THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON'BLE SRI JUSTICE G.CHANDRAIAH WRIT PETITION Nos.6903 and 18551 of 2007 25.6.2008 Between K.Yadagiri, S/o.late K.Ramaswamy And others … Petitioners and The Registrar (Administration), A.P.High Court at Hyderabad And others … Respondents THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON'BLE SRI JUSTICE G.CHANDRAIAH WRIT PETITION Nos.6903 and 18551 of 2007 COMMON ORDER: (Per Hon’ble VVSRJ) As the factual background and issues are the same, a common order would be suffice to dispose of these two writ petitions. Petitioner in W.P.No.6903 of 2007 (hereafter referred to as, first petitioner) is aggrieved by order dated 19/20.3.2004 passed by second respondent whereby and whereunder respondents 3 to 7 therein were declared to have satisfactorily completed period of probation as Copyists. He is also aggrieved by a communication dated 12/13.9.2006 rejecting his request for regularization. Two petitioners in W.P.No.18551 of 2007 (hereafter referred to as, petitioners 2 and 3) also impugned order dated 19/20.3.2006. Their main grievance is that though they are seniors in the category of Attenders/Process Servers, second respondent regularized services of contesting respondents and taking steps to revert petitioners from the rank of Copyists to which they were initially promoted in November 2002. The short admitted fact of the matter is as follows. First petitioner was appointed as Attender in 1990 and petitioners 2 and 3 were appointed as Attenders in 1986 and 1994 respectively. In the integrated provisional seniority/ Gradation lists, they were placed above contesting respondents. As petitioners acquired Typewriting English Lower Grade qualification, they were temporarily promoted as Copyists with effect from 30.11.2002. Appointment orders were preceded by a selection test conducted by second respondent in which petitioners, contesting respondents and three others came out successfully. Petitioners therefore contend that when they are seniors in the category of Attenders as well as high-up in the merit list after conducting test, impugned order regularizing services of their juniors is illegal, arbitrary and violative of Articles 14 and 16 of Constitution of India. They also rely on Andhra Pradesh Judicial Ministerial Service Rules 1964 (APJMS Rules, for brevity) especially Rule 8, according to which post of Copyists is a non-selection post and it does not contemplate conducting a test or assessment of merit. They also rely on circular being ROC No.2536/98-C.T(1), dated 23.3.1999, wherein it was instructed that promotion from the category of Attenders to the post of Copyists should be made on the basis of seniority only. When second respondent issued notification dated 23.8.2006 inviting applications to fill up six posts of Copyists, petitioners 2, 3 and two others filed W.P.No.19249 of 2006 assailing the notification as well as orders impugned in these writ petitions. The said writ petition was dismissed observing that petitioners cannot have any grievance when they were appointed on temporary basis. The Chief Judge, City Civil Court, Hyderabad, filed counter affidavit opposing writ petitions. As per Rule 9(3)(ii) of APJMS Rules, posts of Copyists have to be filled up by promotion and direct recruitment in the ratio of 2 : 2. When twelve vacancies arose in 2002, six posts were filled up by proceedings dated 30.11.2002 by promoting qualified Attenders taking into consideration their rank in selection test. As direct recruitment was not taken up to fill up other six posts of Copyists, petitioners were temporarily promoted. After completion of probation successfully by promotees under proceedings dated 30.11.2002, impugned order was passed declaring their probation and also regularizing their services. It is further stated that a notification was issued on 23.8.2006 inviting applications to fill up six posts of Copyists by the method of direct recruitment. These posts have been earmarked against Roster Points 16, 22, 24, 25, 27 and 28. The counter however does not dispute that as per APJMS Rules, post of Copyist is a non-selection post, which has to be filled up on the basis of seniority only. Learned Counsel for petitioners submits that as per the relevant Rules, when promotion to the post of Copyist has to be made based on seniority only, conducting selection tests to fill up the posts of Copyists by promotion is itself illegal. Secondly he submits that