* HON'BLE MR JUSTICE GHULAM MOHAMMED AND HON'BLE MR JUSTICE G. BHAVANI PRASAD +WRIT PETITION NOS. 15776 AND 16830 OF 2009 %10-06-2010 # N. Vasanthi D/o N. V. Bhaskara Rao ….petitioner Vs. $ The Government of Andhra Pradesh represented by its Secretary, Technical Education, Secretariat, Hyderabad and six others …. Respondents !Counsel for the petitioner : M/s Ch Srinivas , Smt.M. Seetha Devi Counsel for the Respondents: G.P. for Services for R1 and R2 and M. Vijaya Kumar SC for APPSC. <Gist : >Head Note: ? Cases referred: 1. AIR 1995 SC 586 2. (2009) 6 SCC 428 3. (2008) 3 SCC 148 HON'BLE MR JUSTICE GHULAM MOHAMMED AND HON'BLE MR JUSTICE G. BHAVANI PRASAD WRIT PETITION NOS. 15776 ND 16830 OF 2009 W.P.No. 15776 of 2009 Between: N. Vasanthi D/o N. V. Bhaskara Rao ..... PETITIONER AND The Government of Andhra Pradesh represented by its Secretary, Technical Education, Secretariat, Hyderabad and six others .....RESPONDENTS W.P.No. 116830 of 2009 Between: A. Raja Lakshmi W/o MBG Tilak ..... PETITIONER AND The Government of Andhra Pradesh represented by its Secretary, Technical Education, Secretariat, Hyderabad and three others .....RESPONDENTS COMMON ORDER: (Per Hon'ble Sri Justice Ghulam Mohammed) Since in these two Writ Petitions common questions of law and facts involved they are clubbed and taken up together and being disposed of by this common order. Writ Petition No. 15776 of 2009 has been filed in the nature of Writ of Mandamus declaring the common orders dated 17.4.2009 passed in O.A.No. 892 of 2003 and batch by the Andhra Pradesh Administrative Tribunal, directing the official respondents to place the first applicant, respondent No. 4 herein, over and above the petitioner in the seniority of the Senior Lecturer in Zone-I, as illegal and arbitrary. Writ Petition No. 16830 of 2009 has been filed in the nature of Writ of Mandamus declaring the common Judgment dated 17.4.2009 passed in O.A.No. 935 of 2003 and batch on the file of Andhra Pradesh Administrative Tribunal, directing the official respondents to finalize the seniority list of lecturers in Government Polytechnic in Zone I by placing the petitioner and 4th respondent herein below the candidates appointed in the year 1987 directly without undergoing the election process conducted by the APPSC as illegal and arbitrary and contrary to the Judgment passed by this Court in W.P.Nos. 19459 of 2003, 9072 of 2003 and 8803 of 2002 dated 10.12.2008 and set aside the same. O.A No. 892 of 2003 was filed under Section 19 of the A.P. Administrative Tribunals Act, 1985 with the following prayer: “praying the Tribunal to call for the records pertaining to the appointment, regularization and Ratification of R.4 to R7 to the service of Lecturers and the proceedings of the promotion to the post of Senior Lecturers and direct the respondents, R-1 and R-2 to consider the applicants for promotion to the post of Senior Lecturers from the date respondents 4 to 7 were promoted as Senior Lecturers with all attendant and other consequential benefits by declaring that the applicants are seniors than the private resp0ondents 4 to 7 and subsequently declare that the action of the respondents in ordering promotion to the private respondents, more particularly ordering promotion to R-4 to R-7 ahead of the applicant, is illegal discriminatory, ultravires, malafide and unconstitutional.” O.A No. 935 of 2003 was filed with the following prayer: “ Application filed under Section-198 of the Administrative Tribunals Act, 1985 praying the Tribunal to direct the respondents to publish the seniority list of Lecturers and Senior Lecturers in the cadre of Lecturers immediately as per Rule 33 of the Andhra Pradesh State and Subordinate Services Rules, 1977 and duly following the terms and conditions mentioned in the G.O.Ms.No. 193 of 1990.” Brief facts of the case are that the applicants 1 to 3 in O.A.No. 892 of 2003 are working as Lecturers in Government Polytechnic, Visakhapatnam whereas the 4th applicant is working as Lecturer in Government Polytechnic, Vijayawada. According to the averments in the O.A the first applicant was appointed as Associate Lecturer on 1.4.1991 whereas the applicants 2 and 3 were appointed as such on 4.3.1995 and 4th applicant was appointed on 19.11.1996. They assail the promotions of the respondents 4 to 7 as Senior Lecturers and to direct the respondents to appoint the applicants for promotion to the post of Senior Lecturers by declaring that they are seniors to the respondents 4 to 7. As seen from the order, the posts of Associate Lecturers in Government Polytechnics are under the purview of APPSC. A notification was issued in LR.No. G3/14898/85 dated 12.7.1985 for selection of Associate Lecturers. There were number of vacancies, due to which the academic career of the student was affected as the selection process by the APPSC would naturally consume considerable time. Therefore, the Government issued G.O.Rt.No. 853 , LEN & T