
statement made on oath was incorrect or contrary to the
judgment of the Hon'ble Supreme Court in its various
judgments.
78.
Further, as noticed above, while issuing certain
directions the Full Bench of the Tribunal had ordered that
the promotee DEEs who are promoted prior to 31-12-1982,
and who were appointed in excess of their quota would not
count their service for the purpose of their seniority. This
direction, as found by the Division Bench, was ex-fade
contrary to the directions issued by the Supreme Court, and
therefore, the Division Bench specifically set aside the same.
There could be some mistakes in G.O. Ms. No.314, either not
including DEEs or by not giving proper place in the inter se
seniority considering the service of the promotee DEEs
appointed prior to 31-12-1982. This was taken care of by
direction 18(4). The direction, therefore, has to be understood
in the light of the background of the case and cannot be
taken to have given rise occasion to the Government to
reopen the entire seniority list which was approved in G.O.
Ms. No.314. It is well settled that the seniority list cannot be
reopened when once the same has become final. This view of
ours is also supported by a Division Bench judgment of this
Court in Kotam Raju 's case (supra) in which one of us, S.B.
Sinha, CJ., was a member.”
81)
The S.L.Ps. filed against the above said Judgment were
dismissed by the Hon’ble Supreme Court.
82)
In the Order passed in Contempt Case Nos.1114, 1115,
1116 and 1149 of 2007 which were filed in pursuance of the
common Order passed by a Division of the Hon’ble High Court in M.
SHYAM SUNDAR’s case (2001 (6) ALD 87, the Hon’ble High Court
referred to the averments made in the Counter by the Principal
Secretary to Government of Andhra Pradesh in Transport, Roads &
Buildings Department which reads as follows:
“
Principal Secretary to Government of Andhra
Pradesh in Transport, Roads & Buildings
Department filed a Counter on behalf of the second
Respondent. It stated that the Government never
directed the Engineer-in-Chief to change or alter
the date of regularization of petitioners or any
others.
Government issued instructions to
Engineer-in-Chief to finalise the seniority as per
the law laid down by Supreme Court in
G.S.Venkata Reddy (supra). It is also stated that
the integrated seniority list in the category of
Deputy Executive Engineers consisting of direct
recruits
and promotees
was finalized
in
G.O.Ms.No.129, dated 17.9.2004 that the same is
subject to revision of seniority in Deputy Executive
Engineers cadre after review of seniority in lower
category of Assistant Executive Engineers as per
the directions of the Supreme Court in G.S. Venkat
Reddy (supra). Petitioners accepted the finalization
of seniority list in the category of Deputy Executive
Engineers with a rider as mentioned in
G.O.Ms.No.129 and therefore, cannot turn
around…”
83)
The proceedings No.960/Ser.I(3)/2011, dated 4.8.2011
issued by the Engineer-in-Chief (R&B) discloses that it is the
integrated seniority list of Deputy Executive Engineers from
1.4.1965 to 31.7.2002. Annexure-I of the said proceedings relates
to the Deputy Executive Engineers appointed from 1.4.1965 to
18.10.1975. Annexure-II relates to the Deputy Executive Engineers
appointed from 19.10.1975 to 31.12.1982. Annexure-III relates to
the Deputy Executive Engineers appointed from 1.1.1983 to
31.12.198. Annexure-IV relates to the Deputy Executive Engineers
appointed from 1.1.1988 to 31.12.1993. Annexure-V relates to the
Deputy Executive Engineers appointed from 1.1.1994 to 31.7.2012.
