THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE G. BHAVANI PRASAD W.P.No.18596 of 2009 Between P. Surendra Babu and another v. The Government of A.P. rep. By its Principal Secretary, Revenue Department, Hyderabad and others THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE G. BHAVANI PRASAD W.P.No.18596 of 2009 Oral Order : ( Per Sri GM, J ) This case has a chequered history of litigation and it relates to fixation of inter-se-seniority between direct recruit and rank promotee Deputy Tahsildars. A set of rules regarding recruitment to the post of Deputy Tahsildar was in force in the erstwhile State of Madras which continued to apply to the State of Andhra Pradesh until the Andhra Pradesh Revenue Subordinate Service Rules ( hereinafter referred to as the “ old Rules “), were brought into effect in the year 1961. The cadre under the old Rules consisted of Deputy Tahsildars only. Under the said old Rules, appointment to the cadre of Deputy Tahsildar could be made either by direct recruitment or by transfer from members of Andhra Pradesh Ministerial Service employed in the Revenue Department including the office of the Commissioner of Land Revenue, Revenue Settlement and office of the Director of Settlements, Survey and Land Records. According to Rule 3(b) of the said rules, substantive vacancies could be filled or reserved to be filled up by direct recruitment and recruitment by transfer in the ratio of 1:1. An amendment was brought into the old Rules vide G.O.Ms.No.4582 dated 9-10-1980 by inserting a proviso in the form of Rule 4(e) according to which the inter-se- seniority between the direct recruits and the promotees should be determined from the date of their confirmation in the substantive vacancy in the proportion of 1:1. The validity of the amended Rule 4(e) was, however, came to be under challenge before the Supreme Court in the case of K.V. SUBBA RAO AND OTHERS v. GOVERNMENT OF A.P. ( (1) AIR 1988 SUPREME COURT 887), wherein the Supreme Court held that the amended Rules can operate prospectively from 9th October 1980 only and shall have no retrospective effect. In super-session of the old Rules, the Government issued Rules called A.P. Revenue Subordinate Service Rules vide G.O.Ms.No.990 Rev. (Ser. III) Department dated 24-9-1992, (hereinafter referred to as ‘new rules’), according to which the quota for direct recruitment in filling up the substantive vacancies was limited to 30% and it was further provided that notwithstanding anything contained in the rule, the seniority of persons appointed as Deputy Tahsildar shall be governed by General Rule 33 of the Andhra Pradesh State and Subordinate Service Rules. After issuance of the new rules, at that relevant point of time the promotee Deputy Tahsildas have filed O.A.No.7175 of 1995 before the Tribunal seeking direction to the Government to prepare seniority list in accordance with the criteria laid down in the new rules framed in G.O.Ms.NO.990 dated 24-9-1992. The Tribunal by its order dated 31-7-1995 disposed of O.A.No.7175 of 1995 inter alia, upholding the validity of Rule 4(e) for the purpose of drawing up the seniority of direct recruit Deputy Tahsildars appointed between 9-10-1980 and 23-9-1992. Challenging the said orders of the Tribunal the promotee Deputy Tahsildars filed W.P.Nos.20296 to 20298 of 1997 before this Court and this Court by its orders dated 31-12-1997 allowed the writ petitions and directed for fixation of seniority as per rule 33(a) of A.P. State and Subordinate Service Rules without reference to rule 4(e). Thereafter, the direct recruits filed C.A.No.3056 and 3054 of 1998 before the Supreme Court and the Supreme Court set aside the orders of this Court, while sustaining the orders of the Tribunal ( P. MOHAN REDDY v E.A.A. CHARLES AND OHTERS ( 2) 2001 (4) Supreme Court Cases 433 ). It is represented that the seniority lists of Direct Recruit Deputy Tahsildars appointed during the period of 1980-92 (up to 23-9-1992) were drawn up as per the pre-amended Rules i.e. Rule 4(e) and the same was published by all the District Collectors in the State. On publication of proceedings of the District Collector, Visakhapatnam dated 20-5-20000, one S. Visheswar Naidu filed O.A.No.1054 of 2001 before the Tribunal and the Tribunal by its order dated 12-2-2002, allowed the O.A. setting aside the orders of the Collector and directed to finalise the panels of Deputy Tahsildars for the period subsequent to 29-2-1992 upto the panel year 2000-01 and effect promotions only to the extent of seniority list finalised. The Tribunal also held that the services of Deputy Tahsildars could not be regularised from the date of their appointment in the temporary posts but should