IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE THIRTY FIRST DAY OF MARCH TWO THOUSAND AND FIVE PRESENT THE HON'BLE MR JUSTICE G. BIKSHAPATHY and THE HON'BLE MR JUSTICE P.S.NARAYANA WRIT PETITION NO : 9009, 9101, 9446, 9781, 17234 of 2002 W.P.No.9009/2002 Between : 1. T.Mohan Rao s/o. Venkoba Rao 2. Md.Yousuf s/o. Md. Ismail .. Petitioners Vs. 1. The Deputy Commissioner of Commercial Taxes, Kakinada Commercial Taxes Division, East Godavari District-533001. 2. The Deputy Commissioner of Commercial Taxes, Eluru Commercial Taxes Division, West Godavari District-521001. 3. The Commissioner of Commercial Taxes, M.J. Road, Nampally, Hyderabad-500001. 4. T.Veerabhadra Rao, Senior Assistant, C/o. Commercial Tax Officer, Kakinada, East Godavari District-533001. 5. Ch.Kanakaraju, Senior Assistant, O/o. Commercial Tax Officer, Kakinada, East Godavari District-533001. 6. N.L. Prasad, Senior Assistant, O/o. CTO, Narasapuram, West Godvarai District-533001. 7. P.Narasimha Rao, Senior Assistant, O/o.Deputy Commercial Tax Officer, Mogalturu, West Godavari District-533001. 8. A.V. Satyanarayana Murthy, Senior Assistant, O/o.CTO-II, Tanuku, West Godavari District. 9. B.S. Prakasa Rao, Senior Assistant, O/o. CTO, Tadepalligudem, West Godavari District. .. Respondents Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue an appropriate writ, order or direction more particularly in the nature of writ of mandamus calling for records relating to the 1st respondent in Ref.E2/583/2000, dated 11-2-2000 and the consequential orders of the Hon’ble A.P. Administrative Tribunal in O.A.No.1488/2000 and batch, specifically in O.A.No.845/2000 dated 24-4-2002 and set aside the same by holding as illegal, arbitrary and violative of settled law. Counsel for the Petitioner:MR.P.SURESH REDDY Counsel for the Respondent Nos.1 to 3 : G.P. for Services-II Counsel for the Respondent Nos.4 to 9 : Sri P.V. Krishnaiah WRIT PETITION NO : 9101 of 2002 Between: 1. P.Satyanarayana Murthy s/o.Satyam 2. I.V.Satyanarayana s/o. Veerabhadra Sarma 3. Ch.V.Gopalakrishna Murthy s/o. Manikya Prabhuvu 4. Y.Nagapathi Rao s/o. Vishwakseena Rao 5. K.Venkata Reddy s/o. Rami Reddy .. Petitioners And 1. Commissioner of Commercial Taxes, Government of Andhra Pradesh, Nampally, Hyderabad-500001. 2. Deputy Commissioner of Commercial Taxes, Kakinada Division, Kakinada, East Godavari District-533001. 3. T.Veerabhadra Rao, Senior Assistant, DCTO’s Office, Anaparti, East Godavari District. .. Respondents Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court be pleased to issue an appropriate writ, order or direction more particularly in the nature of writ of mandamus calling for records relating to the 2nd respondent in Ref.E2/583/200, dated 11-2-2000 and the consequential orders of the A.P. Administrative Tribunal in O.A.No.1488/2000 and batch specifically in O.A.No.5070/96 dated 24-4-2002 and set aside the same by holding as illegal, arbitrary and violative of settled law. Counsel for the Petitioner : MR.P.SURESH REDDY Counsel for the Respondents : G.P. Services-II Counsel for the Respondent No.3 : Mr.P.V. Krishnaiah WRIT PETITION NO : 9446 of 2002 Between : 1. B.Bhaskara Rao s/o. Ranganayakulu 2. G.Appa Rao s/o. Ramaswamy 3. B.Venkata Rao s/o. China Mallanna 4. P.Appa Rao s/o. Yerrayya .. Petitioners Vs. 1. Commissioner of Commercial Taxes, Government of Andhra Pradesh, Nampally, Hyderabad-500001. 2. Deputy Commissioner of Commercial Taxes, Kakinada Division, Kakinada, East Godavari District-533001. 3. T.Veerabhadra Rao, Senior Assistant, DCTO’s office, Anaparti, East Godavari District. .. Respondents Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue an appropriate writ or order or direction more particularly in the nature of writ of mandamus calling for records relating to the 2nd respondent in Ref.E2/583/2000, dated 11-2-2000 and the consequential orders of the Hon’ble A.P. Administrative Tribunal in O.A.No.1488/2000 and batch, specifically in O.A.No.5070/96 dated 24-4-2002 and set aside the same by holding as illegal, arbitrary and violative of settled law. Counsel for the Petitioner : MR.P.SURESH REDDY Counsel for the Respondents : GP FOR SERVICES II Counsel for the Respondent No.3 : Mr. P.V.Krishnaiah WRIT PETITION NO : 9781 of 2002 Between : 1. Ponnada Satyanarayana Rao s/o. late Mallayyacharullu 2. S.Suryanarayana s/o. late Veeraswamy 3. K.R. Satyavalli w/o. late Tatapudi Achutham 4. P.Jayakumari d/o. P.Aaron .. Petitioners And 1. The Commissioner of Commercial Taxes, Government of Andhra Pradesh, Nampally, Hyderabad. 