Dept dated 2.4.1986 permitting the Director of Technical Education to fill the vacancies temporarily by drawing qualified and eligible persons from the Employment Exchange and subjected them for interview by an expert committee consisting of Mr. S.R. Govindrajan, IAS, Director General of Public Enterprises, G.A. Department, Government of A.P., Professor K. Koteswara Rao, Regional Engineering College, Warangal and Dr.M.G.G. Naidu, Director of Technical Education, Hyderabad. The candidates, who were successful in the selection process, were appointed as Associate Lecturers in Engineering in Government Polytechnic Colleges in 1987 and 1988 on temporary basis. The candidates selected by APPSC were also appointed as Associated Lecturers in Engineering Colleges during the year 1989 and 1990 and joined the posts. After completion of the period of probation, they were regularized with reference to the date of their joining in the Department. While so, the Government issued G.O.Ms.No. 193, General Administration (Service-A) Department dated 14.3.1990, for regularization of temporary services of the candidates recruited on temporary basis without reference to APPSC on certain conditions. Under the above said G.O., an Ad hoc regulation was passed by the Governor by invoking the proviso to Clause (3) of Article 320 of the Constitution of India where under consultation with the APPSC was dispensed with for regularization of the candidates covered by the above said G.O. In pursuance of G.O.Ms.No. 193, General Administration (Services-A) Department, dated 14.3.1990 the Commissioner and Technical Education in his proceedings No. G4/11161/91 dated 11.2.1993 regularized the services of the respondents in their personal capacity added in some of the O.As with effect from 20.7.1990 along with others in Zone-I. The applicants are also from Zone-1. The applicants claim that they are entitled for seniority over the respondents in their personal capacity by contending that they were selected by APPSC where as the respondents in their personal capacity were temporarily selected. One Mr. Ramprasad, Associate Lecturer, Government Polytechnic, Bhadrachalam of Khammam District is from Zone-V filed O.A. No. 4095 to declare the proceedings dated 11.2.1993, where under the candidates appointed temporarily by the High Power Committee were regularized with effect from 20.7.1990 in terms of G.O.Ms.No. 193. The Tribunal disposed of the said O.A by an order dated 12.11.2002 directing the respondents to prepare a seniority list reconsidering the earlier view taken by the Tribunal in O.A.No. 4016 of 1993. The relevant portion reads as under: “On a careful consideration of the submissions made, this Tribunal earlier decided the matter in favour of the candidates selected by the service Commission. In the orders issued also, it is mentioned that they are temporary appointments and they can also appear for the next selection and they were to be replaced, whenever regular appointments are made by the APPSC and no preferential treatment should be given to them. Obviously, the authorities while filing counter in this matter, has overlooked the order issued to the unofficial respondent while making the appointments as under G.O.Ms.No. 193. After that is considered, the stand of the applicant appears to be correct and the official respondents cannot take a different stand than that they have taken earlier. This tribunal has taken a consistent view holding the candidates appointed through Service Commission should take precedence over those of the candidates selected through G.O.Ms.No. 193 even though, the selection is made by the Service Commission subsequent to the selection made by the candidates under the G.O.Ms No. 193 dated 14.3.2990. In this regard, AIR 1995, 586 Between B.SRINIVAS REDDY VS. GOVERNMENT OF ANHDRA PRADESH was quoted. Even, in that case also regularization was made for the candidates who were recruited outside the purview of the Service Commission and treating those posts were excluded for the purview of the APPSC. Even though, regularization of those people should not be disturbed, so far as, computing of the seniority is concerned, candidates selected through Service Commission should be given priority over the above the candidates who were selected by other means of selections. In view of these observations made, even though, regularization cannot be questioned and fixing up of day and increments also need not be touched by this Tribunal. In so far as, seniority is concerned, the Seniority of the applicant has to be considered over and above to those candidates who were selected by virtue of G.O.Ms.No. 193 dated 14.3.1990 accordingly seniority has to be fixed. Therefore the respondents are directed to prepare a seniority list reconsidering the earlier view taken by this Tribunal in O.A.No. 4016 of 1993.” Aggrieved by the same, Writ Petition Nos. 19459 & 9072 of 2003 were preferred and the