IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) SATURDAY, THE SIXTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE Mr. JUSTICE GHULAM MOHAMMED and THE HON'BLE Mr. JUSTICE C.V.RAMULU W.P.Nos.4137 of 2008 and 7818 and 16741 of 2007 WRIT PETITION No.4137 of 2008 Between: A.P. Public Service Commission, Rep. by its Secretary, Prathibha Bhavan, Nampally, Hyderabad. ..... PETITIONER AND 1 Anil Kumar, S/o. Om Prakash, Andhra Pradesh Public Service Commission, Gruhakalpa Buildings, Nampally, Hyderabad. 2 V. Prabhakar, Andhra Pradesh Public Service Commission, Gruhakalpa Buildings, Nampally, Hyderabad. (since dismissed). 3 S. Kameswara Rao Andhra Pradesh Public Service Commission, Gruhakalpa Buildings, Nampally, Hyderabad. 4 Ch. Adams, Andhra Pradesh Public Service Commission, Gruhakalpa Buildings, Nampally, Hyderabad. 5 The Director of Insurance, Government of Andhra Pradesh, Hyderabad. 6 The Director of Adult Education, Government of Andhra Pradesh, Hyderabad. 7 The Secretary to Government, General Administration Department, Government of Andhra Pradesh, Secretariat, Hyderabad. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to issue a Writ of Certiorari or any other appropriate Writ, Order or direction, calling for the records relating to the Order in O.A. No.6900 of 2005, dated 29-12-2006 of the Hon'ble Andhra Pradesh Administrative Tribunal, Hyderabad and quash the same as the same is contrary to law and facts and pass such other order or further orders Counsel for the Petitioner: THE ADVOCATE GENERAL Counsel for the Respondents: GP FOR SERVICES II The Court made the following : THE HON'BLE Mr. JUSTICE GHULAM MOHAMMED and THE HON'BLE Mr. JUSTICE C.V.RAMULU W.P.Nos.4137 of 2008 and 7818 and 16741 of 2007 COMMON ORDER: (per C.V. RAMULU,J) Since these three Writ Petitions are directed against an Order dated 29-12-2006 made in O.A.No.6900 of 2005 on the ﬁle of Andhra Pradesh Administrative Tribunal, Hyderabad, they are being disposed of by this common Order. Writ Petition No.4137 of 2008 is ﬁled by the Andhra Pradesh Public Service Commission represented by its Secretary (1st respondent in the said O.A.). Writ Petition No.7818 of 2007 is ﬁled by respondents 3 and 4 in the said O.A. Writ Petition No.16741 of 2007 is ﬁled by one Duvvuri Bhaskara Rao by seeking leave of the Court. Applicant in the said O.A. is the party respondent in all the Writ Petitions. The parties are hereinafter referred to as they were arrayed in the O.A. The O.A. was ﬁled by one Anil Kumar under Section 19 of the Administrative Tribunals Act,1985 to declare the Proceedings in Rc.No.2051/ADB/2/95, dated 21-3-2000 and the consequential Proceedings Rc.No.2051/ADB/5/95, dated 22-7- 2003 issued by the 1st respondent-A.P. Public Service Commission as arbitrary, illegal and violative of Article 14,16 and 21 of the Constitution of India, apart from being contrary to Rule 2 of A.P. Ministerial Service Rules read with Rules 29 and 33 of A.P. State and Subordinate Service Rules and to set aside the same insofar as it relates to placing the name of the applicant at Sl.No.105 of the seniority list of Senior Assistants, showing the date of promotion of the applicant to the post of Superintendent as 24-9-1997 was concerned and consequently to direct the respondents to place the applicant at appropriate placement over and above the unofficial respondent- V.Prabhakar and below one R.Koteswara Rao in the cadre of Senior Assistant, following Rule 2 of A.P. Ministerial Service Rules read with Rules 29 and 33 of A.P. State and Subordinate Service Rules and also direct the respondents to put the applicant’s name at appropriate place in the seniority list of Superintendents basing on the revised seniority list of Senior Assistants and further consider the promotion of the applicant as Assistant Secretary with eﬀect from the date of promotion of his juniors including the party respondents. The case of the applicant was that in response to a notiﬁcation issued in the year 1981 by the A.P. Public Service Commission for the post of Group II (B) Services i.e. Senior Assistant/Senior Accountant, he participated in the selection process. He was informed by the APPSC through letter dated 2- 6-1982 about his selection. He was allotted to the Oﬃce of Regional Deputy Director of Insurance, Kurnool at roster point 6/1. However, the Director of Insurance through his letter No.184/ Admn/81-82, dated 21-7-1982 did not accept the allotment made by the APPSC on the ground that point No.6 in the roster was reserved for Physically Handicapped person and the applicant was not a physically handicapped person. Therefore, APPSC vide letter No.2002 /J2/82, dated 21-12-1982 requested the Director of Insurance to send application of the applicant to APPSC to enable it to allot the applicant to other Department. Thus, the applicant was reallotted to the Director