IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE EIGHTEENTH DAY OF FEBRUARY TWO THOUSAND AND FIVE PRESENT THE HON'BLE MR JUSTICE G. BIKSHAPATHY and THE HON'BLE MR JUSTICE P.S.NARAYANA WRIT PETITION NO : 20706 of 2004 Between: 1 K. Asif Mohiuddin, S/o. K. Moinuddin, Indira Priyadarshini Government College For Women, Nampally, Hyderabad. 2 Dr. A. Lalitha, W/o. P. Anjaneya Reddy, B.J.R. Government College, Nampally, Hyderabad. 3 Dr. Mohd. Abdul Wahid, S/o. Mohd. Abdul Aziz, Government Degree College for Women, Hussaini Alem, Hyderabad. 4 Dr. C.A.L. Kameshwari, D/o. C.R. Sarma, Government City College, Hyderabad. ..... PETITIONERS AND 1 The Secretary of Government, Eduation Department, A.P. Secretariat Buildings, Saifabad, Hyderabad. 2 The Commissioner of Collegiate Education, Nampally, Government of Andhra Pradesh, Hyderabad. 3 Sri A. Krishna, S/o. and age not known, Government Degree College, Nandyal, Kurnool District. 4 Sri B. Narayana Reddy, S/o. and age not known, Government Degree College, Nandyal, Kurnool District. 5 Sri K. Nagabhushana Rao, S/o. and age not known, Government College, Sattupalli, Khammam District. 6 Smt. P. Kalyani, S/o. and age not known, Government Degree College, Vijayawada, Krishna District. 7 Sri L. Govinda Reddy, S/o. and age not known, Government Degree College, Rajampet, Kadapa District. 8 Govt. College Gazetted Teachers ` Association, A.P. rep. by its General Secretary, Dr. S. Laxminarayana S/o. Rajamallaiah, 18 48, Pragatinagar, Ramanthapur, Hyderabad 9 P. Babu Rao, S/o. Polaiah Y.A. Govt. College for Women, Chirala, R/o. Chirala, Prakasam District. 10 Dr. S. Laxminarayanana S/o. Rajamallaiah H.No.18-48, Pragathi Nagar, Ramanthpur, Hyderabad (RR 8to10 impleaded as per court order dt. 18-2-2005 in WPMP 28205 of 2004) .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a writ, order or direction more in the nature of writ of certiorari calling for the records relating to theorder of the Hon'ble A.P.Administrative Tribunal dt. 29-10-2004 in O.A.No. 1264 of 2003 and batch and quash the same by holding it as illegal, bad, arbitrary and further declare G.O.Ms.No. 73 dt. 14-10-2003 as illegal, bad, arbitrary and further declare G.O.Ms.No. 73 dt. 14-10-2003 as illegal, bad arbitrary and contrary to the judgement of the Hon'ble A.P. Administrative Tribunal dt. 9-2-2001 in O.A.No. 325 of 1999 and batch with a further direction to the respondents to prepare the seniority list by taking into account the judgment of the Hon'ble A.P. Administrative Tribunal dt. 9-2-2001 in O.A.No. 325 of 1999 and batch and to effect the promotions to the post of Principal basing on the said judgement. Counsel for the Petitioner:MR.J.R.MANOHAR RAO Counsel for the Respondent Nos. 1 & 2 : GP FOR SERVICES-I Counsel for the Respondent Nos.8 to 10 : MR.M.PANDURANGA RAO WRIT PETITION NO : 20900 of 2004 Between: 1 B. Ekanatha Reddy, Government of Degree College, Nandikotkur, Kurnool District. 2 Mohammed Ghouse, Principal, Silver Jubilee Government College, Kurnool. 3 G. Venkat Reddy, Government College Teachers Association (GCTA), 2nd Floor, 21st Century Commercial Complex, Building, Nampally, Hyderabad. ..... PETITIONERS AND 1 Principal Secretary to Government, Higher Education (CE.I.I) Department, Government of Andhra Pradesh, Secretariat, Hyderabad. 2 Commissioner/Director of Collegiate Education, Andhra Pradesh, Hyderabad. 3 Smt. P.B. Nalini Sukumari, Indira Priyadarshini Government Degree College for Women, Nampally, Hyderabad, R/o. Hyderabad. 4 T. Jaya Raju, SR & BGNR Government College, Khammam, Khamma District. 5 B. Subhaschandrabose, SR & BGNR Government College, Khammam, Khamma District. 6 Dr. S. Laxminarayana, Government College Gazetted Teachers Association, Andhra Pradesh, Hyderabad. 7 Surya Kirshna, SR & CVR Government College of Vijayawada, Krishna District. 