be regularised from the date when a substantive vacancy was available. While matters stood thus, in W.P.Nos.17430, 20977 and 4525 of 2002 filed before this Court and this Court while dismissing the writ petitions by its order dated 28-11-2003 gave the directions to the authorities with regard to preparation of inter-se seniority between the two groups . In pursuance of the above orders of this Court, the Government vide memo dated 11-8-2004 while according permission under rule 24(c) of the A.P. State and Subordinate Service Rules, 1996 requested the CCLA to revise the approved panels of Deputy Tahsildars for the year 1992-93 onwards. Subsequently, the Government issued instructions vide memo dated 14-8-2007, and the same was subject matter of challenge before the Tribunal by the promotees in O.A.No.6489 of 2008 and O.A.No.7028 of 2008 and the same was disposed of by order dated 10-2-2009 directing the promotees to approach the authorities if they are aggrieved by the final seniority list which is going to be prepared by the Government. Aggrieved by the said order passed by the Tribunal, the promotees filed this Writ Petition. Sri S. Ramachandra Rao, learned Senior Counsel appearing on behalf of the petitioners vehemently contended that the Government has no power to issue the impugned memo when once the seniority list has attained finality pursuant to the judgments of the Supreme Court. It is also contended that the petitioners are mainly aggrieved by the action of the Government in preparation of the seniority list with blanks/slots keeping them open for the direct recruits, who were not there at the relevant point of time and the same is contrary to the judgment of the Supreme Court reported in G.S. LAMBA AND OTHERS v. UNION OF INDIA AND OTHERS ( ( 3) 1985 (2) Supreme Court Cases 604). Relying on the judgment of the Supreme Court reported in B. S.BAJWA AND ANOTHER v. STATE OF PUNJAB AND OTHERS ( (4) 1998 (2) SCC 523 ), learned Senior Counsel contended that when the memo and the consequential seniority list are drastically affecting the rights of promotees and unsettling the settled position by revising the seniority list from 1980 onwards, the same is contrary to the law of the land. It is further contended that direct recruits cannot claim appointment from date of vacancy in quota before their selection and that preparation of the seniority list at the instance of 1995 batch direct recruits as per the impugned memo is contrary to the judgment of the Supreme Court reported in MOHAN REDDY’s case. The seniority list became final and acted upon and 80% of the candidates in the said list were promoted or retired, or officiating in the posts, and the same cannot be re-revised after lapse of 8 years from the date of judgment of the Supreme Court and after 14 years of preparation of the said list and in this regard reliance was placed on the decision reported in SHIBA SHANKAR MOHAPATRA AND OTHERS v STATE OF ORISSA ((5) 2009 (6) SLR 483). Citing judgment of the Supreme court reported in STATE OF J & K V. JAVED IQBAL BALWAN ( (6) 2009 (4) Supreme Court Cases 529), it is the further contended by the learned Senior counsel that when once quota rule fails rota rule also falls and that the seniority has to be counted only from the date of appointment. Learned Senior Counsel relying on the judgment of the Tribunal in O.A.No.7171 of 1995 and batch, and the decisions reported in K.V. SUBBA RAO’s case (1 supra ), P. MOHAN REDDY’s case ( 2 supra), PRAN KRISHNA GOSWAMI AND OTHERS v. STATE OF WES BENGAL AND OTHERS ( (7) 1985 (Suppl ) SCC 221), BALESHWAR DASS v. STATE OF U.P. ( 8) 1980(4) SCC 226) further contends that seniority list prepared in the year 1996 was approved by the Supreme Court in MOHAN REDDY’s case (2 supra) and that promotees’ claim for reckoning seniority on the basis of length of continuous officiation is proper. Learned senior counsel referring to the material produced before us submitted that the officials have shown the vacancies with regard to direct recruits and that cannot be termed as a seniority in the eye of law and that the Government has no power to alter the seniority which was approved by the Supreme Court in MOHAN REDDY’s case ( 2 supra). He further contended that settled things cannot be unsettled after long lapse of time and that even assuming that they have been permitted in excess of quota they were permitted in accordance with the Revenue Subordinate Service Rules only and therefore sought for allowing of the writ petition. Sri. P .R. Prasad, learned counsel, while adopting the arguments of the learned senior counsel and by further relying on the decisions reported in S.B. PATWARDHAN V. STATE OF MAHARASTRA ( (9) AIR 1977 