of Adult Education in the year 1983. Unfortunately, the Director of Adult Education also did not accept the allotment of applicant on the ground that the applicant’s mother tongue is not Telugu and he has not studied Telugu upto Degree standard and, therefore, the Director of Adult Education surrendered the applicant to APPSC vide his letter No.8/A/DAE/83, dated 2-4- 1983. Thereafter, the applicant seems to have made a representation stating that he has been without any employment for nearly one year and, therefore, requested for his allotment to A.P. Public Service Commission itself. Ultimately, the applicant was appointed in the Commission as Senior Assistant and joined, as such, on 19-5-1983. Therefore, the applicant claims that he should be placed at the appropriate place in terms of his ranking obtained in the merit list in the category of Senior Assistant/Senior Accountant prepared by the Commission along with other candidates, who were selected and appointed in APPSC based on the selections made by the Commission in 1982. Therefore, the O.A. Counter and additional counter were ﬁled by the respondents. But, they have not disputed that the applicant was selected by APPSC in the year 1982 on the basis of a notification issued in the year 1981. It was also not disputed that the applicant has been allotted to the Insurance Department in the ﬁrst instance and the Director of Insurance did not accept the allotment of the applicant on the ground that the applicant is not a physically handicapped person and that the roster point against which the applicant has been allotted is meant for Physically Handicapped. It is also not disputed that the applicant was again allotted to Adult Education Department and there also he was not admitted on the ground that his mother tongue is not Telugu and that he did not pass Graduation in Telugu medium. Under those circumstances, at his own request, he was allotted to APPSC itself and he was out of employment for nearly one year, whereas others, who were selected along with him, have already been appointed and joined in their respective posts by that time. According to the applicant, the controversy seems to have arisen when persons, who were promoted from the post of Junior Assistant/Typist to Senior Assistant, earlier to his joining, without reference to the vacancies for promotion quota, were shown as seniors to him in the category of Senior Assistant, taking into consideration his date of joining i.e. 19-5-1983 - the date on which his seniority has to be counted, even though he was appointed as Senior Assistant through APPSC and promotees were promoted without availability of vacancies for the promotion quota in the ratio of 3:1 as provided under the relevant rule for promotion and direct recruitment. The Tribunal, after a detailed consideration of the entire controversy between the parties, has come to the conclusion that the regularization of the promotees to the category of Senior Assistant has been evidently without reference to the quota available for promotion and though the applicant cannot claim seniority from the anterior date of appointment from 19-5-1983, yet promotees whose services have been regularized without reference to the availability of promotion quota in the category of Senior Assistants, have to be adjusted against the vacancies that are available from year to year for promotees and they cannot claim the vacancies meant for direct recruits. It was also observed that in terms of proviso to Rule 33(b) of A.P. State and Subordinate Service Rules ranking given by the APPSC in the merit list has to be maintained. Thus, placement of applicant has to be ﬁxed according to his ranking among the persons, who were appointed by APPSC, based on the same examination and selection, if necessary by giving relaxation of Rule 33 in favour of the applicant in order to maintain his ranking in the category of Senior Assistant and even though he joined late, he is entitled to be appointed according to the Rules. Further, his appointment was delayed for no fault of him and came to be appointed in the year 1983 (others selected in the batch joined in 1982 in the APPSC). Therefore, the applicant is entitled to the seniority as per his ranking in the select list and appointments made accordingly. Regularization of services of the promotees have to be reviewed with reference to the year- wise vacancies available in the quota i.e. promotion quota and the seniority list be prepared accordingly in the category of Senior Assistants, duly giving opportunity to the concerned persons and after preparing the seniority in the category of Senior Assistants, promotions in the next higher category already made shall be reviewed accordingly. Aggrieved by the same, the present Writ Petitions are filed. Sri J. Sudheer, learned Special Government Pleader representing the learned