IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY FOURTH DAY OF FEBRUARY TWO THOUSAND AND TEN PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON’BLE MR JUSTICE GOPALAKRISHNA TAMADA Rev.WPMP.10982/2005 in WP.20830/2000 Rev.WPMP.31407/2009 in WP.24087/2000 & WP.Nos.20830/2000 & 24087/2000 Rev.WPMP.10982/2005 in WP.20830/2000 Between: Union of India, rep.by Secretary, Ministry of Personnel PG & Pensions, Department of Personnel & Training, North Block, New Dellhi ..... PETITIONER AND G.Balaramaiah and 3 others .....RESPONDENTS Rev.WPMP.31407/2009 in WP.24087/2000 Between: Union of India, rep.by Secretary, Ministry of Personnel PG & Pensions, Department of Personnel & Training, North Block, New Dellhi ..... PETITIONER AND Mohammed Ali Rafath and 4 others .....RESPONDENTS WP.20830/2000 Between: Union Public Service Commission, rep.by its Secretary, Dholpur House, Shahjahan Road, New Dellhi ..... PETITIONER AND G.Balaramaiah and 3 others .....RESPONDENTS WP.24087/2000 Between: Union of India, rep.by Secretary, Ministry of Personnel PG & Pensions, Department of Personnel & Training, North Block, New Dellhi ..... PETITIONER AND Mohammed Ali Rafath and 4 others .....RESPONDENTS The Court made the following: THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON’BLE MR JUSTICE GOPALAKRISHNA TAMADA Rev.WPMP.10982/2005 in WP.20830/2000 Rev.WPMP.31407/2009 in WP.24087/2000 & WP.Nos.20830/2000 & 24087/2000 COMMON ORDER: (per Hon’ble Sri Justice V.Eswaraiah) Rev.WPMP.10982/2005 in WP.20830/2000 Rev.WPMP.31407/2009 in WP.24087/2000 These two review petitions are filed by Union of India aggrieved by the orders dated 31.07.2003 passed in WP.20830/2000 and dated 11.09.2002 passed in WP.24087/2000 by this Court respectively. 2. W.P.24087/2000 is filed by the Union of India and W.P.20830/2000 is filed by Union Public Service Commission (hereinafter referred to as “UPSC”) questioning the common order dated 09.06.2000 passed by the Central Administrative Tribunal, Hyderabad Bench (hereinafter referred to as “the Tribunal”) in O.A.Nos.1915/1999 and 128/2000 respectively. The writ petitions are contested by the contesting respondents. The 1st respondent in each of the writ petitions/Review Petitions is the applicant before the Tribunal in the said O.As. The parties herein are referred to as they are arrayed in the OAs before the Tribunal. The applicant in O.A.128/2000 is Mr.G.Balaramaiah and the applicant in O.A.1915/1999 is Mohammed Ali Rafath. 3. W.P.24087/2000 filed against the orders in O.A.1915/1999 by the Union of India was disposed of by a Division Bench of this Court by order dated 11.09.2002 as follows: “ Heard both sides. It is reported by the learned standing counsel for the Central Government that there were vacancies for the year 1996-97 in the promotional cadre IAS. In view of this position, we direct the UPSC to constitute DPC to consider the claim of the 1st respondent herein as per the vacancy existed in the year 1996-97 and if he is selected for that year, then his seniority should be reckoned from that year. The entire exercise has to be completed within a period of three (3) months from the date of receipt of a copy of this order. With this direction, the writ petition is disposed of. No costs.” WP.20830/2000 filed against the order in O.A.128/2000 by UPSC was disposed of by a Division Bench of this Court by order dated 31.07.2003 as follows: “The learned standing counsel Mr.P.B.Vijay Kumar, appearing for the UPSC, submits that the matter is covered by a decision of a Division Bench of this Court in WP.24087/2000, dated 11.09.2002. Heard Mr.T.Suryakiran Reddy, learned standing counsel for Central Government. Following the judgment in WP.24087/2000, this writ petition is disposed of. Accordingly, we direct the UPSC, petitioner herein, to constitute D.P.C to consider the claim of the 1st respondent herein as per the vacancy existed in the year 1996-97 and if he is selected for that year, then his seniority should be reckoned from that year. The entire exercise has to be complied within a period of three (3) months from the date of receipt of a copy of this order. No costs.” 4. Aggrieved by the order of this Court in W.P.20830/2000 dated 31.07.2003, the Union of India filed Special Leave Petition for Appeal No.SLP(C)……/2004 CC.8511/2004 with a petition to condone the delay, and the delay was condoned and the special leave petition was dismissed on 01.10.2004 giving liberty to Union of India to approach this Court for what is claimed by it to be an erroneous concession made on the part of its counsel, based on which the said writ petition was disposed of. Similarly, the Union of India, aggrieved by the order of this Court in WP.24087/2000 dated 11.09.2002 filed a Special Leave Petition for Appeal No.SLP(C)……/2004 CC.7916/2004 along with an application to condone the delay and while condoning the delay, the special leave petition was dismissed on 17.09.2004 giving liberty to the Union of India to approach this Court for what is claimed by it to be erroneous concession made on the part of its counsel, based on which the said writ petition was disposed of. 5. Pursuant to the liberty granted by the Supreme Court permitting to approach this Court, these two review petitions are filed by the Union of India to review the aforesaid orders passed by this Court in the writ petitions which are said to have been passed on erroneous submissions made by its counsel. That is how these review petitions have been filed to review the aforesaid orders. 