SUPREME COURT 2051), CHIEF COMMISSIONER OF INCOME TAX AND OTHERS v. V. SUBBA RAO AND OTHERS ( (10) 2003 (1) Supreme Court Cases 265), contended that blank slots cannot be kept reserved for the direct recruits for retrospective appointments and that the impugned memos are contrary to law. Per contra, Sri J.R. Manohar Rao, learned counsel appearing for the respondent-direct recruits contends that the writ petition is filed on a mere apprehension that in view of the impugned memo the direct recruits who were appointed in 1995 may claim seniority from the date of notification i.e. 1990 and that the writ petitioners are raising a different issue before this Court claiming seniority from the date of officiation. He further contends that the Deputy Tahsildar post is a District cadre post, from 9-10- 1980 to 23-9-1992 seniority has to be drawn in the ratio of 1: 1 and after 23-9-1992 since the Special Rules were amended, quota of 30% for direct recruits and 70% for promotees has to be earmarked and that inter se seniority has to be determined on that basis. Learned counsel while referring to the Special Rules, contended that the promotees are not regularly appointed in the substantive vacancies and that promotees have to give objections if any to the final seniority list. Learned counsel while referring to the material produced before us also submitted that if promotees in respect of Ranga Reddy District are taken for consideration, they are in excess of quota and that as per the judgment of the Supreme Court in P. MOHAN REDDY’s case ( 2 supra ) seniority of Deputy Tahsildars appointed between 1980 and 1992 is to be determined in accordance with rule 4(e) which was in force during the said period. Sri J. R. Manohar Rao also brought to our notice that till the judgment of the Supreme Court in MOHAN REDDY’ s case (2 supra ) i.e. February 2001, the authorities were following only General Rule 33 but not rule 4(e) and by taking into account all the circumstances, this Court in W.P.No.17430 of 2002 and batch directed to prepare the seniority list of Deputy Tahsildars appointed prior to 1992 also in terms of the judgment of the Supreme Court in P. MOHAN REDDY’s case ( 2 supra ) and therefore no interference is warranted in the present writ petition. In support of his contentions, learned counsel relied on the decisions reported in MERVY CONTINHO AND OTHERS v. COLLECTOR OF CUSTOMS, BOMBAY AND OTHERS ( (11) AIR 1967 SUPREME COURT 52), K.V. SUBBARAO’s case ( 1 supra). Sri Anand Kumar Kapoor, learned counsel supplemented that no seniority list was prepared for the persons appointed between 1980 and 1992, in consonance with the directions of this Court and the Supreme Court, and that the Supreme Court did not approve the seniority list of 1996 and that it is a pre- mature litigation and therefore, no interference is warranted in this writ petition. In support of his contentions, Sri Anand Kumar Kapoor, relied on the decisions reported in SURAJ PRAKASH GUPTA v. STATE OF J & K ( ( 12) 2000 ) 7 Supreme Court Cases 561), SARAT CHANDRAMISHRA AND OTHERS v. STATE OF ORISSA AND OTHERS ( ( 13 ) 2006 (1) Supreme Court Cases 638 ). Heard the learned Government Pleader for Services. Having regard to the background of the case discussed supra, and having heard the learned counsel at length, the issue that falls for consideration is regarding validity of the impugned memo dated 14-8-2007 issued by the respondent-officials and whether it requires any interference by this Court ? Rule 3(b) of the old Rules issued vide G.O.Ms.No.1279 dated 12-10-1961 reads as follows : “ 3(b) Substantive vacancies in the category of Deputy Tahsildars shall be filled or reserved to be filled by direct recruitment and recruitment by transfer in the proportion of 1:1. Provided that other things being equal, preference shall be given to women for appointment by direct recruitment to posts of Deputy Tahsildars to an extent of atleast 30% of the posts in each category of O.C. B.C. S.C. and S.T., quota.” Rule 4(e) of the Rules reads that - “ 4 (e) Direct recruitment of Deputy Tahsildars shall be made from the list of approved candidates drawn up by the Commission for the State as a whole. The Commissioner of Land Revenue shall allot candidates from this list to particular districts in the order specified in Rule 6 as if it applied to the State as a Unit. A candidate so allotted to a district shall be regarded as permanently allotted to the district. An amendment to the said old Rules were brought vide G.O.Ms.No.4582 dated 9-10-1980 by inserting a provision in the form of Rule 4(e), which says that inter-se- seniority between the direct recruits and promotees shall be determined from the date of