THE HON'BLE MR JUSTICE V.ESWARAIAH and THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.8380 of 2009 ORDER: (per the Hon’ble Sri Justice Vilas V. Afzulpurkar) Respondents 4 to 8 in O.A.No.8380 of 2009 before the A.P.Administrative Tribunal, Hyderabad, seek to challenge the order of the Tribunal, dated 24-10-2008, whereby and where under the O.A. filed by respondents 1 to 16 herein was allowed. The facts in brief are that respondents 1 to 16 herein were promoted as Junior Assistants during the year 1992-93 from the category of Record Assistants/Attendars. They claim in the O.A. that their seniority in Kurnool and Ananthapur Districts was finalised by proceedings Rc.No.A3/2641/94, dated 19-11-1994 and proceedings Rc.No.A3/2641/94, dated 25-11-1995 respectively. According to them, their position in the seniority list was correctly shown and the same was in operation for all these years. It is alleged that the petitioners herein submitted a representation on dated 28-02-2006 for revision of seniority and based thereon, the Principal Secretary to Government- respondent No.17 herein issued Memo No.11956/CT.III(2)/2006-4, dated 05-12-2007, and in the said Memo, a decision was communicated to the Commissioner of Commercial Taxes, A.P., Hyderabad, to revise the seniority list of Kurnool Division duly placing the petitioners herein above 28 individuals (applicants and others), who were appointed as Junior Assistants during the year 1992-93, as the placement of applicants was not in accordance with the Rules. The Commissioner was accordingly directed to issue a show-cause notice to the affected parties and to take further action immediately. Basing on the said Memo, the Deputy Commissioner (Commercial Taxes), Kurnool, vide proceedings Rc.No.A3/672/2005, dated 01-02- 2008, gave a show-cause notice to the applicants duly mentioning the decision of the Government in the Memo referred to above, and called for the objections from the applicants within 15 days. The applicants thereupon approached the Tribunal with the aforesaid O.A. by contending that the said show-cause notice is only an empty formality as the Principal Secretary to the Government-17th respondent herein has already taken a decision for revision of seniority and has directed the Commissioner to take appropriate steps after issuing show-cause notice to the applicants. The applicants therefore contend that their seniority, which has been settled more than ten years back, cannot be unsettled at the instance of the writ petitioners. They also contend that as per Rule 28 of the State and Subordinate Service Rules, 1996, their seniority cannot be disturbed after several years. The petitioners herein resisted the said O.A. by contending firstly that the applicants have no cause of action to approach the Tribunal as the show-cause notice was already given to them and they should have submitted their replies, so that appropriate orders would have been passed. The petitioners also contend that the applicants have suppressed the issuance of show-cause notice and approached the Tribunal, as if the memo impugned therein was conclusive. The Tribunal, however, considered the matter in the light of the material available before it and was of the view that the exercise of power by the Principal Secretary to Government under Section 17 of the A.P.Ministerial Service Rules, 1998, for revision of seniority was not justified, as the same was done without notice to the applicants. The Tribunal, therefore, set aside the Memo, dated 05-12-2007, and remitted the matter to the Government for passing appropriate orders, under Rule 17 of the A.P.Ministerial Service Rules, 1988, for revision of seniority after giving an opportunity of making representation to all the affected parties concerned. The said order of the Tribunal is challenged in the present writ petition. We have heard the learned counsel appearing on either side as well as the learned Government Pleader. Sri Meherchand Noori, learned counsel for the petitioners contends that the Tribunal was misled by the applicants by not bringing to its notice the show-cause notice issued by the Deputy Commissioner(CT), Kurnool, dated 01-02-2008. He also submits that the Tribunal in any case ought not to have entertained the O.A. when the action proposed by the official respondents was intimated to the applicants by issuing a show-cause notice giving reasonable opportunity to the applicants to submit objections. Learned counsel also states that the recruitment of petitioners’ as well as unofficial respondents as per their own respective quota was set right by the Government when the aforesaid Memo was issued by giving appropriate quota and by maintaining cycle with respect to rotation among direct recruitees and promotees. Leaned counsel therefore submits that Memo, dated 05-12-2007, cannot be said to be illegal and as such, setting aside the said Memo by the Tribunal particularly when the show-cause notice is pending, was unjustified. Learned counsel also submits that the applicants are not entitled to hold the position above the writ petitioners and in accordance with the Rule position and following quota and rota, they are not entitled to any relief. Per contra, learned counsel, representing the contesting respondents, (applicants) submits that the decision of the Government communicated in the impugned Memo clearly holds that seniority position of the applicants in the seniority list is not in accordance with the Rules and, therefore, the aforesaid decision taken is without notice and without hearing the applicants and as such, the Tribunal has rightly set aside the said Memo and remitted the matter to the Government for re-consideration, after notice to all the affected parties. Learned counsel also submits that the show-cause notice specifically refers to the aforesaid decision of the Government and as such, once a decision is taken and the same is sought to be implemented by giving a show cause notice, it can hardly be said to be sufficient to protect the interest of the applicants. Learned counsel, therefore, supports the impugned order, as the Tribunal has rightly appreciated that the said Memo is in violation of Rule 17 of the A.P.Ministerial Service Rules, 1998. Having heard both the learned counsel, it is evident that the decision of the Government in Memo, dated 05-12-2007, which was impugned before the Tribunal, actually