2. The Deputy Commissioner of Commercial Taxes, Kakinada Division, Kakinada, East Godavari District. 3. T.Veerabhadra Rao, Senior Assistant, D.C.T.O’s Office, Anaparti, East Godavari District. .. 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 order or direction more particularly in the nature of writ of mandamus calling for records relating to the 2nd respondent in Ref.E2/583/2000, dated 11-2-2000 and the consequential orders of the A.P. Administrative Tribunal in O.A.No.1488/2000 and batch, specifically in O.A.No.5070/96 dated 24-4-2002 and set aside the same by holding as illegal, arbitrary and violative of settled law. Counsel for the Petitioner:MR.P.SURESH REDDY Counsel for the Respondents: GP FOR Services-II Counsel for the Respondent No.3 : Mr. P.V. Krishnaiah WRIT PETITION NO : 17234 of 2002 1. M.Uma Maheshwara Rao s/o. Gopi Raju 2. R.Venkateswara Rao s/o. Appala Swamy .. Petitioners And 1. The Commissioner of Commercial Taxes, Government of Andhra Pradesh, Nampally, Hyderabad-500001. 2. The Deputy Commissioner of Commercial Taxes, Kakinada Division, Kakinada, East Godavari District-533001. .. Respondents Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a writ, order or direction more particularly one in the nature of writ of mandamus calling for records relating to the 2nd respondent in Ref.E2/583/2000 dated 11-2-2000 and the consequential orders of the A.P. Administrative Tribunal in O.A.No.8029/2000 dated 24-4-2002 and set aside the same by holding as illegal, arbitrary and violative of settled law and consequently direct the respondents to follow the seniority list dated 5-10-1993 of the Senior Assistants of East and West Godavari Districts, which is only the existing final seniority list in the cadre of Seniority Assistants for further promotion to the post of Assistant Commercial Tax Officer. Counsel for the Petitioner : MR.Y.V.SATYANARAYANA Counsel for the Respondents : GP FOR SERVICES II The court made the following : COMMON ORDER: (per P.S.Narayana.,J) 1. These batch of Writ Petitions are filed by the unsuccessful applicants, certain non-parties to the O.As with the leave of this Court and also the Government as against the Common Orders made in O.A.Nos.1488/2000 and O.A.No.845/2000 & Batch on the file of A.P. Administrative Tribunal, in short hereinafter referred to as Tribunal, for the purpose of convenience. The unsuccessful applicants in O.A.No.845/2000, the main matter which had been disposed of in the aforesaid Common Order by the Tribunal filed W.P.No.9009/2002 questioning the impugned order and also Reference E2/583/2000, dated 11-2-2000. 2. P.Satyanarayana Murthy and four others filed W.P.No.9101 of 2002 questioning the orders in O.A.No.1488/2000 and Batch in general and O.A.No.5070/96 in particular and also the proceedings dated 11-2-2000 referred to supra with the leave of the Court. Likewise, B.Bhaskar Rao and three others filed W.P.No.9446/2002 with the leave of the Court questioning the order made in O.A.No.1488/2000 and batch in general and O.A.No.5070/96 in particular, inclusive of the proceeding dated 11-2-2000 after obtaining leave of the Court. Likewise, Ponnada Satyanarayana Rao and three others who are also non-parties to the O.A.No.5070/96 filed W.P.No.9781/2002 questioning the aforesaid batch in general and O.A.No.5070/96 in particular inclusive of the proceeding dated 11-2- 2000. M.Uma Maheswara Rao and another, the applicants in O.A.No.8029/2000 filed W.P.No.17234/2002 questioning the order made in the batch aforesaid in general and O.A.nO.8029/2004 in particular inclusive of the proceeding dated 11-2-2000. The Government of Andhra Pradesh questioned the orders made in the aforesaid batch by filing W.P.No.19243/2003. Thus, W.P.No.9009/2002, 17234/2002, 19243/2003 are the Writ Petitions filed by the parties to the batch whereas the other Writ Petitions referred to supra were filed by the aggrieved parties or the affected parties obtaining the leave of the Court being non-parties to the aforesaid litigation. 