* THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA WRIT PETITION No.9839 of 2011 % 04.11.2011 # P.Dasharatha And others. ... Petitioners VERSUS $ Govt. of A.P., rep.by its Principal, Secretary to Government, Revenue (Excise), Secretariat Buildings, Hyderabad, And others. ... Respondents < GIST: > HEAD NOTE: ! Counsel for Petitioners: Sri P.V.Krishnaiah ^Counsel for Respondents: Sri J.R.Manohar Rao G.P. for Services ? Cases referred THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA WRIT PETITION No.9839 OF 2011 04.11.2011 Between: P.Dasharatha and others …. Petitioners AND Government of A.P., rep. by its Principal Secretary to Government, Revenue (Excise), Secretariat Buildings, Hyderabad, And others. … Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA WRIT PETITION No.9839 OF 2011 ORDER: (per Hon’ble Sri Justice V.V.S.Rao) Introduction Four petitioners herein were appointed as Prohibition and Excise Inspectors (Inspectors) in 1996 or 1995 by Direct Recruitment. The competent authority also declared that they have successfully completed the period of probation. By three separate proceedings dated 16.12.2009 , they were promoted as Assistant Prohibition and Excise Superintendents (AES) under Rule 10(a) of the A.P.State and Subordinate Service Rules, 1996 (the General Rules, for brevity) on temporary basis. The petitioners filed an application under Section 19 of the Administrative Tribunals Act, 1985 (hereafter, the Act) being O.A.No.1748 of 2011 before the A.P.Administrative Tribunal (the Tribunal, for brevity) seeking a declaration that the action of the respondent i.e., the Government of A.P., and the Commissioner of Excise and Prohibition (the Commissioner) in not preparing the seniority list of Scheduled Caste (SC) candidates in the cadre of AESs as arbitrary, illegal and violative of Articles 14, 16 and 21 of the Constitution of India, ultra vires Rules 6 and 33 of General Rules and for a consequential direction to forthwith prepare the seniority list of SC candidates in the cadre of AES by giving notional dates based on availability of vacancies by following the same principle as was done by the Commissioner vide proceedings CR.No.7649/2003/CPE/L3-2, dated 12.07.2010, before effecting promotions to the posts of Prohibition and Excise Superintendents (ES) or alternatively direct the respondents not to effect any promotions to the post of Superintendents without preparing final or provisional statewide integrated seniority list in the cadre of AESs by including all eligible candidates including SC candidates. The petitioners also prayed for interim direction to the respondents 1 to 3 to forthwith prepare a seniority list in the cadre of AES exclusively for SC candidates based on the availability of vacancies by following the same principle as was done in proceedings dated 12.07.2010 of the second respondent before effecting promotions to the posts of Excise Superintendents. On 01.04.2011, the Tribunal while admitting the original application passed the interim direction which reads: “pending disposal of the O.A., the respondents are directed to prepare the seniority list in the cadre of Assistant Prohibition & Excise Superintendents as per the Rules”. Being aggrieved by the said order, the petitioners filed the instant writ petition praying the relief which is verbatim reproduction of the main relief in the original application. The petitioners also filed a miscellaneous application being W.P.M.P.No.12161 of 2011 seeking interim relief which is also verbatim reproduction of the interim relief prayed before the learned Tribunal. This Court while admitting the writ petition on 11.04.2011 granted interim relief as prayed for in the miscellaneous application referred to supra. The respondents 4 and 5 (hereafter, contesting respondents) filed W.V.M.P.No.1524 of 2011 praying this Court to vacate the ex parte interim order date 11.04.2011. The official respondents also filed W.V.M.P.No.2161 of 2011 seeking vacation of the ex parte interim order. At the stage of interim relief itself, with the consent of the counsel, the main writ petition is heard on 02.09.2011, 05.09.2011 and 21.10.2011 and is being disposed of by this order. Background (a) The case of petitioners Shorn of unnecessary argumentative pleadings that have crept in the writ affidavit filed by the first petitioner, the case of the petitioners is as follows. All of them were appointed as Inspectors in 1996 or 1995 by Direct Recruitment. Their probation was also declared. In the matter of promotion to the posts of Superintendents, the rule of reservation would apply since 2003. The panels of Inspectors for promotion to the posts of AESs were not prepared for 2007-08 and 2008-09. An ad hoc panel was prepared in December, 2009 for the entire State. Based on the same, the petitioners and contesting respondents were promoted on 16.12.2009. The sixth respondent herein filed O.A.No.2976 of 2010 for redressal of