* THE HONOURABLE SRI JUSTICE GODA RAGHURAM and THE HONOURABLE SRI JUSTICE G. KRISHNA MOHAN REDDY + W.P.Nos. 2614 and Batch % THURSDAY, THE TWENTY-THIRD DAY OF FEBRUARY, TWO THOUSAND AND TWELVE # R. Madhusudhana Rao S/o. Sri R. Subbaiah Hyderabad. ... PETITIONER VERSUS $ Sri H. Shivaram, S/o. Sri Heeraman and others. ... RESPONDENTS ! Counsel for the Petitioner : Dr. K. Lakshmi Narasimha Sri M. Surender Rao Sri P. Naveen Rao, GP for Services - I ^ Counsel for the Respondents: Sri P Bala Krishna Murthy Sri Poodattu Amarender < GIST > HEAD NOTE ? 1. 1992 Supp (3) SCC 217 2. 1995 (6) SCC 684 3. (1996) 2 SCC 715 4. (1995)(2) SCC 745 5. (1999) 7 SCC 209 6. (1997) 6 SCC 538 7. (2006) 8 SCC 212 8. (2011) 1 SCC 467 9. (1997) 3 SCC 261 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY-THIRD DAY OF FEBRUARY TWO THOUSAND AND TWELVE PRESENT THE HON'BLE SRI JUSTICE GODA RAGHURAM and THE HON'BLE SRI JUSTICE G.KRISHNA MOHAN REDDY WRIT PETITION Nos. 2614, 15666, 31007, 32227, 15362 of 2011 WRIT PETITION NO : 2614 of 2011 Between: R. Madhusudhana Rao S/o. Sri R. Subbaiah Hyderabad ..... PETITIONER AND 1 Sri H. Shivaram s/o. sri Heeraman O/o. Commissioner of Industries, Chirag Ali Lane, Abids, Hydearbad 500 001 2 The government of Andhra Pradesh, rep. by its Principal Secretary to Government, Industries & Commerce Department Secretariat, Hyderabad 3 The Commissioner of Industries Chirag Ali Lane, Hydeabad 4 The Andhra Pradesh Administrative Tribunal, Hyderabad, rep. by its Registrar 5 Sri B. Suresh Babu O/o. Commissioner of Industries, Chirag Ali Lane, Hyderabad - 500 001 .....RESPONDENTS 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 or order preferably in the nature of writ of Certiorari and after calling for records pertaining to order and Judgment rendered in OA No. 2436/2007 dated 31.1.11 by Hon'ble Andhra Pradesh Administrative Tribunal, Hydearbad set aside to same as contrary to law. Counsel for the Petitioner: DR.K.LAKSHMI NARASIMHA Counsel for the Respondent No.1: SRI.P.AMARENDER REDDY Counsel for the Respondent No.2 & 3: GP FOR INDUSTRIES & COMMERCE WRIT PETITION NO : 15666 of 2011 Between: 1 The Government of Andhra Pradesh Reptd. by its Principal Secretary to Government Industries and Commerce Department, Secretariat Buildings, Hyderabad. 2 The Commissioner of Industries Government of Andhra Pradesh Chirag Ali Lane, Abids, Hyderabad. ..... PETITIONERS AND 1 H. Shiva Ram S/o. Heeraman O/o. The Commissioner of Industries, Chirag Ali Lane, Abids, Hyderabad. 2 B. Suresh Babu O/o. The Commissioner of Industries, Chirag Ali Lane, Abids, Hyderabad. 3 R. Madhu Sudhan Rao O/o. The Commissioner of Industries, Chirag Ali Lane, Abids, Hyderabad. 4 The Hon'ble Andhra Pradesh Administrative Tribunal Reptd. by its Registrar Purani Haveli, Hyderabad. .....RESPONDENTS 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 an appropriate writ or direction more particularly one in the nature of "WRIT OF CERTIORARI" calling for the records relating to and connected with Order dated 31-01-2011 in O.A. No. 2436 of 2007, on the file of the Hon'ble Andhra Pradesh Administrative Tribunal, Hyderabad and to quash or set aside the same by holding as erroneous and contrary to law. Counsel for the Petitioner: GP FOR SERVICES I Counsel for the Respondent No.1: SRI P.BALA KRISHNA MURTHY WRIT PETITION NO : 31007 of 2011 Between: B.Suresh Babu S/o.RamaKrishnaiah O/o.The Commissioner of Industries, Chirag Ali Lane, Hyderabad ..... PETITIONER AND 1 H.Shiva Ram S/o.Hiraman O/o.The Commissioner of Industries, Chiragali Lane, Hyderabad-500 001 2 The Govt. of Andhra Pradesh Rep.by its Principle Secretary to Industries and Commerce Secretariat Building, Hyderabad-22 3 The Commissioner of Industries A.P., Hyderabad-500 001 4 SRI Ch.Rama Rao S/o. not known to the petitioner O/o.General Manager, District Industries Centre Nizamabad, Nizamabad district 5 K.Prasada Rao S/o.not known to the petitioner O/o.The Commissioner of Industries, Chiragali Lane, Hyderabad-500 001 6 The A.P.Administrative Tribunal Rep.by its Registrar, Puranahaveli