IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE THIRD DAY OF MARCH TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MRS JUSTICE T.MEENA KUMARI and THE HON'BLE MR JUSTICE G.CHANDRAIAH WRIT PETITION NO : 27442 of 2007 Between: R.Manohar Rao S/o. R.Ramachander Rao H.No.1-9-5/1 Dwarakpuram colony Behind Bus Depot , Dilsukhanagar Hyderabad ..... PETITIONER AND 1 The Government of Andhra pradesh, rep.by its Chief Secretary,GAD Department, Secretariat,Hyderabad 2 The Government of Andhra pradesh, rep.by its Secretary GAD (SErvices) Department, Secretariat, Hyderabad 3 D.Rama Rao S/o.D.Veerabhadra Rao Municipal Administration Department Secretariat, Hyderabad 4 B.Sivanandam S/o.B.Vishwanadham T R&B Department 5 Khaja Moinuddin Khan S/o.Late Rasool khan Panchayat Raj & Rurla Development Department Hyderabad 6 B.S.Somayajulu s/o. late Venkattapaiah Forest Department, Andhra pradesh Hyderabad 7 R.Ganga D/o.late Sri N.S.Ramchandram 8 K.Appalanarasimham S/o. Papaiah 9 T.Yallamanda S/o.Ramaiah 10 Smt.V.Nagakumari W/o. Late V.Chinnabbai 11 K.Radhakrishnamurthy S/o.Late K.K.Raju GAD Department 12 V.Parthasarathy S/o. Late V.N.Naidu 13 V.Sundara Rao S/o. Late V.V.Narayana Rao 14 Y.Ramam S/o.Y.Brahmanna 15 B.Sivaiah S/o.B.Ammanna 16 Smt.H.Nagalakshmi W/o.H.Rama Mohan 17 P.C.V.Satyanarayana S/o.Pavani 18 D.Aswatha Narayana S/o. D.Rangaswamy 19 D.Jagga Rao S/o. D.Kesava Rao 20 Ch.Pullaiah S/o.Ch.Narasimhamam 21 KSRK Harinadha Babu S/o. K.Venkatanarayana (Respondent Nos 3 to 21 are not necessary parties in this writ petition ) .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue writ order or direction more particularly one in the nature of writ of certiorari calling for the records relating to order dated 31.10.2006 passed in OA.No.4072/1993 by the Hon`ble Andhra pradesh Administrative Tribunal, Hyderabad and set aside the same as unjust without any basis and contrary to the judicial precedents and further direct the official respondents to fix the seniority of the petitioner in terms of Rule 5(1) of Special Rules relating to the section officers in the secretariat and accord notional benefits and consequential benefits in the interest of justice and pass Counsel for the Petitioner:MR.M.RATNA REDDY Counsel for the Respondent No.: GP FOR SERVICES II The Court made the following : THE HON'BLE SMT. JUSTICE T. MEENA KUMARI AND THE HON’BLE SRI JUSTICE G. CHANDRAIAH WRIT PETITION No.27442 of 2007 Order: (per Smt. Justice T.Meena Kumari) In this writ petition, the petitioner seeks for a Writ of Certiorari to call for the records relating to order dated 31.1.2006 passed in O.A. No. 4072 of 1993 on the file of the Andhra Pradesh Administrative Tribunal, Hyderabad and to set aside the same. He also sought for a consequential direction to the respondents to fix the seniority of the petitioner in terms of Rule 5(1) of Special Rules relating to Section Officers in the Secretariat and accord notional benefits and consequential benefits in the interest of justice. The brief facts of the case are that the petitioner herein was appointed as Section Officer by transfer in the Secretariat in terms of G.O. Ms. No. 1647, dated 31.10.1960. According to the petitioner, as per the said G.O., 12.5% of the vacancies to the posts of section Officers in the Secretariat shall be filled by transfer from the post of Office Superintendents in the office of the Heads of the Departments. Petitioner states that as per Rule 7 of the A.P. Secretariat service Rules, out of every eight successive substantive vacancies among Section Officers in each department, the first vacancy shall be filled up by a transferee and the remaining shall be filled by way of promotion. Petitioner alleges that the authorities ignored Rule 7 to favour the promotees in the Secretariat. While so, one Sampath who was appointed as Section Officer by transfer in the year 1965 in Secretariat aggrieved by the action of the respondents in not placing him in proper place in the seniority list, filed Writ Petition No. 6581 of 1973 before this Court and the case was transferred to the erstwhile Tribunal vide Tr. W.P. No. 324 of 1976, which was allowed. Being aggrieved by the same, the respondents therein preferred S.L.P. No. 3266 of 1979 before the Hon’ble Supreme Court and the said S.L.P. was dismissed on 9.10.1979. Subsequently, the said judgment has been implemented vide G.O. Ms. No. 751, dated 7.12.1990 and the seniority of Sri Sampath was fixed as per Rule 7(1) with all consequential benefits with retrospective effect. The petitioners who are similarly situated, have filed O.As. before the Tribunal seeking similar relief. However, when the Tribunal dismissed those O.As. they filed W.P. No. 25331 of 2004 before this Court and the said writ petition was allowed and the matter was remitted back to the Tribunal for reconsideration. On remand, the Tribunal again dismissed the said O.A. Hence, the present writ petition. Heard the learned counsel for the parties and perused the impugned order. Rule 5(1) of A.P. Secretariat Service Rules,1965 reads thus: (1) Out of every eight successive substantive vacancies in this class in all Departments of Secretariat constituting a single unit the first vacancy shall be filled by recruitment by transfer of a Superintendent in the Andhra Pradesh Ministerial Service in the department constituting a single unit and the remaining seven vacancies shall be filled by transfer of Assistants, Special Category Stenographers and first Grade Stenographers of single unit in the Andhra Pradesh Secretariat service. (1A) Out of every eight successive substantive vacancies in this class in the Finance and Planning (Fin. Wing) Department the first vacancy shall be filled by transfer of a Superintendent working in the offices of Heads of Departments of Directorate under the administrative control of Finance and planning (fin wing) department and the remaining seven vacancies shall be filled by transfer of Assistants, Special category Stenographers and First Grade Stenographers in the Finance and planning (Fin. Wing) Department.” On a perusal of the above rule, it is seen that out of every eight vacancies, the first vacancy shall be filled by recruitment by transfer of a Superintendent in the A.P. Ministerial Service and the remaining seven vacancies shall be filled by promotion of Asst. Section Officers, Special Category Stenographer and First Grade Stenographer of single unit of A.P. Secretariat Services. There is no dispute about the fact that the petitioner worked as Section Officer in Secretariat. There is also no dispute about the fact that the Tribunal through its judgment in O.A. No. 22/93, dated 1.12.1998, has upheld the ad hoc rules issued in G.O. Ms.No. 607,GAD, dated 6.11.1992, which read thus: “Notwithstanding anything contained in the relevant special or the ad hoc rules for the state and Subordinate Services, the quota/rota, if any prescribed in the said special rules/ad hoc rules shall apply for only determining the number of vacancies earmarked for recruitment by promotion and appointment by transfer and for direct recruitment and not for determining the inter se seniority. Their inter se seniority shall be determined in accordance with General Rule 33(a) and (b) of the State and Subordinate Service Rules.” It is necessary to extract here the relevant portion of the judgment of the Tribunal in O.A. No. 22/93, dated 112.1998, which reads thus: “The Government taking into consideration the conflicting judgments on the issue have come forward by issuing a rule under proviso to Article 309 of the Constitution, i.e. G.O. Ms. No. 607, dated 6.11.1992 wherein it is stated that the quota/rota, if any, prescribed in the said Special Rules/Adhoc Rules shall apply only for determining the number of vacancies earmarked for recruitment by promotion and appointment by transfer and for direct recruitment and not for determining the inter se seniority and the inter se seniority shall be determined in accordance with General Rule 33(a) and (b) of the State and Subordinate Service rules. Rule 33(a) of General Rules reads that seniority of a person is to be determined only with effect from the date of regular appointment with probationary rights. So the said rule accordingly combines the provisions of the Special Rules with regard to quota on seniority issue. On an entire consideration of the matter, we are of the opinion that the provisions of the said G.O. 607 equitably provide in tackling the contingencies which have arisen as a result of uncertainty in the seniority of promotee officers as well as direct recruitment officers in the various services of the State. In the circumstances, the said G.O. Ms. No.607, lays down clearly that no person will be eligible for seniority from an earlier date to the date of regular appointment whether promotee or direct recruitee. Accordingly, we are of the view that G.O 607 lays down the wholesome principle that quota rule, if any, in the special rules, will apply only for indicating the number of persons to be appointed form the various competing sources, such as promotion/appointment by transfer or direct recruitment, but the inter se seniority of such persons will be governed only by the provisions of Rule 33(a) of the General Rules. In the circumstances, we are of the view that there is no irregularity and illegality in G.O. 607. With regard to the competency of the State Government to issue the impugned rule, it is clearly laid down that such a rule issued under proviso to Art. 309 of the Constitution is a rule of a legislative nature and the Apex Court also in various judgments upheld that such a rule can be given effect even with retrospective effect to provide contingency at that time. Accordingly, this rule is legal and validly issued under the legislative power given to the state Government under proviso to Art. 309 of the Constitution. If there is shortage in any quota, the government should take corrective action to recruit as many persons as necessary to restore the quota in the cadre, but it will not confer any seniority benefit to the persons which is not provided for under 33(a) of the General Rules. Thus on point no.1, we hold that the ad hoc rule framed in G.O Ms. No. 607, dated 6.11.1992 by the Government of Andhra Pradesh represented by its Chief Secretary to Government of Andhra Pradesh is valid and legally binding and it is not subversive of Articles 14 and 16 of the Constitution of India and it is not arbitrary and illegal.” The Tribunal on a consideration of G.O. Ms. No.607, dated 6.11.1992 held that there is no irregularity and illegality in the aforesaid G.O. In the said judgment the Tribunal further observed that the quota rule if any prescribed in the special/ad hoc rules will apply only for indicating the number of vacancies earmarked for recruitment by promotion, appointment by transfer and for direct recruitment. Therefore, for determining the inter se seniority as per G.O. Ms. No. 607, dated 6.11.1992, Rule 33(a) and (b) of General Rules alone will apply. In view of the fact that the petitioners are not disputing the validity of the judgment of the Tribunal in O.A. No. 22/93 and batch, it has to be held that the G.O. Ms. No. 607 , dated 6.11.1992 is legal, valid and binding on the petitioners. That apart, since the seniority of the applicants has been prepared in terms of G.O. Ms. No. 607, dated 6.11.1992, they cannot seek for fixation of their seniority in terms of Rule 5(1) of the Special Rules. In the circumstances, we do not find any illegality or irregularity in the order of the Tribunal warranting interference. The writ petition fails and the same is accordingly dismissed. ___________________ T. MEENA KUMARI,J DATE: 3rd March, 2008 __________________ G. CHANDRAIAH,J Pnb To 1 The Government of Andhra Pradesh, rep.by its Chief Secretary, GAD Department, Secretariat,Hyderabad. 2 The Government of Andhra pradesh, rep.by its Secretary GAD (Services) Department, Secretariat, Hyderabad. 3 Two C.Cs. to the Government Pleader for G.A.D., High Court buildings, Hyderabad. 4 Two C.D. copies