*THE HONOURABLE SRI JUSTICE GODA RAGHURAM AND THE HONOURABLE SRI JUSTICE S. ANANDA REDDY % FRIDAY, THE 23RD DAY OF MARCH TWO THOUSAND SEVEN +WRIT PETITION No. 24989 OF 2001 # S.Govindarajulu S/o late S.Nagaiah Hindu, aged 50 years, Occupation: District & Sessions Judge, now working on O.D. as Chief Legal Advisor, Office of the Additional D.G.P., C.I.D, Hyderabad … Petitioner vs $ High Court of Andhra Pradesh, Hyderabad rep. by its Registrar (Vigilance), High Court Buildings, Hyderabad, and Others. … Respondents < GIST > HEAD NOTE ! For the Petitioner : Sri Challa Sitaramaiah, Senior Counsel, assisted by Sri P.Harinatha Gupta, Advocate ^ For the respondent No.1: Sri D.V.Sitarama Murthy, Standing Counsel For the respondent No.2: None appeared For the respondent No.3: Sri G.Vidyasagar, Advocate For the respondent No.4: Sri V.Ranga Reddy, Advocate For the respondent No.5: Sri B.Adinarayana Rao, Advocate For the respondent No.6: Government Pleader for Home ? 01)T.H.B.Chalapathi and others vs High Court of AP & Ors 1986 L.A.B.I.C. 1069 02)V.Bhaskar Rao and others vs State of AP & Ors AIR 1993 SC 2260 03)K.C.Joshi vs Union of India AIR 1985 SC 1046 04)State of U.P vs M.J.Siddiqui AIR 1980 S`15890/C 1098 05)Baleshwar Dass and others vs State of U.P. and others (1980) 4 SCC 226 06)S.B.Patwardhan vs State of Maharastra (1977) 3 SCC 399 07)N.K.Chauhan vs State of Gujarat (1977) 1 SCC 308 08)O.P.Singla and another vs Union of India and Others AIR 1984 SC 1595 09)O.P.Garg and others vs State of U.P. and others (1991) Supp(2) SCC 51 10)Direct Recruit Class II Engineering Officers’ Association vs State of Maharashtra (1990) 2 SCC 715 11)Delhi Water Supply and Sewage Disposal Committee vs R.K.Kashyap (1989) Supp(1) SCC 194 12)Narender Chadha vs Union of India (1986) 2 SCC 157 13)Secretary State of Karnataka and Others vs Umadevi and others (2006) 4 SCC 1 14)P.K.Chinnasamy vs Government of Tamil Nadu and others (987) 4 SCC 601 15)Dr.Amarjit Singh Ahluwalia vs The State of Punjab and Others (1975) 3 SCC 503 16)Bhey Ram Sharma vs Haryana State Electricity Board (1994) Supp.I SCC 276 17)Tagin Litin vs State of Arunachal Pradesh and Ors AIR 1996 SC 2121 18)Dr.Harikishan Singh vs State of Punjab and others (1971) 2 SCC 58 19)Mohan Lal vs the Management of M/s.Bharat Electronics Ltd. AIR 1981 SC 1243 20)Union of India vs Virpal Singh Chauhan (1995) 6 SCC 684 21)Ajit Singh Januja vs State of Punjab (1996) 2 SCC 715 22)B.S.Yadav and Others vs State of Haryana and others AIR 1981 SC 561 23)A.K. Subraman vs Union of India AIR 1975 SC 483 24)N.K.Chauhan vs State of Gujarat AIR 1977 SC 251 25)D.Ganesh Rao Patnaik & Others vs State of Jharkand & Ors (2005)8 SCC 454 26)State of Bihar vs Madan Mohan Singh (1994) Supp.(3) SCC 308 27)Suresh Chandra Jha vs State of Bihar and others (2007) 1 SCC 405 28)Chairman, Puri Gramya Bank vs Ananda Chandra Das (1994) 6 SCC 301 29)Sanjay Dhar vs J&K Public Service Commission and another(2000) 8 SCC 182 30)Madan Lal vs State of J&K (1995) 3 SCC 486 31)Prafulla Kumar Swain vs Prakash Chandra Misra & Ors (1993) Supp.3 SCC 181 32)Jagidish Ch.Patnaik and Others vs State of Orissa & Ors (1998)4 SCC 456 33)State of Uttaranchal and another vs Dinesh Kumar Sharma (2007) 1 SCC 683 34)Bimlesh Tanwar vs State of Haryana and Others (2003) 5 SCC 605 35)Ajit Singh (II) vs State of Punjab AIR 1967 SC 52 36)P.S.Ghulaud vs State of Haryana (1995) 5 SCC 625 37)AIIMS Students Unions vs AIIMS (2002)1 SCC 428 38)K.Duraisamy vs State of T.N.(2001) 2 SCC 38 39)Rabindra Nath Bose vs Union of India AIR 1970 SC 470 40)Joginder Nath and Others vs Union of India and Others(1975) 3 SCC 459 41)Ramchandra Shankar Deodhar vs State of Maharashtra(1974) 1 SCC 817 42)G.P. Doval & Ors vs Chief Secretary, Govt of U.P. & Ors (1984)4 SCC 329 43)Arun Kumar Chatterjee vs S.E.Railway and others (1985) 2 SCC 451 THE HONOURABLE SRI JUSTICE GODA RAGHURAM AND THE HONOURABLE SRI JUSTICE S.ANANDA REDDY WRIT PETITION NO. 24989 OF 2001 ORDER: (Per the Hon’ble Sri Justice G.Raghuram) Between: S.Govindarajulu … Petitioner And: High Court of Andhra Pradesh, Hyderabad and others … Respondents THE HONOURABLE SRI JUSTICE GODA RAGHURAM AND THE HONOURABLE SRI JUSTICE S.ANANDA REDDY WRIT PETITION NO. 24989 OF 2001 ORDER: (Per the Hon’ble Sri Justice G.Raghuram) The conflict is commonplace, the facts simple and the law clear; and yet a combat. This writ petition is another illustration of a recurring morbidity in our public services, a dispute regarding inter se seniority between direct recruits and promotees. Despite over abundance of precedential guidance, casual administrative practices engender such disputes with regularity. Negligent administrative handling of this area festers creative claims to seniority. The dispute in this writ petition is commonplace. Such disputes in several services including Higher Judicial Service are a continuing phenomenon. We record yet another opinion on an oft visited theme. In substance, the petitioner seeks determination of his seniority status above respondent Nos. 2 to 5 in the category of District and Sessions Judges Grade-II (in the Andhra Pradesh State Higher Judicial Service) governed by Special Rules made under the proviso to Article 309 of the Constitution, called the Andhra Pradesh State Higher Judicial Service Rules (for short ‘the Special Rules’). He also assails the administrative order of the High Court of Andhra Pradesh (the first respondent) dated 17- 08-2001 whereby his representations dated 19-12-1996 and 18- 02-1998 were rejected and seeks a direction (to the first respondent) to treat him as senior to respondent Nos. 2 to 5 in the category of District and Sessions Judges Grade-II. The State of Andhra Pradesh represented by the Secretary to the Government, Law (Legislative Affairs and Justice), Hyderabad, is impleaded as sixth respondent. The factual background to the lis : The petitioner entered the judicial service of the State as ‘District Munsif’ (a post borne in Category-II of the Andhra Pradesh State Judicial Service) by direct recruitment in 1979. He was thereafter promoted as a Subordinate Judge (a post borne in Category-I of this service). In 1991, the sixth respondent notified five vacancies of District and Sessions Judges Grade-II (Category-II of the Andhra Pradesh State Higher Judicial Service) for direct recruitment. Respondent Nos. 2 to 5 applied. Of these, the second respondent belongs to Scheduled Tribe category, the third respondent to Open Category, the fourth respondent to Scheduled Caste and the fifth respondent to Backward Class-B category. By orders in G.O.Ms.No. 509, General Administration (SC-F) Department dated 28-09-1993, the respondent Nos. 2 to 4 were appointed to act as District and Sessions Judges in Category-II under Rule 2 (a)(ii) of the Special Rules. The appointment order specified that the respondents would be on probation for a total period of one year with effect from the date on which they join duty; separate orders of posting to be issued by the first respondent. Eleven days earlier, in G.O.Rt.No.4623, General Administration (SC-F) Department dated 17-09-1993, the petitioner and six others belonging to the substantive category of Subordinate Judges were appointed as District and Sessions Judge, Grade-II, by transfer; the appointments to take effect from the dates on which the respective officers assume charge; and the orders of posting to be issued by the first respondent. The appointment order in G.O.Rt.No. 4623 specified that it is an initial temporary appointment. In notification No. 362-B.Spl., dated 04-10-1993, the petitioner, respondent Nos. 2 to 4 and two other District and Sessions Judges Grade-II (appointed by transfer) were issued orders of posting. In G.O.Ms.No.616, General Administration (SC-F) Department dated 20-11-1993, the fifth respondent was appointed to act as District and Sessions Judge Grade-II; put on probation for a period of one year with effect from the date of his joining duty; and separate orders to be issued by the first respondent regarding his posting. In notification No.439-B.Spl., dated 26-11- 1993, the first respondent issued orders of posting to the fifth respondent. Thus, in the