* THE HON'BLE SRI JUSTICE GHULAM MOHAMMED and THE HON'BLE SRI JUSTICE SANJAY KUMAR + WRIT PETITION No.4690 of 2009 %Dated 16-03-2009 #Between: Dr.B.Babu .. Petitioner And The Government of Andhra Pradesh represented by its Special Chief Secretary and others .. Respondents ! Counsel for the Petitioner: MR.M.PANDURANGA RAO ^Counsel for Respondent Nos.1 and 2: GP FOR SERVICES-I Counsel for Respondents 10 to 12: SRI J.R.MANOHAR RAO. <GIST >HEAD NOTE: ? 1. AIR 1991 SC 2113 2. (1994) 6 SCC 301 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE SIXTEENTH DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION NO : 4690 of 2009 Between: Dr.B.Babu S/o.Adivaiah O/o the Assistant Director of Animal Husbandry, RAHTC, Mamnoor, Warangal District. ..... PETITIONER AND 1 The Government of Andhra Pradesh represented by its Special Chief Secretary, Animal Husbandry, DD & F Department, Secretariat, Hyderabad. 2 The Director of Animal Husbandry, Andhra Pradesh, Hyderabad. 3 T.Srinivasa Rao S/o.Kotaiah Veterinary Dispensary, Valliveru, T. Sundur Mandal, Guntur District. 4 L.Nageshwar Rao W/o.Sree Ramakrishnaiah Veterinary Polyclinic Guntur Town Guntur District. 5 Dr.N.Ch. Narasimhulu S/o.Narasaiah Veterinary Dispensary Pedanakkana, Sattenapalli Mandal. 6 Dr.T.Sreenivasa Rao S/o.Krishnamurthy Veterinary Dispensary Challavaripalem, Guntur Rural Mandal. 7 G.Mosesh Wesly S/o.Mojesh Veterinary Dispensary Tulluru 8 S.Srinivasa Rao S/o.S.Purnachandra Rao Veterinary Dispensary Hunukpet, Visakhapatnam District. 9 N.Jagath Srinivasu S/o.Radhakrishna Murthy Veterinary Dispensary Manchikallu village, Rentachintala Mandal, Guntur District. 10 Dr.B.Vijaya Lakshmi HRD, Director of Animal Husbandry, Hyderabad. 11 Dr.K.Vijaya Kumar Reddy Veterinary Dispensary, Alagadapah, Nalgonda District. 12 Dr.J.Venkat Reddy Veterinary Dispensary, Tripuraram, Nalgonda District. 13 Dr.M.Venkateswarlu, Veterinary Dispensary, Arthamuru, Mandapeta (M), East Godavari District. 14 Dr.M.Praveen Kumar Veterinary Dispensary, Shamshabad, RR District. 15 Dr.S.Madhava Rao Veterinary Dispensary, Shamshabad, RR District. 16 Dr.Vakani Prasadu State Institute of Animal Health, Tanuku, WG District. .....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 order or direction particularly one in the nature of writ of Certiorari after calling for the records relating to the Order passed in VMA.Nos. 891/08 & 1040/2008 and MA.871 with VMA.227/2009 with Mas. 894, 864 and 878/2009 in OA.6228/2008 and VMA Nos. 284/2009, 286/2009 and 285/2009 in OA.No.6228/2008 dated 24.02.2009 on the file of the Hon'ble A.P. Administrative Tribunal, Hyderabad and quash the same. Counsel for the Petitioner:MR.M.PANDURANGA RAO Counsel for Respondent Nos.1 and 2: GP FOR SERVICES-I Counsel for Respondents 10 to 12: SRI J.R.MANOHAR RAO. The Court made the following : ORDER: (Per GM, J) This writ petition is filed seeking a writ of certiorari calling for the records relating to the order dated 24.02.2009 passed in VMA Nos.891 and 1040 of 2008 and MA No.871 of 2008 with VMA No.227 of 2009 with VMA Nos.894, 864 and 878 of 2009 in O.A.No.6228 of 2008 and VMA Nos.284, 285 and 286 of 2009 in O.A.No.6228 of 2008 and for quashing the same. 2. The petitioner is working as Veterinary Assistant Surgeon, which is a Gazetted category post specified under the Presidential Order and it has to be filled up on zonal basis. A provisional combined seniority list of all the zones in the said cadre has been communicated by the Director of Animal Husbandry vide proceedings dated 01.07.2008. The petitioner states that the said seniority list does not reflect that all the zones are given equal treatment and that it is heavily loaded against the employees working in Telangana area i.e., zones V and VI. While so, the posts of Assistant Director are sought to be filled up by preparing a list showing all the persons belonging to zones-I to III as seniors depriving the persons belonging to zones IV to VI. The petitioner further states that the date of regularization given to the employees has been altered without giving any notice to them on the ground that some of the employees have not passed the departmental tests. The grievance of the petitioner is that as the post of Veterinary Assistant Surgeon is a specified Gazetted post, where the unit of appointment is prescribed, unless zonal seniority is prepared, the final seniority list cannot be prepared. Hence, the petitioner and others filed O.A.No.6228 of 2008 before the Tribunal questioning the provisional combined seniority list dated 01.07.2008 issued among Veterinary Assistant Surgeons for the whole State. While admitting the said O.A., the Tribunal has issued the interim order by suspending the said seniority list and thereafter, the same was vacated vide impugned order, as per which, the respondents are taking steps to effect promotions to the posts of Assistant Director. Hence, the petitioner filed the present writ petition. 