84)
In the proceedings, dated 4.8.2011 it was mentioned that
123 objections were received in response to the provisional seniority
list of Deputy Executive Engineers covering promotees/transferees
and direct recruits upto the year 2001-2002 communicated through
Circular Memo No.960/Ser.I (3)/2011, dated 29.6.2011 and they
were answered and in the end it was mentioned that the
Government have withdrawn the consultation with the A.P. Public
Service Commission for regular promotions upto 2nd level gazetted
category. Since the Engineer-in-Chief (R & B) Administration is the
appointing authority for the 2nd level gazetted category, he is the
competent authority to finalise the zone wise seniority list and
integrated seniority list from 1975-76 to 2001-2002 in the cadre of
Deputy Executive Engineer, which is a 2nd level gazette category.
85)
The Circular Memo, dated 29-6-2011 which was referred
in the impugned proceedings, dated 4.8.2011 indicates that the
Government
through
Memo
No.4645/Ser.II.I/2007-1,
dated
18.10.2007 issued instructions to the Engineer-in-Chief (R & B)
Administration & NH, Hyderabad to implement the Judgment of the
Supreme Court of India in C.A.No.2027-34/87 in G.S. Venkat
Reddy & others and strictly follow the consequential orders on the
subject while preparing the seniority lists among the Assistant
Executive Engineers appointed through different sources duly
following the rule of reservation wherever applicable.
The draft
provisional seniority list of 1978 batch of Assistant Executive
Engineers, dated 6.11.2007 was placed in the web site by inviting
objections, if any, on the draft seniority list within 15 days.
The
factum of placing the draft provisional seniority in the website was
also published in two daily newspapers and in response to the said
provisional seniority list 94 objections were received from Engineers
(R & B) of all zones on various aspects.
Thereafter the draft
seniority list was finalized subject to final outcome of various court
cases through Circular Memo, dated 19.10.2008 and placed on the
web site.
86)
The
Government
through
G.O.Ms.No.37,
Transport,
Roads & Buildings (Ser.II) Department, dated 23.3.2002 prepared
the
seniority
list
of
Deputy
Executive
Engineers
of
direct
recruits/promotees/transferees from 1.4.1965 to 31.12.1987 in
accordance with the directions of the High Court of Andhra Pradesh
in
W.P.Nos.5834/98
and
batch,
dated
23.7.1999
and
W.P.Nos.9077/2001 and batch, dated 24.8.2001. In the said G.O.
it was mentioned that the inter se seniority between the direct
recruit/promotee/transferee Deputy Executive Engineers of R & B
Department regardless of their source of recruitment and their
quota has been fixed on the basis of their first entry into service for
the period from 1.4.1965 to 31.12.1982 through G.O.Ms.No.72,
Transport, Roads & Buildings Department, dated 6.5.2000
in
pursuance of direction 18 (4) of the Judgment of the High Court of
Andhra Pradesh, dated 23.7.1999 in W.P.No.5834 of 1998 and
batch.
It was further mentioned that the A.P. Administrative
Tribunal through Judgment, dated 19.4.2001 in O.A.No.1357/2000
and batch upheld G.O.Ms.No.72, dated 6.5.2000. M. Shyamsundar
and some other Deputy Executive Engineers filed W.P.No.9007 of
2001 and batch against the Judgment of the Tribunal and
G.O.Ms.No.72, dated 6.5.2000.
87)
The High Court of Andhra Pradesh rendered a Judgment
on 24.8.2011 in the above W.Ps. observing that the orders issued
by the Government in relaxation of Rule 33 (a) of General Rules for
assignment of notional dates of seniority to the promotee Deputy
Executive Engineers in different zones, including Zones V, VI and
VII have to be kept in view while deciding the seniority as per the
earlier directions, dated 23.7.2009.
The High Court further
observed that the intention in direction 18 (4) of the earlier
Judgment, dated 23.7.1999 is that the promotees shall retain their
relevant inter se seniority regardless of their quota based on their
dates of regularization and that the direction 18 (4) of the
Judgment, dated 23.7.1999 cannot be read as permitting the
Government to change the dates of regularization of the Petitioners
therein and that when once the appointing authority declares the
date of regularization it is final and the same cannot ordinarily be
altered or changed and the High Court set aside the Judgment of
the Tribunal, dated 19.4.2001 in O.A.No.1357/2000 and batch.