as petitioners were under impression that they and contesting respondents were promoted on the same day, all of them would be entitled for regularization, and therefore, petitioners did not make out any grievance. However ignoring the seniority of petitioners in the category of Attenders, contesting respondents are regularized, which amounts to discrimination. Per contra, learned Standing Counsel for High Court and learned Counsel for contesting respondents submit that when the impugned order was challenged by this Court in W.P.No.19249 of 2006, the same was dismissed. In view of the finality of decision of this Court, further writ petition would not lie. Secondly, they would submit that petitioners never challenged the order of second respondent promoting contesting respondents as Copyists knowing fully well that petitioners are promoted only on temporary basis against direct recruitment and therefore writ petitions are not maintainable. Legal position is not disputed. As per APJMS Rules, Division-I is consists of various categories of posts in the establishment of City Civil Court. The post of Copyist is in Division–III. Rule 8 of APJMS Rules contemplates that posts of Senior Assistants and above shall be treated as selection posts and all other posts are non-selection posts. The High Court issued circular dated 23.3.1999 incorporating instructions to be followed by Unit Heads. The said circular reads as under. HIGH COURT OF ANDHRA PRADESH : AT HYDERABAD ROC.NO.2536/98-C.T.(1) DATED : 23.3.1999 C I R C U L A R The A.P. Judicial Employees Association has brought to the notice of the High Court that no uniform procedure is being followed by the Unit Heads while giving promotions to both selection and non-selection posts in the Subordinate Courts. Some of the Unit Heads are conducting written tests for promotions and some of them are promoting the individuals by conducting oral interviews only. Some of the Unit Heads are calling the candidates for written test/interview at the ratio of 1 : 3 or 1 : 5 whereas in some Districts, the Unit Heads are calling the candidates at the ratio of 1 : 10 or 1 : 40. The High Court desires that it is essential to adopt a uniform procedure through out the State while giving promotions to both selection and non-selection posts in the subordinate Courts. All the Unit Heads are therefore requested to adopt the following instructions while effecting promotions to both selection and non-selection posts in the subordinate Courts. All the Unit Heads are therefore requested to adopt the following instructions while effecting promotions to both selection and non-selection posts. I. SELECTION POSTS: 1. Provisions of Rule 8 of A.P.J.M.S. Rules shall be followed while giving promotions to the Selection posts. 2. The District Judges should prepare a panel of eligible candidates as per seniority. Call them for interview at the ratio of 1 : 3 and select the suitable candidates. In case, any of the first three candidates not eligible for promotion for the reasons viz., unauthorized absence, prolonged illness, undergoing punishments etc., the District Judges may consider next eligible candidates in seniority for promotion in the same proportion. II. NON-SELECTION POSTS: 1. Promotion to non-selection posts shall be made on the basis of seniority only, provided the member to be promoted possesses the required minimum general educational qualification and not suffering from any disqualification for the post to which he is to be promoted; 2. In case of promotions to the members, who have been awarded penalties under A.P.C.S. (CCA) Rules, the Unit Heads should consider their cases if there is reasonable lapse of time after imposing such penalties and on their earning good reports subsequent to the award of penalty. Receipt of the circular may be acknowledged. Sd/- xxx xxx REGISTRAR (ADMN.) To All the Unit Officers in the State. There cannot be any iota of doubt that post of Copyist is non- selection post. All the Attenders, Process Servers etc., who are eligible and qualified, shall have to be promoted to the post under APJMS Rules. Only criterion is seniority. The Rules or High Court instructions do not prescribe any written examination or selection test. When six posts (out of twelve posts) are to be filled up by promotion as per Rule 9(3)(ii) of APJMS Rules, seniority alone ought to have been followed. The procedure or Rules were given a go bye and six persons were promoted on their merit in