THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NOS.16295 OF 1998 AND 25763 OF 2006 DATED NOVEMBER, 2010 WRIT PETITION NO.16295 OF 1998 BETWEEN S.Vahede and others … Petitioners And The Director, Sri Venkateswara Institute of Medical Sciences, Tirupati and others. … Respondents WRIT PETITION NO.25763 OF 2006 BETWEEN S.Vahede … Petitioner And Sri Venkateswara Institute of Medical Sciences, Tirupati, Chittoor District, Rep. by its Registrar. … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NOS.16295 OF 1998 AND 25763 OF 2006 COMMON ORDER: The short question that still remains for consideration in these two writ petitions is as to the seniority of S.Vahede, petitioner 1 in Writ Petition No.16295 of 1998 and the sole petitioner in Writ Petition No.25763 of 2006, in the cadre of Head Nurse in Sri Venkateswara Institute of Medical Sciences (SVIMS), Tirupati. Petitioners 2 to 5 in Writ Petition No.16295 of 1998, being satisfied with their promotion as Head Nurses, are no longer interested in pressing the writ petition which shall accordingly stand dismissed in so far as they are concerned. Shorn of unnecessary detail and litigative history, the facts relevant for the purpose of this order are as follows: S.Vahede, the petitioner and respondents 2 to 6 in both the writ petitions, along with others, were selected for appointment to the posts of Staff Nurse in SVIMS on 12.10.1992. However, though the selection was a combined one, they were appointed under individual and separate orders relatable to different dates. On 26.11.1992, appointment orders were issued by SVIMS to 8 candidates specifying the cut-off date before which they were to join service. Again on 29.01.1993, SVIMS released appointment orders to 33 candidates intimating the last date before which they were to join duty. The petitioner was one such appointee and joined service as a Staff Nurse on 03.02.1993. Thereafter, on 12.03.1993, SVIMS sent appointment orders to 10 candidates. Respondents 2 to 6, being members of this third batch of appointees, joined service on 16/17.03.1993. Under proceedings dated 26.06.1996, the petitioner’s services were regularized with probationary rights with effect from 03.02.1993 and she was declared an approved probationer with effect from 02.02.1995. The approval of probation of respondents 2 to 6 was made effective thereafter from different dates ranging between 16.03.1995 and 05.05.1995. Under circular dated 30.04.1998, SVIMS communicated the tentative seniority list of 25 Staff Nurses. Seven days time was allowed from the date of receipt of the said list for filing objections, if any. The petitioner found mention therein at Sl.No.25. However, as she and some others (petitioners 2 to 5) were aggrieved by their positions in the said list, they filed Writ Petition No.16295 of 1998 assailing the said seniority list and seeking a consequential direction to SVIMS to promote them as Head Nurses in accordance with the date of their entry into service with consequential benefits. An interim order was passed in the said writ petition on 16.06.1998 directing SVIMS to finalize the seniority list of all the Staff Nurses appointed in its service within a time frame. Pursuant to the said order, SVIMS prepared seniority list dated 20.10.1998 in respect of all the 149 Staff Nurses in its service. The petitioner was placed at Sl.No.29 in the said list while respondents 2 to 6 found mention at Sl.Nos.44 to 47 and 49 respectively. In the year 2005, additional posts in the cadre of Head Nurse were sanctioned. Apprehending that her case may be overlooked, the petitioner filed Writ Petition No.15021 of 2005 seeking a direction to SVIMS to consider her case for promotion to the post of Head Nurse strictly in accordance with the seniority list dated 20.10.1998. Relevant to note, in its counter filed in the said writ petition SVIMS, while stating that the seniority list dated 20.10.1998 was provisional and had not been finalized, committed itself to following the said list as long as it was not altered. Thereupon, the writ petition was disposed of on 08.08.2005 directing SVIMS to consider the petitioner’s case for promotion to the post of Head Nurse in accordance with the said provisional seniority list. However, giving a go-by to the commitment given to this Court, SVIMS promoted respondents 2 to 6 along with others as Head Nurses under its proceedings dated 05.12.2005 overlooking the petitioner. Challenging the same and seeking a consequential direction to consider her case and promote her as a Head Nurse, the petitioner filed Writ Petition No.26317 of 2005. Despite service of notice, respondents 2 to 6 herein who were parties to the said writ petition remained oblivious. By way of an interim order, the promotions of respondent 2 to 6 stood suspended pending the