8 P.P. Babu Rao, Government Degree College, Chirala, Prakasam 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 may be pleased to issue a Writ or order or direction, more particularly one in the nature of Writ of Certiorari: (a) Call for the records relating to and connected with the Judgment rendered on 29- 10-2004 in O.A.No. 6785 of 2003 and batch of cases and quash or set aside the same holding it as unsustainable; (b) also call for the records relating to and connected with G.O.Ms.No.73, Education, dated 14- 10-2003 issued by the 1st respondent publishing final seniority list of Lecturers to the extent of inclusion of the promotee Junior Lecturers, who have been so promoted with effect from 01-04-1976 and quash or set aside the same holding it as illegal; (c) declare the G.O.Ms.No.73, dated 14-10-2003 of the 1st respondent publishing final seniority list of Lecturers giving effect to the notional promotions to seniority also with effect from 01-04-1976 to the Junior Lecturers who were appointed as lecturers after successful screening and selection by the Departmental Promotion Committee much later to the Lecturers already having much more service as Lecturers as illegal, arbitrary, unjust, unfair, unconstitutional and against the spirit of the Judgment rendered by APAT on 09-02-2001 in O.A.No. 1507 of 1999, O.A.No. 1449 of 1994, O.A.No. 325 of 1999 etc., and batch which became final. Counsel for the Petitioner:MR.NUTY RAM MOHAN RAO Counsel for the Respondents : GP FOR SERVICES I Sri M.Surender Rao, Sri M.Panduranga Rao & Sri Srikanth The Court made the following : COMMON ORDER: The writ petitioners, unsuccessful applicants in the O.As. thought of the present legal battle aggrieved of the reckoning of the seniority with retrospectivity by virtue of which it is said that the writ petitioners are seriously prejudiced or affected. The unsuccessful applicants 2 to 4 in O.A.No.1264/2003 on the file of A.P. Administrative Tribunal, in short referred to as “Tribunal” hereinafter, filed W.P.No.20706/2004 praying for a writ, order or direction more in the nature of writ of certiorari calling for the records relating to the order of the Tribunal dated 29-10-2004 in O.A.No.1264/2003 & Batch and quash the same by holding it as illegal, bad, arbitrary and further declare G.O.Ms.No.73, dated 14-10-2003 as illegal, arbitrary and contrary to the Judgment of the Tribunal dated 9-2-2001 in O.A.No.325/99 & Batch with a further direction to the respondents to prepare the seniority list by taking into account the Judgment of the Tribunal dated 9-2-2001 in O.A.No.325/1999 & Batch and to effect the promotions to the post of Principal basing on the said Judgment and to pass such other suitable orders. 2. Likewise, the unsuccessful applicants in O.A.No.6785/2003 on the file of Tribunal filed W.P.No.20900/2004 praying for a writ, order or direction more particularly one in the nature of a writ of certiorari : (a) call for the records relating to and connected with the Judgment rendered on 29-10-2004 in O.A.No.6785/2003 and Batch of cases and quash or set aside the same holding it as unsustainable; (b) also call for the records relating to and connected with G.O.Ms.No.73, Education, dated 14-10-2003 issued by the 1st respondent publishing final seniority list of Lecturers who had been so promoted with effect from 1-4-1976 and quash or set aside the same holding it as illegal, and (c) declare G.O.Ms.No.73, dated 14-10-2003 of the 1st respondent publishing final seniority list of Lecturers giving effect to the notional promotions to seniority also with effect from 1-4-1976 to the Junior Lecturers who were appointed as Lecturers after successful screening and selection by the Departmental Promotion Committee much later to the Lecturers already having much more service as Lecturers as illegal, arbitrary, unjust, unfair, unconstitutional and against the spirit of the Judgment rendered by the Tribunal on 9-2- 2001 in O.A.No.1507/1999, O.A.No.1449/1994, O.A.No.325/1999 etc., and Batch which became final, and to pass such other suitable orders. 3. The Tribunal made the Common Order dated 29-10-2004 in O.A.No.6785, 6996, 1264, 8578 of 2003. Since the factual matrix is common and the questions involved for adjudication also being common, the matters are being disposed of by this Common Order. 