THE HON'BLE SRI JUSTICE GHULAM MOHAMMED & THE HON'BLE SRI JUSTICE G.BHAVANI PRASAD W. P. NO : 22859 of 2008, WP NOS.24970 & 24971 OF 2008 COMMON ORDER: (Per Hon’ble Sri. Justice Ghulam Mohammed) These writ petitions are ﬁled challenging the order of the A.P. Administrative Tribunal, Hyderabad, dated 4.6.2008 passed in O.A.No.5881 of 2003 on the ground that it is contrary to the ﬁnal order of this Court in W.P.No.20118 of 1998, dated 18.12.1998, which was confirmed by the Apex Court. The petitioners are third parties to the O.A. Since the issue involved in all these writ petitions is one and the same, these writ petitions are being disposed of by this common order. Respondents 3 and 4 herein are the applicants before the Tribunal. They ﬁled the above O.A., seeking to direct the respondents therein to consider their claims by strictly following G.O.Ms.No.55, Irrigation & CAD (SER.I.2) Department, dated 26.4.1996 while aﬀecting promotions to the posts of Executive Engineers either on incharge/adhoc or temporary basis and to declare the action of the oﬃcial respondents in not complying with the decision taken by the Government vide G.O.Ms.No.55, Irrigation & CAD (Ser.I.2) Department, dated 26.4.1996 as illegal and arbitrary. The Tribunal allowed the O.A. and directed the respondents-authorities to implement G.O.Ms.No.55, Irrigation and Command Area Development (SER.I.2) Department, dated 26.4.1996 and consequently, to consider the case of the applicants for promotion that too, in the light of the directions dated 29.10.2003 issued by the Tribunal in O.A.No.5162 of 1996 and batch. Having aggrieved by the same, the petitioners, who are third parties to the O.A., ﬁled the above WPs with the leave of the Court on the ground that the order of the Tribunal is contrary to the ﬁnal order passed in W.P.No.20118 of 1998 dated 18.12.1998, which was conﬁrmed by the Apex Court in S.L.P(Civil) No.5615 of 1999, dated 4.4.2000 and that the promotions made from 1975-76 onwards are to be reviewed by readjusting the vacancy position in each zone and thereby, the dates or promotion assigned to them in the cadre of Deputy Executive Engineers and their placement in the seniority list will be revised and thus, the order of the Tribunal would aﬀect their rights in respect of their promotion in the category of Deputy Executive Engineers and further right of promotion to the post of Executive Engineers. Heard the learned Counsel for the petitioners as well as the learned Government Pleader for Services II and perused the material available on record. Before going into the merits of the case, it is relevant to note the facts of the case, which led to ﬁling the present writ petitions by the third parties. Originally, respondents 3 and 4 ﬁled the above O.A. seeking a direction to the respondents therein to consider their claim for making promotions to the post of Executive Engineer either in charge or ad hoc or temporary by following G.O.Ms.No.55, Irrigation and Command Area Development (Ser.I.2) Department, dated 26.4.1996. According to them, they were initially appointed as Assistant Executive Engineers in the year 1976 and allotted to Zone III and they would have been promoted for the panel year 1984-85 or 1987-88, if the respondents prepared the cadre strength and year-wise panels in the normal course. It is their contention that the allocation of vacancies and distribution of cadre strength prepared in G.O.Ms.No.322, I & CAD Department, dated 30.10.1992, was struck down by the Tribunal directing the preparation of fresh cadre strength allocations and in pursuance of the same, the Government issued G.O.Ms.No.55, I & CAD Department, dated 26.4.1996, giving guidelines for distribution of 614 vacancies (1975-76 panel year) among all zones. But it was not implemented. A perusal on record goes to show that the Government ﬁled a counter in O.A.No.5162 of 1996 and batch giving the details of distribution of 614 vacancies, which have been extracted as it is by the applicants in the O.A. It reads as follows: Zones I II III IV V VI Total As per G.O.Ms.No.55 Dated 26.4.1996 82 117 94 120 94 107 614 AsperG.O.Ms.No.322, Dated 31.10.1992 74 101 70 85 134 150 614 Difference 8 16 24 35 -40 -43 It is further pertinent to note that O.As 5162/96 and 5163/96 were ﬁled to implement the G.O.55 whereas O.As No.5368/96, 5776/96 & 5984/6 were ﬁled to quash the said G.O. All these O.As were