Hyderabad .....RESPONDENTS 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 an order, direction or Writ more particularly one in the nature of writ of Certiorari calling for records pertaining to common order dt: 31-1-2011 made in O.A.No.2439 of 2007 and quash the same. Counsel for the Petitioner: SRI.M.SURENDER RAO Counsel for the Respondent Nos.2 & 3: GP FOR INDUSTRIES & COMMERCE Counsel for the Respondent No.1: SRI P.BALA KRISHNA MURTHY WRIT PETITION NO : 32227 of 2011 Between: B. Suresh Babu S/o. Ramakrishnaiah O/o. The Commissioner of Industries, Chirag Ali Lane, Hyderabad. ..... PETITIONER AND 1 H. Shiva Ram S/o. Hiraman O/o. The Commissioner of Industries, Chiragali Lane, Hyderabad - 500 001. 2 The State of Andhra Pradesh Rep. by its Principle Secretary to Government Industries and Commerce Department, Secretariat Building, Hyderabad - 500 022. 3 The Commissioner of Industries A.P. Hyderabad - 500 001. 4 R. Madhusudhan Rao S/o. & Age not known O/o. The Commissioner of Industries, Chirag Ali Lane, Hyderabad. 5 The A.P. Administrative Tribunal Rep. by its Registrar Puranahaveli, Hyderabad. .....RESPONDENTS 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 a writ order or direction especially one in the nature of writ of certiorari calling for records pertaining to common order dt. 31-01-2011 made in O.A. No. 2436 of 2007 and quash the same. Counsel for the Petitioner: SRI.M.SURENDER RAO Counsel for the Respondent No.2 & 3: GP FOR SERVICES I Counsel for the Respondent No.1: SRI P.BALA KRISHNA MURTHY WRIT PETITION NO : 15362 of 2011 Between: 1 The Government of Andhra Pradesh Reptd. by its Principal Secretary to Government Industries and Commerce Department, Secretariat Buildings, Hyderabad. 2 The Commissioner of Industries Government of Andhra Pradesh Chirag Ali Lane, Abids, Hyderabad. ..... PETITIONERS AND 1 H. Shiva Ram S/o. Heeraman New Working as General Manager, DIC, Nizamabad, R/o 7-1-632/141, Bapu Nagar, Hyderabad - 38. 2 B. Suresh Babu O/o the Commissioner of Industries, Chirag Ali Lane, Abids, Hyderabad. 3 Sri Ch.Rama Rao, Joint Director, O/o General Manager, District Industries Centre, Nizamabad. 4 Sri K.Prasada Rao, Joint Director, O/o The Commissioner of Industries, Chirag Ali Lane, Hyderabad. 5 The Hon'ble Andhra Pradesh Administrative Tribunal Rep by its Registrar, Purani Haveli, Hyderabad. .....RESPONDENTS 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 an appropriate Writ or direction more particularly one in the nature of "WRIT OF CERTIORARI" , calling for records relating to and connected with order dated 31.01.2011 in O.A.No.2439 of 2007 on the file of Hon'ble Andhra Pradesh Administrative Tribunal at Hyderabad, and to quash or set aside the same by holding as erroneous and contrary to law. Counsel for the Petitioner: GP FOR SERVICES I Counsel for the Respondent No.1: SRI P.BALA KRISHNA MURTHY The Court made the following : BEFORE THE HONOURABLE SRI JUSTICE GODA RAGHURAM AND THE HONOURABLE SRI JUSTICE G.KRISHNA MOHAN REDDY W.P.Nos. 2614, 15362, 15666, 31007 and 32227 of 2011 COMMON ORDER : (PER Hon’ble Sri Justice Goda Raghuram) The writ petitions are directed against the common order of the AP Administrative Tribunal (‘The Tribunal’) dated 31.01.2011 in two OAs 2439 and 2436 of 2007. In OA No.2436/07 the applicant impleaded four respondents; the State of A.P. represented by the Principal Secretary, Industries & Commerce Department, Commissioner of Industries, A.P., Mr. B.Suresh Babu and Mr. R.Madhusudhana Rao; and in OA No.2439/2007 filed by the same applicant there were three non-official respondents impleaded – Mr. B. Suresh Babu, Mr. Ch.Rama Rao and Mr. K.Prasada Rao, apart from the State of Andhra Pradesh and the Commissioner of Industries, A.P. In OA No. 2436/07 the validity of G.O.Ms.No. 90 dated 24.4.2007 was challenged and a direction sought (to the official respondents) to prepare the seniority list of Joint Directors (of Industries) only after conducting a review DPC by reviewing promotions earlier made. In OA No. 2439/07 a declaration was