6. It is the case of the Union of India and UPSC that the said writ petitions are disposed of on an erroneous submissions made by its counsel without considering the issues raised in the writ petitions, on the ground that its counsel submitted that there were vacancies for the year 1996-97 in the promotional cadre of IAS. The said two writ petitions are filed challenging the orders of the Tribunal dated 09.06.2000 in both the said O.As on the ground that the said order of the Tribunal had transgressed the scope and ambit of the judgment of the Hon’ble Supreme Court of India in the case of Gudur Kishan Rao v. Sutirtha Bhattacharya[1] and that it had failed to notice that the select lists for promotion to IAS have to be prepared for each year separately in accordance with relevant regulations and that each select list lapses with the completion of the year, and that an officer who figured in the select list for a particular year but could not be promoted to IAS in that year, cannot be carried forward to the select list of a succeeding year without being subjected to process of evaluation by a duly constituted DPC under the UPSC for the subsequent year. The submission of the counsel made on behalf of Union of India was totally erroneous and there were no vacancies for the year 1996-97 against which the applicants in each of the O.As could not have been considered. As per the relevant promotion regulations, all unfilled vacancies of a particular year’s select list are carried forward and filled up in the subsequent years. In the instant case also, the vacancies were filled up by select lists for the subsequent years as the select list for the year 1996-97 lapsed. Therefore, no vacancies are existed at that point of time, against which the applicants could have been considered. Since the submissions made by the counsel for the Union of India before this Court is totally erroneous and factually incorrect and on the basis of that erroneous submission made by its counsel, this Court had not deemed it necessary to go into various grounds raised in the writ petition and disposed of the writ petitions with the aforesaid directions, the Union of India filed the above two said special leave petitions which were dismissed giving liberty to Union of India to approach this Court by way of review petitions as regards the erroneous concession made on the part of its counsel. Accordingly, the counsel appearing for the Union of India submits that sufficient grounds have been made out for reviewing the orders of this Court as the said orders were passed based on erroneous concession made by its counsel and the said statement by its counsel was an error on the face of the record and various questions raised in the writ petitions were admittedly not decided because of the alleged erroneous concession and therefore, the said orders require to be reviewed. 7. The learned counsel appearing for the Union of India submits that following the aforesaid two orders passed in the above writ petitions, the Division Bench of this Court disposed of another W.P.4062/2002 by order dated 23.09.2003 in which one Mr.Veerabhadraiah who was the 1st respondent in the writ petition was the applicant before the Tribunal in O.A.1959/1999 and as against the said order, the Union of India filed Civil Appeal Nos.7976 and 7977 of 2004 and the said case is being adjourned by the Hon’ble Supreme Court of India awaiting orders in these review petitions. 8. Heard the learned counsel appearing for the respective parties. With the consent of the learned counsel appearing for the respective parties, the review petitions as well as the writ petitions are heard in detail and disposed of the same by this common order. 