Consequently
G.O.Ms.No.72,
Transport,
Roads
&
Buildings
Department, dated 6.5.2000 in so far as the same seeks to alter the
dates of regularization of the Petitioners therein and change their
seniority position in G.O.Ms.No.314, dated 29.11.1994 and other
Government Orders have been set aside by the High Court.
However, the Government was given liberty to review the final
seniority list in respect of other Deputy Executive Engineers
approved
in
G.O.Ms.No.314,
Transport,
Roads
&
Buildings
Department, dated 29.11.1994, if the same is found to be contrary
to the relevant rules, subject to the findings and observations made
by the High Court.
88)
It is also mentioned in G.O.Ms.No.37 that keeping in view
the Judgment of the High Court of A.P in W.P.No.5834/98 and
batch,
dated
23.7.1999 and
Judgment, dated
24.8.2001 in
W.P.No.9077 of 2001 and batch, the Government prepared a fresh
seniority list of Deputy Executive Engineers of R & B Department
containing three Annexures for the period from 1.4.1965 to
18.10.1975, from 18.10.1975 to 31.12.1982 and from 1.1.1983 to
31.12.1987 and draft seniority lists have been communicated to the
Deputy
Executive
Engineers
through
Government
Memo
No.9077/Ser.II(1)/2001-3,
Transport,
Roads
&
Buildings
Department, dated 30.1.2002 and also published the same in the
Extraordinary A.P. Gazette, dated 1.2.2002 with a request to submit
their objections, if any, to the proposed seniority lists within 10
days from the date of publication of notice in A.P. Gazette. The
Engineer-in-Chief
forwarded
the
(R
&
B)
through
representations
letter,
received
dated
from
25.2.2002
certain
Deputy
Executive Engineers together with his recommendations to the
Government with a request to make some corrections while issuing
the final seniority list of Deputy Executive Engineers. In pursuance
of that the Government issued G.O.Ms.No.37 approving the inter se
seniority
list
of
direct
recruits/promotees/transferee
Deputy
Executive Engineers of R & B Department for the period from
1.4.1965 to 18.10.1975, from 18.10.1975 to 31.12.1982 and from
1.1.1983 to 31.12.1987. The seniority list was approved subject to
revision of seniority of Deputy Executive Engineers after review of
seniority in the lower category of Assistant Executive Engineers as
per the directions of the Hon’ble Supreme Court in C.A.Nos.202734/87 and batch, dated 16.7.1993 in G.S. Venkat Reddy’s
case
and subject to disposal of W.P.Nos.5973/200 and batch filed by the
Government of A.P. in High Court and also subject to final disposal
of court cases pending, if any, relevant to the subject.
89)
The
Government
issued
orders
in
G.O.Ms.No.150,
Transport, Roads & Buildings (Ser.II) Department, dated 31.8.2002
approving
the
integrated
seniority
list
of
Deputy
Executive
Engineers (R&B) of direct recruits and promotees/transferees
appointed from 18.10.1975 to 31.12.1982 and from 1.1.1983 to
31.12.1987.
In the said G.O. it was mentioned that
zone wise
seniority lists of direct recruits/promotees/transferee Deputy
Executive Engineers of R & B Department for the period from
18.10.1975 to 31.12.1982 and from 1.1.1983 to 31.12.1987 have
been fixed through G.O.Ms.No.37, Transport, Roads & Buildings
(Ser.II) Department, dated 23.3.2002 in pursuance of the Judgment
of the High Court in W.P.No.5834 of 1998
and batch, dated
23.7.1999 and the clarification issued by the High Court in
W.P.No.9077/2001 and batch, dated 24.8.2001.
