IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY , THE ELEVENTH DAY OF FEBRUARY TWO THOUSAND AND TEN PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH AND THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.27227 of 2008 BETWEEN S. Srinivas. …PETITIONER AND Government of AP, rep. by its Principal Secretary, Backward Classes Welfare Department, Secretariat, Hyderabad and four others. …RESPONDENTS Counsel for the Petitioner: MR. D. LINGA RAO Counsel for the Respondent No.5: MR. M.V. RAMA RAO The Court made the following: ORDER: (per Hon’ble Sri Justice Vilas V. Afzulpurkar) This writ petition is directed against the common order of the Andhra Pradesh Administrative Tribunal in O.A.No.3271 of 2007 dated 04.09.2008. The said impugned order was a common order in O.A.Nos.1804 of 2005, 3224 of 2007 and 3271 of 2007. While O.A.Nos.1804 of 2005 and 3224 of 2007 were filed by the fifth respondent herein, both the said OA’s did not actually survive for consideration in view of the order passed by the Government in Memo.No.1234/A1/2004 dated 02.06.2007. The said order was questioned by the petitioner herein in O.A.No.3271 of 2007. In view of the said order of the Government the seniority list dated 04.08.2004 questioned in O.A.No.1804 of 2005 did not survive, the said OA was, therefore, dismissed by the tribunal. Similarly, in O.A.No.3224 of 2007 the provisional seniority list of Hostel Welfare Officers Grade-I dated 29.05.2007 was questioned, the validity and correctness thereof would depend upon the impugned Government Memo dated 02.06.2007, which is questioned in O.A.No.3271 of 2007. In effect, therefore, the decision in O.A.No.3271 of 2007 would decide O.A.No.3224 of 2007, which is consequential on the validity of the Government Memo dated 02.06.2007. 2. Under the impugned order, the tribunal was of the view that the said impugned memo dated 02.06.2007 was required to be freshly adjudicated upon by the Government to reexamine the effect of Rule 16(h) and Rule 31 of the Andhra Pradesh State & Subordinate Services Rules, 1996 (for short ‘the Rules’) and for that purpose the matter was remitted back to the Government for reconsideration. The petitioner herein has questioned the said order of the tribunal, primarily, on the grounds as indicated below. BRIEF FACTS: 3. The petitioner and the fifth respondent were both appointed on 25.06.1985 as Warden Grade.II (now redesignated as Hostel Welfare Officer Grade.I). The Accounts test, which was required for declaration of probation, was passed by the petitioner on 16.06.196 whereas the fifth respondent passed the said test on 17.06.1990. The petitioner claims that a provisional seniority list was issued on 07.09.1992 by the District BC Welfare Officer placing the petitioner at Sl.No.15 and the fifth respondent at Sl.No.16. The fifth respondent had filed his objections on 22.09.2002 but the seniority list was finalized confirming the positions of the petitioner and the fifth respondent vide proceedings of the District Social Welfare Officer (BCW), Karimnagar dated 09.11.1992. Based on the said seniority list the petitioner was promoted as Hostel Welfare Officer Gr.I on 02.04.1997. 4. Questioning the said promotion, the fifth respondent approached the tribunal by O.A.No.6485 of 1998. The prayer in the said OA was as follows: “to declare the action of the second respondent (District Collector, B.C. Welfare, Karimnagar) in issuing proceedings No.A/682/98 dated 02.07.1998 in regularizing the services of the fourth respondent (petitioner in this writ petition) as Warden Gr.I by ignoring the seniority and eligibility of the applicant for promotion as Gr.I Warden on par with the fourth respondent as highly illegal and against the principles of natural justice, equity and fair play and prays to set aside the impugned proceedings dated 02.07.1998 with a direction to present the applicant as a Warden Gr.I on par with the fourth respondent and further direct to release all the consequential monetary benefits including seniority.” By order of the tribunal dated 21.09.1998 the said OA was disposed of directing the Commissioner, B.C. Welfare, to dispose of the representation of the applicant dated 20.08.1998 within two months. 5. It was represented before the tribunal that by the said representation dated 20.08.1998 the fifth respondent herein had submitted his grievances against the promotion and seniority of the petitioner. By order of the Commissioner, B.C. Welfare, dated 02.06.1999, the District Collector was directed to take necessary action to revert the petitioner to the post of Warden Gr.II and consider the fifth respondent for promotion to the post of Hostel Welfare Officer Gr.I. In accordance with the above order, the District Collector issued proceedings Rc.No.A/2011/1998 dated 07.07.1999. In the said proceedings the Collector recorded that though the petitioner and the fifth respondent are both appointed on 25.06.1985, the fifth respondent has passed the requisite accounts test on 17.06.1990 whereas the petitioner has passed the said test on 16.06.996 and as per the directions of the Commissioner dated 02.06.1999, above referred to, the fifth respondent whose services were regularized with effect from 17.06.1990 as Warden Gr.II was found qualified to be promoted as Hostel Welfare Officer Gr.I with effect from 02.04.1997 and further by the said proceedings issued orders promoting the fifth respondent and reverting the petitioner. 