HON'BLE MR JUSTICE GHULAM MOHAMMED AND HON'BLE MR JUSTICE N. RAVI SHANKAR WRIT PETITION No.27828 of 2010 Between M. Jaiprakash Babu and others v. K Indrani and others HON'BLE MR JUSTICE GHULAM MOHAMMED AND HON'BLE MR JUSTICE N. RAVI SHANKAR WRIT PETITION No.27828 of 2010 Order : ( Per Sri GM, J ) This is not a fresh litigation and has a checkered history. Whenever there are two channels of promotion, there is always a dispute with regard to seniority and this kind of pell-mell state of affairs can be avoided by the State, but the very nature of disputes did not allow the matter to settle down in the matter of finalization of seniority and the consequent promotions. The dispute is between direct recruit and promotee ASOs regarding fixation of inter-se- seniority between them. The issue as to quota between the direct recruits and promotes was raised by the 1st respondent before the Tribunal in O.A.No.4222 of 2010 inter alia challenging G.O.Ms.No.347 dated 28-6-2010 and sought direction to prepare the seniority list by calculating the substantive vacancies from 1992. Other direct recruits have also filed O.A.No.424 of 2010 before the Tribunal to the same effect. The Tribunal clubbed those O.As. and allowed the same by the impugned common order. Since this writ petition has been filed challenging O.A.No.4222 of 2010, the facts insofar as this writ petition are concerned are adverted to. The claim of the 1st respondent herein-K. Indrani is that in pursuance of the notification 10/1999 issued by the APPSC she was appointed as Assistant Section Officer under direct recruitment quota. Though initially the post of ASO was sought to be filled up by the above advertisement to the tune of 141 Section Officers, the process was not being taken up and based on the direction of the Tribunal in O.A.No.7443 of 2010 dated 21-11-2001, the Government issued G.O.Ms.No.26 dated 10.1.2002 to fill up 141 ASO posts by direct recruitment. It was also the contention of the original applicant that in the meanwhile the several Typists cum Assistants were promoted as Assistant Section Officers on temporary basis and that the Government vide G.O.Ms.No.26 dated 10.1.2002 created supernumerary posts to accommodate such promotees. The applicant also referred to the seniority list of ASOs for the period form 1.9.1984 to 18.3.1998 issued vide G.O.Ms.No.201 dated 10.4.2008 showing 998 ASOs. It is the main case of the applicant that though 141 vacancies were notified only 113 were selected by APPSC out of which only 108 joined as ASOs and that if the calculations of substantive vacancies of ASOs is taken from the year 1992 instead of 1996 the direct recruitment quota would be more and promotees who are in excess than their substantive vacancies should be pushed down. It is also averred by the applicant that some of the direct recruits of notification dated 10/1999 filed O.A.No.424 of 2010 seeking for a direction to prepare a seniority list of in the category of ASO by calculating the vacancies from 1992 instead of 1996 and that the Government issued proceedings dated 21.5.2010 rejecting the claim of the direct recruits- ASOs and also prepared a provisional seniority list of ASOs through a separate proceedings dated 21.5.2010 for the period between 19.3.1998 to 19.10.2001 without including the direct recruits of 2002 and that the said seniority list was only communicated to the promotees but not to the direct recruitees. Some direct recruits have filed objections to the said provisional seniority list dated 21.5.2010 9 (the applicant did not chose to file objections ) and finally the final seniority list of ASOs was issued by the Government in G.O.MsNo.347 dated 28.6.2010 which was challenged by her. According to the counter affidavit filed by the Government, the applicant was appointed along with others as ASO in pursuance of notification 10/1999 in March 2002 after the litigation before the Tribunal and the High Court. The Government also admitted the fact that out of 113 selected by APPSC only 108 have joined including the applicant. The Government also referred to AP Secretariat Service Rules 1997 as per which 30% of the substantive vacancies of ASOs shall be filled by direct recruitment. It was specifically mentioned by the Government in their counter affidavit that seniority list of ASOs for the period between 1.9.1984 to 18.3.1998 was already published and finalized vide G.O.Ms.No.201 dated 10.4.2008. It is also stated in the counter affidavit that during the period between 1.9.1996 to 31.9.1999, 331 vacancies of ASOs arose out of which 99 vacancies (30%) need to be filled up by direct recruitment. The Government also calculated earlier direct recruitment vacancies to the tune of 42 and therefore 141 vacancies of ASOs to be filled up by direct recruitment were notified by APSC vide notification 10/99. It was also stated by the Government that out of 141, 108 posts were filled up and that Government issued G.O.Ms.No.26 though which direct recruits were sought to be appointed, created supernumerary posts to avoid mass reversions of promotions. The Government also stated that on the same analogy like the earlier seniority lists issued in two spells for the period between 1.1.1975 to 31.8.1994 and 1.7.1994 to 18.3.1998 a provisional seniority list was issued vide Government memo dated 21.5.2010 excluding ASOs of 2002 batch i.e. notification 10/99 batch and such of the promotees whose services were regularized after direct recruits. It was also stated by the Government that the claim of the direct recruits against the promotees was considered and rejected on the very same day i.e. 21.5.2010 vide separate proceedings. It was also