Based on the
seniority fixed in each zone, it became necessary to prepare an
integrated seniority list of Deputy Executive Engineers of Roads &
Buildings Department in order to consider their cases for promotion
to the posts of Executive Engineers. The draft integrated seniority
list
of
Deputy
Executive
Engineers
was
prepared
through
Government Memo, dated 8.7.2002 and the same was published in
the A.P. Gazette, dated 10.7.2002 with a request to submit
objections, if any, within 10 days from the date of publication of the
notice in the Gazette. The Engineer-in-Chief (R&B) Administration
forwarded
the
representations
of
certain
Engineers through letter, dated 7.8.2002.
Deputy
Executive
The Government have
examined the representations and after answering those objections
and approved the integrated seniority list, subject to revision of
seniority of Deputy Executive Engineers after review of seniority in
the lower category of
Assistant Executive Engineers as per the
directions of the Hon’ble Supreme Court in C.A.Nos.2027-34/87
and batch, dated 16.7.1993 in G.S. Venkat Reddy’s
case and
subject to disposal of W.P.Nos.5973/200 and batch filed by the
Government of A.P. in High Court and also subject to final disposal
of court cases pending, if any, relevant to the subject.
90)
G.O.Ms.No.129, Transport, Roads & Buildings (Ser.II)
Department, dated 17.9.2004 was issued by the Government
confirming the revised provisional integrated seniority list of Deputy
Executive
Engineers
of
direct
recruits/promotees/transferees
appointed from 18.10.1975 to 31.12.1982 and from 1.1.1983 to
31.12.1987 as shown in Annexures-I and II to the Order, subject to
revision of seniority of Deputy Executive Engineers after review of
seniority in the lower category of Assistant Executive Engineers as
per the directions of the Hon’ble Supreme Court in C.A.Nos.202734/87 and also subject to final disposal of court cases pending, if
any, relevant to the subject.
91)
G.O.Ms.No.314, Transport, Roads & Buildings (Ser.II)
Department, dated 29.11.1994 was issued by the Government of
Andhra Pradesh by way of final zone-wise seniority list of Deputy
Executive Engineers of direct recruits and promotees/transferees
appointed after 1.4.1965. In the said G.O. it was mentioned that in
pursuance of the Orders of the Tribunal, dated 26.4.1993 in
O.A.Nos.41796 and 41797 of 1991 and Order of the Supreme
Court, dated 7.10.1993 in Contempt Petition No.294/92 in
W.P.Nos.17165/84 and 12401/85, a provisional zone wise seniority
list of Deputy Executive Engineers (R & B) of direct recruits and
promotees/transferees
appointed
after
1.4.1965
in
Roads
&
Buildings Department has been prepared through Government
Memo, dated 20.6.1994 and the Engineer-in-Chief (R&B) (Roads &
Administration) was requested to communicate the provisional
seniority list to all the affected Deputy Executive Engineers to
submit their objections, if any, to the said provisional seniority list
along with his remarks. The Engineer-in-Chief through his letter,
dated 29.10.1994 reported that 152 objections have been received
from the affected parties. After answering all the objections, the
final seniority list was prepared. Paras-5, 6 and 7 of G.O.Ms.No.314
reads as follows:
“
The Engineer-in-Chief stated that the cases of the
upgraded Assistant Executive Engineers viz., Sarvasri
S.B. Hussaini and others have to be reviewed as was
done in the case of Sri Y. Yella Reddy. The Government
after careful consideration decided to review the cases of
Sasvasri S.B.Hussaini, K.H. Shamsuddin and D.Rami
Reddy, Deputy Executive Engineers of Zone-VI and to
place them in the respective panels as was done in the
case of Sri K.Yella Reddy with reference to their notional
dates arrived at after upgradation and to fill up the
consequential vacancies in the respective panels by
elevating their immediate juniors.
As regards the contention that the names of
Sarvasri P.Saraiah, B. Laxminarasaiah and Goverdhan
are shown at Sl.Nos.17, 18 and 19 in Zone-V above Sri
B.Prabhakar Rao simply on the pretext of interim orders
of A.P. Administrative Tribunal in O.A.Nos.7228/93,
7229/93 & 172/94, it is observed that though the A.P.