disposed by the Tribunal, by an order dated 29.10.2003, which reads as follows: “The petitioners who have worked in diﬀerent capacities and who have retired from service, sought promotions basing upon the observations given by the Hon’ble Supreme Court on 24.2.1988 and to communicate the seniority list of Deputy Executive Engineers as on 31.12.1982, when some persons approached this Tribunal, questioning the same, the Tribunal, through its judgment dated 27.4.1994 directed the respondents to prepare seniority list of Deputy Executive Engineers as on 18.10.1975 by framing them into three categories viz.,: Segment: A:- Those who were appointed as Deputy Executive Engineers from whatever source and also promoted to the higher level post of Executive Engineer and above prior to 18.10.1975 i.e., the date of introduction of Presidential Order. This segment will not prima facie be aﬀected by the Presidential Order. Segment: B:- Those who were appointed as Deputy Executive Engineers from whatever source prior to the Presidential Order and who were working in the same category on the date of enforcement of Presidential Order those holding the post must have been allotted to the various zonal cadre. Segment C:- Those appointed as Deputy Executive Engineers from whatever source after the Presidential Order i.e., 18.10.1975. Accordingly, the integrated seniority lists of Segment A and zonal seniority lists of Segment-B had been prepared and published vide Government Memo No.305371/Ser.VI.1/92- 36, dated 13.3.1995 as cleared by the A.P. Administrative Tribunal. The zonal seniority list of Deputy Executive Engineers of segment- C that is those who were appointed as Deputy Executive Engineers after 18.10.1975 has been prepared and ﬁled before the A.P. Administrative Tribunal. But, the A.P. Administrative Tribunal has not passed any orders on this and hence, it was not published. So, the beneﬁts that arise in view of the categorization made, promotions should be given to the 614 posts, which are lying vacant on the date of ﬁling of this petition. The Government has also expressed its opinion to implement the order of the Tribunal, but, so far, on that basis, no action has been taken and only adhoc promotions were given. So, a direction is given to review all those cases within a period of four months from the date of receipt of a copy of this order and appropriate seniority has to be ﬁxed, while giving promotions, the cases of the retired employees also have to be taken into consideration and accordingly, their seniority has to be ﬁxed notionally and on that basis their pension should be reﬁxed, basing upon the post, they are entitled to hold, at the time of their retirement and other beneﬁts like notional and monetary, should also be given to them in the higher promotion cadre.” . It appears that the above order has not been challenged and thereby, the same has become final. In the present O.A., an aﬃdavit was ﬁled by the Deputy Director (Admn.), O/o Engineer-in-Chief (Admn. Wing) I &CAD Department stating that there are practical diﬃculties in implementing the order in G.O.55 and hence, it could not be implemented. On that, the Tribunal having observed that the respondents- authorities are bound to implement the order in G.O.Ms.No.55 on the ground that the direction given by the Tribunal to implement the same in the earlier O.As., which are referred to above, has become ﬁnal, allowed the present O.A. directing the respondents-authorities to implement the same. Now, the present writ petitions are ﬁled by the third parties on the ground that the orders in the present O.A. are aﬀecting their rights in respect of their promotion in the category of Deputy Executive Engineers and further right of promotion to the post of Executive Engineers and that the Tribunal has not decided the validity of the orders issued in G.O.Ms.No.55, dated 26.4.1996. It is the case of the petitioners that in view of the provisions under paragraph 3 of the A.P. Public Employment (Organization of Local Cadres & Regulation of Direct Recruitment) Order, 1975 (hereinafter called as the Presidential order) read with the procedure prescribed in paragraph 9 (b) of the orders issued in G.O.P.No:728, General Administration (SPAF-A), Department dated 1.11.1975, the cadre strength of the Deputy Executive Engineers (the then Assistant Engineers) in respect of 6 Zones is determined after the