selection test conducted on 30.11.2002, and petitioners and three others were temporarily appointed against direct recruitment vacancies. The procedure is ex facie illegal especially when petitioners claim to be seniors to contesting respondents. The declaration as above however cannot benefit petitioners for two reasons. First, in W.P.No.19249 of 2006 filed by petitioners 2 and 3, order impugned in these cases was impugned and said writ petition was dismissed. The order has become final and it would certainly operate as constructive res judicata. Needless to reiterate that principle of res judicata is also applicable to proceedings under Article 226. Secondly, as rightly contended by learned Counsel for contesting respondents, proceedings permitting opposite parties under Rule 9(3) (ii) of APJMS Rules has not been challenged so far. Petitioners cannot claim ignorance in this regard. The order of learned Chief Judge bearing No.CCC-HYD/AW/E1/2007/8984 dated 30.11.2002 as well as another or bearing No.CCC-HYD/AW/E1/2007/8985 dated 30.11.2002 are placed before this Court. The proceedings promoting contesting respondents under Rule 9(3)(ii) of APJMS Rules to the extent relevant reads as under. The Chief Judge, City Civil Court, Hyderabad is pleased to issue the following Orders of Promotion from the Post of Last Grade Service to the Post of Copyists on merit and ability basis as per Rule 9(3)(ii) of A.P.J.M.S.Rules w.e.f. 30.11.2002 AN. 1. Smt.K.Dhanalakshmi, Process Server, 2. Sri N.Damodar, Attender, 3. Sri S.Venkata Subbaiah, Attender, 4. Sri B.Shiva Prasad, Process Server, 5. Sri Raghavender Rao Majumdar, Attender, 6. Sri K.Mahender, Attender. The above individuals are hereby informed that their appointments to the post of Copyist are made purely on MERIT and ABILITY and on TEMPORARY BASIS and they are liable to be reverted at any time without giving any notice or assigning any reasons. The proceedings promoting petitioners and others as temporary Copyists to the extent necessary reads as under. The Chief Judge, City Civil Court, Hyderabad is pleased to issue the following Orders of Promotion from the Post of Last Grade Service to the Post of Copyists purely on temporary basis since notification for filling up of the Posts of Copyists by recruitment is being issued w.e.f. 30.11.2002 AN. 1. Sri R. Narayana, Attender 2. Sri Abdul Samad, Process Server 3. Sri K.Yadagiri, Process Server 4. Kum B.Kavitha, Process Server 5. Smt G.Bhuvaneswari, Attender 6. Sri D.Dasaiah, Attender. The above individuals are hereby informed that their appointments by transfer to the post of COPYISTS are made purely ON TEMPORARY BASIS and they are liable to be reverted as and when the above said posts are filled by direct recruitment. There is glaring difference in two proceedings. In the first one, it is stated that respondents are promoted to the post of Copyists as per Rule 9(3)(ii) of APJMS Rules and in the second proceedings, it is clearly stated that petitioners are promoted as Copyists on temporary basis informing them that they are liable to be reverted as and when posts are filled up by direct recruitment. Petitioners now contend that they were under the impression that all of them were promoted. This cannot be accepted because proceedings issued to the contesting respondents as well as petitioners are two distinct orders conveying different meaning. Petitioners knowing fully well accepted promotion to the post of Copyists against vacancies earmarked to direct recruitment and they as held by Division Bench in W.P.No.19249 of 2006, cannot have any grievance if direct recruitment is now taken up. Secondly the other category of Attenders were promoted against quota earmarked for promotion under Rule 9(3)(ii) of APJMS Rules and when they completed period of probation successfully, impugned order cannot be faulted. It is brought to the notice of this Court that there are still vacancies of Copyists in the unit of City Civil Court as direct recruitment is yet to be taken up. If that be so till such posts are fill up on regular basis, learned Chief Judge may consider prospect of continuing petitioners as Copyists. It is needless to mention that if they are qualified and eligible, petitioners may also apply to the post of Copyists by direct recruitment. In the result, for the above reasons, the writ petitions are dismissed with observations as above. _____________ (V.V.S.RAO, J) ___________________ (G.CHANDRAIAH, J) June 25, 2008 YS