4. Sri J.R.Manohar Rao, the learned Counsel representing the writ petitioners in W.P.No.20706/2004 had traced the historical background of this litigation and also had pointed out to the contents of G.O.Ms.No.1072, G.O.Ms.No.423, G.O.Ms.No.37, G.O.Ms.No.28 and also the other relevant G.Os. and the correspondence and the Government Memos in relation thereto and had pointed out that even taking into consideration the prior scales of Assistant Lecturers and the Junior Lecturers as can be reflected from G.O.Ms.No.1072, it is totally unjust in reckoning the seniority of the Junior Lecturers with retrospective date by issuing G.O.Ms.No.73, dated 14-10-2003 which cannot be sustained. The Counsel also pointed out that there was no provision in the service rules for promotion of Junior Lecturers as Lecturers in Government Degree Colleges and for the first time by virtue of the amendment which had been brought in to A.P. Educational Service Rules in G.O.Ms.No.259, dated 9-2-1962 by G.O.Ms.No.423 dated 14-9-1979, a channel had been provided for making such appointments by transfer as Lecturers from the cadre of Junior Lecturers. The Counsel also pointed out that on the strength of seniority, the Departmental Promotion Committee, in short referred to as “D.P.C.”, recommended candidates for promotion to the category of Lecturers in January 1989. The learned Counsel also had pointed out to R.P.No.1705/87 wherein U.G.C. scales had been claimed on the ground that they had worked as Junior Lecturers in Degree Colleges for more than three years and the said claim was rejected by the Judgment dated 2-7-1993. The learned Counsel also pointed out to G.O.Ms.No.28 dated 22-1-1999 granting retrospective promotion to 228 Junior Lecturers as Lecturers which was challenged in O.A.No.325/99 & Batch by Assistant Lecturers who were redesignated as Lecturers prior to 1980. The Counsel also pointed out that the Tribunal pointed out that the benefits extended to the category of Junior Lecturers by the Government by G.O.Ms.No.37, Education dated 5-2-1994 and G.O.Ms.No.28 dated 22-1-1999 will not in any way adversely affect the rights of the present writ petitioners and the other similarly placed persons. The Counsel also pointed out that G.O.Ms.No.73, dated 14-10-2003 impugned in the O.As. is definitely contrary to the Judgment of the Tribunal made in O.A.No.325/99 & Batch dated 9-2-2001 since the Junior Lecturers who were promoted after 1981 had been given retrospective seniority from 1-4-1976 and Rule 33 of the A.P. State and Subordinate Service Rules, 1996 which came into force on 15-10-1996 cannot be made applicable to such a case and the said Rule has no retrospective effect. The learned Counsel also had pointed out to certain other proceedings and the correspondence and would contend that such fixing of the seniority with retrospective effect which would seriously affect the writ petitioners and such other similarly placed persons definitely cannot be sustained. The learned Counsel meticulously pointed out several other factual details to substantiate his submissions. The learned Counsel also in elaboration had explained the reasons why the prior order was not challenged in the light of the clear findings recorded therein. The learned Counsel also placed reliance on S.K. SAHA Vs. PREM PRAKASH AGARWAL , STATE OF BIHAR Vs. SRI AKHOURI SACHINDRA NATH , UDAY PRATAP SINGH Vs. STATE OF BIHAR and VINODANAND YADAV Vs. STATE OF BIHAR . 5. Sri Nuty Ram Mohan Rao, the learned Counsel representing the writ petitioners in W.P.No.20900/2004 substantially proceeded adopting the same grounds which had been urged by Sri J.R.Manohar Rao referred to supra. The learned Counsel while further elaborating his submissions had pointed out that the Tribunal had ignored to give effect to the Judgment rendered on prior occasion made in O.A.No.325/99 & Batch. The Counsel also pointed out that the State Government brought a change in structure of cadres among various teaching staff at Degree College level by introducing a Scheme in G.O.Ms.No.1072, Education Department, dated 26-11- 1976 and by this rationalization method a host of categories of posts such as Readers, Heads of Departments, Senior Lecturers, Lecturers (Senior Scale), Lecturers (Junior Scales), Assistant Lecturers were merged into a common category called Lecturer and hence a single cadre of Lecturers had been brought into effect from 1-4- 1976 and such of those Assistant