THE HON’BLE SRI JUSTICE J.CHELAMESWAR AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.18561 OF 2004 ORDER: (per Hon’ble Sri Justice Ramesh Ranganathan) Between: 1. The Principal Secretary to Government, I & CAD Department, A.P. Secretariat, Hyderabad and another….. Petitioners AND G.Ramachandra Raju …… Respondent THE HON’BLE SRI JUSTICE J.CHELAMESWAR AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.18561 OF 2004 ORDER: (per Hon’ble Sri Justice Ramesh Ranganathan) This writ petition is filed against the order of the A.P. Administrative Tribunal in O.A.No.801 of 1998 dated 17.12.2003. Facts, to the extent necessary, are that respondent herein was initially appointed as an overseer in the I & CAD department, of the Government of Andhra Pradesh, on 29.9.1969. His probation was declared with effect from 7.1.1972 and he was allotted to zone II under the presidential order. He was promoted as a temporary supervisor, (Asst. Engineer), with effect from 26.3.1976 and his probation was declared in the said cadre with effect from 13.5.1978. On his acquiring a bachelors degree in engineering, on 18.2.1983, the respondent herein was appointed, by transfer, as an Asst. Executive Engineer, vide proceedings dated 24.3.1983, under the amended rules notified in G.O.Ms.No.54, I & CAD Department dated 15.2.1983. The 2nd petitioner, vide proceedings dated 7.1.1992, fixed his notional date of appointment, in the post of Asst. Executive Engineer, as 2.11.1980. Subsequently, in terms of the orders issued in G.O.Ms.No.314 I & CAD Department dated 11.6.1990, the notional date of appointment of the respondent herein was revised as with effect from 5.6.1979, treating his date of appointment, in the post of assistant executive engineer, as 19.2.1983, the day after he had obtained the qualification of a bachelor’s degree in engineering. The respondent filed O.A.No.801 of 1998, before the A.P. Administrative Tribunal, (hereinafter referred to as the Tribunal), to declare that he was senior to the Asst. Executive Engineers, regularized under G.O.Ms.No.647, GAD dated 14.9.1979 in Zone II, taking his notional date as 5.6.1979, as fixed by the Engineer in Chief, I & CAD, department, and for a direction to the respondents therein to promote him as Deputy Executive Engineer in Zone-II treating him as senior to the Assistant Executive Engineers, under G.O.Ms.No.647 dated 14.9.1979. The Tribunal, by order dated 17.12.2003, held that the case of the respondent had to be considered, over and above those candidates whose services were regularized under G.O.Ms.647 and below the SQT candidates, taking his notional date as 5.6.1979 as fixed by the Engineer in Chief for the purpose of promotion and for reckoning his eligibility. With a view to avoid further litigation, the Tribunal held that the relief granted was confined only to the respondent herein and not to other candidates who had not approached the Tribunal within the time prescribed. Appointments and promotions in the Engineering Service of the Government of Andhra Pradesh, more particularly in the Irrigation Department, has had a long and chequered history with endless litigation between different sets of employees claiming seniority over the others while seeking promotion to higher posts in the service. To briefly note the details thereof, to the extent necessary for the case on hand, G.O.Ms.No.559, Irrigation and Power (Ser.III) Department dated 18.7.1977 was issued prescribing weightage, seniority etc., for supervisors (asst. engineers) in the public works (Irrigation Department) of the government, from among those who had acquired graduation qualification while in service, enabling them to be appointed as junior engineers (asst. executive engineers). Under Clause 2(ii) of the said G.O., a supervisor, appointed as junior engineer, was entitled to count 1/3rd of the service rendered by him as Supervisor, before his appointment as junior engineer and subject to a maximum of four years, for the purpose of computing his service as junior engineer which would render him eligible for being considered for appointment as an assistant engineer (deputy executive engineer). The A.P. Engineering Service Rules were amended, in exercise of powers conferred under the proviso to Article 309 of the Constitution of India, and notified in G.O.Ms.No.54, Irrigation (Services IV-2) Department dated 15.2.1983. The amendments were taken to have come into force with retrospective effect from 28.2.1972. Note (3), which was inserted after Note (2) below the table under Rule 4, by the amendment to the rules notified under G.O.Ms.No.54 dated 15.2.1983, reads thus: Note.3: A Supervisor who is appointed by transfer as Junior Engineer on or after 28.2.1972 shall be entitled to count 1/3rd of the service rendered as Supervisor before appointment as Junior Engineer subject to a maximum of 4 years weightage for the purpose of computing the service as Junior Engineer, which will render eligible for consideration for promotion as Assistant Engineer, and subject to the following conditions:- i. The seniority of a