Advocate General, strenuously contended that the applicant could not be accommodated either in the Oﬃce of the Deputy Director of Insurance or Director of Adult Education and ultimately, he was adjusted in the Oﬃce of APPSC itself. Even before the applicant joined the service in APPSC on 19-5-1983, the inservice candidates working in the establishment of APPSC were promoted, in their due turn, as Senior Assistants and they were further promoted to the post of Superintendent as per their seniority. The respondent/applicant cannot raise the issue of seniority and promotion at this length of time. This is nothing but unsettling the issue, which was already settled. The applicant has no right whatsoever to challenge the promotion of the unoﬃcial respondents, who were promoted prior to his joining in the establishment of APPSC. In a way, the applicant has raised an issue of seniority between direct recruits and promotees. The ﬁnal seniority list in the cadre of Senior Assistants in the oﬃce of APPSC was ﬁnalized and published on 26-6-2007, after hearing the objections of all the concerned, including the applicant. Applicant was given due placement at 64th point in the total cadre strength of 64 in the category of Senior Assistant. Since he was the person, who joined on 19-5-1983 and was a probationer, none of the unofficial respondents can be said to be juniors to him. The unoﬃcial respondents were already promoted in the year 1991 itself as Superintendents as per their seniority in the cadre of Senior Assistant and the applicant did not take any objection for the same, particularly when all of them are working under one roof. Applicant accepted his position in the seniority as Senior Assistant as well as Superintendent and when it is sought to be reviewed as per the judgments of the Courts, he has ﬁled the present O.A., which is time barred and the Tribunal ought not to have entertained the same. Sri S. Satyam Reddy, learned counsel for the petitioner in Writ Petition No.16741 of 2007, which was ﬁled with the leave of the Court, has submitted that the petitioner was appointed against a regular vacancy and in the due vacancy meant for promotees, even prior to the appointment of the applicant. Therefore, the Tribunal was not right in directing to review the seniority as per the observations made therein Dr. P.B. Vijay Kumar, learned counsel for the petitioner in Writ Petition No.7818 of 2007 has advanced the same arguments like that of the learned counsel for APPSC and stated that the Tribunal erred in passing such an order unsettling the issue, which was already settled. Sri E. Manohar, learned senior counsel appearing for the respondent-applicant, contended that the applicant was selected in Group II(B) services notiﬁed in the year 1981 and was allotted to (i) Deputy Director of Insurance and (ii) Adult Education Department, where he was not permitted to join duty and ultimately, the APPSC accommodated him in the vacancy available in the Commission, which is treated as one of the Heads of Departments for which the notiﬁcation was issued. Though the applicant joined duty on 19-5-1983 in pursuance of reallotment to the APPSC, his seniority must be reckoned on par with the other persons, who were selected along with him and allotted to APPSC. This was not done by APPSC. Total cadre strength of Senior Assistants in the establishment of APPSC was only 64 and 16 of them are meant for direct recruits. Among the direct recruits along with the petitioner, he was given the last position and was ﬁxed at 64th point, rightly so. But the real trouble started when the services rendered by temporary Senior Assistants like that of the unoﬃcial respondents were treated as service rendered in a regular vacancy and they were shown above the applicant. APPSC has never asserted that the unoﬃcial respondents were promoted as Senior Assistants against clear vacancies available in that cadre for promotees from the cadre of Junior Assistant/Typist. In fact, no information is placed before the Tribunal, in this regard, as to how many persons were promoted from among the Junior Assistants/Typists and how many vacancies were available as on the date of their promotion to be ﬁlled up by promotion. Unoﬃcial respondents were promoted temporarily over and above the vacancies available for promotees in the cadre of Senior Assistant; therefore, the Tribunal rightly came to the conclusion that the applicant could not have been shown above the applicant in the cadre of Senior Assistant and also they could not have been further promoted to the post of Superintendent before the petitioner could be promoted. The seniority list dated 21-3-2000 was the ﬁrst one prepared and published by APPSC in the cadre of Senior Assistant in view of some representations made by various candidates including the applicant. In the review of promotions