3. Submissions of Sri P.Suresh Reddy: Sri P.Suresh Reddy, the learned Counsel representing the writ petitioners leading the batch had traced the historical background of the litigation, the appointment of Junior Assistants on temporary basis, and the allotment of unofficial respondents who were affiliated to Commercial Tax Department and the preparation of seniority list and the ranking given in the District Selection Committees, in short “DSCs”. The learned Counsel also pointed out that these are all District cadre posts and had meticulously taken this Court the Rules governing the field and also the method and mode how an integrated seniority list to be prepared. The learned Counsel also had traced out several aspects relating to the exercise made in preparation of the seniority list and guidelines to be followed in relation thereto and series of litigations in this regard and the resultant effect thereof and would attack the impugned order principally on the ground that the same had been made in the light of G.O.Ms.No.711 which in fact had been set aside. The learned Counsel also pointed out that this is a matter concerned with the seniority list and preparation thereof and several of the parties are affected parties either by threat of reversion or otherwise and hence those parties who are not impleaded as parties being non-parties to the litigation and being aggrieved or affected parties prior prayed for the leave of the Court and having obtained the leave the said writ petitioners are agitating the present litigation. The learned Counsel would maintain that in the light of the same, there cannot be any doubt or controversy that these Writ Petitions also are maintainable despite the fact that such parties initially had not approached the Tribunal and the ratio laid down in Chandra Kumar Vs. Union of India would not come in the way at all for maintainability of these Writ Petitions. The learned Counsel also would maintain that certain of the similarly placed persons filed W.P.M.Ps. for being brought on record and these applications also may have to be allowed for the reason that they are also interested in the result of this litigation. The learned Counsel while explaining the chronological events had pointed out that in November 1974 the unofficial respondents were temporarily appointed as Junior Assistants and the petitioners were temporarily appointed on 16-2- 1976 and the DSC selections were held in September 1976 and the ranking list was communicated by the District Collector on 18-10- 1976 and the integrated seniority list of Junior Assistants/Typists/Stenos of Kakinada Division was issued by Deputy Commissioner of Commercial Taxes on 21-5-1981 and the serial numbers of the petitioners and the unofficial respondents also had been pointed out specifically in this regard. The learned Counsel while further elaborating his submissions had pointed out to the orders passed in O.A.No.41794 and 41796 of 1990 dated 4-9-1992 directing to prepare seniority list with reference to the ranking assigned by selection committee subject to rule 22 of A.P. State and Subordinate Service Rules. The Counsel also pointed out that in compliance of the said O.A. orders, seniority list was prepared by the Deputy Commissioner of Commercial Taxes, Kakinada dated 10-5- 1993 and in the cadre of Senior Assistants the seniority list was finalized on 5-10-1993 and consequent thereupon the petitioners were promoted as A.C.T.Os. basing on the seniority list dated 5-10- 1993 on 9-4-1994. On 21-7-1994 and 5-8-1994 the Commissioner of Commercial Taxes issued parameters and directions in view of the orders made in O.A.No.3631/93 dated 4-4-1994 in preparing the seniority list. On 16-9-1995 basing on the directions and parameters fixed by the Commissioner of Commercial Taxes integrated seniority list was prepared and communicated. The Counsel also pointed out that on 27-10-1995 in O.A.No.5696/1995 stay was granted by the Tribunal as against the above integrated seniority list. The learned Counsel also made emphasis on G.O.Ms.No.711 dated 28-8-1996 issuing directions to prepare seniority list of Junior