related to the grievance of the writ petitioners seeking appropriate decision in the seniority list on the ground that they are entitled to hold the post above the applicants in accordance with quota and rota. The said memo categorically states that the list of 28 individuals including the applicants above the writ petitioners is not in accordance with the Rules and the Commissioner of Commercial Taxes was directed to revise the seniority list. We have seen Rule 17 of the A.P.Ministerial Service Rules, 1998 and Rule 26 of the A.P.State and Subordinate Services Rules, 1996. Rule 26 of the A.P.State and Subordinate Services Rules, 1996 reads as follows:- Appeal against seniority or other conditions of service:- (a) Except where otherwise provided in these or the special rules, an appeal shall lie against an order fixing the seniority of a person or affecting any conditions of service, passed by the appointing authority, to the authority to whom an appeal would lie against an order of dismissal passed against the member of the service, class or category. (b) The powers in sub-rule (a) shall be exercised by the head of the department, if he is not the appellate authority, or by the State Government on its own motion, or on an appeal received by the head of the department or the State Government, as the case may be. (c) The appellate authority, if it is not the head of the department or the Government, shall dispose of such appeal within a maximum period of one year. If the appeal has not been disposed of within the aforesaid period, the head of the department of the State Government may intervene in the matter, for sufficient reasons to be recorded in writing and take such action as may be considered necessary by them in the matter. (d ) No appeal for restoration of seniority or assignment of notional seniority on par with his junior shall be entertained by the appellate authority after a period of 90 days from the date on which junior was promoted. (e) A member of service may submit a revision petition against the order of the Appellate Authority within three months of the order passed by the Appellate Authority to the Government.” Rule 17 of the A.P.Ministerial Service Rules, 1998, reads as follows:- “Revision and review of orders of promotion or appointment by transfer:- An order of appointment by transfer or promotion of a member of a service or class to a category, grade of post therein, made by the competent authority may, within a period of six months from the date of such order, be revised by an authority to which an appeal would lie against an order of dismissal passed against a full member of the service, class, category or grade, as the case may be. Such revision may be made by appellate authority aforesaid either on its own motion or otherwise:” To our mind, the issue really before the Government was concerning the revision of seniority and as such Rule 26 was attracted. Rule 17 deals with revision and review of promotion or appointment and if it is assumed that Rule 17 applies, promotion of the applicants was being reviewed by the Government by the aforesaid Memo. The applicants submit that they were neither issued notice nor heard when the said impugned memo was passed. The promotion of the applicants from record assistants/attendars to the posts of Junior Assistants, therefore, could not have been altered without notice to them. The effect of the representation of the writ petitioners, dated 28- 02-2006, was primarily to seek revision of seniority. The said representation was filed on 28-02-2006 whereas according to the applicants their seniority was settled in 1994 itself and therefore, the same could not have been unsettled after a long lapse of time. In view of the said aspect coupled with the fact that the applicants were neither issued notices nor heard before the Government taking its decision in the impugned memo, we are of the view that the applicants were seriously prejudiced on account of the said Memo. With respect to the objection of the learned counsel for the petitioners that the applicants have suppressed the show-cause notice, we find specific averment in the O.A. that the show-cause notice is only an empty formality in view of the decision already taken and communicated by the Government to the Commissioner, the Commissioner, Commercial Taxes had no option except to follow the said decision. Thus, the issuance of show-cause notice or requiring the applicants to submit objections etc., was therefore, merely a post decisional opportunity, which could not have been fulfilled the requirement of principles of natural justice. In a case of this nature, the defect in the original proceedings cannot be cured without issuing and without hearing the applicants. In our view, therefore, the Tribunal was justified in setting aside the said memo and remitting the matter to the 17th respondent for re-consideration of the said Memo after notice and hearing to all the affected persons. Whether Rule 17 of the A.P.Ministerial Service Rules, 1998 or Rule 26 of the A.P.State and Subordinate Services Rules, 1996 applies or if the situation is governed by any other statutory Rules or not, it is open to the affected parties to file objections before the 17th respondent. We are, therefore, not inclined to interfere with the impugned order passed by the Tribunal and we accordingly direct the 17th respondent to give notice to all the affected parties including the petitioners herein and permit them to file additional representations, if any, and after giving an opportunity of hearing, pass appropriate orders in accordance with law by a reasoned order. The writ petition is accordingly dismissed subject to the above observation. There shall be no order as to costs. It is made clear that any observations made by this court or the Tribunal in the impugned order shall not influence the ultimate decision of the Government. Any promotions made pending re- consideration of the matter as directed above, shall be subject to the result of such re-consideration. Since this controversy is pending from 2006, we deem it appropriate to direct the 17th respondent herein to hear and dispose of the matter afresh preferably within a period of two months from the date of receipt of a copy of this order. ________________ V.ESWARAIAH, J ________________________ VILAS V. AFZULPURKAR, J Dated: 05-11-2009 Note: Issue C.C. in one week (B/o) Prv