his grievance with regard to preparation of final seniority list and promotion to the post of ES. By order dated 26.05.2010, the Tribunal passed interim orders directing the official respondents to follow the final integrated seniority list which was set aside by it in earlier O.A., by considering the Inspectors in the seniority list upto Serial No.41. Thereafter, the Commissioner prepared and communicated the seniority list, labelling it as a final seniority list vide proceedings dated 12.07.2010 including the names of twenty AESs in three multi Zones for the year 2007-08. The names of the petitioners were not included in the said list which is arbitrary, illegal and is violative of Article 16(4). The petitioners approached the Tribunal by filing original applications wherein directions were issued to prepare seniority list but the official respondents ignored the same. Therefore, the petitioners filed O.A.No.1748 of 2011 seeking parity of treatment with the contesting respondents. The Tribunal without considering the main grievance passed the interim order on 01.04.2010, aggrieved by which the instant petition is filed under Article 226 of Constitution of India. (b) The Case of the Government and the Commissioner The sum and substance of the official respondents is as follows. (i) The seniority list of Inspectors in Zone-II and the consequential integrated seniority list for multi Zone-II were assailed in O.A.Nos.11590, 11373, 11332 and 1111 of 2010. The Tribunal allowed those OAs., on 17.03.2010 directing the Government to prepare the seniority list of Inspectors in Zone II as per the merit assigned by APPSC as per Rule 33 of the General Rules and not according to roster points, and then consider the cases of applicants therein for promotion to AESs as per the seniority list. (ii) The Government decided to implement the orders dated 17.03.2010 of the Tribunal in O.A.No.11590 of 2010 etc. So as to maintain uniformity in the application of law, it was decided to apply the principles laid down by the Tribunal to all the Zones in Excise Department. The Secretary of APPSC was addressed to communicate the common merit ranking prepared by them without reference to roster points. In response, by letter No.15/RS-23A/2010, dated 19.10.2010, the Secretary, APPSC communicated the merit list of Direct Recruitee Inspectors of Zones I to VI. Based on the marks, the provisional integrated seniority list of Inspectors of Multi Zones I, II and III[1] is revised irrespective of the date of joining of the officers. The Commissioner issued orders multi-zonewise inviting objections from those included in the provisional seniority list. The finalization of seniority list of Inspectors and sequential preparation of multi-zonal provisional integrated seniority list of AES is likely to take some time when the relative seniority of SC candidates would have to be determined. (iii) The petitioners have not completed the period of probation as on 01.09.2010 which is the qualifying date for the year 2010-11 as per Rule 6(c) of the General Rules. In addition to this, they are also not eligible for consideration for promotion to Superintendents. Therefore, determination of the inter se seniority of SC candidates would not serve any purpose. There are seventeen (17) vacancies of Superintendents and some more vacancies likely to occur. It is therefore necessary to fill up these posts in the exigency of administration. (c) The case of the respondents 4 and 5 In their counter affidavit, respondents 4 and 5 made the following allegations and averments. (i) Respondents 4 and 5 were directly recruited as Excise Sub Inspectors in 1977. They were promoted as Inspectors in 1987 and their services were regularized in 1990 and 1995 respectively. Though they were eligible for promotion as AES they were promoted as in-charge AES on 18.05.2006 and 01.09.2007 respectively. In 2007, the Departmental Promotion Committee (DPC) considered their names. In pursuance thereof, they were promoted as AESs with effect from 01.09.2007. (ii) The writ petitioners who are directly recruited in 1995 are juniors to respondents 4 and 5. In the review DPC for 2006-2007 and 2007-2008, the petitioners did not come up for consideration and other SC candidates were promoted in the said panel. (iii) The petitioners are temporary AESs. Their services are not regularized. For the last five months, they are trying to stall the promotions of the contesting respondents. They filed O.A.No.4442 of 2010 to consider their cases for promotion by following rule of reservation. They also filed O.A.No.8833 of 2010 and obtained stay of promotion till the information sought by the Government in the Memo dated 02.12.2010 is furnished. Aggrieved by the same, the fourth respondent filed W.P.No.147 of 2011. By an order, dated 31.12.2010, this Court passed interim orders directing the respondents to proceed with the promotion to the post of Superintendents other than SC