Assistants/Typists/Stenos in accordance with their dates of joining by taking into consideration the entire temporary service and the other factors. On 30-10-1996 the Commissioner, Commercial Taxes requested the Deputy Commissioner of Commercial Taxes not to take any action pursuant to G.O.Ms.No.711 until further orders. On 29-4-1997 the stay granted on 27-10-1995 in O.A.No.5696/95 had been vacated. The 1st respondent on 11-9-1997 issued the provisional seniority list basing on G.O.Ms.No.711. Certain of the respondents filed O.A.Nos.17886 to 17893 of 1990 praying for a direction to regularize their services as Junior Assistants on temporary basis for seniority and the said O.As. were dismissed on 9- 2-1998. On 22-6-1998 directions were issued in O.A.No.4062/98 and 4072/98 not to take any further action in pursuance of G.O.Ms.No.711 referred to supra. The learned Counsel placed emphasis on the order made in O.A.No.5420/96 and batch dated 18/9/1998 where G.O.Ms.No.711 was set aside by the Tribunal. On 11-2-2000 overruling the objections filed by the petitioners the seniority list which had been impugned the final list of Junior Assistants was published by taking the date of first appointment on temporary basis for reckoning the seniority. On 23-8-2000 the Commissioner of Commercial Taxes issued direction to the 2nd respondent to finalise the integrated seniority list of Junior Assistants/Typists/Stenos etc., basing on the guidelines and parameters dated 21-7-1994 and 25-8-1994 and also submit compliance in relation thereto. Further, emphasis was made on the orders made in W.P.No.28245/98 and 19636/99 filed against O.A.No.5853/90 and 5420/96 wherein G.O.Ms.No.711 had been set aside and the Writ Petitions were dismissed on 5-12-2001. Subsequent thereto the impugned orders of the Tribunal in the present batch were made upholding the action of the 2nd respondent in preparing the seniority list by taking the first date of appointment prior to DSC merit ranking contrary to the Judgment referred to supra in relation to DSC of 1976 of Commercial Tax Department. Subsequent thereto the other consequent details also had been pointed out. The learned Counsel also had taken this Court through the pleadings filed in W.P.No.9009/2002 inclusive of the counter affidavit and also the reply affidavit explaining the respective stands. The learned Counsel pointed out that the stand taken by the Government in the counter affidavit in the present Writ Petition is just akin to the stand taken by the Government in W.P.No.19243/2003 wherein the Government concentrated more on the competency of the Officer who had prepared and published the seniority list. The learned Counsel would maintain that the Tribunal totally erred in making the impugned order totally disregarding the prior directions issued by the Tribunal and also ignoring the fact that the reckoning of the seniority cannot be done in the light of G.O.Ms.No.711 in view of the fact that the same had been set aside which had been confirmed in the Writ Petitions aforesaid. The learned Counsel also pointed out to the relevant portions of the seniority list and would maintain that at any rate the order impugned cannot be sustained. 4. SUBMISSIONS OF SRI P.V. KRISHNAIAH: On the contrary Sri P.V. Krishnaiah, the learned Counsel representing the unofficial respondents had taken this Court through the respective pleadings of the parties and would raise a preliminary objection relating to maintainability of the Writ Petitions by non-parties to the litigation who are questioning the seniority list before this Court without approaching the Tribunal at the first instance which is contrary to the ratio laid down in Chandra Kumar’s case referred (1) supra. The learned Counsel also pointed out to the portions of the findings recorded by the Tribunal and would justify the said findings by taking through the reasoning adopted by the Tribunal. The Counsel would maintain that East Godavari and West Godavari are separate District Units and separate recruiting Units and merely because at a particular point of time an integrated seniority list was prepared the initial ranking at the District level cannot be disturbed and this would be definitely contrary to the