stated that some of the direct recruits have also filed objections to the provisional seniority list dated 21.5.2010 and after considering all the objections final seniority list was issued vide impugned G.O.Ms.No.347 dated 28.6.2010. It was further stated by the Government that based on the said final seniority list DPC met on 29.6.2010 for promotes to the post of ASO. The Government specifically mentioned about the vacancy position, date wise, and that the vacancies from 10.9.1996 to 31.8.2001 came to the tune of 428 out of which 300 vacancies are earmarked for promotees but in reality there were 329 promotees. It was also stated that out of 329 promotee of ASOs, 83 were regularized vide O.O.Ms.No.82 dated 1.7.2008 and 151 promotees were already regularized and shown in the final seniority list under G.O.Ms.No.201 dated 10.4.2008 and that to consider regularization of remaining 95 promotee ASOs and also 108 direct recruits ASOs a committee was constituted and as per the recommendations of the said committee 108 direct recruits (ASOs) were regularized along with 66 promotee ASOs through O.O.Ms.NO.126 dated 30.6.2009 and 29 excess promotees were also regularized after direct recruits. It is the case of the Government that the impugned seniority list G.O.Ms.No.347 dated 28.6.2010 pertains to ASO appointed prior to 19.10.2001 and therefore the applicant and others who were appointed in 2002 were not included in the said seniority list. Further, the direct recruits are entitled for seniority only from the date of their appointment as per Rule 33 of the State and Subordinate Service Rules. The petitioners urged before the Tribunal as to maintainability of the O.A. and contended that the regularization of the services of the petitioners as ASOs vide O.O.Ms.No.82 dated 1-7-2008 and O.O.Ms.NO.126 dated 30-6-2009 were not challenged by the original applicant. It was also contended that the Government memo dated 21-5-2010 through which the claim of the direct recruits against the promotee ASOs., was rejected was also not challenged, the original applicant did not chose to array all the effected parties in the OA, many of the writ petitioners had to get impleaded, and therefore the OA should have been dismissed. Based on the rival claims, the Tribunal by its impugned order allowed the O.A. Hence, this Writ Petition. Sri J. Sudheer, learned counsel for the petitioner contends that the direct recruits are entitled for the seniority from the date of joining but not from the availability of vacancy for direct recruits prior to their joining and that the promotees occupied their seniority within their quota and judgment of the Tribunal suffers from legal infirmity it is not a reasoned order and it is unsustainable. It is further contended by the learned counsel that the Tribunal has not answered the contentions advanced by the parties, more so the fact that promotees’ regularization orders have not been challenged and their claim was already rejected by the Government. Though original applicant has not challenged the said proceedings or the regularization orders of the petitioners, the Tribunal has set aside seniority list issued vide G.O.Ms.No.347 with a direction to calculate vacancies from 1992 which has serious repurcations and it will amount to unsettling the settled things which attained finality in G.O.Ms.No.201. Relying on the decision reported in RANI LAXMIBAI KSHETRIYA, GRAMINA BANK v. CHAND BEHARI KAPOOR ( (1) 198 (7) SCC 469), it was contended that the applicant must fully aver the facts and rights flowing therefrom to enable respondents to meet the applicant’s case and in the absence of same, the O.A. ought not have been allowed by the Tribunal. On the other hand, Sri J. R. Manoher Rao, learned counsel for the applicant contends that the Tribunal has not committed any jurisdictional error and that the Tribunal has merely directed to calculate the substantive vacancies from 1992. It is contended that substantive vacancies will be calculated from the date of earlier notification till the direct recruits are appointed pursuant to the subsequent notification. It is his contention that in the present case earlier notification was issued in the year 1992 and the direct recruits were appointed in the month of April and May 2002 basing on the notification issued in the year 1999. Therefore, the substantive vacancies arose not only upto the notification, but upto to the date of appointment of direct recruits will be taken into account and the promotees to the extent of substantive vacancies within their quota will be included in the seniority list enblock above the direct recruits. In other words, it is contended, even for the vacancies arose after 1999 the quota of promotees will be taken into account and the promotees will be given seniority for the vacancies arose till the date of appointment of the direct recruits. He contends that according to the seniority list prepared in G.O.Ms.No.201 dated 10-4-2008 and the seniority list issued in G.O.Ms.No.347 dated 28-6-2010, 472 promotees were promoted during the said period, thus 172 promotees are in excess of their quota, therefore order under challenge does not require any interference by this Court. On the other hand, learned Government Pleader contends that the Tribunal has not considered the matter in its proper perspective and that the order of the Tribunal will be having overreaching consequences. The learned Government Pleader further contends that the applicant is not an aggrieved party she was appointed in the year 2002 she is not concerned with regard to 1992 recruitment and that by virtue of the present O.A. she wants to unsettle the settled things