C No 1237 of 1988
Under Article 32 of the Constitution of India
PP Rao and Ms K Amreshwari B Rajeshwar Rao and Vimal Dave for the Petitioners
VR Reddy Addl
Solicitor General K Madhaya Reddy G Prabhakar B Kanta Rao A Ranganathan and AV Rangam for the Respondents
The Judgment of the Court was delivered by KULDIP SINGH J
The petitioners and respondents 4 to 16 are District and Sessions Judges in the State of Andhra Pradesh
The petitioners are direct recruits whereas the respondents were promoted from the Subordinate judiciary
The respondents were initially appointed on temporary basis in the year 19781979 but they were made substantive in the year 1983
The petitioners who were appointed substantively in the year 1981 claim seniority over the respondents by way of this petition under Article 32 of the Constitution of India
The recruitment to the Andhra Pradesh Higher Judicial Service the Service is governed by the Rules called The Andhra Pradesh State Higher Judicial Service Special Rules the Special Rules
Rules 1 2 4 and 6 of the Special Rules which are relevant are as under Rule 1
Constitution The service shall consist of the following categories 550 Category 1  District and Sessions Judges 1st Grade
Category II  District and Sessions Judges Second Grade including Chairman Andhra Pradesh Sales Tax Appellate Tribunal Chief Judge City Civil Court Additional Chief Judge City Civil Court Chief Judge Court of small Causes Chief City Magistrate Chairman Tribunal for Disciplinary Proceedings Presiding Officers Labour Courts and Addl
District and Sessions Judges
Rules 2
Appointment  a Appointment to Category 1 shall be made by promotion from Category II and appointment to Category II shall be made i by transfer from among a Sub Judges in the Andhra State Judicial Service or in the Hyderabad State Judicial Service and ii by direct recruitment from the Bar Provided that 33 13 of the total number of permanent posts shall be filed or reserved to be filled by direct recruitment
Explanation In the determination of 33 13 of the total number of permanent posts fractions exceeding one half shall be counted as one and other fractions shall be disregarded
b All promotions shall be made on grounds of merit and ability seniority being considered only when merit and ability are approximately equal
Rule 4
Probation Every person appointed to Category II otherwise than by transfer shall from the date on which he joins duty be on probation for a total period of one year on duty
Rule 6
Seniority The seniority of a person appointed to Category 1 or Category 2 shall be determined with refer 551 ence to the date from which he was continuously on duty in that category
 We may briefly notice the scheme of the Special Rules
Rule 1 constitutes the Service
Category 1 consists of District and Sessions Judges  1st grade and Category II consists of District and Sessions Judges Second grade
Rule 1 does not say that Service shall consist of only permanent posts
All the posts designated as District and Sessions Judges Second grade under Category II are part of the service under Rule 1
In other words as and when a post of District and Sessions Judge Second grade is created permanent or temporary it becomes part of the Service under Rule 1 of the special Rules
Rule 2 provides the method of appointment
Appointment to Category 1 is from Category II
Appointment to Category II is from two sources
By transfer from amongst the Subordinate Judges and by direct recruitment from the Bar
Proviso to Rule 2 states that 33 13 of the total number of permanent posts shall be filled or reserved to be filled by direct recruitment
All the posts of District and Sessions Judges Second grade are part of the Service but quota for the direct recruits is provided only in the permanent posts
Rule 6 of the Rules provides for the fixation of seniority
Under Rule 6 the seniority of persons appointed to Category 1 or Category II posts is fixed on the basis of continuous length of service in their respective posts
On the plain reading of the Special Rules the salient features of the Service can be culled out as under 1
Rule 1 provides for the constitution of the Service
All the posts of District and Sessions Judges Second grade created from time to time are part of the Service
The natural corollary is that the Service consists of permanent as well as temporary posts
The recruitment to Category II of the service is by transfer from amongst the Subordinate Judges and also by direct recruits from the Bar
33 13 of the total number of permanent posts in Category II of the Service are to be filled by way of direct recruitment
The seniority under Rule 6 is to be determined with reference to the date from which a person is continuously on duty
Whether the person 552 is continuously on duty against a temporary post or permanent post is of no consequence
A person is entitled to the fixation of his seniority on the basis of continuous length of service rendered either against permanent post or temporary post
The three petitioners were appointed as District and Sessions Judges Second grade by direct recruitment on October 12 1981
Petitioners 1 and 2 joined service on October 23 1981 and petitioner 3 on October 30 1981
Respondents 4 to 16 were appointed District and Sessions Judges Second grade by transfer from amongst the Subordinate Judges during the years 197879
It is not disputed that permanent vacancies in their quota became available in the year 1983
We therefore proceed on the basis that the petitioners were appointed substantive members of the Service earlier to respondents 4 to 16
We may at this stage notice Rule 10ai of the Andhra Pradesh State and Subordinate Service Rules the State Rules
The State Rules are general rules which are applicable to all the services in the State of Andhra Pradesh
Needless to say that to the extent the Special Rules are applicable to the Service the State Rules are excluded
Rule 10ai of the State Rules is as under 10