made in the category of Senior Assistant from 1980 to 1992 in terms of Judgment dated 27-7-1997 in C.A.No.4013/96 and 4172/96 and as per the orders of this Court in W.P.No.19552 of 1997, dated 22-12-1999, the unoﬃcial respondents were shown at Sl.Nos.4 to 6, whereas the applicant was shown at Sl.No.105. In the Proceedings dated 22-7-2003, which was prepared after a long battle in various courts and the representations made by the individuals, the applicant’s case was considered at 6th column and in the ﬁnal seniority list of Superintendents consequent to the order passed in the Commission’s Proceedings dated 21-10-2002, unoﬃcial respondents were shown at Sl.Nos.3 to 5, whereas the applicant was shown at Sl.No.76 and his seniority in the cadre of Superintendent was sought to be altered from 24-9-1997 to 1-7-1994. If he is given the seniority with eﬀect from 1-7-1994, he could have been shown at Sl.No.42. The unoﬃcial respondents could not have been shown at Sl.Nos.3 to 5, at any rate, since they were not promoted on regular basis and they were only temporary Senior Assistants even as on the date of appointment of the applicant as Senior Assistant in the APPSC. There were no vacancies available for promotion from the category of Junior Assistant/Typist to the post of Senior Assistant as on the date of joining of the applicant i.e. 19-5-1983. Therefore, the Tribunal rightly held that when there were no vacancies available, how more than 100 persons were promoted to the post of Senior Assistant is not known and there is no reason forthcoming for the same. Under those circumstances, the applicant is entitled to reckon his seniority on par with the direct recruits allotted along with him into APPSC service in the cadre of Senior Assistant. APPSC itself has created confusion by making all illegal promotions in the cadre of Senior Assistant as well as in the cadre of Superintendent. Therefore, the Tribunal has not committed any error in allowing the O.A. and directing the APPSC to revise the seniority of the applicant in the cadre of Senior Assistant as well as Superintendent as per his entitlement. Sri Abhinand Kumar Shavali, learned counsel appearing for implead party petitioner in Writ Petition No.16741 of 2007 has adopted the arguments of Sri E.Manohar, learned senior counsel and supported the impugned Order. We have given our earnest consideration to the respective submissions of the learned counsel on either side and perused the impugned Order and other material made available on record. At the outset, we are not inclined to accept the argument advanced by Sri E.Manohar, learned senior counsel appearing for the respondent-applicant, that the APPSC cannot maintain a Writ Petition of this nature, since the dispute as to seniority is between its employees and it could not have ﬁled a Writ Petition of this nature. Though the learned senior counsel, in this regard, cited the judgment reported in S.I. ROOPLAL v. LT.GOVERNOR, DELHI [1] and drawn our attention to paragraph-25, which reads thus: “25. Before concluding, we are constrained to observe that the role played by the respondents in this litigation is far from satisfactory. In our opinion, after laying down appropriate rules governing the service conditions of its employees, a State should only play the role of an impartial employer in the inter se dispute between its employees. If any such dispute arises, the State should apply the rules laid down by it fairly. Still if the matter is dragged to a judicial forum, the State should conﬁne its role to that of an amicus curiae by assisting the judicial forum to arrive at a correct decision. Once a decision is rendered by a judicial forum, thereafter the State should not further involve itself in litigation. The matter thereafter should be left to the parties concerned to agitate further, if they so desire. When a State, after the judicial forum delivers a judgment, ﬁled review petition, appeal etc., it gives an impression that it is espousing the cause of a particular group of employees against another group of its own employees, unless of course, there are compelling reasons to resort to such further proceedings……..” we are of the opinion that the said judgment has no application to the facts of this case. APPSC can maintain a Writ Petition, since the dispute is inter se of its own employees and naturally, in a given case it may feel that the settled position as to seniority is being unsettled by the Order of the Tribunal. A few admitted facts, which are necessary to be noticed, before going into other aspects on the relevant issues, are as under: The applicant was selected in Group II (B) Services for the post of Senior Assistant in pursuance of a notiﬁcation issued in the year 1981. All the selected candidates were allotted to various Departments in the year 1982 and three persons, who were selected