and ST vacancies. Subsequently, by order dated 29.01.2011, this Court vacated the said order giving liberty to the respondents to approach the Tribunal. (iv) The fourth respondent then filed O.A.No.582 of 2011 to consider his case for promotion. By order dated 07.02.2011 the Tribunal issued interim directions to consider the case of the fourth respondent for promotion. The petitioners then filed O.A.No.196 of 2011 seeking a direction to implement the Government Memo. The Tribunal passed orders on 21.01.2011 directing the Commissioner to furnish the information sought and in obedience thereto information was furnished to the Government on 29.01.2011. (v) One Sukesh filed O.A.No.699 of 2011 and obtained directions not to effect promotions till integrated seniority list is prepared. The Commissioner prepared integrated seniority list dated 12.07.2010. As the petitioners are not approved probationers, they are not eligible to be included therein and they cannot stall the promotions of the respondents. (vi) The sixth respondent filed O.A.No.1525 of 2011 seeking a direction to consider his case for promotion to the post of Superintendent. In the said O.A., the Tribunal clarified that there is no stay of promotions in view of subsequent developments. (vii) When the respondents initiated the process, the petitioners again filed O.A.No.1748 of 2011 challenging the seniority list dated 12.07.2010 and sought for stay of promotion. The Tribunal refused to stay the promotions and directed the official respondents to prepare the seniority list as per the Rules. Yet again, the petitioners got filed O.A.No.2129 of 2011 for stay of promotions, but the Tribunal did not grant any interim orders. (viii) The petitioners filed the writ petition only for staying promotions. When the Tribunal already granted directions to prepare seniority list, the petitioners cannot have any grievance when they are not even approved probationers in the cadre of AES and are not eligible to be included in the seniority list. The panels for the year 2006-07 and 2007-08 are already prepared. The petitioners did not come up for selection and their seniors in SC category were included in the said panel. The petitioners are filing one case after the other stalling the promotions although they are not eligible for the post of Superintendent. Submissions The counsel for petitioners would submit that when the applicants and the contesting respondents were promoted on the same day i.e., 16.12.2009, considering the cases of the latter only ignoring the claims of the petitioners for promotion to the post of Superintendents is arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India; six posts in the cadre of Superintendents are exclusively reserved for SCs, and when the official respondents consider the candidates in seniority list where there is no dispute, there is nothing to prevent the official respondents to consider the case of the petitioners also to the six posts of Superintendents meant for SCs. He would further contend that the six posts of Superintendents reserved for SCs have been vacant since long and therefore, the action of the official respondents in not giving notional dates for promotions to the petitioners from the date of availability of such vacancies is illegal and discriminatory. The counsel would also urge that due to various disputes in the seniority in the cadre of Inspectors in certain zones, the multi-zonal seniority list could not be prepared which would be the basis for preparation of panels to the posts of AES. But, now the zonalwise seniority list of Inspectors have been finalized and therefore, nothing prevented the respondents from preparing regular panels for promotion to the cadre of AESs at multi-zonal level and prepare the statewide integrated seniority list of AESs for the purpose of effecting promotions to the posts in the cadre of Superintendents. The respondents prepared the so called final integrated seniority list of AESs in three multi-zones for the year 2007-08 although there is no such order of the Tribunal and non-inclusion of the petitioners in the said list is discriminatory. Lastly, he would contend that the respondents are likely to fill up the posts reserved for SCs in the cadre of Superintendents with non-SC officials which is not permissible under Article 16(4) and (4A) of the Constitution of India. The Government Pleader for Services-II and the counsel for contesting respondents submit that the seniority list dated 12.07.2010 was prepared as the Government desired to apply uniform principle as ordered by the Tribunal in O.A.No.11590 of 2005 and there is no illegality or arbitrariness in the same. The petitioners have not completed the requisite essential qualifying service as per the special rules and therefore, their non-inclusion in the final seniority list dated 12.07.2010 is not illegal and arbitrary. The service of the contesting respondents in the cadre of AESs was