same were disposed by an order dated 10.12.2008. Paragraph 10 of the order reads as under: “The Petitioners were recruited as Associate Lecturers in Government Polytechnic Colleges by a duly constituted Selection Committee which included experts from appropriate field of engineering, viz., the Principal, Regional Engineering College, Warangal and others. The need to appoint the petitioners according to the respondents, arose as there was dearth of Associate Lecturers in Government Polytechnic Colleges, the Government with the permission of the APPSC, permitted the Department to fill up the posts of Associate Lecturers by calling for names from the respective Employment Exchanges . It is true that the selection committee considered the merit experience and suitability of the petitioners and prepared a panel for their appointment pursuant to which they were appointed. Though the petitioners were appointed by a selection committee constituted for that purpose, the appointments are made under Rule 10(a)(i)(1) of the Rules and in the appointment order itself it was made clear that their appointment was purely temporary and in case the petitioners intend to get selected on regular basis, they are required to respond to the notification issued by the APPSC and they cannot claim any preferential claim by virtue of their appointment under Rule 10 (a)(i)(1) of the Rules. The decisions relied on by the learned counsel for the petitioners is not applicable to the facts of the present case. The propositions laid down by the Constitution Bench of the Apex Court in Direct Recruit Class-II Engineering Officers’ Association’s case (2 supra) was followed by the Apex Court in another decision in Anuradha Badi’s case (1 supra). The propositions laid down by the Apex Court in Direct Recruit Class-II Engineering Officers’ Associations case (2 supra) it to the effect that when once an incumbent is appointed to a past according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. In the instant case, the very nature of appointment was made known to the petitioners that it is purely temporary and they will have to compete for regular selection and they will be replaced by regularly selected candidates by the APPSC. But, the Government, as a special case, and also in view of the representation made by the petitioners, took a policy decision to regularize the services of the petitioners excluding the jurisdiction of the APPSC under proviso to Clause (3) of Article 320 of the Constitution, and in pursuance of which G.O.Ms.No. 193, dated 14.3.1990 was issued whereby the services of the petitioners were regularized subject to certain conditions. In view of the specific terms mentioned in the order of appointments issued to the petitioners and the petitioners having accepted the same and joined duties now cannot claim partly with the recruits selected by the APPSC. The Division Bench of this Court in K. Natarajan’s case (4 supra) discussed the parameters for exercise of the High Court’s power to issue a writ of certiorari and observed that finding of fact reached by the inferior Court, Tribunal etc, as a result of the appreciation of evidence, cannot be reopened or questioned in writ proceedings except when the judgment order or award suffers from an error of law apparent on the fact of the record.” The first applicant in O.A.No. 892 of 2003 was appointed as Associate Lecturer on 1.4.1991. So the appointments were made and confirmed prior to the issuance of proceedings dated 11.2.1993 where under the respondents in their personal capacity were regularized with antedate i.e. from 20.7.1990. The relevant portion of the proceedings dated 11.2.1993 reads as under: “In pursuance of the orders of Government issued in Government orders 2nd read above and under the provisions of Rule 23(a) of General Rules for Andhra Pradesh State and Subordinate Services Rules, the Commissioner of Technical Education, Andhra Pradesh, Hyderabad is pleased to Regularize the temporary services of the Associate Lecturers in Engineering disciplines selected and appointed by Expert-Committee during the year 1987-88 from the dates shown against their names in the enclosed annexure in the category of Associate Lecturer in Government Polytechnics (Category 6 of Class IV) in APTES)” Therefore, in view of the order passed by the Tribunal in O.A.No. 4095/2003, which is confirmed by the High Court, the above applicants, who were appointed prior to the orders of regularization dated 11.2.1993, gain seniority over the respondents in the personal capacity. But the Applicants 2,3,4 in O.A.No. 892 of 2003 were appointed subsequent to the order of regularization-dated 11.2.1993; therefore, they cannot question the regularization of the respondents in their personal capacity, which was done prior to their appointments itself. Therefore, the applicants, who were appointed subsequent to 11.2.1993 cannot question the regularization of