approval of the allotment committee, vide G.O.Ms.No:694, Irrigation & Power (SPF) Department, dated 15.9.1976, wherein the total cadre strength of 968 posts are determined by duly allocating the said posts amongst 6 Zones, as follows: Sl.No. of Zone. No. of posts. Zone I 169 Zone II 176 Zone III 123 Zone IV 189 Zone V 144 Zone VI 169 T otal 968 According to them, pursuant to the determination of cadre strength, existing personnel working as Deputy Executive Engineers ( the then Assistant Engineers) as on 18.10.1975 were allotted to diﬀerent Zones, by duly following the procedure contemplated in paragraph 4 of the Presidential order read with paragraph 9 (c) of the order issued in G.O.P.No:728, G.A. (SPF.A) Department, dated 1.11.1975. In view of the said allotment of the personnel to diﬀerent zones, totaling 704, 264 posts were vacant as on 18.10.1975 and the said posts are vacant in each zone as follows: Name of the Zone Existing Zone Zone I 46 Zone II 36 Zone III 06 Zone IV 20 Zone V 76 Zone VI 80 Thus, as on 18.10.1975, 264 posts as apportioned above amongst the zones were vacant and further, the new sanctions, vacancies caused due to promotion, retirement and deaths etc., are worked out as follows, as the vacancies to be filled for the panel year 1975-76. Sl.No: Name of the post Z 1 Z II ZIII Z IV Z V Z VI T o tal a Existing vacancies after allotment (balance of cadre- strength) 46 36 6 20 76 8 264 b New Sanction 17 31 31 30 37 36 182 c Promotions to higher cadre -- 30 29 34 19 31 133 d Retirements 2 3 4 1 2 11 23 e Deaths 9 1 - - - 2 12 Zonewise total 74 101 17 85 134 150 614 It is submitted that in fact, the said calculation of the vacancies in respect of all the zones were approved by the government in Memo dated 2.7.1992 and accordingly, a provisional Zonal seniority list of Deputy Executive Engineers is also approved for the period from 16.10.1975 to 15.10.1976. The said provisional seniority list was ﬁnalized in G.O.Ms.No:322, Irrigation and CAD (Ser.IV) Department, dated 30.10.1992 and the said list was the subject matter in O.A.4467 of 1982 and batch and the said batch was disposed of. Pursuant to the said order, a ﬁnal list was prepared and ﬁnalized vide Memo No:305371/Ser.IV.1/92-36, dated 13.3.1995 and the said ﬁnal list was challenged in O.A.No:1834 of 1995 and the same was dismissed, against which W.P.20118 of 1998 was preferred. It is their further contention that the issue as to the seniority in respect of all the promotions made up to 31.12.1982 was considered by this Court in W.P.No.20118 of 1998 on 18.12.1998 and the same has been conﬁrmed by the Apex Court in S.L.P.5615 of 1999 on 4.4.2000 and therefore, respondents 3 and 4-applicants have no locus standi to reopen the promotions already made to several seniors in the cadre of Deputy Executive Engineers from 18.10.1975 to 31.12.1982 in the respective zones, more particularly for the panel year 1975-76. At this juncture, it is not out of place to mention hereunder the order passed in W.P.No.20118 of 1998, on which the entire case of the petitioners-third parties, rests: “1. That the Deputy Executive Engineers in Irrigation Department of State of A.P., regardless of their source of recruitment, be it direct or promotion/transfer and regardless of their quota, are entitled to retain promotions eﬀected and their relative inter-se-seniority basing on their ﬁrst entry into service up to 31.12.1982. 2. The respondents 1 to 3 viz., (1) Principal Secretary to Government, Irrigation & CAD Department (2) The Engineer-in-Chief (Admn.Wing), Irrigation & CAD Dept., Errumanzil, Hyderabad & (3) The Government of A.P. rep., by its secretary to Government GAD (Services) Department, Secretariat, Hyderabad, shall identify the unﬁlled vacancies as on 31.12.1982, in the category of Deputy Executive Engineers. 