Supervisor, who is appointed as Junior Engineer shall be fixed in the category of Junior Engineers with reference to the notional date arrived at after giving weightage of service aforesaid: ii. A supervisor who is appointed as Junior Engineer, shall put in a minimum service of one year duty as Junior Engineer after such appointment, and a total service of five years as Junior Engineer, inclusive of the period given as weightage to become eligible for promotion as Assistant Engineer. iii. No Supervisor shall ordinarily be eligible for appointment as Junior Engineer, unless he has put in a minimum service of three years as Supervisor. iv. A Supervisor with less than three years of service, who is appointed as Junior Engineer for any special reasons, shall not be entitled to any weightage of his past service as Supervisor. The earlier executive instructions, in G.O.Ms.No.559 dated 18.8.1977, culminated in the A.P. Engineering Service rules being amended under G.O.Ms.No.54 dated 15.2.1983. Consequent thereto the 2nd petitioner, vide proceedings dated 24.3.1983, informed the respondent that his notional date of appointment as Assistant Executive Engineer was 2.11.1980. To continue the narration, there was earlier a ban on regular appointments, through the Public Service Commission, under G.O.Ms.No.682 dated 18.8.1970. As a result thereof, different departments of the State Government resorted to temporary recruitment, under Rule 10(a)(i) of the General Rules, to fill up the vacancies in their respective engineering services. The Government took a decision to regularize the services of all such temporary employees, by lifting the ban on direct recruitment and on framing special rules under the proviso to Article 309 of the Constitution of India. The method of regularization was to be by way of a special qualifying test (SQT) to be conducted by the Public Service Commission. Only those temporary junior engineers, who had completed not less than two years service as on 1.1.1973 were admitted to the SQT. The Public Service Commission issued a notification inviting applications from eligible candidates, who desired to have their services regularized, to appear in the SQT. Several junior engineers, in different departments, submitted their applications under the said notification. Those employees who had not completed the minimum required two years of service, to enable them to appear for SQT, filed writ petitions before this Court, which were allowed holding that the prescription of two years service as on 1.1.1973 was unconstitutional. The Appeal preferred thereagainst was allowed by a Division Bench of this Court and the writ petition was dismissed with costs. Pursuant thereto the SQT was conducted by the Public Service Commission and the services of qualified temporary junior engineers were regularized in various engineering services of the State. Temporary junior engineers who had failed to pass the SQT and those who were ineligible to appear for the SQT, in view of prescription of the minimum two years of service, submitted representations to the government seeking regularization of their services, and the government issued G.O.Ms.No.646 dated 14.9.1979 whereby the services of all temporary employees, appointed by direct recruitment in different categories of posts and continuing in service as on 9.8.1979, were directed to be regularized without subjecting them to any written or oral test. Orders of regularization were issued, in G.O.Ms.No.647 dated 14.9.1979, whereby the services of all temporary government employees, appointed by direct recruitment, and continuing in service as on 9.8.1979, were regularized without subjecting them to any test, written or oral. These employees were regularized from the next following date on which the last regular appointment in that category was made in the unit concerned or from the date of temporary appointment whichever was later. G.O.Ms.No.647 dated 14.9.1979 was upheld in I.J. Diwakar v. Government of A.P., wherein the Supreme Court held thus: “Even though we reject both the contentions, equity demands that the matter cannot be allowed to rest here. Appellants, fresh engineering graduates, applied for post of Junior Engineer in response to the advertisement issued by the Commission. They appeared at the viva voce test. A hope was generated in their minds that if they can successfully compete and come within the zone of selection they would be able to secure government service. By subsequent regularisation the euphoria generated by the advertisement has proved a mirage. We, therefore, asked the learned Solicitor-General who appeared for the respondents and with his atypical fairness he stated that there are still number of posts of Junior Engineer for which the requisition is pending with the Commission. In order to do justice between the parties and not to leave the appellants, fresh young engineering graduates, in lurch, we direct that the Commission shall proceed to finalise the list of selection on the basis of the viva voce tests conducted and marks assigned and forward the