6. Meanwhile, the petitioner had questioned the order of the tribunal dated 21.09.1998 in O.A.No.6485 of 1998 before this Court in WP.No.14396 of 1999 contending that the petitioner was not heard when the tribunal disposed of O.A.No.6485 of 1998 and as the tribunal had merely directed the representation of the fifth respondent dated 20.08.2008 to be disposed of by the Commissioner within two months, the writ petition was, therefore, disposed of directing the consideration of the case of the petitioner and the fifth respondent uninfluenced by any of the observations of the tribunal. The petitioner, thereafter, field a review petition being Rev.WPMP.No.18561 of 1999 complaining of the order of the District Collector dated 07.07.1999 referred to above based on which the petitioner was reverted to the post of Warden Gr.II. In the said review application seeking to review the order of this Court in WP.No.14396 of 1999, interim order was granted by this Court on 19.08.1999 suspending the Collector’s proceedings dated 07.07.1999 referred to above. Consequent upon the said suspension, by order dated 10.09.1999 the fifth respondent was reverted as Warden Gr.II and the petitioner was promoted as Warden Gr.I. 7. The said review came up for final disposal before this Court on 25.09.2001 and on finding that there is no ground for review the same was dismissed. Thereafter, questioning the order of the Commissioner BC Welfare dated 02.06.1999 referred to above (whereunder the fifth respondent was held senior and entitled for promotion as Warden Gr.I and consequential reversion of petitioner was ordered), was questioned by the petitioner before the tribunal in O.A.No.6801 of 2001. The said OA also challenged the consequential order of the District Collector dated 07.07.1999. The tribunal by its order dated 05.10.2001 found that the consequential order of the Collector dated 07.07.1999 was not passed after issuing notice to the petitioner and on that ground the order of the Collector dated 07.07.1999 was set aside and the official respondents were directed to give notice and hear the petitioner before passing any adverse order and meanwhile, status-quo was directed to be maintained. 8. The fifth respondent also approached the tribunal by filing O.A.No.5331 of 2002 questioning the final seniority list of Warden Gr.I dated 14.02.2002 issued by the first respondent placing the fifth respondent below the petitioner. O.A.No.5376 of 2002 was filed to direct the District Collector, BC Welfare, Karimnagar to take action to revert the petitioner herein by issuing notice to him in compliance with the orders of the tribunal in O.A.No.6801 of 2001 dated 05.10.2001 referred to above. Both the said OA’s were disposed of by a common order dated 09.04.2003 by the tribunal with a direction to the official respondents to take action in furtherance of the direction of the tribunal in O.A.No.6801 of 2001 within six weeks and not to consider the claim of the petitioner herein for promotion to next higher post till then. Further direction was also issued that the seniority between the petitioner herein and the fifth respondent herein shall also be decided by the respondent authorities. 9. Following the aforesaid orders, the District Collector, BC Welfare, Karimnagar vide proceedings in Rc.No.A/2011/98 dated 13.08.2003 reverted the petitioner as Warden Gr.II and promoted the fifth respondent as Warden Gr.I (Hostel Welfare Officer Gr.I). Questioning the said order, the petitioner filed O.A.No.6154 of 2003 before the tribunal. During the hearing of the said OA on 22.09.2003 the tribunal was apprised that the petitioner has already filed an appeal before the Government against the very same order dated 13.08.2003. The tribunal, therefore, disposed of the said OA with a direction to the official respondents to dispose of the appeal and the stay petition within four weeks by maintaining status quo in the meanwhile. 10. The Commissioner and Director of BC Welfare, consequently allowed the appeal filed by the petitioner by proceedings Rc.No.A1/4023/2003 dated 17.01.2004 and reversed the order of the District Collector dated 13.08.2003 referred to above. Consequent upon the said order, the District Collector again issued proceedings dated 17.03.2004 reverting the fifth respondent and promoting the petitioner as Warden Gr.I. Aggrieved thereby, the fifth respondent filed a further appeal before the Government, which was allowed by the Government under Memo.No.1234/A1/2004 dated 02.06.2007. Questioning the said order dated 02.06.2007 the petitioner once again approached the tribunal by O.A.No.3271 of 2007 impugned herein, which is now been allowed remitting the matter back to the Government for reconsideration. Still not satisfied with the allowing of his OA, the petitioner has approached this Court by this writ petition. 