Lecturers, Tutors and Demonstrators working in the Degree Colleges were also brought in to the cadre of Lecturers upon their accomplishing certain other requirements, both academic and length of service. The Counsel also pointed out that those Junior Lecturers working in Junior Colleges do not get merged into common cadre of Lecturers in terms of G.O.Ms.No.1072 and the State Government had created a channel for promotion to the Junior Lecturers to the post of Lecturer through G.O.Ms.No.423, Education dated 19-4-1979. It is pointed out that till such time an avenue is created, the Junior Lecturers working in Junior Colleges cannot be upgraded as Lecturers with effect from 1-4-1976. The Counsel also further pointed out that the Government passed orders in G.O.Ms.No.1174, dated 5-10-1981 and 228 posts of Junior Lecturers existing in Degree Colleges were not upgraded as Lecturers and when once the posts of Junior Lecturers were upgraded, the existing incumbent Junior Lecturers can seek consideration for promotion against such posts which can happen only on or after 5-10-1981, but definitely not earlier thereto. The Counsel would explain that that is the reason why the claims and cases of Junior Lecturers had been placed before a properly constituted Committee which had assessed their suitability for promotion as Lecturers and based on the recommendations made by such properly constituted Committee they were promoted during the year 1981-82. The learned Counsel also pointed out that a Junior Lecturer is required to put in 5 years of service to earn promotion as a Lecturer and when the D.P.C. met in the year 1981, it considered the eligible Junior Lecturers and thereafter there was never any assessment made by anybody much less by the D.P.C. or the State Government as to the Junior Lecturers otherwise eligible and qualified to be promoted as Lecturers from 1-4-1976. The Counsel further pointed out that G.O.Ms.No.423, Education dated 19-4-1979 had been further amended through G.O.Ms.No.37, Education, dated 5-2-1994, but however the legal position in this regard stands unaltered. The learned Counsel also pointed out that granting notional date of promotion for conferring certain benefits such as career advancement scheme benefits, pay fixation etc., cannot result in conferring the right to claim seniority. Certain submissions were made relating to R.P.No.1705/87 & Batch and the learned Counsel also had pointed out to certain relevant portions of the order made by the Tribunal in the said Batch. The Counsel while concluding had taken this Court through the relevant portions of the order made in O.A.No.325/95 & Batch and ultimately would conclude that the order which had been impugned in the O.As. definitely cannot be sustained and the Tribunal gravely erred in negativing the relief prayed for by the applicants in the said O.As. 6. Sri M.Surender Rao, the learned Counsel representing certain of the unofficial respondents, successful Junior Lecturers, made the following submissions. The learned Counsel initially attacked the very legal right of these Assistant Lecturers to question the aspect of seniority on the ground that at no point of time they were validly appointed to the said posts and there are no proper pleadings and no particulars in this regard had been furnished. The Counsel also had referred to the pleadings of the parties in the prior proceedings, stand taken by the Government in this regard and also the directions issued in O.A.No.325/99 & Batch and had pointed out that the said order had attained finality and the same was left unquestioned by the writ petitioners. The learned Counsel while making elaborate submissions had traced the historical background of the Junior Lecturers and the Assistant Lecturers from the commencement and had pointed out that by virtue of G.O.Ms.No.423 dated 19- 4-1979 A.P. Educational Service Rules issued under G.O.Ms.No.259 dated 9-2-1962 were amended providing for appointment to the post of Lecturer by appointment by transfer of a Junior Lecturer and the said amendment was given retrospective effect by G.O.Ms.No.37 dated 5-2-1994. The Counsel pointed out relating to the giving of benefit of D.A. merged