3. Respondents 10 to 12 filed counter-affidavit stating that they are directly recruited as Veterinary Assistant Surgeons sponsored by the Employment Exchange and that the ranking assigned at the time of selection was taken into consideration for promoting them to the posts of Assistant Director. It is stated that that the O.A. filed by the petitioners against a provisional seniority list is not maintainable. It is further stated that there is no rule prescribing the date of joining for determining the seniority and therefore, the inter-se seniority among the employees is the criterion for determining their seniority subject to application of Rule 16(h) of the Andhra Pradesh State and Subordinate Service Rules, 1996 (for short ‘the Rules’). It is also stated that the impugned proceedings deal with regularization of service and commencement of probation and there is nothing wrong in issuing the same. Hence, the writ petition is liable to be dismissed. 4. Learned counsel for the petitioner vehemently contended that the post of Veterinary Assistant Surgeon is specified under III Schedule of the Presidential Order and that the said post has to be filled up by the Andhra Pradesh Public Service Commission. He contended that the Government without amending the rules has withdrawn the post of Veterinary Assistant Surgeon from the territory of Andhra Pradesh Public Service Commission and then recruited them by way of selection duly constituted by the Selection Committee. He has drawn the attention of this Court to Rules 33 and 34 of the Rules by saying that the date of appointment is the criterion for preparation of the seniority list and contended that the impugned proceedings are in violation of the said Rules, which read as under: “33. The seniority of a person in a service, class, category or grade, shall unless he had been reduced to a lower rank as a punishment, be determined by the date of his first appointment to such service, class, category or grade. “34. Where an integrated or common seniority list of a particular class, or category or grade in any service belonging to different units of appointment has to be prepared for the purpose of promotion or appointment by transfer to a class or category having different units of appointment or for any other purpose, such an integrated or common seniority list shall be prepared with reference to the provisions of sub-rule(a) of Rule 33, provided that the seniority list of the persons inter se belonging to the same units shall not be disturbed.” Learned counsel for the petitioner has further drawn the attention of this Court to the judgment reported in GOVERNMENT OF ANDHRA PRADESH V. A.SURYANARAYANARAO[1], wherein it was held as under: “This leads us to the question whether the promotions from 'the post of Junior Engineer to Assistant Engineer should be based on Zonal seniority list or on the Statewide seniority list. Rule 2(a) (or 2A) makes it abundantly clear that for the purpose of recruitment, appointment, promotion, transfer etc. each zone shall be a separate unit. Para 5 of the Presidential Order is also to the same effect. When once each zone is treated as a separate unit for the purpose of promotion also in respect of zonal posts then by virtue of Article 371 D and the Presidential Order, as observed above, the promotion from the post of Junior Engineer to the post of Assistant Engineer which are both zonal posts should be on the basis of the zonal seniority list inasmuch as the post of Junior Engineer and the next promotion post namely Assistant Engineer are included in the local cadre and the zonal list as we find in the Third Schedule. With regards the higher posts which are not included in the local cadre and which are Statewide posts, it becomes obvious that the Statewide seniority list of the Assistant Engineers of all zones should be prepared and that should be the basis of promotion to the post of Executive Engineer which is not a zonal post. Therefore it emerges that the directions given by the Tribunal to ensure that no Junior Engineer is promoted. Earlier than their seniors in the Statewide seniority list to the post of Executive Engineer should be quashed”. He further contended that as the post of Veterinary Assistant Surgeon is a zonal post, after preparing the seniority list of each zone, an integrated seniority list has to be prepared for the purpose of promotion and as such, the action of the respondents in preparing the combined seniority list is violative of the provisions of the Presidential Order. 