regularized and they are seniors to the petitioners as they were posted as in- charge AES in 2006 or 2007. As there is no dispute with regard to seniority of Inspectors from Sl.Nos.1 to 41 in multi-zone I, the promotions were taken up and the same principles were applied in all the other zones which is sustainable. The petitioners have been repeatedly filing the cases in the Tribunal as well as before this Court, only to stall promotions and the present writ petition is not bona fide. The Tribunal considered the balance of convenience and hardship and passed interim orders in O.A.No.1748 of 2011. If the petitioners have any grievance about non-implementation of the same, the remedy is to file a contempt application before the Tribunal and the writ petition is not maintainable. Various issues raised by the petitioners herein have not been finally adjudicated by the Tribunal and therefore, this Court would not be inclined initially to go into those issues. The points for consideration The pleadings of the petitioners and the respondents and the submissions by the counsel would throw up the following points for consideration. i) Whether it is imperative for the competent authority to prepare a separate inter se seniority list of SC/ST Government servants for the purpose of implementing rule of reservations at the stage of promotions as enabled by Article 16(4)(a) of the Constitution of India? ii) Whether it is not competent for the competent authority to proceed with the exercise to promote eligible qualified and suitable candidates in the feeder category to the next higher category based on a panel prepared after inviting objections, even though the inter se seniority list of eligible and suitable SC and ST candidates is not prepared? iii) Whether the petitioners are entitled to claim regularization from the date anterior to their promotion on the ground that vacancies reserved for SCs are available from a date prior to the date of their promotion, and whether the denial of a notional date of regularization is discriminatory and violative of Articles 14 and 16 of Constitution of India? iv) Whether the State is not competent to adopt uniform policy guidelines for the preparation of zonal seniority list or multi-zonal seniority list or state seniority list as per Rule 33 of the General Rules and as mandated by the A.P.Administrative Tribunal, even if the directions issued by the Tribunal are in relation to a particular zone or multi-zone? v) In a writ petition filed impugning an interlocutory order passed by the Tribunal, when the main original application is pending, is it proper for the High Court to take up independent enquiry into various questions pending adjudication before the Tribunal? vi) Whether the Tribunal while passing interim orders directing the respondents to prepare seniority list in the cadre of AES as per the Rules was justified in rejecting the prayer of the petitioners to injunct respondents from effecting promotions to the posts of Prohibition and Excise Superintendents without preparing a separate seniority list exclusively for SC candidates? vii) Whether the petitioners who are allegedly do not satisfy the eligibility criteria as per the Special Rules can have any grievance if the official respondents take up the promotions to fill up about seventeen existing vacancies of Prohibition and Excise Superintendents due to exigency of administration; and whether it is proper for the Courts to stay the promotions? In re Point (v) I n L.Chandra Kumar v Union of India[2], the unanimous Constitution Bench of the Supreme Court, held that, “all the decisions of the Tribunals rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent Act that will be subject to scrutiny before Division Bench of respective High Courts ... ... the Tribunals will, however, continue to act as the only Courts of first instance in respect of the areas of law for which they have been constituted.” (UNDERLINING BY US). The Supreme Court further observed that, ‘it will not be open for the litigants directly approach the High Courts even in cases where the question is the vires of statutory legislations by overlooking the jurisdiction of the concerned Tribunal’. In re Points (i) to (iv) In view of the settled legal position, we are convinced that the points (i) to (iv) in the first instance have to be adjudicated by the Tribunal having regard to Articles 14 and 16(4A), A.P.State and Subordinate Service Rules, 1996 and A.P. Excise Service Rules, 1961 (hereafter, the Special Rules). This Court, at the first instance, is barred from adjudicating the questions raised by the petitioners. In that view of the matter, the writ petition is misconceived. The learned Tribunal may decide these issues and other issues that may arise without in any manner swayed by the observations or findings in this order. In re Points (vi) and (vii) Section 24 of the Act deals with supplemental and incidental powers of the Administrative Tribunals. It also gives sufficient indication with regard to the power of the Tribunal to pass interim orders pending original applications. For ready reference, it is quoted below. Section 24. Condition as to making of interim orders.