category of District and Sessions Judge Grade-II, the petitioner was issued an order of appointment on 17- 09-1993, the respondent Nos. 2 to 4 on 28-09-1993 and the fifth respondent on 28-11-1993. The first respondent issued a common order posting the petitioner and the respondent Nos. 2 to 4, on 04-10-1993 and to the fifth respondent on 26-11-1993. Pursuant to the orders of appointment and postings as above, the dates with effect from which the petitioner and party respondents joined and were continuously on duty as District and Sessions Judge Grade-II are: 06-10-1993 – third respondent; 11-10-1993 – second respondent; 16-10-1993 – petitioner; 18-10-1993 – fourth respondent; and 02-12-1993 – fifth respondent. In the Half Yearly List of Judges of the High Court of Andhra Pradesh and Members of the Andhra Pradesh State Higher Judicial Service (for short ‘Half Yearly list’) (as on 01-01-1994) published by the first respondent (and received by the petitioner in April, 1994), respondent Nos. 2 to 4 were shown above the petitioner. On 19-12-1996, the petitioner submitted a representation to the first respondent complaining of this fact. He represented that his appointment was earlier to respondent Nos. 2 to 4 and that Rule 6 of the Special Rules mandated that the seniority of a person appointed to Category-I or Category-II should be determined with reference to the date from which he is continuously on duty in that category. The petitioner sought seniority over respondent Nos. 2 to 4. It would appear that on 22-07-1994 the fifth respondent represented to the first respondent that though his name was at serial No.1 in the list sent up by the first respondent (recommending appointment as District and Sessions Judge Grade-II), respondent Nos. 2 to 4 were issued appointment orders by the sixth respondent in September, 1993, while the fifth respondent was issued the appointment order on 20-11-1993 for no fault of his. He represented for restoration of his seniority (vis- à-vis the respondent Nos. 2 to 4), in harmony with the inter se positions as recommended by the first respondent. In G.O.Ms.No.843 General Administration (SC-F) Department dated 01-03-1996, the sixth respondent issued an order fixing the inter se seniority of respondent Nos. 2 to 5. Accordingly, the fifth respondent is determined to be senior to the respondent Nos. 2,3 and 4 and in that order of seniority. The Government relaxed the provisions of Rule 33 (b) of the Andhra Pradesh State and Subordinate Service Rules,1962 – Part-II (for short ‘the General Rules’) to accord seniority to the fifth respondent (over respondent Nos. 2 to 4). In the Half Yearly list, as on 01-07-1996, the fifth respondent, followed by respondent Nos. 2 to 4, were shown above the petitioner (at serial Nos. 58 to 62). In the earlier Half Yearly list (as on 01-01-1996), the respondent Nos. 2 to 4, the petitioner and respondent No.5 figured at serial Nos. 60 to 63 and 67, in that order. No notice or opportunity was afforded to the petitioner before upgrading the fifth respondent’s seniority over the petitioner. No such notice or opportunity preceded the issuance of the orders in G.O.Ms.No. 843 dated 01-03-1996, either. On 18-02-1998 the petitioner represented to the first respondent against the placement of fifth respondent above himself in seniority and asserted that he had no notice or opportunity of being heard before such placement. The petitioner also pleaded that the fifth respondent could not be treated as senior to him, as that would violate the injunction of Rule 6 of the Special Rules. On 17-08-2001, nearly five years after the first representation (dated 19-12-1996) and three and half years after the second representation (dated 18-02-1998), the first respondent rejected the petitioner’s representations by a laconic order which states that the petitioner’s representations and his request for fixing of seniority above the fifth respondent “has been considered by the High Court and the same is rejected”. The writ petition is filed on 04-1-2001. Sri Challa Sitaramaiah, learned senior counsel