along with the applicant, were also allotted to APPSC in the year 1982. The applicant, though was allotted to two other Departments, could not be accommodated and ultimately he was accommodated in a clear vacancy of Senior Assistant available in the APPSC (Head of the Department) with effect from 19-5-1983. The APPSC could not explain as to how 100 persons were promoted to the post of Senior Assistant, though there were no clear vacancies meant for promotees. It may be necessary to notice that in the Proceedings of APPSC dated 21-3-2000 whereunder review of promotions was made in the category of Senior Assistant among Junior Assistants/Typists in the Oﬃce of the APPSC from 1980-92 and while reviewing the said seniority, objections ﬁled by the applicant were considered at Sl.No.8 and it is noted that ‘his allotment as direct recruitment in Commission’s Oﬃce has been done on his own request as a reallotted candidate. Hence, the question of giving seniority in 64 Senior Assistants does not arise. His seniority has been ﬁxed as per Rule 33(a) of A.P. State and Subordinate Service Rules”. In the said Proceedings, applicant was shown at Sl.No.105 and unoﬃcial respondents were shown at Sl.Nos.4 to 6. APPSC by Proceedings dated 22-3-2003 reviewed the promotions made in the category of Senior Assistants among Junior Assistants and Typists from 1980-92 and the seniority in the category of Superintendent from the category of Senior Assistant and the Special Category Stenos, and passed ﬁnal orders. Here, objections ﬁled by the petitioner were dealt with as under: “The individual, who is a direct recruit Senior Assistant was appointed in Commission’s Oﬃce on 19-5-1983 and during revision of seniority of Senior Assistants, he was shown against the vacancy arose on 19-5-1983 only. In the said revision, some of the Junior Assistants, who have gained place have occupied the position above the individual against the vacancies arose before his entry into service. Due to the above, in the provisional seniority list, the individual has got his placement against the vacancy arose on 24-9-1997”. Whereas, the applicant was promoted to the post of Superintendent with eﬀect from 1-9-1994 and the review date of promotion was given as 24-9-1997. Except saying that the applicant was reallotted to APPSC and he was adjusted against a vacancy as available on 19-5- 1983, no other explanation is forthcoming. In fact, the APPSC conceded that the applicant was adjusted against 64th vacancy of the cadre strength of Senior Assistants on his reallotment. The question whether reallotment was his own making or for any reasons beyond his control was not taken into consideration by the APPSC while ﬁxing his seniority. As noticed above, the respondent-applicant, though was allotted to two other Departments, could not be admitted for want of vacancy and some other genuine reasons. Therefore, he was to be accommodated in APPSC itself. Thus, absolutely, there is no fault on his part in reallotment to APPSC. In this regard, the Tribunal has observed as under: “23. In regard to the placement of the applicant in the seniority list where there is quota for promotees and direct recruits and if any promotions have been made in excess of the quota set apart for promotees, it has been held that the direct recruits have a legitimate right to claim that the promotees in excess of the prescribed ratio will have to be adjusted in later years when their promotion can be regularized by being absorbed in their lawful quota for these years. (N.K. Chauhan Vs. State of Gujarat, 1977(1) 205 (SC): General Manager, APSRTC v. S.K. Mathur, 1977(1) SLR 306 (AP). In the case of Suraj Prakash Gupta and others Vs. State of J&K Others, reported in 2000(7) SCC 561, the Hon’ble Supreme Court while dealing the seniority issue of promotees and the direct recruits has held that “excess promotees occupying direct recruitment posts have to be pushed down and adjusted in later vacancies within their quota, after due regularization. Such service outside the promotee quota cannot count for seniority. Service of the promotees, which is regularized with retrospective eﬀect from the date of vacancies within the quota counts for seniority. However, any part of such ad hoc/stop gap or even regular service rendered while occupying the direct recruitment quota cannot be counted. Seniority of the promotees or transferees is to be ﬁxed as per quota and from the date of commencement of probation/regular appointment as stated above. Seniority of direct recruits is from the date of substantive appointment. Seniority has to be worked out between direct recruits and promotees for each year.” This position was again reiterated in the latest judgment reported in AFHQ/ISOs SOs (DP) ASSOCIATION v. UNION OF INDIA[2]. Insofar as the availability of vacancy for accommodating in the quota meant for