same to the government within two months from today. If the appellants or any one of them fall within the zone of selection, they must be first appointed according to their place in the select list before any outsider is appointed hereafter to the post of the Junior Engineer in any branch of Andhra Pradesh Engineering Service and this must be irrespective of the Department in which post of Junior Engineer is available…….” Pursuant to the judgment of the Supreme Court in I.J. Diwakar1 the government issued G.O.Ms.No.307 dated 23.5.1983 directing that the appellants therein and the candidates ranked above them in the Public Service Commission lists, who were not eligible for regularization of their services, in terms of G.O.Ms.No.647 dated 14.9.1979, should be appointed in the respective zones and departments to which they were selected for appointment, by the A.P. Public Service Commission, in the available vacancies. The Government also decided that, after absorbing the candidates ranked above the appellants in I.J. Diwakar1, those candidates who were within the zone of selection in the list furnished by the A.P. Public Service Commission and who were ranked below the appellants in I.J. Diwakar1, should be appointed in the existing or future vacancies in any of the engineering services. In case vacancies were not available, they were to be reallotted to the zones under which they were selected, but in other engineering departments. The Public Service Commission was asked to rearrange the merit list in each zone, if necessary, taking into consideration the final list of candidates allotted to each zone keeping in view the rule of reservation and merit. G.O.Ms.No.532 dated 31.10.1983 was issued prescribing the procedure to be followed for appointment of junior engineers, whereunder notices were to be issued to the candidates, whose names were included in the select list, to indicate whether their names should be deleted from the select list drawn by the A.P. Public Service Commission, in view of regularization of their services under G.O.Ms.No.647 dated 14.9.1997 in the departments in which they were working on 9.8.1979, or they should be considered for fresh appointment based on the selection list of the A.P. Public Service Commission. Based on the replies received to such notices, the names of all persons who were willing to remain in the departments, in which they were working and regularized/eligible for regularization under G.O.Ms.No. 647 dated 14.09.1979, were required to be selected from the lists of selection drawn up by the Andhra Pradesh Public Service Commission. The remaining candidates, and those eligible for regularization under G.O.Ms.No. 647 dated 14.09.1979, were required to be selected from the lists of selection drawn up by the Andhra Pradesh Public Service Commission. The list of the remaining persons was required to be redrawn with the approval of the A.P. Public Service Commission keeping in view the order of merit, rule of reservation and local candidature and from such a redrawn list, depending on the number of vacancies available, appointment orders were to be issued in the available clear vacancies. If sufficient number of vacancies to give appointments were not available in the departments concerned, a list of persons, who could not be given appointment orders, was required to be sent to the A.P. Public Service Commission for allotting them to other Engineering Departments. Till all the persons, in the select list of the A.P. Public Service Commission, were exhausted, the vacancies reserved for direct recruitment was not to be filled up in any other manner. The benefit of weightage, of a portion of the previous service rendered as Supervisors, given to the Junior Engineers was upheld in State of A.P. v. K.S. Muralidhar, wherein the Supreme Court held thus:- “In our view the G.O.Ms. No. 559 makes it abundantly clear that the appointments of these upgraded Supervisors who acquired the graduate qualification while in service, would be prospective only and that they would be entitled to the weightage of four years of service rendered before the appointment. The G.O.Ms. does not anywhere indicate that the weightage should be from the date of acquiring the degree qualification. It must be borne in mind that it is only after acquiring such degree qualification that a Supervisor is appointed as Junior Engineer and having regard to the service rendered by him the government as a policy decided to give weightage of four years for the purpose of considering the eligibility for promotion as Assistant Engineer. In this context it is pertinent to note that the degree holders were appointed temporarily because of a ban and later the government again as a policy decision decided to make regular appointments by direct recruitment but enabled the degree holders who are in temporary service to appear in a SQT. Again as a matter of policy the government decided to give some weightage to the service rendered by them before the appointment by selection. It can thus be seen that the government in fixing the