Administrative Tribunal is reported to have dismissed the
said O.As on 23.11.1994, the detailed Judgment is yet to
be received by the Government/Engineer-in-Chief. The
names of Sarvasri P.Saraiah and other upgraded
Assistant Executive Engineers will be placed at the
proper places after the detailed Judgment of the A.P.
Administrative Tribunal, is received and implications
thereof are examined.
Subject to the above conclusions and observations,
Government have decided to reject all the other
representations. Accordingly, Government approve the
final zone-wise seniority list of Deputy Executive
Engineers of direct recruits and promotees/transferees of
Roads and Buildings Department appointed after
1.4.1965 as shown in the Annexures-I to III to this Order.
The Government also direct that the seniority lists now
prepared are subject to outcome of Judgment of Supreme
Court of India in C.A.Nos.7592 & 7593/93 filed by Sri
R.Ravinder Rao and W.P. (Civil) No..595/93 filed by Sri R.
Ranganathan
and
also
final
Judgment
in
O.A.No.2611/94 filed by Sri Ch.P.Sastry in the A.P.
Administrative Tribunal.
The
Engineer-in-Chief
(R&B)
(Roads
&
Administration) is requested to communicate these
orders to all the concerned.”
92)
The Government issued G.O.Ms.No.56, Transport, Roads
& Buildings (Ser.II.1) Department, dated 17.5.2004 by way of
revised seniority list of Deputy Executive Engineers of direct
recruits/promotees/transferees from 18.10.1975 to 31.12.1987 of
Zone-V in accordance with the directions of the High Court of A.P.
in W.P.No.7245/2003, dated 11.11.2003. It is mentioned in the
said G.O. that the seniority list of Deputy Executive Engineers
covered
by
G.O.Ms.No.37,
Transport,
Department, dated 17.5.2004 was issued
Roads
&
Buildings
for the period from
1.4.1965 to 31.12.1987 in accordance with the directions of the
High Court in W.P.Nos.5834/98 and batch, dated 23.7.1999 and
W.P.Nos.9077/2001 and batch, dated 24.8.2001. The High Court of
A.P. in its Order, dated 11.11.2003 in W.P.No.7245/2003 filed by A.
Krishna Murthy quashed the Orders of the Tribunal, dated
1.4.2003 in so far as the petitioner (A. Krishna Murthy) is
concerned and directed that he shall be treated to have been placed
in the panel year 1980-81 and he shall be considered for promotion
to higher post in accordance with the rules by observing that the
orders passed by the Government in deleting the name of A.Krishna
Murthy from the panel year 1980-81 and also placing him at lower
position consequent on induction of Mohd. Khaja Moinuddin is
wholly arbitrary. The Engineer-in-Chief (R&B) sent the modified list
of final zonal wise seniority list of Deputy Executive Engineers
(R&B)
in Zone-V
to
the
Government
through
letter, dated
12.12.2003 with a request to issue an amendment to the final zone
wise seniority list of Deputy Executive Engineers as per the Orders
of the High Court, dated 11.11.2003 in W.P.No.7245/2003 filed by
A.Krishna Murthy.