Rules. The learned Counsel pointed out to Rule 33(b) of the Rules in particular in this regard. The Counsel also made elaborate submissions about the inter se seniority and the integrated seniority and how to settle the seniority and how to reckon the seniority in such cases. The Counsel also pointed out to Rules 22 and 23 in this regard. The learned Counsel also would submit that the merit list was not properly prepared and the respective District Units to be taken into consideration and integrated seniority list to be prepared and in the light of the same the impugned order does not suffer from any illegality whatsoever. The Counsel also pointed out that the stand taken by the Government in W.P.No.19243/2003 is the self-same stand which had been taken in the counter affidavit filed in W.P.No.9009/2002. The learned Counsel pointed out that O.A.No.845/2000 was dismissed by the Tribunal being devoid of merit. O.A.No.1488/2000 was allowed to the extent of restoring seniority of the applicants above the party respondents but however it was specifically made clear that in all other respects the impugned seniority list will remain intact and in the light of the aforesaid finding O.A.No.3653/1993 was disposed of. Likewise, O.A.No.7017/95 was disposed of with a direction to the respondents to consider the cases of the applicants for promotion as Assistant Commercial Tax Officers in terms of the impugned seniority list no doubt subject to the orders made in O.A.No.845/2000 and O.A.No.1488/2000. Likewise, O.A.No.1283/1994 was allowed to the extent of quashing the seniority list of Junior Assistants, Typists and Steno Typists dated 10- 5-1993 and also quashing the seniority list of Senior Assistants, dated 5-10-1993 prepared by the Deputy Commissioner of Commercial Taxes with a further direction that the seniority list in the category of Junior Assistants/Typists/Steno Typists shall be prepared and issued in accordance with the orders made in O.A.No.845/2000 and O.A.No.1488/2000. Likewise, O.A.No.1209/94 was allowed to the extent of quashing the seniority list dated 10-5-1993 and also 5- 10-1993 no doubt subject to the orders made in O.A.No.845/2000 and 1488/2000 and batch. Likewise, O.A.No.945/94, 301/94, 5070/96 and 1630/96 also were allowed to the extent of quashing the seniority list of Junior Assistants dated 10-5-1993 and 5-10-1993 in the light of the orders made in O.A.No.845 and 1488 of 2000. O.A.No.7822/90 and 695/96, 179/98 and 2174/97 were disposed of in terms of the orders issued in O.A.No.845/2000 and 1488/2000 and the remaining O.A.Nos.3907/2001 and 8029/2000 were dismissed and the other V.M.As. and M.As. if any in the said O.As. were disposed of. In the light of the facts and circumstances the Counsel would maintain that the order impugned is just and proper order and in the light of the limitations imposed on this Court while exercising certiorari jurisdiction it is not a fit matter to be interfered with. 5. The other Counsel on record inclusive of the Counsel for implead petitioners advanced certain submissions adopting the respective stands taken by the Counsel referred to supra. 6 . SUBMISSIONS OF THE GOVERNMENT PLEADER FOR SERICES-II: The learned Government Pleader for Services-II had taken this Court through the counter affidavit filed by the Government in W.P.No. 9009/2002 and the specific grounds raised in W.P.No.19243/2003. The learned Counsel also pointed out that the Tribunal erred in observing that the Deputy Commissioner of Commercial Taxes has no power to change the district wise seniority list but the Counsel would point out that the Deputy Commissioner of Commercial Taxes had prepared the integrated seniority list of Junior Assistants/Typists/Steno Typists for the purpose of giving promotions to the Junior Assistants working in East and West Godavari Districts. The learned Counsel also pointed out that the Tribunal also erred in observing that the changes made by the Deputy Commissioner of Commercial Taxes, Kakinada in District-wise seniority list are not in accordance with the A.P. State and Subordinate Service Rules and made certain submissions in relation to the competency of the said authority. The learned Counsel also pointed out that the