11. While admitting this writ petition on 15.12.2008, this Court granted interim suspension and thereafter application in WVMP.No.2858 of 2009 seeking vacation of the said interim order was heard by us on 01.02.2010. In view of such a chequered and long narration of dates and events, both the learned counsel agreed and we also felt that it is desirable to dispose of the writ petition, at least in the hope that the litigation would reach a finality at least so far as this Court is concerned. Long narration of numerous litigations by or against the petitioner and the fifth respondent herein has been pending for last over 10 years with multiple rounds of the tribunal and this Court and multiple proceedings of the official respondents wherein half-a-dozen orders are passed sometimes promoting the petitioner and reverting the fifth respondent and vice versa. Looking at the facts, therefore, we have a serious doubt whether the petitioner and the fifth respondent have ever worked in their official positions at all, as apparently they were busy litigating against each other either before the official respondents or before the tribunal or before this Court. 12. Heard Mr. D. Linga Rao, learned counsel appearing for the petitioner and Mr. M.V. Rama Rao, learned counsel appearing for the fifth respondent. 13. While Mr. D. Linga Rao, did not deny the dates of appointment and dates of passing accounts test by the petitioner and the fifth respondent as mentioned above, he contends that the passing of the accounts test by the petitioner on 16.06.1996 as against that of the fifth respondent by 17.06.1990, has no effect with respect to seniority in the category of Hostel Welfare Officer Gr.II. He submitted that the final seniority list of Hostel Welfare Officers was finalized as early as on 09.11.1992 whereunder the petitioner was shown senior at Sl.No.15 whereas the fifth respondent was shown at Sl.No.16. He also contends that based on the said seniority list the petitioner was promoted as Hostel Welfare Officer Gr.I on 02.04.1997 and in the final seniority list of Hostel Welfare Officer Gr.I dated 14.02.2002 his name appears at Sl.No.19. He, therefore, contends that at this distance of time the seniority between the petitioner and the fifth respondent in the category of Hostel Welfare Officer Gr.II cannot be reviewed. It is also contended that the impugned order of the Government dated 02.06.2007 was issued seeking to give effect to Rule 16(h) of the Rules but the said Rule has no application when the petitioner has progressed to the promotional post. It is also contended that the said Rule 16(h) has been enforced only under the Rules 1996 and the same has no application to pre 1996 events and inter se claims of pre 1996. 14. Per contra, the learned counsel for the fifth respondent contends that the seniority list dated 09.11.1992 on which the petitioner is placing reliance was issued by the District BC Welfare Officer, who is not competent to issue the said seniority list as the competent appointing authority is the Collector in terms of G.O.Ms.No.176 dated 15.11.1976 whereunder service rules are framed and the same position is reiterated in G.O.Ms.No.189 Social Welfare (A2) Department dated 31.12.1997. Consequently, therefore, the said seniority list cannot be taken into consideration for any purpose including the alleged promotion of the petitioner dated 02.04.1997 based on the said seniority list. He also contended that the dates and events mentioned above would show that there was no finality attached to the seniority list between the petitioner and the fifth respondent, as the same was subject to appeals before the higher and appellate authorities on more than one occasion and the orders of the tribunal directing the said appellate and higher authorities to dispose of the appeals or revisions in various rounds of litigation between the parties have been upheld. Learned counsel places reliance upon several orders in OA’s as shown in the list of events above, filed either at the instance of the petitioner or at the instance of the fifth respondent from time to time. Learned counsel, therefore, submits that no finality having been attached, the alleged seniority claimed by the petitioner, the impugned order of the Government dated 02.06.2007 is perfectly justified and it was not necessary for the tribunal to remit the matter back to the Government. He, however, submits that the fifth respondent has not questioned the impugned order of the tribunal, as even if the Government reconsiders the matter, Rule 16(h) of the Rules has to be given effect to. So far as the applicability of the said rule is concerned, learned counsel submits that the said Rule though appearing as Rule 16(h) under the present Rules, even earlier thereto; the Andhra Pradesh State and Subordinate Services Rules, 1962 contained identical provision under Rule 24(c) thereof. The wordings of the Rule both under the earlier Rules and the present Rules being identical, it would make no difference whatsoever to giving effect to the intention of the rule making authority. 15. In the background of the above rival submission, the points that arise for consideration are as under: 1. Whether the seniority between the petitioner and the fifth respondent was settled on 09.11.1992 as claimed by the petitioner? 2. Whether the promotion of the petitioner in the category of Hostel Welfare Grade-I dated 02.04.1997 is unassailable by the fifth respondent? 3. Whether Rule 16(h) of the Andhra Pradesh State & Subordinate Services Rules, 1996 is not applicable while settling the seniority of the petitioner vis-à-vis the fifth respondent? 