3. Such unﬁlled vacancies mentioned in para 2 above, if any, shall be added to the vacancies which arise in between 31.12.1982 and 31.12.1987; and 4. The above vacancies mentioned in paras 2 and 3 shall be ﬁlled up by strict adherence to the quota rule and the Presidential Order, 1975.” At this stage of the proceedings, it relevant to note that the order of the Tribunal passed in the present O.A does not indicate as to the validity or otherwise of G.O.Ms.No:55. It is apparent on the face of the record that solely basing on the order passed in O.A.5162 of 1996 and batch, the Tribunal has passed the order impugned herein. But, in view of the chequered events of the decades and the ﬁnality of the order passed in W.P.No:20118 of 1998 as well as the order of the Apex Court passed in S.L.P.No:5615 of 1999, dated 4.4.2000, We feel that the Tribunal has failed to consider all these aspects while passing the order impugned. Therefore, without expressing any opinion on the merits of the case, We feel it a ﬁt case wherein this matter can be remitted back to the Tribunal for fresh consideration in the light of the chequered events of decades. At this stage, while producing a copy of the memo No:32397/Ser.II.2/2007, dated 4.11.2008, which reads as under: “A provisional seniority list dated 24.1.2007 was prepared and placed on the web site based on the directions of the Hon’ble Supreme Court in CA No.2027-29 of 1987 dated 16.7.1993 and also as per the clariﬁcation of the Hon’ble Supreme Court in its judgment dated 15.1.1997 in CA No.10388 of 1997 of Special Leave to Appeal Civil No.18722 of 1995, the judgment of the A.P. Administrative Tribunal (on remand) dated 25.6.1999 in O.A.No.5667 of 1993 and subsequent judgment of Hon’ble High Court dated 21.11.2003 in WP No.17497 of 1999. The provisional seniority list so prepared also took into account the Rule 16(h) of A.P.S.S.S. Rules, 1996. The objections thereof were called for. In O.A.No.1471 of 2008 ﬁled by one M. Yanadaiah, the Tribunal disposed of the O.A., stating that “in view of the instruction, it is clear that the respondents have to consider for incharge arrangements or other promotions to the post of Deputy Executive Engineer, Executive Engineer, Superintending Engineer and Chief Engineer in relaxation of Rule 10(h) of A.P. State and Subordinate Service Rules in accordance with the provisional seniority list of Assistant Executive Engineers and Deputy Executive Engineers on 24.1.2007”. Subsequently, the provisional seniority list of 24.1.2007 itself was revised strictly based on the court orders issued from time to time on matters such as giving eﬀect G.O.610 redistribution of Zone wise vacancies in Deputy Executive Engineer cadre as per G.O.55 dated 26.4.1996, and the implementation of Rule 16(h) of APS & SS Rules, 1996. Since the Tribunal in O.A.No.1471 of 2008, dated 19.3.2008 had directed the Government to make incharge arrangements based on the provisional seniority list of Assistant Executive Engineers and Deputy Executive Engineers dated 24.1.2007, Government has been making incharge arrangements as per the said provisional seniority list, suitably revised as per subsequent orders of the Courts. It is also submitted in this regard that Rule 10(h) of A.P. State and Subordinate Service Rules 16, explicitly prohibits any kind of incharge arrangements. However, in view of the exigencies of the JALAYAGNAM PROGRAMME and in view of the severe shortage of ﬁeld oﬃcials incharge arrangements are being taken up from time to time after obtaining speciﬁc orders for relaxation of Rule 10 (h) at the level of Chief Minister, who is the competent authority to accord such relaxation.” it is brought to the notice of this Court that in view of the directions issued by the tribunal in O.A.No:1471 of 2008, the Government is making incharge arrangements basing on the provisional seniority list of Assistant Executive Engineers and Deputy Executive Engineers, dated 24.1.2007, suitably revised as per subsequent orders of the Courts. In the present facts and circumstances of the case and in view of the above submission coupled with the memo of the Government, dated 4.11.2008, it is made clear that this order does not preclude the Government from making any incharge arrangements in accordance with law. It is needless to observe that it is always open for the petitioners to approach the appropriate forum in so far as the validity or otherwise of G.O.Ms.No:55 is concerned. Accordingly, these writ petitions are allowed setting aside the order impugned and remanding the matter back to the Tribunal for fresh consideration in the light of the chequered events of the decades. __________________________ Justice Ghulam Mohammed ________________________ Justice G. Bhavani Prasad Date: 5.11.2008 Nn THE HON'BLE SRI JUSTICE GHULAM MOHAMMED & THE HON'BLE SRI JUSTICE G.BHAVANI PRASAD W. P. NO : 22859 of 2008, WP NOS.24970 & 24971 OF 2008 (Common Order delivered by Hon’ble Sri Justice Ghulam Mohammed) 05.11.2008