writ petition. The writ petition itself was disposed of by a learned Judge of this Court by order dated 04.04.2006. The learned Judge held that depriving the petitioner of promotion while the provisional seniority list dated 20.10.1998 was in force could not be justified and accordingly set aside the selections of respondents 2 to 6. However, as it was brought to the notice of the learned Judge that SVIMS had finalized the seniority list of 37 Staff Nurses on 08.03.2006, the learned Judge left it open to SVIMS to effect promotions in accordance therewith while granting liberty to the petitioner to assail the said list, if aggrieved. Significantly, the petitioner was shown as junior to respondents 2 to 6 for the first time in this list. The petitioner challenged the said order in Writ Appeal No.399 of 2006. A Division Bench of this Court dismissed the appeal on 24.08.2006. However, the observations made by the Division Bench in the said order are of great relevance and import. The Division Bench took note of the proceedings dated 06.04.1996, issued after the passing of the order in Writ Petition No.26317 of 2005, whereby SVIMS again promoted respondents 2 to 6 as Head Nurses. The Division Bench opined that the list dated 08.03.2006 could not be treated as a seniority list prepared in accordance with statutory rules. Reference was made to Rule 33(a) of the Andhra Pradesh State and Subordinate Services Rules (for brevity, ‘the Rules’) in this regard. The Bench further observed that it was beyond its comprehension as to how S.Vahede, the appellant therein, could have been appointed as a Staff Nurse in February, 1993 and respondents 2 to 6 could have been appointed on 16/17.03.1993 if, in fact, they were more meritorious in the selection. The Bench further categorized the so-called merit which found reflection in the seniority list dated 08.03.0206 as non-existent. However, as the seniority list dated 08.03.2006 was not challenged in the appeal, the Bench opined that no effective relief could be granted to the appellant. The Bench observed that the list dated 08.03.2006 could not be nullified since the same was not made subject matter of challenge and reasonable opportunity of hearing was not given to the persons likely to be effected thereby. The appeal was therefore dismissed leaving it open to the appellant to either seek review of the order in Writ Petition 26317 of 2005 or avail the appropriate legal remedy by questioning the list dated 08.03.2006 and the consequential promotions of respondents 2 to 6. Thereafter, under proceeding dated 19.10.2006, SVIMS issued the final seniority list of Staff Nurses working in the Institute as on that date. Again, the petitioner was shown as junior to respondents 2 to 6. Significantly, the same ranking of seniority from Sl.Nos.1 to 37 reflected in the earlier seniority list dated 08.03.2006 which was frowned upon by this Court was repeated in this fresh seniority list. Be it noted that short of setting it aside, the comments made by the Division Bench while dismissing Writ Appeal No.399 of 2006 left no room to doubt the status, or rather the lack of it, of the said seniority list. Notwithstanding the same, SVIMS chose to adopt the same order of seniority in so far as Sl.Nos.1 to 37 are concerned in the fresh seniority list dated 19.10.2006. Thereupon, the petitioner filed Writ Petition No.25763 of 2006 challenging the said seniority list on the ground that it was contrary to the Judgment in Writ Appeal No.399 of 2006 and the relevant rules. She also sought a consequential direction to SVIMS to place her above respondents 2 to 6 in the said seniority list and to promote her as a Head Nurse with effect from 05.12.2005 in terms of the Judgment dated 08.08.2005 in Writ Petition No.15021 of 2005. During the pendency of these writ petitions, by proceedings dated 09.10.2009, SVIMS finally deemed it fit to promote the petitioner as a Head Nurse. Relevant to note, the said proceedings do not even mention the pendency of the writ petitions instituted by the petitioner on this cause of action. The normal procedure would have been to make her promotion under the said proceedings subject to the result of the pending writ petitions. The deviation from this usual practice indicates the adamant and despotic attitude adopted by SVIMS in the matter of the petitioner’s promotion. Sri V.Jagapathi, learned counsel for the petitioner, asserted that it was because of the whims and fancies of the then Director of SVIMS that this entire litigation came about. The learned counsel pointed out that the very same Director in his counter filed before this Court in Writ Petition No.15021 of 2005 stated that the candidates selected during the interviews on 12.10.1992 were placed in the order of merit and appointment orders were sent to them