sought, that the action of the official respondents in not considering the applicant for promotion as Addl. Director of Industries while preferring respondents 3 and 4 therefor (who are facing disciplinary chargers), is illegal and discriminatory; and for a direction to the official respondents to promote him as Addl. Director of Industries while excluding the non-official respondents from the zone of consideration for promotion; as per his eligibility, suitability and in accordance with the Rules. The two applications were heard together and a common order passed by the Tribunal wherefrom the writ petitions arise. W.P.No. 2614/11 is filed by R. Madhusudhana Rao, the 4th respondent in OA No.2436/07, against the order of the Tribunal therein. W.P.Nos. 15362/11 and 15666/11 are by the State against the order of the Tribunal in OA Nos.2439/07 and 2436/07, respectively. W.P.Nos 31007 and 32227 of 2011 are by Mr. B.Suresh Babu, the 3rd respondent in OA Nos. 2436 and 2439 of 2007 against the common order of the Tribunal, in the respective OAs. The applicant is a respondent in all the writ petitions. Heard Dr. Lakshmi Narasimha for the petitioner (Sri R. Madhusudhana Rao) in W.P.No. 2614/11; the learned Government Pleader for Industries & Commerce, for the State; and Mr. M.Surender Rao, the learned counsel for the same petitioner (Sri B. Suresh Babu), in W.P.Nos. 31007 and 32227 of 2011; and Sri P. Bala Krishna Murthy, learned counsel for the applicant Sri H. Shivaram. The applicant an ST candidate initially entered service as Supervisor in the Industries Department in 1981. He was thereafter promoted as Asst. Director in 1998, as Dy. Director w.e.f. 27.9.1994 and Joint Director on 14.8.2003. R.Madhusudhana Rao and B.Suresh Babu are directly recruited Asst. Director of Industries and were promoted to higher categories of Deputy Director, Joint Director and as Addl. Director as well. The post of Assistant Director is a multi-zonal post. There are two multi-zones in the State – I & II. While the non-official respondents in OAs had all been promoted to the higher post of Addl. Director of Industries, the applicant was not so promoted. The inter se seniority in the category of Dy. Director and Joint Director and consequently the inter se entitlement to promotion to the next higher category of Addl. Director, is the apparent bone of contention between the applicant and the non-official respondents. The litigation as usual appears to be the product of ad hoc and casual treatment of establishment issues by the State and other official agencies, accentuated by interminable litigation. It is the common refrain by all parties to this lis, including the Government that seniority lists in the category of Asst. Director of Industries (separately for multi zones I and II) were issued in G.O. Ms. No.180, dated 11.6.2003 and the inter se seniority in this category has become final and has not been questioned by anybody, as yet at any rate. In G.O.Ms.No. 180, Mr. R.Madhusudhana Rao figures at S.No. 60 in Multi Zone-II and is assigned 28.10.1987 as the date for seniority. For the same multi zone, the applicant (H.Shivaram) is at S.No. 74 and is assigned 30.8.1988 as the date in the Asst. Director category; and Mr. B.Surersh Babu (petitioner in W.P.Nos. 31007 and 32227 of 2011) figures at S.Nos. 50 in the multi zone-I with the assigned date 14.10.1987. Two other individuals Mr. K.Prasada Rao and Ch. Rama Rao (respondents 5 and 4 in OA No. 2439/07) figure at S.Nos. 61 and 67 in multi zone-II with assigned dates in the Asst. Director category as 28.10.1987 and 3.7.1988, respectively. It is represented that since Mr. K.Prasada Rao and Mr. Ch. Rama Rao retired from service they have not challenged the common order of the Tribunal. Reservations in promotions : Evolution of the Policy : In G.O.Ms.No.5, Social Welfare Department, dated 14-02-2003 [consequent on and subsequent to introduction of Clause 4-A to Article 16, by the Constitution (Seventy-seventh Amendment) Act, 1995; further amended by the Constitution (Eighty-fifth