Lecturers. Therefore, the first applicant in O.A.No. 892 of 2003 is entitled for preference to the promotion as Senior Lecturers than the respondents in the personal capacity. While disposing of all the O.As, the Tribunal held as under: “ Therefore, the respondents are directed to prepare a seniority list of Lecturers and Senior Lecturers by placing the candidates who were appointed regularly by the APPSC prior to the order of regularization on temporary candidates under proceedings No. G4/11161/1991, dated 11.2.1993 irrespective of the fact that the said proceedings regularize the temporary candidates with antedate i.e. 20.7.1990. In other words, the candidates appointed prior to 11.2.1993 must be given seniority over the candidates regularized in pursuance of G.O.Ms.No. 193, General Administration (Services-A) Department, dated 14.3.1990. But, the candidates who were appointed subsequent to regularization order dated 11.2.1993 cannot be placed above the temporary candidates regularized in pursuance of G.O.Ms.No. 193 General Administration (Services-A) Department, dated 14.3.1990. The final seniority list has to be published after considering the other objections for Zone-I within a period of 8 (eight) weeks from the date of receipt of this order. Therefore, the respondents are directed to place the applicants in O.A.No. 852/2003, O.A No. 3180 of 2003, O.A.No. 2320/2003, 1st applicant in O.A.No. 892/2003 by name V.Rama Krishna, in the seniority list over and above the candidates who were regularized under the proceedings No. G4/11161/1991 dated 11.2.1993, in pursuance of G.O.Ms.No. 193, General Administration (Services-A) Department, dated 14.3.1990. The other applicants, who were appointed subsequent to the proceedings No. G4/11161/1991 dated 11.2.1993 cannot be placed over and above the candidates regularized in proceedings No. G4/11161/1991, dated 11.2.1993 in pursuance of G.O.Ms.No. 193, General Administration (Services-A) Department dated 14.3.1990. The official respondents are directed to finalize the seniority list in the light of the above said directions for Zone I within a period of 8 (eight) weeks from the date of receipt of this order. Accordingly, thee O.As are disposed of, with the above said observations. C.As and M.As are also closed.” Aggrieved by the same, N. Vasanthi -6th respondent in O.A.No. 892 of 2003 and A. Rajyalakshmi -second applicant in O.A.No. 935 of 2003 filed these two Writ Petitions. This Court on 4.8.2009 while admitting the Writ Petitions granted interim suspension of the order passed by the Tribunal in O.A.No. 892 of 2003 dated 17.4.2009. Applicants in O.A No. 892 of 2003 also filed vacate stay petition WVMP No. 3689 of 2009 in W.P.No. 15776 of 2009 contending that any regularization contrary to Clauses 5 of Paragraph 4 of G.O.Ms.No. 193 is void ab-initio and has no legal existence whatsoever and no legal consequence could flow from the orders of the regularization issued through proceedings of the Commissioner of Technical Education, Andhra Pradesh, Hyderabad bearing No. G4/11161/91 dated 11.2.1993. Clause 5 of Paragraph 4 of G.O.Ms.No. 193 reads as under: “Only such of those temporary/daily wage appointees who have not been given an opportunity for appearing for regular selection by the regular recruiting agency or authority where the candidate has not failed and forfeited his chance by such failure to get regularize in such selection alone shall be eligible”. The learned counsel appearing for the petitioners submitted that it is never in dispute that APPSC conducted examinations during the years 1989, 1990, 1991, 1992, 1993, 1995 and 1996. Unless it is demonstrated that those appointees covered by the Proceedings dated 11.2.1993 mentioned above were prevented from appearing for the examinations conducted by the APPSC., during the periods 1989, 1990,1991,1992, 1993 etc and as such, they were entitled for regularization under G.O.Ms.No. 193 and more particularly, Clause 5 of Paragraph 4 of G.O.Ms.No. 193 gets attracted and brings the advantage of the ad-hoc regularization issued under Article 320 (3) Proviso. Be that as it may, the learned counsel appearing for the petitioners contended that since the petitioners’ services viz., petitioner in W.P.No. 16830 of 2009 were regularized with effect from 06.10.1995 and petitioner in W.P.No. 15776 of 2009 were regularized with effect from 20.7.1990 as per G.O.Ms.No. 193 dated 14.3.1990, their seniority has to be fixed from that date and the candidates recruited by the APPSC cannot be taken as precedence. On the other hand, the learned counsel appearing for respondents 4 to 7 contended that the issue has already been decided by this Court though the petitioners were appointed by a selection committee constituted for that purpose, the appointments are made under Rule 10(a)(I)(1) of the rules, and in the appointment order itself it was clear that their appointments were purely temporary and in case