and that the Tribunal has not considered the O.A. based on pleadings and that the order of the Tribunal suffers from patent irregularity and scope of pleadings were omitted. Having heard the learned counsel on either side, the prime point for consideration is as to whether the order of the Tribunal in terms thereof is sustainable ? It is not in dispute that the direct recruit ASOs came to be appointed in March 2002. Altogether 141 posts were notified, out of which 113 candidates were selected and 108 candidates joined the service. The Government earlier issued G.O.Ms.No.201 dated 10-4-2008 preparing the seniority list of 998 ASOs appointed during the period from 1-9-1984 to 18-3-1998. Later, the Government issued G.O.Ms.No.347 dated 28-6- 2010 preparing the seniority list of ASOs appointed during the period from 19-3-1998 to 19-10-2001. The main ground of attack of the direct recruits is that the number of in-service candidates, who were promoted, far exceeded the quota and therefore the names of excess number of promotees should be shown below them and that G.O.Ms.No.347 dated 28-6-2010 has been wrongly prepared and therefore it deserves to be set aside and consequently, the seniority of in- service/promotee ASOs and direct recruit ASOs has to be fixed taking into account the substantive vacancies from the year 1992 onwards. Though learned counsel on either side, tried to harp upon the issue of actual number of vacancies, this Court while exercising its powers under Article 226 of the Constitution of India will not enter into arena of calculation and this Court cannot come to a definite conclusion on the factual position merely on the basis of submissions made during the course of hearing as to actual number of vacancies basing on the quota earmarked between direct recruits and promotees. Keeping those calculations aside, we proceed to consider as to whether the order passed by the Tribunal is sustainable or not ? It is seen from that record that the services of the Writ Petitioners were regularized vide O.O.Ms.No.82 dated 1-7-2008 and O.O.Ms.No.126 dated 30-6-2009. Based on the said regularization of service, the present impugned seniority list was fixed and prepared. The applicant did not challenge the O.O.Ms.No.82 dated 1-7-2008 and O.O.Ms.No.126 dated 3-6-2009 to the extent of petitioners are concerned. The claim of the direct recruits against the promotee ASOs was decided by the Government and rejected vide Government memo dated 21-5-2010 and the said proceeding also has not been challenged. According to the petitioners what has been issued in the impugned G.O.Ms.No.347 dated 28.6.2010 is a reiteration of the said stand. Therefore, the Tribunal while allowing the O.A., ought to have adverted to these issues, as the very claim of the applicant is for calculation of vacancies with effect from the year 1992. It is also noteworthy that the earlier seniority list of ASOs., for the period 1-9-1984 to 18-3-1998 was issued by the Government in G.O.Ms.No.201 dated 10-4-2008 and the same was under challenge before the Tribunal in O.A.No.5070 of 2003 and batch, and it was upheld by the Tribunal by its judgment dated 30-11-2009. According to the Government, in order to avoid large scale reversions from the category of ASO to Typist-cum-Assistant, supernumerary posts were created in the category of ASOs and sanction was accorded in G.O.Ms.No.26 dated 10-1-2002 for creation of required number of supernumerary posts in the category of ASOs. According to the Government, these orders were kept in force till such time the problem of likely reversion subsists, and the supernumerary posts sanctioned cease to exist after the ASOs who are likely to be reverted are adjusted against the regular vacancies of ASOs that arise consequent on promotions to the category of Section Officers. Whether direct recruits were put to any disadvantage by virtue of the said proceedings have not been dealt with by the Tribunal. It is also noteworthy that the 1st respondent has not questioned any of the earlier proceedings discussed supra and only the present consequential G. O. Ms. No. 347 dated 28-6-2010 is challenged. It is, therefore, evident that before passing any order interdicting the impugned GO, the Tribunal ought to have adverted to all the issues in right prospective, instead of jumping to the conclusion of allowing the O.A merely basing on para-102 of the note file. The main thrust of the applicant was for the calculation of substantive vacancies of ASOs from the year 1992 instead of 1996. When a point is ostensibly required to be substantiated by facts and material on record, in the instant case, the Tribunal though referred to the above contentions, did not adjudicate the matter in right prospective and allowed O A granting the prayer of the Original Applicant. In fact, the Tribunal neither adverted to the contentions of the either parties nor the factual aspects. Since this basic fallacy has been committed by the Tribunal while allowing the O.A. to reckon the date of seniority from 1992, ignoring the above aspects narrated supra, in the interest of justice, keeping in view the need to avoid further litigation, we are inclined to set aside the judgment under challenge insofar as writ petitioners are concerned and remit the matter to the Tribunal for fresh adjudication on merits, uninfluenced by any of the observations made herein, expeditiously. Subject to above directions, the Writ Petition stands allowed. No costs. __________ GM, J _________ NRS, J DATE : 29 - 12-2010 kk HON'BLE MR JUSTICE GHULAM MOHAMMED AND HON'BLE MR JUSTICE N. RAVI SHANKAR WRIT PETITION No.27828 of 2010 ( Per Sri GM, J ) dated : 29 - 12-2010