Tribunal erred in observing that the party respondents cannot claim the seniority according to that in the former Department and necessarily they had to forego their entire seniority accrued in the former Department and their seniority commenced afresh in Commercial Tax Department from the date of their joining only. The learned Government Pleader also would maintain that the Commercial Tax Division of Kakinada consists of East and West Godavari Districts and the District Collectors of both East and West Godavari Districts communicated the list of selected candidates to the Deputy Commissioner of Commercial Taxes, Kakinada and the said authorities sought for clarification from the District Collector, Kakinada vide letter dated 15-3-1977 and the said District Collector clarified vide letter dated 27-3-1977 that the merit list furnished to the Deputy Commissioner of Commercial Taxes is the order of ranking with reference to the dates of their first appointment and also requested to fix the candidates in the communal roster maintained for regular employees in the Unit. In the light of the fixation of the merit list, the Deputy Commissioner of Commercial Taxes had prepared the integrated seniority list and in principle the date of initial appointment was taken as criterion for the candidates of West Godavari as was done in the case of candidates of East Godavari and thus uniform procedure was followed taking the date of initial appointment into consideration. The Counsel also would maintain that all these parties would stand on the same footing. The learned Counsel also further explained that in the facts and circumstances the ground of discretion also cannot be canvassed. The Counsel also would point out that the dates of regularization of the applicants in O.A. had not been altered at all which were originally given in the year 1993. The learned Counsel also pointed out to the positions of these respective parties shown in the seniority list. The Counsel had drawn the attention of this Court to the directions issued in O.A.No.3631/93 and based on these directions only the earlier periods of regularisation given to the respondents wrongly had been modified to set right the mistake committed by the Deputy Commissioner, Kakinada, Nodal Officer of both the Districts. Thus the earlier mistakes were rectified and the list was prepared on 11-2-2000. When uniform principles had been followed in relation to both the Districts and when such mistakes if any had been rectified, there cannot be any serious complaint relating to the same. The Counsel also would point out that the District Collector, West Godavari committed a mistake by keeping all the Junior Assistants at the top followed by Typists and followed by Steno Typists and the same is in accordance with law. The learned Counsel also had pointed out to the communal roster and the observance thereof in preparing the list. The Counsel also would further contend that as against the irregularities which had occurred in preparation of the seniority list there cannot be any estoppel since the rule of reservation is a right conferred upon the reserved community by the Constitution of India and the same cannot be taken away. Hence the Counsel would contend that in the peculiar facts and circumstances the mistakes had been well rectified in the seniority list. The learned Government Pleader also had pointed out to certain findings recorded by the Tribunal and had pointed out to certain observations made in relation thereto. 7. Heard the Counsel on record and also perused the material available on record. 8 . POINTS FOR CONSIDERATION FRAMED AND DECIDED BY THE TRIBUNAL: The Tribunal in O.A.No.845/2000 framed the following Points for consideration : 1. Whether the applicants and the party respondents were originally appointed on temporary basis under Rule 10(a)(i) prior to the selections by the D.S.C. ? 2. Whether their services were regularized with effect from the date of their temporary appointment or with effect from the date of their appointment through the D.S.C. ? 3. Whether the date of regularization in the case of party respondents were altered without how altering the same in the case of the applicants ? 4. Whether the merit lists