in that order of merit. Having committed himself to this stand on oath, the learned counsel pointed out that the same Director did a volte-face thereafter by disputing the merit rankings of the candidates in the said selection interviews and the basis on which their appointment orders were issued. He further submitted that it was only prior to laying down his office that the then Director uncharacteristically chose to bestow the benefit of promotion on the petitioner, but at that, only prospectively. Be that as it may, the incontrovertible facts that glare from the record is that the petitioner’s order of appointment was earlier in point of time, she joined duty earlier in point of time and her regularization in service was earlier in point of time, when compared to respondents 2 to 6. The legal position as to her seniority based on this fact as per Rule 33(a) of the Rules is clear. Rule 33(a) states in no uncertain terms that the seniority of a person in a service, class, category or grade, shall unless he had been reduced to a lower rank as a punishment, be determined by the date of his first appointment to such service, class, category or grade. Rule 33(b) of the Rules has no application to the case of the petitioner as the said Rule would apply only to a case where by a single order, the appointing authority appoints two or more persons simultaneously to a service. That, admittedly, is not the situation in the case on hand. Respondent 2 to 6 were appointed by individual and separate orders of appointment after the appointment of the petitioner and her entry into service. A glance at judicial dicta in this regard would be apposite at this stage. I n DIRECT RECRUIT CLASS-II ENGINEERING OFFICERS’ ASSOCIATION v. STATE OF MAHARASHTRA[1], a Constitution Bench of the Supreme Court affirmed that once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment. This legal position was reiterated in STATE OF HARYANA v. BALWANT SINGH[2], when the Supreme Court observed that it is settled law that seniority of the candidates has to be reckoned from the date on which they joined service and started discharging the duties of the post to which they came to be appointed. Again in BHEY RAM SHARMA v. HARYANA STATE ELECTRICITY BOARD[3], the Supreme Court observed that it is settled that while determining the inter se seniority amongst officers appointed by the same process at different times, the date of entering into the service is relevant and a person who enters into service first shall rank senior unless there is some Rule providing otherwise which can be held to be consistent with Articles 14 and 16 of the Constitution. I n A.K.BHATNAGAR v. UNION OF INDIA[4], the Supreme Court again reiterated that law is clear that seniority is an incidence of service and where the service rules prescribe the method of its computation, it is squarely governed by such rules but in the absence of a provision, ordinarily the length of service is taken into account. This, being the correct position as to the petitioner’s seniority as a Staff Nurse, found reflection rightly in the first seniority list dated 30.04.1998 of 25 Staff Nurses issued by SVIMS. Therein, the petitioner alone found mention to the exclusion of respondents 2 to 6. The second seniority list dated 20.10.1998 which was issued by SVIMS pursuant to the interim order of this Court in Writ Petition No.16295 of 1998 also reiterated the petitioner’s seniority by indicating her place at Sl.No.29 while respondents 2 to 6 found mention thereafter at Sl.Nos.44 to 47 and 49 respectively. Significant to note, the first seniority list dated 30.04.1998 allowed only seven days time for filing of objections while the second seniority list dated 20.10.1998 permitted objections to be filed on or before 15.11.1998. It is now stated that respondent 4 alone submitted an objection to both the seniority lists. However the said objection was filed only on 16/17.11.1998, beyond the permitted time. Even if the said objection be taken into account, it is an admitted fact that no notice was issued to the petitioner before upsetting her ranking in the seniority list dated 20.10.1998. The seniority list dated 08.03.2006 also does not reflect consideration of the objection raised by respondent 4 as a reason for upsetting the petitioner’s seniority. On the other hand, the explanation of SVIMS before this Court for revising the seniority under the list dated 08.03.2006 is the so-called merit ranking of the candidates who appeared in the selections held on 12.10.1992. As pointed out by the Division Bench in Writ Appeal No.399 of 2006, this so-called merit list appears to be non-existent and seems to have been concocted for the purpose of validating the change of its stand by SVIMS for denying promotion to the petitioner. Having stated in