scales by virtue of G.O.Ms.No.1376 dated 1-12-1975. It was further contended that on the strength of the report of the 3 Man Committee, G.O.Ms.No.1072 dated 26-11-1996 was issued whereunder different categories of Tutors existing in Degree Colleges were merged into one i.e., the category of Lecturer. The Counsel also pointed out to the letter dated 10-11-1978 whereunder the Director of Higher Education sought some clarification. The Counsel with all vehemence pointed out to Memorandum No.838/W2/79-1, dated 24-4-1979 whereunder the Government authorized and directed to redesignate the Assistant Lecturers at Item (5) of the said Memorandum subject to ratification by the Government. At no point of time there was redesignation of these Assistant Lecturers as Lecturers and much less there was any ratification on the part of the Government and there are no pleadings relating to the so called valid appointments and hence the learned Counsel would contend that in the absence of the same, such parties who are unable to establish that they had been validly appointed cannot claim any right to seniority. The learned Counsel placed strong reliance on G.DHARMA VEERA REDDY Vs. GOVERNMENT OF ANDHRA PRADESH . The learned Counsel meticulously had taken this Court through all the relevant G.Os. and the correspondence and also the findings recorded in O.A.No.325/99 & Batch and also had pointed out that written arguments in detail had been filed even before the Tribunal and certain of the aspects which had been highlighted were left untouched by the Tribunal. The Counsel also would point out that the principle which had been laid down in the prior order in O.A.No.325/99 & Batch may have to be taken into consideration. The learned Counsel had pointed out to the A.P. Educational Subordinate Service Rules and A.P.Education Service Rules and also adhoc rules for Junior Lecturers and had pointed out to G.O.Ms.No.423 and G.O.Ms.No.37 and would contend that the legal fiction would be operative. The redesignation is only an executive fiat. The learned Counsel mainly concentrated on the weakness of the enforceability of any legal right on the part of the writ petitioners by pointing out to several G.Os. and also the correspondence and the Government Memos in this regard. The learned Counsel would submit that ultimately the point would boil down to mere fixation or reckoning the seniority of the Junior Lecturers, Assistant Lecturers etc., who became Lecturers. In the light of the merger, the difference of scale if any in between Junior Lecturers and Assistant Lecturers would fall into insignificance. Hence the Counsel would submit that in the facts and circumstances the Tribunal is well justified in negativing the relief to the writ petitioners/applicants. The learned Counsel placed strong reliance on PRAFULLA KUMAR DAS Vs. STATE OF ORISSA to substantiate his stand in this regard. 7. Sri M.Panduranga Rao and Sri Srikanth, Counsel representing certain unofficial respondents who were successful before the Tribunal, in substance adopted the submissions made by Sri Surender Rao and further would maintain that all the persons who would be affected by any adverse order being passed had not been impleaded either in the O.As. or in the present Writ Petitions and on this ground alone, the Writ Petitions are liable to be dismissed. The learned Counsel also further pointed out that the first writ petitioner in W.P.No.20706/2004 is not qualified to hold the post of Principal since he does not possess Ph.D. qualification and hence the first writ petitioner has no locus-standi to question the impugned action. The learned Counsel also had traced the historical background of the litigation and had pointed out to the directions issued in the prior Writ Petitions and also in the O.As. and had pointed out to the G.Os. which had been already referred to supra and would comment that when once a person is entitled to career advancement scheme it would be ridiculous to contend that this will not enure to his benefit to claim seniority. The Counsel also would point out that the Government is the Competent Authority to correct the mistake if any committed, and after taking into consideration the relevant aspects and also the various representations made, referring to the prior G.Os. or Rules and also the orders and directions, final seniority list had been issued which is in accordance with law and the same need not be disturbed. The learned Counsel also pointed out to the findings recorded by the Tribunal in this regard and would contend that this Court exercising powers of judicial review need not disturb such well considered findings recorded by the Tribunal and hence the Writ Petitions deserve a summary dismissal at the hands of this Court. 