The Government have taken a provisional
decision to amend Annexures-II and III of G.O.Ms.No.37, dated
23.3.2002, deleting the name of Mohd. Khaja Moinuddin, Deputy
Executive Engineer from the panel of Deputy Executive Engineers
1978-79
and
adding
the
name
of
his
immediate
junior
J.Hanumantha Rao in that place by adjusting one Deputy Executive
Engineer from the cadre of Assistant Executive Engineer in upward
moment panel wise upto 30.12.1982 and the name of A.Krishna
Murthy is proposed to be incorporated in the panel year 1980-81 at
Sy.No.39 restoring his original placement as per the directions of
the High Court
in W.P.No.7245/2003. The Government also
provisionally decided to amend Annexure-III of G.O.Ms.No.37 by
upward movement of one Deputy Executive Engineer from the cadre
of Assistant Executive Engineer from the panel year 1982-83 to
1986-87 to fill up the gap due to upward moment of the name of
A.Krishna Murthy, Deputy Executive Engineer for the panel year
1980-81 in the resultant vacancy, the name of A. Ashok Reddy,
Deputy Executive Engineer is proposed to be included at point
No.16 in the panel of Deputy Executive Engineers (R&B) for the year
1985-86.
The Engineer in Chief (R&B) (A&N) was requested to
issue notice to the Deputy Executive Engineers from the panel year
1978-79 to 1986-87 of Zone-V of Deputy Executive Engineers (R&B)
issued in the seniority list vide G.O.Ms.No.37, dated 23.3.2002 and
forward objections, if any, received thereon along with his
recommendation to examine and issue amendment. The Engineerin-Chief through letter, dated
26.2.2004 informed that
no
objections were received from the officers mentioned in Annexures-
II and III appended to G.O.Ms.No.37, for the proposed amendment.
It is further mentioned that the Government have carefully
examined the matter in detail and decided to confirm the
provisional decision taken in Memo, dated 9.1.2004. Accordingly,
the Government approved the revised final zone wise seniority list of
Deputy Executive Engineers (R&B) of Zone-V from 18.10.1975 to
31.12.1982 in Annexure-II and from 1.1.1983 to 31.12.1987 in
Anenxure-III appended to the Order. It is further mentioned that
the revised seniority list approved is subject to revision of seniority
of Deputy Executive Engineers after review of seniority in the lower
category of Assistant Executive Engineers as per the directions of
the Hon’ble Supreme Court in C.A.Nos.2027-34/87 and batch,
dated 16.7.1993 in G.S. Venkat Reddy’s case and subject to
disposal of W.P.Nos.5973/200 and batch filed by the Government of
A.P. in High Court and also subject to final disposal of court cases
pending, if any, relevant to the subject.
93)
The direct recruitee Deputy Engineers of batches of
1978, 1982 and 1983 are placed in the respective panel years as
per the zonal rank allotted by A.P. Public Service Commission and
the dates of their regularization are also not altered.
The 3rd
Respondent fixed his own seniority on the basis of the rank secured
by him at the time of selection by A.P. Public Service Commission.
The name of the 2nd Respondent figures in Annexure-II. His name
was shown at Sl.No.13 of 1981-82 panel year. His date of joining as
Deputy Executive Engineer was shown as 19.8.1982 and the date of
regularization was also shown as 19.8.1982 in the final seniority
list communicated through G.O.Ms.No.37, Transport, Roads &
Buildings Department, dated 23.3.2002. In the latest seniority list
the date of regularization of the 2nd Respondent was shown asi
18.8.1984. At Sl.No.14 the name of one Ramakrishna Rao was
shown and his date of joining was shown as 18.8.1982.
In the
seniority list, dated 23.3.2002 his date of regularization was shown
as 19.8.1982.
But in the latest seniority list the date of
regularisation of Ramakrishna Rao was shown as 11.12.1989. At
Sl. No.15 the name of N. Rama Rao was shown.
His date of
regularisation was shown as 23.8.1982 in the seniority list dated
23.3.2002 as well as in the latest seniority list though all the above
three persons are direct recruitee Deputy Executive Engineers of
1982 batch. The 3rd Respondent was shown as holder of 1st rank.
Ramakrishna Rao was shown as holder of 2nd rank, while N. Rama
Rao was shown as holder of 15th rank. Therefore, it cannot be said
that the seniority was fixed in terms of ranking except in the case of
the 3rd Respondent.