the petitioners are intended to get selected on regular basis, they are required to respond to the notification issued by the APPSC and they cannot claim any preferential claim by virtue of their appointment under Rule 10(a) (i)(1) of the Rules. He also submits that it is very clear from the proceedings of the Director of Technical Education, Hyderabad dated 2.3.1987 that the appointments shown are purely temporary and liable to be terminated at any time without notice and without assigning any reasons and they will be replaced whenever regular appointments are made by Andhra Pradesh Public Service Commission under due notification by the Commission in response to which they may also apply and they shall not claim any preferential treatment at the time of such regular selections by the APPSC. The relevant portion reads as under: “Under the provisions of Rule 10(a) (i)(1) of General Rules for Andhra Pradesh State and Subordinate Service, the candidates shown in he Annexure to this order and whose names are sponsored by the Regional Employment Officer, Secunderabad are temporarily appointed as Associated Lecturers in Polytechnic and Government Degree/Junior colleges under Vocationalisation in the scale of pay of Rs. 1380-6—1980-70-2750 and posted in the institutions as shown against their names in the existing vacancies from the dates of their assuming charge of the post. 2. The appointments shown in the Annexure to this order are purely temporary and liable to be terminated at any time without notice and without assigning any reason and they will be replaced whenever regular appointments are made by the Andhra Pradesh Public Service Commission under due notification by the Commission in response to which they may also apply and they shall not claim any preferential treatment at the time of such regular selections by the Andhra Pradesh Public Service Commission.” The learned Government Pleader has drawn our attention to the judgment of the Supreme Court reported in V. SREENIVAS REDDY AND OTHERS VS. GOVERNMENT OF ANDHRA PRADESH AND OTHERS[1], wherein the Supreme Court at paragraphs 6, 14, 15, 18, 27, 28, and 31 held as under: “6. The respondents, PSC candidates, who were appointed on May 14, 1984, appealed to the Government against regularization of the appellants contending that condition (iii) in G.O.Ms.No. 413 was misunderstood by the Chief Engineer; the Government intended to give benefit to the PSC candidates last elected in 1981 selection and that though they were appointed in 1984, they are entitled to seniority over the appellants, since the latter became members of the service only on their regularization on June 11, 1984, i.e., after their appointment on May 14, 1984 which found favour with the Government and made it that the PSC candidates are entitled to seniority from the initial dates of their appointments and the temporary appointees (appellants) be placed below them. The appellants questioned before the Tribunal that order of Panchayat Raj and Rural Development made in G.O.Ms.No. 296 dated April 24, 1990 and the PSC candidates challenged the appellants’ regularization order by the Chief Engineer Panchayat Raj. 14. It is now well settled law that appointment/promotion must be in accordance with the Rules, direct recruit takes his seniority from the date on which he starts discharging the duty of the post borne on the cadre while a temporary appointee appointed de hors the rules or on ad hoc basis or to a fortuitous vacancy gets seniority from the date of regular appointment. 15. It is settled law by the judgment of the Constitution Bench in Direct Recruits Class II Officers Association V. State of Maharashtra, (1990) 2 SCR 900: (1991 AIR SCW 2226), that appointment in accordance with Rules is a condition precedent to count seniority. Temporary or ad hoc or fortuitous appointments etc, is not an appointment in accordance with the Rules and the temporary service cannot be counted towards the seniority, Delhi Water Supply and Sewage Disposal Committee v. R. K. Kashyap, 1989 Supp (1) SCC 194 : (AIR 1989 SC 278); Masood Akhtar Khan V. State of M.P., (1990) 4 SCC 24; D.N. Agrawal v. State of M.P., (1990) 2 SCC 553 : (AIR 1990 SC 1311) ; State of Tamil Nadu v. E. Paripoornam, 1992 Supp (1) SCC 420; (1992 AIR SCW 2057); R.C. C. Poudyal v. Union of India, (1993) 2 JT (SC) 1 and at p. 25; (1993 AIR SCW 1620 at p. 1682); Excise Commissioner, Karnataka v. V. Sreekanta, 1993 Supp (3) SCC 53 : (1993 AIR SCW 1740). 18. Rule 33 determines the seniority - (a) The seniority of a person in a service, class or 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 Rules 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. 27. It is seen that under Rule 3(2) of Part I of the Rules, the approved candidates from the list of candidates communicated by PSC, the PSC candidates, by operation of Rule 3(1) of Part I, become persons appointed to the service from the date on which they