their confirmation in the substantive vacancy in the proportion of 1:1 as provided in sub-rule (b) of rule 3. The validity of amended Rule was however challenged before the Supreme Court in K.V. SUBBA RAO’s case ( 1 supra), and in the said judgment the Supreme Court directed the authorities to prepare the seniority list in accordance with rule 4(e) as amended on 9-10-1980 and also held that the amended rules can operate prospectively from 9-10-1980 only and shall have no retrospective effect. Later, the Government issued A.P. Revenue Subordinate Service Rules afresh vide G.O.Ms.No.990 dated 24-9-1992 in supersession of the old Rules and that quota for direct recruitment in filling up the substantive vacancies was limited to 30%. A non- obstante clause has also been provided in the new rules stating that notwithstanding anything contained in the rule the seniority of a person appointed as Deputy Tahsildar shall be governed by General Rule 33 of the Andhra Pradesh State and Sub-ordinate Service Rules. The promotee Deputy Tahsildars therefore, filed O.A.No.7175 of 1995 and batch before the Tribunal praying for preparation of seniority lists in accordance with the criteria laid down in the new Rules framed under G.O.Ms.No.990 dated 24-9-1992. It is seen from the record that in O.A.No.7171 of 1995 and batch which was affirmed by the Supreme Court in P. Mohan Reddy’s case ( 2 supra), the point that arose for consideration before the Tribunal was as to whether the inter se seniority lists between the direct recruit Deputy Tahsildars and the promotee Deputy Tahsildars from 1985 to 1990 have to be prepared in accordance with rule 4(e) or in accordance with the provisions of the new rules framed under G.O.Ms.No.990, dated 24-9-1992 ? On that aspect, the Tribunal while dealing with the above issue has referred to all the judgments of the Apex Court at para 14 of its judgment, including the judgments now cited by the learned Senior Counsel, which reads as under: “Notwithstanding the judgment, rendered by the Supreme Court upholding Rule 4(e), on behalf of the promotee-Deputy Tahsildars, it is argued, citing several decisions of the Supreme Court, that the date of confirmation in a substantive post in the category of Deputy Tahsildars should not be criterion for fixing seniority. In other words, it is submitted that any rule, which mandates seniority to be reckoned based on confirmation, is bad in law ( PATWARDHAN v. STAT OF MAHARASTRA ( AIR 1977 SUPREME COURT 2051). It is also contended that one need not be appointed to a permanent post to become a member of service and for counting seniority but it is sufficient if one is appointed in a substantive capacity ( BALESWAR DAS v. STATE OF U.P. AIR 1981 SC 41). It is also contended that if a quota rota rule is breached or not followed for several years, then it breaks down and therefore the seniority should be reckoned on the basis of continuous service, even if the rule says that the seniority should be reckoned by quota and rota rule ( A. JANARDHAN v. UNION OF INDIA AIR 1983 SC 769), and G.S. LAMBA V. UNION OF INDIA, AIR 1985 SC 1019). It is argued that the general trend is that direct recruits will not take seniority over promotees, already working in the cadre.” ( emphasis supplied ) Thus, adverting to the above, the Tribunal observed that those arguments were available to the promotee-Deputy Tahsildars when the Full Bench case was heard and in fact all these aspects were considered by the Full Bench of the erstwhile Tribunal, wherein the validity of rule 4(e), introduced in G.O.Ms.No.4582 daed 9-10-1980 was upheld. Therefore, the Tribunal held that it is not necessary to discuss these aspects and it is no longer open to the promotee Dy. Tahsildars to contend that confirmation in a substantive vacancy should not be criterion for the purpose of seniority. If that be so, it follows, what is important and mandatory is that the appointment should be to a substantive post and hence, unless a person is appointed as a full member in a substantive vacancy consideration of his claim for seniority on par with those who are already appointed in substantive posts does not arise. Thus, the Tribunal, as decided by the Supreme Court in K.V. Subba Rao’s case ( 1 supra), held that the seniority list of Dy. Tahsildars should be prepared as provided under Rule 4(e) i.e. on the basis of their confirmation in substantive vacancies. It was also held by the Tribunal that the Rules framed under G.O.Ms.No.990 shall apply only to those Dy. Tahsildars appointed after these Rules came into force. It is also noteworthy that the Tribunal opined that the judgments rendered by the Courts cannot be made ineffective by legislating new