seniority for the purpose of future promotion of the appointees both the upgraded as well as those selected by the Public Service Commission in SQT has taken into account the past service rendered by them. In the case of upgraded Junior Engineers weightage of four years’ service is given and in the other case two years’ weightage is given. In this context it is contended on behalf of the upgraded Junior Engineers that the regularisation of the direct Junior Engineers retrospectively that is with effect from two years prior to the date of their appointments is unwarranted. In this context the Tribunal has rightly pointed out that under Rule 23-A of the A.P. State and Subordinate Service Rules, 1962 if a person having been appointed temporarily under Rule 10 to a post borne on the cadre is subsequently appointed in the service in accordance with the Rules he shall commence his probation from such subsequent date or the earlier date as the appointing authority may determine. We agree with the Tribunal that there is no bar to the retrospective regularisation of the service of the direct Junior Engineers. However, in the instant case, it was a special selection by SQT restricted to the directly recruited Junior Engineers who had put in two years of service and the objective was to regularise their services. As stated supra as a matter of policy the government gave weightage to both the categories. In Devi Prasad v. Government of A.P. (AIR 1980 SC 1185) G.O.Ms. No. 893 referred to above was questioned on the ground of unreasonableness in the matter of giving weightage to the upgraded supervisors. This Court held that in the light of their experience there is nothing unreasonable in giving them limited benefit or weightage. It was further observed as under: “Ultimately, it is a matter of government policy to decide what weightage should be given as between two categories of government servants rendering somewhat similar kind of service. In the present case, there may be truth in the case of the appellants that they are hit hard because of the new rule. Dr Chitale tried to convince us of the hardship that his clients sustain consequent on this rule and weightage conferred thereby. But mere hardship without anything arbitrary in the rule does not call for judicial intervention, especially when it flows out of a policy which is not basically illegal. However, government must be interested in keeping its servants specially in strategic areas like engineering contended and efficient. In so producing contentment, it may have to evolve a flexible policy which will not strike a group as inflicting hardship on them. A sense of justice must permeate both the groups.” However, the upgraded Junior Engineers who having got the benefit of four years’ service cannot be heard to say that similar weightage cannot be given to the direct recruits who prior to the selection were working on temporary basis…..” The second petitioner, vide proceeding dated 23.5.1992, informed that, in view of the judgment of the Supreme Court in K.S. Muralidhar2, their dates of appointment as assistant executive engineers was considered from the date of appointment ie., the date of the order in which they were originally appointed by transfer as A.E.Es. As such, in partial modification of the earlier proceedings, their dates of appointment by transfer as assistant executive engineers as well as their notional dates of appointments were modified. While the original date of appointment of the respondent, as assistant executive engineer, considering the date of acquiring qualification was 19.2.1983, his original notional date of appointment as assistant executive engineer was 2.11.1980, the revised date of appointment by transfer as assistant executive engineer, as per the orders of the Supreme Court, was fixed as 24.3.1983, and the revised notional date of appointment as AEE was fixed as 29.6.1979. Non-graduate engineers were hitherto appointed both to the posts of supervisors and junior engineers, which were non-gazetted posts, till junior engineers were categorized as gazetted officers, by orders of the government dated 7.6.1976, with effect from 28.2.1972. Consequent thereto, the post of junior engineer ceased to belong to the subordinate services of the State. Supervisors, who acquired degree in engineering, were re-designated as Junior Engineers thereby enabling their speedier career advancement as the quota for graduate junior engineers, for promotion to the post of assistant engineers, was higher than the quota earmarked for supervisors. Those supervisors who were re-designated as junior engineers after 28.2.1972, but before 7.6.1976, and placed under the category of non-gazetted officers, continued to belong to the subordinate services. These supervisors were entitled to be appointed as junior engineers only by transfer. On their representations and on reconsideration of the entire matter, the government decided, vide G.O.Ms.No.451 and 459 dated 10.6.1976 and 25.9.1976 respectively, that such of the supervisors, who had acquired graduate qualification