16. So far as the first question is concerned, We have seen that the said seniority list on which the petitioner places reliance was issued by the District Social Welfare Officer, Karimnagar. Under the statutory rules issued under G.O.Ms.No.362 dated 09.07.1976 and further rules under G.O.Ms.No.176 dated 15.11.1976, the District Collector is the appointing authority. Even otherwise the relief in O.A.No.6485 of 1998 filed by the fifth respondent including promotion and the regularization of the petitioner in the said promotional cadre was questioned by the fifth respondent in the said OA. The prayer in the said OA is already extracted as above. Thereafter, the Commissioner of BC Welfare in his order dated 02.06.1999 determined and reconsidered the seniority position and directed to revert the petitioner from the said promotional post and consequently promoted the fifth respondent to the said post. The said order in O.A.No.6485 of 1998 in pursuance of which the Commissioner had passed the orders dated 02.06.1999 was upheld by this Court in WP.No.14396 of 1999 dated 04.07.1999 and reaffirmed when the Rev.WPMP.No.18561 of 1999 filed by petitioner was dismissed on 25.09.2001. Further, the order of the District BC Welfare Officer was also the subject matter of O.A.Nos.5331 of 2002 and 5376 of 2002 wherein the said order was not set aside and only the OA’s were disposed of with a direction that the petitioner be heard without passing any adverse orders against him. It is only, thereafter, that the District Collector again passed the order dated 13.08.2003 affirming the seniority of the fifth respondent over the petitioner and consequently directed promotion of fifth respondent as against reversion of petitioner. The said order though questioned by the petitioner in O.A.No.6154 of 2003 before the tribunal, the same was not interfered with and the appeal preferred by the petitioner before the Government was directed to be disposed of. It is in pursuance of the aforesaid direction that the appeal has been disposed of by the Government by proceedings dated 02.06.2007. Thus, even at the instance of the petitioner the issue of seniority between him and the fifth respondent was at large and was adjudicated at several levels. The contention of the learned counsel for the petitioner, therefore, that the said seniority cannot be reopened etc. is liable to be rejected. Similarly, the facts as above would further establish that finality is attached to the seniority dated 09.11.1992 as claimed by the petitioner is unsustainable, firstly, on account of the fact that it was not by the appointing authority and secondly, the representations against the same and consequential promotion of the petitioner were pending adjudication in several proceedings as mentioned above. The first and second points, therefore, are liable to be rejected. 17. So far as the third contention of the learned counsel for the petitioner is concerned, it cannot be disputed that the provisions under Rule 24 (c) of Rules 1962 and Rule 16(h) of Rules 1996 are identical. It is also evident from the undisputed facts, as above, that neither the petitioner nor the fifth respondent passed the requisite test within the period of probation and as such, the date of their declaration of probation has to have nexus with the dates on which they have passed the test. Admittedly, the fifth respondent has passed the test on 17.06.1990 whereas the petitioner has passed the said test on 16.06.1996. In the impugned order of the Government dated 02.06.2007 the Government has applied the same criteria and prima facie, We feel that the order of the Government dated 02.06.2007 impugned in the OA is in accordance with law. 18. We are using the word ‘prima facie’ with regard to the said order only in view of the fact that the tribunal has remitted the matter back to the Government for reconsideration under the impugned order and the said order of the tribunal is not questioned by the fifth respondent. We would, therefore, not be justified in interfering with the order of the tribunal in the absence of any challenge thereto by the fifth respondent. Accordingly, the last contention of the learned counsel for the petitioner, therefore, is also liable to be rejected. 19. Consequently, therefore, the writ petition deserves and is liable to be dismissed. In view of the fact that in spite of allowing of the OA and setting aside the impugned order, the petitioner has continued to agitate this writ petition, We are of the view that the conduct of the petitioner is wholly unjustified and in view of the principle that the costs follow the event, We are of the view that this writ petition is clearly frivolous and was prosecuted only to hang on to the interim order and the promotional post to which petitioner has been held to be not entitled. The filing and prosecution of the writ petition being found to be clearly not bonafide, the petitioner shall pay costs quantified at Rs.5,000/- to the fifth respondent. The writ petition is accordingly dismissed with costs. In view of the dismissal of the writ petition, the Government shall reconsider and pass appropriate orders on the appeal of the fifth respondent, as directed by the tribunal within four weeks from the date of receipt of a copy of this order. It is needless to point out that the Government shall pass a reasoned order and communicate the same to the petitioner as well as the fifth respondent. ______________ V. ESWARAIAH, J _____________________ VILAS V. AFZULPURKAR, J February 11, 2010 DSK