laws, and it is impermissible for the Legislature to annul a judicial decision without removing the basis of the judgment by an amendment and therefore directed the Government to prepare the seniority lists of Dy Tahsildars implementing the amended rule 4(e) of the Rules framed under G.O.Ms.No.1279 dated 12-10-1961 with respect to those who are appointed as Dy. Tahsildars from 9-10-1980 i.e. the date on which the Rule 4(e) was introduced by way of amendment till 24-9-1992, the date on which G.O.Ms.No.990 dated 24-9-1992 was issued. It was also clarified that prior to 9-10-1980 and after 24-9- 1992, the seniority lists of the Dy. Tahsildars have to be prepared according to General Rule 33 of the State and Subordinate Service Rules. Challenging the said judgment the promotee Dy. Tahsidlars approached this Court and this Court directed for fixation of seniority as per rule 33 (a) of the A.P.State and Subordinate Service Rules without reference to Rule 4(e). Thereupon, the direct recruits approached the Supreme Court and he judgment of the Tribunal was ultimately confirmed by the Supreme Court in P. MOHAN REDDY’s case (2 supra); the relevant portion of the same reads as under : “…. We have no doubt in our mind, that in view of the judgment of this court in Subba Rao’s case ( supra) seniority of Deputy Tahsildars appointed between the dates 10-4-1980 till September, 1992 is required to be determined in accordance with pre-amended Rules which came into existence in September, 1992; and even if, factually such seniority has not been drawn up then the same has to be drawn up in accordance with the criteria indicated in the pre-amended rule and not according to the amended Rules, which came into existence in September, 1992 as has been held by the High Court in the impugned judgment. The High Court therefore was clearly in error and the said judgment of the High Court is thus set aside.” Be it noted that in the above referred judgment, all the relevant issues were adjudicated by the Tribunal with relevance to the judgments of the Apex Court, and the same has been affirmed by the Supreme Court in P. MOHAN REDDY’s case and the same holds the field. In G. S. LAMBA’s case, it was held by the Apex Court that where promotees inducted consistently in derogation of mandatory quota rule, rule can be presumed to have been relaxed in exercise of power conferred under relaxation rule. It was also inter alia held by the Supreme Court that - “ …. The impugned seniority lists challenged by the petitioners have been drawn up in violation of the provisions of Articles 14 and 16 of the Constitution and therefore they must be quashed. In preparing the impugned seniority lists the Union of India has applied the quota and rotated the vacancies but where candidates from a particular source were not available, the vacancies were deemed to be kept open ( some kind of carry forward) to be filled in by later recruitment from the same source years after the vacancy occurred, but in the meantime the vacancy was filled in presumably by excess recruitment from the other source. That is clearly either non-implementation of the quota rule or mal-functioning of the quota rule and yet the rota rule was adhered to which is both impermissible under the Rules as well as unjust, unfair and iniquitous being violative of Articles14 and 16.” In B.S. Bajwa’s case ( 4 supra ), seniority dispute raised after more than a decade after joining service when in the meantime promotions had also taken place. In those circumstances, it was held by the Supreme Court that the question of seniority should not be reopened in such situations after a lapse of reasonable period because that results in disturbing the settled position which is not justifiable. It was also held by the Supreme Court that there was inordinate delay in making such a grievance and this alone was sufficient to decline interference under Article 226 and to reject the writ petition. In SHIBA SHANKAR MOHAPATRA’s case ( 5 supra ), it was inter alia held by the Supreme Court that claim for seniority at a belated stage should be rejected inasmuch as it seeks to disturb the vested rights of other persons regarding seniority, rank and promotion which have accrued to them during the intervening period, and no party can claim the relief as a matter of right as one of the grounds for refusing relief is that person approaching the Court is guilty of delay and the laches. In JAVED IQBAL BALWAN’s case ( 6 supra), there was long standing dispute relating to inter se seniority between direct recruits and promotees as Tahsildars in the State of Jammu and Kashmir. The dispute arose because direct recruit Tahsildars had been given notional seniority