In the latest seniority list, the dates of
regularisation of 3rd Respondent, Ramakrishna Rao and N.Rama
Rao
were
shown
as
18.8.1984,
11.12.1989
and
23.8.1982
respectively. If the seniority is fixed on the basis of date of
regularisation as per the latest seniority list, N.Rama Rao shall
figure higher than the 3rd Respondent and Ramakrishna Rao.
Therefore, it cannot be said that the seniority was fixed either on
the basis of ranking secured at the time of selection or on the basis
of dates of regularisation.
94)
One P.Ramesh Kumar, who secured 16th rank was shown
at Sl.No.1 for the year 1993-94, whereas Y.V. Gopalakrishna
Murthy, who secured 3rd rank was shown at Sl.No.2 and K.
Radhakrishna, who secured 4th rank was shown at Sl. No.5. The 4th
applicant who secured 5th rank was shown at Sl.No.42. Therefore, it
reflects that the seniority list has not been prepared in accordance
with the ranks.
As per the latest seniority list, the dates of
regularisation of P. Ramesh Kumar, Y.V. Gopalakrishna Murthy
and D. Narasimha, who figures at Sl.Nos.1,2 and 3 were shown as
21.9.1993, 20.9.1993 and 17.9.1993 respectively. If the seniority is
fixed on the basis of date of regularisation, D. Narasimha shall
figure at the top among the above three persons. Therefore, in
respect of 1993 batch direct recruits also the seniority is not fixed
in terms of either rank or the dates of regularisation as per the
latest seniority list. No basis is given for changing the dates of
regularisation.
95)
The 3rd Respondent contends that the impugned seniority
list was issued in pursuance of the directions given by the
Government.
But the Counter Affidavit filed by the Principal
Secretary to the Government, Transport Roads & Buildings
Department in the above matters discloses that the Government
never instructed the Engineer-in-Chief to change or alter the
regularization of the Petitioners therein or any others.
The
Government issued instructions to finalise the seniority as per law
laid down in G.S. VENKATA REDDY’s case. Therefore, it indicates
that the 3rd Respondent over stepped his limits and proceeded in
his
own
way
beyond
the
instructions
given
by
the
State
Government. The 3rd Respondent has no power to prepare the
seniority list as he likes. The impugned seniority list is therefore
illegal and arbitrary.
The Government might have mechanically
accepted
it
without
proper
verification
after scrutiny
by
a
Committee in the same manner.
96)
In the light of the findings under Point Nos.1 to 6 and
in the light of the foregoing discussion, we are of the considered
view that the impugned seniority list issued through proceedings
No.960/Ser.I (3)/2011, dated 4.8.2011 and the orders issued by the
Government in G.O.Rt.No.36, Transport, Roads & Buildings (Ser.II)
Department, dated 16.1.2012 confirming the said seniority list,
dated 4.8.2011 are liable to be set aside.
These points are
accordingly answered in favour of the applicants and against the
Respondents.
POINT No.9:
97)
In the result, the O.A.Nos.1614, 2382, 2797, 5917 of
2012 and O.A.No.7117 of 2011 are allowed with the following
findings:
1)
No uniform procedure has been followed in finalizing
the seniority list. For some candidates the date of
declaration
of
probation
has
been
taken
into
consideration. For some other candidates the date of
regularisation has been taken into consideration and for
some other candidates the date of joining has been taken
into consideration without adopting one procedure in
preparing the seniority list.
2)
If a lower rank holder reported to duty earlier than
the better ranking candidate, the date of joining of the
lower
rank
candidate
should
not
be
taken
into
consideration for the purpose of fixing the seniority. But
the Respondents took the date of joining of the lower rank
candidate as criteria for fixing the seniority. The date of
regularisation has been changed in respect of some
candidates without assigning any reasons. The date of
appointment should be the criteria for fixing the seniority,
but not the date of joining.