while in service, should be appointed temporarily as Junior Engineers with effect from 10.6.1976. Consequent to a query with regards the weightage to be given for their previous service etc., the Government issued G.O.Ms.No.559 dated 18.7.1977 and G.O.Ms.No.658 dated 22.10.1977 giving weightage for a portion of the service rendered as supervisors, for computing the length of service as junior engineers, to be eligible for consideration for promotion as assistant engineer. As a result thereof, supervisors, who had acquired the qualification of a graduation in engineering after 28.2.1972, and who had been designated as junior engineers and re-designated as junior engineers (non-gazetted), were re-designated as junior engineers (gazetted), with effect from their original dates of entry into service and became entitled to claim weightage of 1/3rd of the service rendered as supervisors, subject to a maximum of four years, for computing their seniority, for being considered for promotion to the post of assistant engineers. Consequent upon their inter-se seniority being fixed on that basis, the upgraded junior engineers were shown as seniors to the junior engineers regularized under G.O.Ms.No.647 dated 14.7.1979 both in the provisional seniority list dated 7.1.1982 and the final seniority list dated 7.7.1982. These seniority lists were the subject matter of challenge in G.S. Venkat Reddy v. Government of A.P.. On examining the question as to whether those supervisors, who were upgraded as junior engineers, could claim seniority over those temporary employees whose services were regularized under G.O.Ms.No.647, dated 14.7.1979, and whether they fell within the expression “last regular appointment”, as referred to in the said G.O., the Supreme Court held that the upgraded junior engineers did not fall within the purview of the expression “last regular appointment” in G.O.Ms.No.647 dated 14.9.1979. The Supreme Court summarized its conclusions as under: “To summarise : The candidates who have entered service after passing the SQT shall rank immediately after the regularly appointed candidates who had entered service before the selection of the successful SQT candidates. Next to the SQT candidates will rank those who are governed by this Court’s directive in the last paragraph of Diwakar case (AIR 1982 SC 1535). Thereafter the seniority will be fixed between the candidates covered under GOMs No. 647, the upgraded supervisors and the SC/ST candidates recruited under the Rule 22(e) — limited recruitment scheme — in the light of this judgment. The judgment and order of the Tribunal will stand modified to the extent it concerns the SC/ST candidates recruited under the Rule 22(e) — limited recruitment scheme. If as a consequence of this modification readjustment of inter se seniority between a candidate governed by GOMs No. 647 and an upgraded supervisor becomes necessary it will be effected in the terms of this judgment. Fresh orders consistent with this judgment may be issued, if necessary. Except for the modification made in regard to recruitment under the limited recruitment scheme, the Tribunal’s order is upheld.” As no seniority lists were prepared pursuant to the direction of Supreme Court in G.S. Venkat Reddy3, the Junior Engineers belonging to I.J. Diwakar1 batch, and those Junior Engineers whose services were regularized under G.O.Ms.No. 647, approached the Tribunal filing O.A.Nos. 5306 of 1993 & 812 of 1994. The Tribunal passed certain orders on 08.03.1994 and 13.04.1994. In its order dated 13.04.1994, the Tribunal directed that persons appointed in 1984 on the basis of a concession given in I.J. Diwakar1 should not be put above persons who were already in the list showing the organization of cadre or appointments pursuant to SQT or G.O.Ms.No. 647 or limited recruitment. The matter was carried in appeal to the Supreme Court, and in S. Chinnapa Reddy & Others Vs. State of Andhra Pradesh, the Supreme Court held thus:- “………It seems to us that the Tribunal has over-reached itself. As aforestated the judgment in Venkat Reddy’s case was delivered by a bench of three learned Judges after taking note of Diwakar’s case. The directions given in Venkat Reddy’s case indicate where those governed by Diwakar’s case are to be placed. There is, therefore nothing in the directions which can lead to difficulty nor is there any question of “reconciling the same with Diwakar’s case. We find no justification for the Tribunal directions to the State Government to furnish “basic and essential” material to enable it to commence an exercise for preparing a seniority-list, nor for the earlier direction that the seniority-list should be set- down by the State Government after examining Presidential orders, general and special rules, judgments of the Supreme Court other than that in Venkat Reddy’s case and other judgments. The orders of the Andhra Pradesh Administrative Tribunal dated 8th March and 13th April 1994 are accordingly quashed and set-aside. The State Government is directed to review the seniority list that it has prepared to ensure