5. Learned Counsel for respondents 10 to 12 has reiterated the averments made in the counter-affidavit and contended that the Tribunal has rightly vacated the interim order of suspension of the impugned proceedings. He further contended that no prejudice is caused to the petitioner since there is no decision rendered, on merits, by the Tribunal and that when there are no local reservations and the merit list was prepared by the Selection Committee as per the ranking assigned by the candidates, the authorities have prepared the integrated seniority list for effecting promotions to the next higher category and no useful purpose will be served in preparing the zone-wise seniority list. 6. On the other hand, learned Government Pleader for Services-I contended that as the petitioner was appointed pursuant to the selection made by the selection committee, he will be allotted to the respective zones. He has drawn the attention of this Court to Rule 36 of the Rules, which reads as under: “The seniority of the persons in the service shall be determined as follows- in respect of the candidates selected by the Andhra Pradesh Public Service Commission or other selecting authorities by direct recruitment, shall be with reference to their ranking assigned irrespective of the date of commencement of their probation in that category.” He has further drawn the attention of this Court to G.O.Ms.No.728, dated 01.11.1975. Paragraph 9(c) provides as under: “Zonal Cadres: Applicable to specified gazetted categories-Except in the case of Tahsildars and Block Development Officers where the Andhra and Telangana regions constitute separate units of appointment, in other cases, the unit of appointment is the State as a whole. In all these cases (including the cases of Tahsildars and Block development Officers) separate cadres will have to be organized in respect of each zone. He has also drawn the attention of this Court to the judgment reported in CHAIRMAN, PURI GRAMYA BANK v. ANANDA CHANDRA DAS[2] wherein it was held as under: “It is settled law that if more than one are selected, the seniority is as per ranking of the direct recruits subject to the adjustment of the candidates selected on applying the rule of reservation and the roster. By mere fortuitous chance of reporting to duty earlier would not alter the ranking given by the Selection Board and the arranged one as per roster. The High Court is, therefore, wholly wrong in its conclusion that the seniority shall be determined on the basis of the joining reports given by the candidates selected for appointment by direct recruitment and length of service on its basis. He submitted that if the petitioner is so aggrieved with regard to altering the date of regularization, he can make a representation to the authorities concerned and the same would be considered. 7. Heard the learned counsel on either side and perused the material on record. 8. Now, the point for consideration is whether the Tribunal has committed any serious irregularities or infirmities warranting interference by this Court. 9. Admittedly, the respondents have prepared the provisional seniority list on statewide basis vide proceedings dated 01.07.2008. The Tribunal has observed that when the posts of Veterinary Assistant Surgeon were taken outside the purview of the Public Service commission and the appointments to the said posts has to be made on Statewide basis, on merit, duly observing the rule of reservations and when there is no local reservation, there is no need to prepare the Zone-wise seniority list as the post is included in III Schedule of the Presidential Order. The impugned provisional seniority list has been prepared in accordance with the merit disclosed by the competing candidates at the time of selection as Veterinary Assistant Surgeons. As the next higher post i.e, Assistant Director, is a Statewide post, it is necessary to prepare the Statewide seniority list in accordance with the merit prepared at the time of selection to the post of veterinary Assistant Surgeon. 10. As per the judgment of the Apex Court cited 2 supra, if more than one are selected, the seniority is as per the ranking of the direct recruits subject to the adjustment of the candidates selected on applying the rule of reservation and the roster and therefore, the seniority shall not be determined on the basis of the joining reports given by the candidates selected for appointment by direct recruitment and length of service. 11. In view of the above and having regard to the fact that the matter is pending before the Tribunal, we feel that the Tribunal has rightly vacated the order of interim suspension of the impugned provisional seniority list and, therefore, we decline to interfere with the same. 12. Hence, the writ petition fails and is accordingly dismissed. No costs. _____________________ GHULAM MOHAMMED, J _________________ SANJAY KUMAR, J Date:16.03.2009 NOTE: LR COPY TO BE MARKED (B/O) SJ [1] AIR 1991 SC 2113 [2] (1994) 6 SCC 301