8. The learned Government Pleader for Services-I had taken this Court through the counter affidavit wherein several details had been narrated tracing the historical background of the litigation and would contend that the seniority list prepared by the Government is in accordance with law and is in conformity with the prior orders made and the directions issued by the Courts and the Tribunals. The learned Government Pleader also had pointed out to G.O.Ms.No.28 and made certain submissions relating to the awarding of benefit of career advancement scheme and the impact thereof on the present reckoning of the seniority too. The learned Counsel also further pointed out that though this is a general question, it may be noted that all such persons who may be ultimately affected are not brought before the Court and on this ground also the Writ Petitions are bound to fail. 9. In both the Writ Petitions, the common order made in O.A.No.1264/2003 & Batch dated 29-10-2004 wherein G.O.Ms.No.73 dated 14-10-2003 had been questioned being contrary to the Judgment made by the Tribunal in O.A.No.325/99 & Batch and on certain other grounds, had been questioned. 10. The writ petitioners in W.P.No.20706/2004 were initially appointed as on 1-3-1971, 5-5-1972, 10-3-1972 and 14-4-1971 as Junior Lecturers and Demonstrators and petitioners 1 to 3 were appointed as Assistant Lecturers on 11-5-1975, 30-1-1974 and 2-4-1975 and these were designated as Lecturers with effect from 11-5-1978, 30- 1-1977, 2-4-1978 and 14-4-1976 respectively in terms of G.O.Ms.No.1072, dated 26-11-1976. It was further stated that as per A.P. Educational Service Rules the post of a Lecturer is to be filled by direct recruitment and recruitment by transfer from among the Assistant Lecturers in the A.P. Education Subordinate Service. The post of Junior Lecturer was governed by separate service rules and they were in the lower scales and they were not eligible for promotion to the post of Lecturers. It was further averred that accepting the recommendations of the 3 Man Committee, the Government issued G.O.Ms.No.10782 dated 26-11-1976 merging all the categories of Teachers into one viz., “Lecturers in the revised pay scales of Rs.700-1600. The pay scales are applicable subject to certain conditions laid in the G.O. and the post of Junior Lecturers existing in Degree Colleges will be converted into Lecturers in the revised pay scales 1976. However the Junior Lecturers are not applicable for redesignation as Lecturers automatically. According to the said G.O. basing upon over all inter-se seniority of Junior Lecturers in a particular subject, the senior most Junior Lecturers will be promoted as Lecturers and after being approved by the D.P.C. the Assistant Lecturers will be converted as Lecturers if they complete three years of service. Likewise, the Demonstrators/Tutors will be converted as Lecturers on completion of five years of service. It was further averred that some of the Junior Lecturers filed R.P.No.1705/87 and Batch claiming U.G.C. pay scales on the ground that they had worked as Junior Lecturers in Degree colleges for more than three years and the Tribunal by the Judgment dated 2-7-1993 rejected their claim by holding that the Junior Lecturers are not entitled to be converted as Lecturers automatically. 11. It was further averred in para-4 of the affidavit that the A.P. Education Service Rules were amended by G.O.Ms.No.423 dated 18-4-1979 and according to the said amendment appointment to the posts of Lecturers will be by recruitment by transfer from among the Junior Lecturers. Thus, for the first time, Junior Lecturers became eligible