9. The learned counsel appearing for the applicants submits that the review petitions themselves are not maintainable, that there are no merits in the writ petitions filed by the Union of India as well as UPSC. Though no separate counters have been filed in the review petitions, but counters were filed in the writ petitions earlier and also submitted written arguments covering the grounds raised in the review petitions as well as the writ petitions. But on the other hand the learned counsel appearing for the review petitioners submits that aggrieved by the aforesaid orders of the Tribunal, the aforesaid two writ petitions were filed by the Union of India on various grounds contending that the Tribunal traveled beyond the scope and ambit of the judgment of the Hon’ble Supreme Court of India and the effect of the order of the Tribunal amounts reviewing the judgment of the Hon’ble Supreme Court of India. The select list for promotion to IAS, if prepared separately for each year, in accordance with the relevant regulations and with the completion of that year, the select list would be lapsed. An officer who figured in the select list of a particular year who could not be promoted to IAS cannot be carried forward to the select list of the succeeding year unless being subjected to the process of evaluation. The implementation of the directions of the Tribunal would render the process of preparation of select list to an empty formality. As per the orders of the Hon’ble Supreme Court of India with regard to pushing down of 13 officers who were rendered surplus, on account of the review of select list of the year 1987, did not dispense with the observance of the statutory rules in the selection for fixation of promotion and the year of allotment to the officers to be pushed down from one select list to the select list of subsequent years. But the then learned counsel without any material whatsoever and without any written instructions, erroneously submitted in WP.24087/2000 that there were vacancies for the year 1996-97 in the promotion cadre and based on the aforesaid statement only, this Court disposed of the writ petitions without considering various grounds taken in writ petitions. The consent by the then learned counsel as recorded in the impugned orders appear to be only basis for disposing of the writ petitions, which does not bind the petitioners, as the said concession made by the then learned counsel was without any written instructions by the petitioners. 10. We are of the opinion that there was no basis for the statement made by the learned counsel for the Central Government before this Court that there were vacancies for the years 1996-97 in the promotional cadre and in view of that erroneous statement, the UPSC requires to consider the claim of the applicants as per the alleged vacancies said to have been existed in the year 1996-97. As the said representation made by the then learned counsel for the Central Government is contrary to the records and the averments made in the writ petitions, and in the absence of any written instructions from the Union of India, the said statement cannot bind the Union of India and UPSC. It is pertinent to notice that this Court in the case of Govt.of A.P vs. M.Prtimareddy[2] dealt with similar issue of “concession made by the learned Government Pleader” and held that the case decided on the basis of wrong concession of a counsel cannot bind the party. 11. In view of the aforesaid facts and circumstances of the case and following the ratio laid down by this Court in the case of Govt.of A.P vs. M.Prtimareddy (2 supra), we are inclined to allow these two review petitions, and accordingly, these two Review WPMPs are allowed, and the orders disposing of the two WPs.20830 and 24087 of 2000 based on the concession made by the then learned counsel for the Central Government are set aside and the writ petitions are restored to its file. WP.Nos.20830/2000 & 24087/2000 12. Heard the learned counsel on either side. The facts and contentions are as follows: As both the O.As in question are filed questioning the very same common order of the Union of India, the facts in O.A.1915/1999 which is the subject matter of WP.24087/2000 are referred to herein. The said O.A. was filed questioning the order of the Government of India No.F.14015/14/98-AIS(I) dated 04.08.1999 and its Annexure-XX rescinding the appointment of the applicant to IAS and to set aside the same. It is contended that the applicant was appointed as Deputy Collector by direct recruitment and joined duty on 07.09.1987. He was selected and appointed to the Indian Administrative Service by promotion from the State Civil Service quota for the year 1996-97, by an order dated 29.12.1997 and was allotted the year 1993. While he was working as Joint Collector, he was served with the aforesaid impugned proceedings dated 04.08.1999 through the Government of Andhra Pradesh informing him that his appointment to IAS was rescinded because of a review undertaken by the Committee, constituted for the purpose by the Government of India to give effect to the directions of the Hon’ble Supreme Court of India in the case of Gudur Kishan Rao v. Sutirtha Bhattacharya (1 supra) (Civil Appeal No.6525/94 and batch dated 23.02.1998). It is stated that he was regularly