unequivocal terms in the counter in Writ Petition No.15021 of 2005 that the appointments were made on the basis of merit, the complete turnabout by SVIMS cannot be accepted. In any event, whatever be the justification for the said revision of seniority, the action of SVIMS in resorting to such a unilateral exercise without even putting the petitioner on notice cannot be countenanced. The prejudice caused to the petitioner by such downgrading in seniority is manifest. Adverse civil consequences being the result of the proposed action, SVIMS was bound to adhere to the principles of natural justice. Further, what SVIMS proposed to do was to unsettle the settled position which had held sway since the appointment of the petitioner and respondents 2 to 6 in 1993. It is an established proposition of service jurisprudence that settled matters cannot be unsettled after a long lapse of time [P.S. SADASIVASWAMY v. STATE OF TAMIL NADU[5] and TRIDIP KUMAR DINGAL v. STATE OF WEST BENGAL[6]]. Reference may also be made to the observations of the Supreme Court in MALCOM LAWRENCE CECIL D'SOUZA v. UNION OF INDIA[7]: “9. Although security of service cannot be used as a shield against administrative action for lapses of a public servant, by and large one of the essential requirements of contentment and efficiency in public services is a feeling of security. It is difficult no doubt to guarantee such security in all its varied aspects, it should at least be possible to ensure that matters like one’s position in the seniority list after having been settled for once should not be liable to be reopened after lapse of many years at the instance of a party who has during the intervening period chosen to keep quiet. Raking up old matters like seniority after a long time is likely to result in administrative complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given a quietus after lapse of some time.” To compound the same, this unsettling was proposed to be done suo motu by SVIMS without recourse to the principles of natural justice! Except for respondent 4, the record does not reflect that the other respondents even lifted their little finger in protest against their ranking in the seniority list dated 20.10.1998. Further, the objection raised by respondent 4 also is to the effect that the date of regularization may be taken into consideration for fixation of seniority. Her request, even if accepted, would not result in disturbing the seniority of the petitioner as her regularization was admittedly prior in point of time to respondent 4. The facts aforestated leave no room for doubt that the entire controversy was caused by the changing stance and attitude adopted by SVIMS. Further, the above factual concatenation clearly demonstrates that injustice was done to the petitioner in the matter of her promotion to the post of Head Nurse. In spite of this Court setting aside the promotion of respondents 2 to 6 under proceedings dated 05.12.2005 in Writ Petition No.25763 of 2006, the facts bear out that SVIMS by proceedings dated 06.04.2006 again promoted respondents 2 to 6 as Head Nurses. As the petitioner is held to be senior to respondents 2 to 6 by virtue of her earlier appointment and entry into service as a Staff Nurse, she cannot be denied seniority above respondents 2 to 6 now in the cadre of Head Nurse. Though she was promoted to the said post on 09.10.2009 she would be shown to be very much junior to respondents 2 to 6 who were granted such promotion, notwithstanding condemnation by this Court. In COMPTROLLER AND AUDITOR GENERAL OF INDIA v. K. S. JAGANNATHAN[8], while dealing with the power of a High Court to undo a wrong committed by a public authority, the Supreme Court observed: “There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and given necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and given directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion.” Sri Venkateswara Institute of Medical Sciences, Tirupati, is therefore directed to give effect to the promotion of the petitioner as a Head Nurse retrospectively duly showing her as senior to respondents 2 to 6. Her retrospective promotion shall be given effect notionally for all purposes. She would however not be entitled to arrears of monetary benefits resu`lting therefrom as she did not discharge the functions of a Head Nurse during this period, though, through no fault of hers. The Writ Petitions are disposed of with the above directions. In the circumstances of the case, there shall be no order as to costs. ____________________ SANJAY KUMAR, J. _______ NOVEMBER, 2010. VGSR [1] AIR 1990 SC 1607 [2] (1996) 9 SCC 209 [3] 1994 Supp.(1) SCC 276 = AIR 1993 SC 2573 [4] (1991) 1 SCC 544 = 1991 SCC (L&S) 601 [5] (1975) 1 SCC 152 [6] (2009) 1 SCC 768 [7] (1976) 1 SCC 599 [8] (1986) 2 SCC 679