for the petitioner has urged that the petitioner is lawfully entitled to seniority over respondent Nos. 2 to 5. It is contended that despite his earlier appointment order (17-09-1993) as against the appointment order of respondent Nos. 2 to 4 (28-09-1993), the first respondent failed to issue posting orders to the petitioner ahead of respondent Nos. 2 to 4 and had issued a common order of postings, to the petitioner and these respondents, on 04-10-1993. The delay is not bona fide “but is intended to help respondent Nos. 2 to 4” to enable them to be his seniors. It is further contended that the determination of inter se seniority between the petitioner and respondent Nos. 2 to 4 and 5 as well, is violative of the mandate of Rule 6 of the Special Rules and illegal. According to the petitioner, the laconic rejection of his two representations (dated 19-12-1996 and 18-02-1998) by the first respondent is arbitrary. Not only is no reason vouchsafed for rejecting his representations, the rejection is totally unresponsive to his earlier representation dated 19-12-1996 (as regards claim of seniority over respondent Nos. 2 to 4). The rejection proceeds as though the petitioner had represented for seniority against the fifth respondent only. 1st Respondent’s defence:- The broad chronology of facts set out herein above is admitted. It is however erroneously pleaded: “the respondents 2 to 4 took charge in their respective posting prior to the petitioner”. This assertion by the 1st respondent is clearly contrary to the record. All the half yearly lists since 1.1.1994 up-to-date verify that the dates of joining of the petitioner and the respondents 2 to 5, are as set out supra in this judgment. The petitioner’s allegation that posting orders to him were delayed to accord seniority benefits to respondents 2 to 4, is denied. It is suggested that common posting orders for the petitioner and respondents 2 to 4 were issued on 4.10.1993 by the 1st respondent in the normal course of administration. The subsequent order of appointment, posting order and joining the post by the 5th respondent is admitted. It is stated that of the five vacancies notified for direct recruitment the first vacancy was earmarked for BC-B category, second vacancy for ST, the third vacancy for OC, the fourth vacancy for SC and the fifth for OC category candidates. The first respondent recommended the 5th respondent for the first vacancy (BC-B) and respondents 2 to 4 for the 2nd to 4th vacancies (ST, OC and SC). The first respondent recommended the 5th respondent’s name in the order of preference against the first vacancy, to satisfy the rule of reservation. However the Government issued appointment order to the 5th respondent subsequent to the appointment order of respondents 2 to 4. Though appointed later to respondents 2 to 4, the 5th respondent was assigned seniority “for the purpose of satisfying the rule of reservation”. The first respondent recommended to the sixth respondent to notify seniority according to its initial recommendation and the sixth respondent eventually issued proceedings accordingly. Though the seniority under Rule 6 of the Special Rules must be determined with reference to the date from which a person is continuously on duty and though the petitioner was appointed prior to respondents 2 to 4, the posting orders to the petitioner and the respondents 2 to 4 were issued on 4.10.1993. Therefore the provisions of Rule 6 would not support the petitioner’s claim Rule-6 must be read in harmony with Rule 33(b) of the General Rules. To satisfy the rule of reservation the first respondent addressed the sixth respondent to notify the 5th respondent’s seniority over the petitioner and respondents 2 to 4. Accordingly the 5th respondent, followed by respondents 2 to 4, followed by the petitioner is the seniority position – vide the 6th respondent’s order in G.O.Ms. No. 843, dt 1.3.1996. The petitioner’s claim to seniority over respondents 2 to 4 is belated. I f aggrieved the petitioner ought to have challenged the posting order dated 4.10.1993 or objected to the Half