- Notwithstanding anything contained in any other provisions of this Act or in any other law for the time being in force, no interim order (whether by way of injunction or stay or in any other manner) shall be made on, or in any proceedings relating to, an application unless- (a) copies of such application and of all documents in support of the plea for such interim order are furnished to the party against whom such application is made or proposed to be made; and (b) opportunity is given to such party to be heard in the matter: Provided that a Tribunal may dispense with the requirement of clauses (a) and (b) and make an interim order as an exceptional measure if it is satisfied, for reasons to be recorded in writing, that it is necessary so to do for preventing any loss being caused to the applicant which cannot be adequately compensated in money but any such interim order shall, if it is not sooner vacated, cease to have effect on the expiry of a period of fourteen days from the date on which it is made unless the said requirements have been complied with before the expiry of that period and the Tribunal has continued the operation of the interim order. The power of the Tribunal to pass an interim order is circumscribed by two conditions. These are (i) no interim order shall be made unless copies of application with documents in support of the plea for interim order are furnished to the party against whom such application is made or proposed to be made; and (ii) an opportunity is given to the party to be heard in the matter. Nevertheless, these two conditions can be dispensed with when the Tribunal may make an interim order “as an exceptional measure if it is satisfied, for reasons to be recorded in writing, that it is necessary so to do for preventing any loss being caused to the applicant which cannot be adequately compensated in money”. Even in such a case any such ex parte ad interim order shall expire after a period of fourteen days from the date on which such order is made. There is no dispute that the order dated 01.04.2011 in O.A.No.1748 of 2011 impugned in the writ petition is an ex parte order. The petitioners prayed for stay of promotions to the posts of Superintendents without preparing final or provisional statewide integrated seniority list for the cadre of AESs. The Tribunal declined to pass an order. There is no dispute that the petitioners also sought an interim order directing the official respondents to forthwith prepare a seniority list of AESs exclusively for SC candidates by giving notional dates based on availability of vacancies. Insofar as this prayer is concerned, the Tribunal was inclined to pass an order to the extent of directing the respondents to prepare seniority list in the cadre of AES as per the Rules. The question therefore is whether the Tribunal committed any error in passing an order as noticed herein and refusing to pass an order to stay the promotions to the posts of Superintendents. It is no gainsaying to mention that adjudication of service law disputes by the Tribunal is an alternative institutional mechanism permitted by the Constitution itself. The Tribunals discharge the powers of judicial review in the field of service law and vested with all the powers that are exercised by High Court under Article 226 of Constitution of India. Therefore, the exercise of jurisdiction by the Tribunal while passing interim orders is subject to the settled principles which are (i) an interim order cannot be passed unless prima facie case, balance of convenience or hardship are pleaded or demonstrated by the applicant who seeks an interim order from the Tribunal; (ii) an interim order which amounts to granting main relief cannot ordinarily be granted at the interlocutory stage; and (iii) the Tribunal has to exercise discretion judiciously depending on the facts and circumstances of each case while passing interim orders. We have been taken through the pleadings and various documents including number of orders passed by the Tribunal. After thoroughly perusing the same and giving anxious consideration, we are convinced that the interim order of the Tribunal challenging in the writ petition does not suffer from any error apparent on the face of record. The impugned order accords compliance with the settled principles that governs the passing of the interim order by the Tribunal. There are no exceptional circumstances warranting stay of promotions nor granting of a direction to the official respondents not to take up promotions for the posts of Superintendents unless and until the inter se seniority list of SC candidates is prepared. In addition to the above reason, we are also convinced that the impugned order of the