Amendment) Act, 2001], the State issued administrative orders implementing the rule of reservation in promotions to ensure adequate representation of Scheduled Caste and Schedule Tribe employees, (i.e.) fifteen percent and six percent respectively in all categories of posts in all departments. This order directed : (a) that reservation be implemented in favour of SC and ST in promotion in all categories of posts in all State Government departments with immediate effect; (b) that such reservation is applicable to all categories or categories whose cadre strength is more than five; (c) that the existing 100 point roster already prescribed in Rule 22 of the A.P. State and Subordinate Service Rules, 1996 (the ‘1996 Rules’) shall be followed in cases of promotion in all the categories where reservation in promotion in favour of SC & ST is followed; (d) that such reservation in favour of SC & ST shall be prospective and be applicable to posts to be filled up; that as on the date of issue of these orders, the panel year for 2002-2003 has already commenced from 01-09-2002, therefore panels already prepared and given effect shall not be disturbed but panels not yet prepared shall now be prepared based on the rule of reservation in promotion; and panels prepared and not given effect to, shall be reviewed on the principle of reservation in promotion in favour of SC & ST; (e) ………. (f) ……… (g) that detailed guidelines on filling up the roster points will be separately issued. This order observed that appropriate amendments to Rule 22 of the 1996 rules would be issued separately. In G.O.Ms.No.21, Social Welfare Department, dated 18-03-2003, guidelines for implementing the rule of reservation in promotions to SC & ST employees were issued. To the extent relevant and material, these guidelines enjoined : (a) that the zone of consideration as laid down in Rule – 6 of the 1996 Rules in respect of SC & ST shall not be applicable to fill up the roster points meant for these categories of employees; (b) that while preparing panels of eligible candidates for promotion, names of eligible SC & ST employees from the feeder category should be shown against the roster points earmarked for them irrespective of their seniority position in the feeder category. However if a SC or ST employee gets higher place in the eligible candidates list by virtue of his seniority in the feeder category he need not be adjusted in a lower position earmarked for a SC or ST employee as per the roster system; and such roster point must be filled up by moving a SC or ST employee who is below in the seniority list in the feeder category; (c) that filling up of the roster points shall continue till the required percentage of SC or ST candidates is obtained. Once the required percentage is obtained by taking into account both the SC & ST candidates who are found in the list of candidates fit for promotion on account of their seniority in the feeder category and those who are moving up to fill the required roster point, further adjustment of SC or ST employees against roster points must be stopped; and unutilized roster points after the required SC or ST percentage is met, shall lapse; (d) that promotion panels already prepared for the panel year 2002-2003 and given effect to/operated/partly operated, i.e., if promotions are effected, the panel shall continue without any change or review and shall not be re-opened; (e) the panels for 2002-2003 which are prepared and are not operated as on 14-02-2003 must be reviewed to provide special representation in promotion for SC & ST employees. Eventually, in G.O.Ms.No.123, General Administration Department, dated 19-04-2003, relevant provisions of the 1996 Rules were amended (in exercise of power under the proviso to Article 309 of the Constitution). These amendments were brought into force with effect from 14-02-2003 (the date of issue of G.O.Ms.No.5). By this amendatory exercise : (a) the first proviso to Rule – 6(b) (of the 1996 Rules) was introduced enjoining that for promotion in respect of SC & ST