Yearly list published on 1.1.1994. He cannot now object to respondents 2 to 5 being placed above him in seniority. The 4th Respondent’s defence (counter dated 29-08-2002) :- · Respondents 2 to 4 were appointed as direct recruits on a regular basis in substantive vacancies, while the petitioner was promoted temporarily. The petitioner’s being a temporary promotion, is liable to be reverted in a contingency whereas respondents 2 to 4 suffer no such risk. Since the petitioner’s promotion is temporary, he cannot claim seniority over respondents 2 to 4. While direct recruits are appointed in roster points within the cadre strength of posts, the petitioner was temporarily promoted, to a post outside the cadre. · Rule-6 of the Special Rules must be read in consonance with Rule 33(b) of the General Rules. · The 4th respondent having been appointed against a post earmarked for a roster point reserved for SC category, his seniority cannot be disturbed, as seniority must be fixed as per the roster point and not on the basis of either the date of appointment or of assuming charge of the post. · Since seniority list was prepared as per the seniority determined by the selection authority, the mere date of appointment to a service would not confer any right to seniority against respondents 2 to 4. · The petitioner’s claim to seniority over the 4th respondent is belated. The 5th Respondent’s defence :- · Since the petitioner submitted representations only on 19.12.1996 and 18.2.1998, they are belated. · The 1st respondent selected the 5th respondent and respondents 2 to 4 together at the same selection and placed the 5th respondent above respondents 2 to 4, in accordance with the roster points. However the sixth respondent issued orders of appointment earlier to the respondents 2 to 4 and later to the 5th respondent, for no fault of the 5th respondent. Since his appointment is against the roster point reserved for BC-B category, the 5th respondent’s seniority cannot be disturbed, as seniority has to be determined in accordance with the roster point and not on the basis of the date of appointment. · The order of the 6th respondent dated 1.3.1996 in G.O.Ms.No. 843, fixing the inter se seniority of the 5th respondent above respondents 2 to 4 was pursuant to the directions of the first respondent, in relaxation of rule 33(b) of the General Rules and in consonance with the rule of reservation. It was communicated to all the direct recruits appointed as per the original select list. · Since the order in G.O.Ms.No. 843 was only a correction, there is no requirement of issuing any notice to other persons. · The 5th respondent was appointed as a full member in Category-II in a retirement vacancy w.e.f. 2.11.1993. He is declared as full member of the service earlier to the petitioner. Full members are entitled to preference over approved probationers and probationers, for seniority purposes. · In his representation dated 19.12.1996 the petitioner did not claim seniority over the 5th respondent though by that date G.O.Ms.No.843 dated 1.3.1996 was issued. The petitioner objected to the 5th respondent’s seniority only by his representation dated 18.2.1998. This is a belated representation. · The party respondents are direct recruits appointed to substantive vacancies within the cadre whereas the petitioner was temporarily promoted to a post outside the cadre. · On the petitioner’s representation the 1st respondent called upon the party respondents to file objections. The 5th respondent submitted his objections on 20.11.1999. Considering all the objections the petitioner’s claim was rejected by the 1st respondent. The 5th respondent has filed an additional counter affidavit dated 8.3.2007. According to this pleading: · From the Half Yearly list as on 1.7.1993 the total strength of the AP State Higher Judicial Service is 65 with a temporary addition of 40 posts (in Grade-II). · There should have been 22 direct recruits, but there were only 17 (as on 1.7.1993), below the 33 1/3rd percent quota (for direct recruits), mandated by Rule-2 of the Special Rules. · In