3)
The 3rd Respondent in the capacity of the 2nd
Respondent while preparing the seniority list ought to
have
considered
repeated
directions
of
the
Hon’ble
Supreme Court and the High Court of Andhra Pradesh
that the seniority of Deputy Executive Engineers fixed till
31.12.1982 shall not be disturbed.
But Respondents 2
and 3 under the pretext of Judgment in G.S.VENKAT
REDDY’s case and the Judgment of the High Court of
Andhra Pradesh in W.P.No.5834 of 1998 and batch
revised the entire seniority list from 1965 which is illegal
and unwarranted.
4)
When
the
G.O.Ms.No.314,
final
seniority
Transport,
list
Roads
covered
&
by
Buildings
Department, dated 29.11.1994 was confirmed by the High
Court of Andhra Pradesh, the Respondents are not
expected to revise the entire seniority list which is against
the instructions of the Government as well as directions of
the Tribunal, High Court of Andhra Pradesh and the
Supreme Court of India. If the official Respondents find
any discrepancy in respect of any particular candidate,
they are at liberty to modify the seniority list to that extent
only without disturbing the entire seniority list covered by
G.O.Ms.No.314, dated 29.11.1994.
5)
The official Respondents ought to have followed
uniform
criteria
in
fixing
the
seniority
of
all
the
candidates. When the 3rd Respondent fought against the
applicant in O.A.No.1614 of 2012 not only in his official
capacity but also in his individual capacity, the contention
of the applicant that the 3rd Respondent acted in a biased
manner and arranged the seniority list to see that his
interests are protected has sufficient force.
6)
Though
assigned
the
ranks
A.P.
to
the
Public
Service
candidates,
Commission
when
once
the
candidates are allotted to different zones as per their
options and as the posts of Deputy Executive Engineers
are zonal posts, they are entitled to count their seniority at
zonal level on the basis of which integrated seniority list
has to be prepared, but not on the basis of the merit
ranking assigned by Public Service Commission as the
zonal seniority list consists of direct recruits, promotees,
transferees etc. Therefore, the contention of the applicants
in O.A.No.7117 of 2011 that merit ranking has to be taken
into consideration in respect of all candidates irrespective
of their zonal seniority while preparing the inter se
seniority list is not acceptable.
7)
Since the seniority list has already been finalized,
better ranking persons should not be put to disadvantage
by placing the lower ranking persons above them.
9)
The
seniority list issued through Proceedings
No.960/ Ser.I(3)/2011, dated 4.8.2011 issued by the 2 nd
Respondent
and
G.O.Rt.No.36,
Transport,
Roads
&
Buildings (Ser.II) Department, dated 16.1.2012 confirming
the above seniority list and the consequential order in
G.O.Rt.No.449,
Transport,
Roads
&
Buildings
Department, dated 1.5.2012 are set aside.
The official
Respondents are directed to follow the final seniority list
covered by G.O.Ms.No.314, Transport, Roads & Buildings
Department, dated 29.11.1994, if they do not find the
necessity of any modifications in the said seniority list. If
they find necessity of any modification as observed by the
High
Court
of
A.P.
in
M.SHYAM
SUNDAR
Vs.
GOVERNMENT OF ANDHRA PRADESH 2001 (6) ALD 87
that
the
Government is at liberty to review the final
seniority list in respect of other Deputy Executive
Engineers, approved in G.O.Ms.No.314, Transport, Roads
& Buildings Department, dated 29-11-1994, if the same is
found to be contrary to the relevant rules subject to the
findings and observations recorded in the Judgment, they
shall incorporate necessary modifications and follow the
said seniority list for the purpose of promotion to
higher categories.
After making the changes, if any, as
directed by High Court of Andhra Pradesh and Supreme
Court the official Respondents are directed to review the
promotions as per seniority in G.O.Ms.No.314, Transport,
Roads & Buildings Department, dated 29-11-1994, with
the modifications, if any, as directed by High Court of
Andhra Pradesh and Supreme Court.
costs.
No order as to