candidates only, the zone of consideration in the ratio of 1:3 shall not be applicable in respect of posts whose total cadre strength is more than five; (b) Clause (ii) of sub-rule 1 in Rule – 22 was substituted to provide that for appointments other than by direct recruitment the principle of reservation in the matter of promotion and appointment by transfer involving promotion insofar as it relates to Scheduled Castes and Scheduled Tribes only shall apply to such services, class or category, whose total cadre strength is more than five; (c) Sub-rule 2(a) of Rule – 22 was substituted. As amended Clause 2(a)(i) provides that the unit of appointment for the purpose of reservation, for promotion and appointment by transfer involving promotion shall be 100 vacancies of which 15 shall be reserved for Scheduled Castes and 6 for Schedule Tribe employees as per the roster points in Sub-rule 2(e). The amendments (issued in G.O.Ms.No.123) further provided: (a) that in case of appointments/promotions to the posts referred to in Clause 2(a)(i); the panels of eligible candidates for promotion, names of eligible SC & ST employees from the feeder category must be shown against the roster points earmarked for them irrespective of their seniority in the feeder category; (b) that if an SC or ST employee gets a higher place in the eligible candidates list on account of his seniority in the feeder category he need not be adjusted in a lower position which is earmarked for an SC or ST employee as per the roster system; and such roster point must be filled up by moving up an SC and ST employee who is lower in the seniority list in the feeder category; (c) that filling up of roster points shall continue till the required percentage of SC or ST candidate is obtained; and once the required percentage is obtained by taking into account candidates found in the list of candidates fit for promotion on account of their seniority in the feeder category and those who are moved up to fill the required roster points, further adjustment of SC & ST employees against roster points must be stopped; (d) that un-utilised roster points after the required SC & ST percentages is met shall lapse; and (e) if required number of SC & ST employees are not available in the feeder category to obtain the required representation in promotion, the vacancies earmarked for SC or ST employees according to the roster points will be carried forward. In G.O.Ms.No.2, Social Welfare Department, dated 09-01-2004, by an administrative order “comprehensive” guidelines were issued for implementing the rule of reservation in promotions, consequent on the issue of G.O.Ms.Nos.5, 21 & 123, dated 14-02- 2003, 18-03-2003 & 19-04-2003, respectively (adverted to supra). This administrative order also observed that appropriate amendment to Rule – 22 and 22-A of the 1996 Rules would be issued separately. In G.O.Ms.No.26, Social Welfare Department, dated 20-02-2009, by another administrative order amendments were issued to the orders issued in the earlier administrative order in G.O.Ms.No.5, Social Welfare Department, dated 14-02-2003. Accordingly, para-4(a) was substituted to provide : (a) that reservation shall be implemented with consequential seniority in favour of SC and ST in promotion in all category of posts in all State Government departments with immediate effect; and (b) a provision was added after para 4(g) (of G.O.Ms.No.5) to the effect that for achieving adequacy of SC/ST in services, the rule of reservation in making incharge arrangements in exigencies of administration for holding higher promotion posts shall be followed, whenever such arrangements are made after obtaining relaxation of Rule-10(h) of the 1996 Rules; and incharge arrangements for higher promotion posts/ad hoc promotions already made by observing the rule of reservation in favour of SC/ST shall be continued, to achieve the objective of implementing the rule of reservation in favour of these categories. After the executive orders in G.O.Ms.No.5 & 21 and issue of statutory amendments, in