the Half Yearly list as on 1.7.1994 the cadre strength is 55 with a temporary addition of 43 Grade-II posts. There were only 21 direct recruits Grade-II Officers (including respondents 2 to 5). · The notification inviting applications for direct recruitment for 5 posts was issued on 7.1.1992. The list was forwarded to the 6th respondent by the 1s t respondent in May/June 1993 and was pending thereat. The 1st respondent approved the list of promotees and sent it to the 6th respondent, thereafter. Even while the direct recruitment recommendation was pending consideration by the State, the sixth respondent issued appointment orders to the promotees. Therefore and since the direct recruitment recommendation was pending consideration at an advanced stage with the 6th respondent, the 1st respondent issued posting orders after receipt of appointment orders of the respondents 2 to 4 (to the petitioner and the respondents 2 to 4), by a common order dated 04-10-1993. · Rule-6 of the Special Rules is subject to Rule-2 and Rule-2A of the Special Rules. · The date of joining is an uncertain and arbitrary event depending on several irrational exigencies such as postal delay or the relative distance of an appointee’s residence vis-à-vis the location of the post to which posted and is therefore not a rational circumstance for determining seniority. Sri Sitarama Murthy, the learned counsel for the first respondent reiterated in oral arguments the stand adopted by the first respondent in the pleadings. He denied the allegation that the petitioner’s posting order was delayed and issued along with posting orders of the respondent Nos. 2 to 4 to deprive him seniority over these respondents. On behalf of the first respondent it is thus categorically pleaded and urged that the issuance of posting orders on 04-10-1993 to the petitioner and respondents No. 2 to 4 and two other officers appointed by transfer as District and Sessions Judges Grade- II was a normal administrative incident. It was further contended that the High Court had recommended the names of the fifth respondent followed by respondent Nos. 2 to 4 and in that order of preference, for appointment as District and Sessions Judges Grade-II to satisfy the ‘rule of reservation’ and as the relevant roster points for this recruitment were in that order. Since the fifth respondent’s appointment order was issued subsequently on account of an administrative delay at the level of executive Government, the High Court recommended restoration of seniority of the fifth respondent over respondent Nos. 2 to 4. Consequently, the sixth respondent issued an order in G.O.Ms.No.843 dated 01-03- 1996 relaxing the provisions of Rule 33 (b) of the General Rules, and notifying the seniority of the 5th respondent over respondent Nos.2 to 4. The learned counsel for the fourth respondent Sri V.Ranga Reddy has adopted the arguments advanced on behalf of the fifth respondent. Sri Adinarayana Rao, learned counsel reiterated the position adopted by the first respondent viz., that the seniority of the fifth respondent was rightfully restored since the issuance of an order of appointment order to him subsequent to issuance of appointment order to respondent Nos. 2 to 4 was contrary to the order of preference recommended by the first respondent (the selection authority) and was the product of an avoidable executive error. Sri Rao contended that the order of preference inter se respondent Nos. 2 to 5 determined by the first respondent could not be subverted by an administrative error of the sixth respondent, issuing orders of appointment to respondent Nos. 2 to 4 earlier to the fifth respondent. It is for this reason that the error was later corrected and G.O.Ms.No. 843 issued restoring the seniority of the fifth respondent over respondent Nos. 2 to 4. It was also contended that after the order of sixth respondent in G.O.Ms.No. 843, the fifth respondent ranks senior to the respondent Nos. 2 to 4 in Grade-II. On this account, respondent Nos. 2 to 4 have no grievance. In the circumstances, Rule 6 of the Special Rules must