Temporary appointment
ai Where it is necessary in the public interest to fill emergently a vacancy in the post borne on the cadre of a service class or category and if the filling of such vacancy in accordance with the rules is likely to result in undue delay the appointing authority may appoint a person temporarily otherwise than in accordance with the said rules
 Mr PP Rao learned counsel for the petitioners has raised the following contentions for our consideration 1
That the Service consists of only permanent posts under the Special Rules
There is no provision under the Special Rules for adding temporary posts to the cadre
The appointment of respondents to the posts of District and Sessions Judges Second grade on temporary basis can at best be treated under rule 10ai of the State Rules
553 2
The temporary service rendered by respondents4 to 16 being outside the cadre cannot be counted towards seniority
Proviso to Rule 2 and Rule 6 of the Special Rules have to be read together and doing so the permanent vacancies having been made available for respondents 4 to 16 in the year 1983 their service prior to that date cannot be counted towards seniority
Before dealing with Mr Rao s contentions we may notice two preliminary contentions raised by Mr K Madava Reddy learned counsel for the respondents
Mr Madava Reddy has invited our attention to the judgment of a Division Bench of Andhra Pradesh High Court in THB Chalapathi and others vs High Court of Andhra Pradesh and others Writ Petition Nos
196882 5283 and 1228285 decided on December 28 1985
Those writ petitions were filed before the Andhra Pradesh High Court by the direct recruits to Category II of the Service claiming seniority over the persons who were appointed to category 11 on temporary basis earlier to them
Similar questions were raised as are being raised by Mr PP Rao before us
By a well reasoned judgment the High Court rejected all the contentions of the direct recruits and dismissed the writ petitions
It is not disputed that Special Leave Petition No1035 of 1986 against the said judgment was dismissed by this Court on January 30 1988
Mr Madava Reddy plausibly contends that all the contentions which are being raised by the petitioners in this Court having been rejected by the High Court and special leave petition against the judgment of the High Court having been dismissed by this Court the same cannot be agitated once over again
Mr Madava Reddy then contended that the petitioners were appointed in the years 1981 and since then till the year 1988 twelve seniority lists have been published showing the petitioners below respondents 4 to 16
At no point of time they challenged the seniority lists in the Court
Even when the writ petitions filed by Chalapathi and others were pending they did not intervene before the High Court
The petitioners according to Mr Madava Reddy are guilty of gross delay and latches and as such are not entitled to get relief by way of this petition under Article 32 of the Constitution of India
554 We see considerable force in both the contentions raised by Mr Madava Reddy
We are however of the view that it would be in the larger interest of the Service to dispose of this petition on merits
We see no force
in the contention of Mr Rao that the Service consists of only permanent posts under the Special Rules
We have already interpreted Rule 1 to mean that the Service under the Special Rules consists of all the posts permanent and temporary which have been designated as District and Sessions Judges Second grade
Even otherwise in the absence of any prohibition under the Special Rules the State Government can always create temporary posts as additions to the cadre
Rule 10ai of the State Rules has no application to the Service which is governed by the Special Rules
Rule 10ai provides for emergency appointments made on stop gap basis to meet a temporary exigency
Apart from that the temporary appointments under the said Rules are made without following the procedure prescribed under the Rules governing the relevant service
The appointments of respondents 4 to 16 on the other hand Were made under Rule 2 of the Special Rules by the State Government in consultation with the High Court
We are of the view that the Special Rules provide a complete scheme for the appointment and seniority of the members of the Service
Rule 10ai of the State Rules has no application to the Service Constituted under the Special Rules
We therefore reject the contention raised by Mr Rao
Having taken the view that the Service under the Special Rules consists of permanent as well as temporary posts the second contention of Mr Rao looses its ground
Temporary posts of District and Sessions Judges Second grade being part of the Service the seniority has to be counted on the basis of length of service including the service against a temporary post
The third contention of Mr Rao is mentioned to be rejected in view of Rule 6 of the Special Rules
Rule 6 of the Special Rules is in no way dependent on proviso to Rule 2 of the Special Rules
Both are to be operative independently
In the scheme of the rules the seniority rule is not dependent on the quota Rule
Quota has been provided for the direct recruits only against permanent posts
The seniority rule permits the counting of total period of service from the date a person is on duty against a 555 post in the category
Even though the petitioners were appointed substantively to the service earlier to respondents 4 to 16 but in view of Rule 6 they cannot be declared senior on the basis of continuous length of service against temp orary as well as permanent posts respondents 4 to 16 have been rightly given seniority above the petitioners
We therefore find no force in any of the contentions raised by Mr Rao
The writ petition is consequently dismissed
No costs
NVK Petition dismissed


Summary:
The prosecution case was that there was long standing enmity between appellant s father and one Khan on one side and the complainant on the other which rose out of rival claim in placing sawai  on the Akhara of Tajias
A Civil litigation was pending between the parties over the dispute
Criminal proceedings under section 107 read with section 117 of the Code of Criminal Procedure were also pending between them
The nephew and son in law of the complainant was doing pairvi of the cases on behalf of the complainant and because of that the father of the appellant and one Khan became inimical to the son in law of the complainant
At about 600 PM on the date of the occurrence namely 25121975 the son in law of the complainant was sitting on a wooden bench in front of a hair cutting shop of his village
One Umar and PW1 were also sitting with him and all the three were talking
PWs 2 and 3 and the complainant were standing near a Gumti at a short distance and were talking
At the time the appellant armed with a double barrel gun came there
He challenged the complainants son in law and threatened to kill anyone who would come forward
He fired two shots which hit the complainant s son in law add one Umar
Both of them fell down
Complainant s son in law 445 died on the spot
PW 10 took Umar to Hospital
The Complainant went to his home and got a report of the occurrence written by PW4 and taking the report to the Police Station about 4 miles away he lodged the FIR at 715 PM Investigation of the case was immediately commenced
Umar died on 411976 prior to his death on 111976 the Police had interrogated the deceased
The case of accused appellant was that he was falsely implicated on account of enmity and party faction
He denied all the allegations of the prosecution
The Sessions Court acquitted the accused appellant as it did not rind the prosecution case and the evidence acceptable
Allowing the State s appeal against acquittal the High Court convicted the appellant under section 302 IPC and sentenced him to imprisonment for life
In the appeal before this Court the accused contended that the High Court did not appreciate the salutory principles governing the judgment of acquittal that the Sessions Judge had taken pains in analysing in detail
the evidences adduced in the case and gave reasonings for each of the finding as to why the prosecution case could not be accepted and what were the intrinsic deficiency in the evidences adduced in the case in support of the prosecution that the law was well settled that in a case of acquittal the appellate Court should not interfere with the judgment of acquittal if such judgment was based on consideration of the evidences adduced in the case and there was no perversity in coming to the finding for passing the judgment of acquittal and in such a case of acquittal the High Court in exercise of its appellate power should not endeavour to appreciate the evidence on its own in order to come to different finding Unlike in an appeal arising from the judgment of conviction that it has been established convincingly that there was party faction between the two groups over a dispute to place Sawai on Tajias and both civil and criminal proceedings were instituted between the two groups that the eye witnesses were in the faction of the complainant and they were partition witnesses that the Sessions Judge therefore after nothing the various discrepancies in the prosecution case was not inclined to place reliance on the evidences adduced by the alleged eye witnesses and acquitted the accusedappellant 446 and that such order of acquittal in the facts of the case and the reasons indicated by the Sessions Judge was not required to be interfered with in appeal by the High Court
Dismissing the appeal this Court HELD 1
In an appeal arising from an order of acquittal the appellate Court is not precluded from appreciating the evidences on its own if the reasons given by the learned trial Judge in passing the order of acquittal do not stand scrutiny and are against the weight of the evidences adduced in the trial
The appellate Court will be quite justified in setting aside the order of acquittal if it appears to the court of appeal that improper consideration of the materials and evidences on record was made and the reasonings of the trial Judge are wholly unjustified
It is only necessary that the court of appeal should weigh the reasonings of the learned trial Judge with care and caution in the light of the evidences adduced in the case by giving cogent reasons as to why such findings are unreasonable and against the evidence
451B C 201
In the instant case the High Court has taken care in analysing each and every finding of the learned Sessions Judge in the light of the evidences adduced in the case and has given cogent reasons as to why such findings were unreasonable and not acceptable
It is an admitted position that two persons suffered gun shot injuries and one of the enjured persons died on the spot and the other was removed to hospital
He got serious injuries and later on sccummbed to such injuries
The mere fact that there was enmity and bitterness between the two groups by itself does not establish that the eye witnesses falsely implicated the accusedappellant
451D E 202
There are no intrinsic discrepancies in the evidences of the eye witnesses
Even if it is assumed that such eye witnesses belong to the group of the complainant their evidences are not liable to be discarded on that score if such evidences otherwise inspire confidence and get cor roborated by other evidences and from the nature of injuries sustained by the deceased persons
452E 203
All the findings made by the Sessions Judge were considered in detail by the High Court and the findings of the learned Sessions judge were not accepted by the High Court by indicating that such findings were 447 against the weight of the evidences and the same were wholly unreasonable
In the circumstances there is no reason to take a contrary view in this appeal
452H