recruited and appointed under the IAS (Appointment by Promotion) Regulations, 1955 by a Committee then constituted for the purpose, to a clear vacancy then existed, and there is no infirmity in the said appointment. The Hon’ble Supreme Court of India rendered the aforesaid judgment in the case of Gudur Kishan Rao v. Sutirtha Bhattacharya (1 supra) in an appeal filed by 14 IAS State Civil Service Officers who were appointed to an equally number of supernumerary posts created by the Union of India on a proposal made to that effect by the Government of Andhra Pradesh. It is stated that pursuant to the orders of the Hon’ble Supreme Court of India, a review was undertaken on 29th to 31st December 1998 without properly appreciating the aforesaid judgment. The applicant was not a party to the judgment of the Apex Court or any other proceedings and though the order of the Union of India rescinding his appointment was bound to adversely affect him, the Union of India never gave any notice to the applicant before such exercise was undertaken. The applicant was not included in such review select list for the year 1996- 97 though he was holding a regular IAS cadre post. 13. It is stated that aggrieved by the said rescinding order, the applicant filed earlier O.A.1474/1999 on the file of the Tribunal which was disposed of by order dated 01.10.1999 permitting the applicant to make a representation to the Union of India. Accordingly, he made a representation, but the said representation was erroneously rejected by order dated No.F14015/42/99-AIS(I) dated 24.11.1999 without giving any personal hearing and therefore, the said O.A. was filed on various grounds. It is stated that the said impugned order dated 04.08.1999 was beyond the mandate given by the Hon’ble Supreme Court of India and the said rescinding orders are unknown to law, and the Union of India erred in not taking into account the actual vacancies which arose every year on whatever ground, by death, superannuation, voluntary retirement or resignation and without having a clear view of actual vacancies arising during the entire course of 1998, the applicant was rescinded erroneously. The judgment of the Supreme Court was not followed in its letter and spirit. 14. The other applicant Mr.G.Balaramaiah was appointed to IAS on 29.12.1997 he was eligible for appointment to IAS from the year 1996-97 select list. The names of the two applicants cannot be removed while finalizing 1996-97 review select list. The size of the select list for 1987 was enlarged from 14 to 40, which, though not contemplated in the judgment of the Supreme Court of India, had adverse impact on subsequent panels. The estimated vacancies in the subsequent panel was also not properly done and unforeseen vacancies which arose subsequent to the preparation of the previous panels were not taken into account while preparing the review select lists. The vacancies that came into promotion quota by amending to IAS (Fixation of Cadre Strength) Regulations, 1955 in respect of Andhra Pradesh twice in December, should also be taken into account for the purpose of preparation of 1996-97 review select list, and the failure to do so has resulted in great injustice being done to the applicants. The assignment of seniority on the basis of incorrect utilization of vacancies available from time to time till the review select list of 1996-97 should be re-considered and reviewed. 15. As per the judgment of the Hon’ble Supreme Court the year of allotment should be provided for 14 holders of the supernumerary posts but not wholesale recasting of the selection and adjustment of seniority both inter se between the candidates for the same year or between the candidates who were already selected for different years. The Union of India was in error in holding that the applicant was not included in the review select list for the year 1996-97, approved by UPSC because of the lower grade and statutory size of the said list, as on a proper computation the statutory size of the list should be bigger by four vacancies and bringing down the gradation of the applicant as there is no justification for it in the observations of the Hon’ble Supreme Court of India for the same and was not in any event justified when it was already done earlier. For the year 1996-97, 14 vacancies by retirement, 4 vacancies by cadre revision and 4 vacancies by notification dated 31.12.1997 were available, but 18 vacancies alone have taken into consideration leaving out 4 vacancies without any explanation for the same. If these 4 vacancies had been taken into account, there would have been no need to exclude the applicants from the list and deprive them of their status as IAS officers. 