G.O.Ms.No.123, dated 19-04-2003, the State in G.O.Ms.No.228, Industries & Commerce Department, dated 25-07-2003 approved the panel for promotion of officers to Category-II posts, i.e., Joint Director of Industries. The names of 38 officers serving as Deputy Directors were approved for promotion, for the panel year 2002-03. The estimated vacancies in the category of Joint Director of Industries was stated to be 34. The applicant H. Shivaram was shown at serial no.8, while B. Suresh Babu and R. Madhusudhana Rao, were at serial Nos.24 & 26. This panel was approved apparently in the light of the Government policy, of providing reservations for SC & ST in promotional posts. Consequent on G.O.Ms.No.228, orders were issued on 13-08-03 promoting the applicant H. Shivaram, B. Suresh Babu and R. Madhusudhana Rao, quoting the orders in G.O.Ms.No.228. It would appear that in view of the uncontested final seniority list in the category of Assistant Director, issued in G.O.Ms.No.180; and in view of seniority positions in the category of Deputy Director not having been finalized, the Government issued a memo dated 05-03-2004 directing the Commissioner of Industries (the Commissioner) to undertake review of all ad hoc promotions made to the category of Deputy Director/Joint Director of Industries from 01-11-1956 onwards and on the basis of seniority in the Assistant Director category, issued in G.O.Ms.No.180. Accordingly, the Commissioner after integrating the Assistant Directors’ inter se seniority positions in the several multi zones, communicated a provisional seniority list of Deputy Directors to all affected employees, in his memo dated 04-02-2005 and called for objections. It would appear that in G.O.Ms.No.230, General Administration Department, dated 22-05-1999, powers were delegated by the Government to the Commissioner to prepare the seniority list. In purported exercise of the conferred power the Commissioner issued proceedings dated 17-03-2006 notifying the seniority list of Deputy Directors for the period 18-10-1975 to 31-12-1998. In this seniority list, B. Suresh Babu and R. Madhusudhana Rao figure at serial nos.120 & 121 with 16-10-1994 & 17-10-1994 as the respective dates with effect from which their seniority in the category of Deputy Director is reckoned; and the applicant H. Shivaram figures at serial no.136 with 20-10-1994 as the relevant date in this category. By O.A.No.1951 of 2006, Shivaram challenged the final seniority list of Deputy Directors issued by the Commissioner on 17-03-2006. The Tribunal by the order dated 18-01-2007 (of a learned single member) set aside the seniority list dated 17-03-2006 on the ground that the Commissioner was not the appointing authority and was thus incompetent to prepare the seniority list for the category of Deputy Director. The Government was directed to finalise the seniority list of Deputy Director within the time stipulated in the order. Against the above order of the Tribunal, the State filed W.P.No.1807 of 2007. On 19-04-2007 this Court directed interim suspension of the order of the Tribunal. During the currency of this order suspension, G.O.Ms.No.90, Industries and Commerce Department, dated 24-04-2007 was issued notifying the final seniority list in the category of Joint Director (for the period 01- 09-1974 to 31-08-2005). This was pursuant to a provisional seniority list notified and communicated to affected parties, in the Government memo dated 11-10-2006. The annexure to G.O.Ms.No.90 sets out the inter se seniority positions in the category of Joint Director. B. Suresh Babu, R. Madhusudan Rao and the applicant H. Shivaram figure at serial nos.179, 180 and 191; with the dates in the category of Joint Director set out as 30- 09-1998, 31-10-1998 and 01-07-2001, respectively. In G.O.Ms.No.95, dated 30-04-2007, pursuant to recommendations dated 28-04-2007 of the Departmental Promotion Committee (DPC), the Government approved a panel of specified names for promotion as Additional Director of Industries for the panel year 2006-2007, from the category