16. The Union of India filed counter stating that the zone of consideration comprising the names and number of State Civil Service Officers to be forwarded to the selection committee by the State Government, the procedure followed by the selection committee for preparation of the select list and further process thereon are contained in Regulations-5 to 7 of the Indian Administrative Service (Appointment by Promotion) Regulations 1995, and in terms of the said provisions, the Selection Committee was convened by UPSC to consider overall relative assessments and grading made in respect of each State Civil Service Officer by the Selection Committee. The UPSC finally approves the proceedings of the Selection Committee meeting and determines the select list. The process of the select list is that initially the list of the names of the State Civil Service Officers are forwarded by the State Government to the Commission for consideration by the Selection Committee, the select list prepared by the Committee is forwarded by the State Government to the Commission along with its observations and the recommendations of the Committee, the observations of the Central Government are also forwarded to the Commission thereon and the final approval to the select list is conveyed by the Commission to the Central Government. Thereafter, on the basis of the proposal received from the State Government for appointment of the select list officers concerned to the service after occurrence of the respective vacancies in the promotion quota of the State IAS cadre, appointments are notified by the Central Government. When a select list so operated already is reviewed subsequently to a considerable change in the zone of consideration and re-drafted by the review select committee, after approval to the review select list so prepared and approved by the commission, the appointments are considered by the Central Government from the review select list on equity in the order of the names appearing therein and with particular reference to the dates on which the appointments are notified against each vacancy from the original select list on the recommendations of the State Government. 17. Based on the respective role of three parties concerned, namely, the State Government, UPSC and the Central Government, the review of the 1987 to 1996-97 select lists for promotion to IAS Andhra Pradesh cadre was carried out pursuant to the directions of the Hon’ble Supreme Court of India in the case of Gudur Kishan Rao v. Sutirtha Bhattacharya (1 supra) and the outcome of such review select list was published by way of speaking orders and notifications dated 04.08.1999, impugned in the O.As. In terms of the promotion regulations, as it stood prior to 31.12.1997, it was the duty of the State Government to compute the vacancies in the promotion quota correctly and report such vacancies along with the consideration zone for each year drafted in terms of Regulation-5(2) of the Promotion Regulations to the UPSC, who in turn place the entire records before the Review Selection Committee for preparation of the review select list in the place of original select list for these years. Based on the approval given to the review select list by the Commission, the Union of India had the duty of implementing the approved recommendations of the review Selection Committee for the year 1996-97 which did not contain the names of the applicants appointed to IAS. Various averments made in the original application were specifically denied and stated that the respondents have correctly undertook the review as per the directions of the Hon’ble Supreme Court of India in the case of Gudur Kishan Rao v. Sutirtha Bhattacharya (1 supra) and there are no violations of the relevant Regulations and Rules. 18. To consider the correctness or otherwise of the orders of the Tribunal in the said two OAs and whether the impugned order in the O.As is in conformity or violative of the directions of the Hon’ble Supreme Court of India, the facts in the case of Gudur Kishan Rao v. Sutirtha Bhattacharya (1 supra) are to be looked into. 19. Against the orders of the Tribunal, quashing two notifications dated 15.12.1993 and 16.12.1993 of the Government of India, on the ground that the said notifications amending to Indian Administrative Service (Fixation of Cadre Strength) Regulations 1955 contravenes Rule-9 of the Indian Administrative Service (Recruitment) Rules 1954, 8 promotees to the cadre of Indian Administrative Service who had been recruited by way of direct recruitment to the post of the Deputy Collectors in the State Service filed those appeals before the Hon’ble Supreme Court. The said notifications were quashed at the instance of the direct recruitment IAS officers, challenging the aforesaid notifications with regard to the year of allotment in the cadre of Indian Administrative Service to the direct recruits and the promotees relating to the select list of 1987 year. 20. The questions that arose for