THE HON’BLE SRI JUSTICE GHULAM MOHAMMED and HON’BLE SRI JUSTICE G. BHAVANI PRASAD +WRIT PETITION No.2113 of 2003 % 24.09.2008 # K.Venkateswara Rao S/o. Govinda Rao Government Institute of Post Diploma Courses in Engineering & Technology Visakhapatnam - 7 ..... PETITIONER AND 1 Sri I.V.Nageswara Rao Govt. Polytechnic for women Bhimunipatnam Visakhapatnam Dist 2 Commissioner of Technical Education Govt. of A.P., Hyderabad 3 Principal G.I.P.D.C.E.T. Visakhapatnam - 7 4 Regional Joint Director of Technical Education, Kakinada .....RESPONDENTS Counsel for the Petitioner: MR. P.V.S.S.S.RAMA RAO Counsel for the first Respondent: MR.D.LINGA RAO Counsel for Respondents 2 to 4: G.P. FOR SERVICES I < Gist: >Head Note ? Citations: 1.(1999) 8 SCC 304 2. (1998) 9 SCC 492, 3. AIR 1997 S.C. 3108 4. 2008 (1) Decisions Today(SC) (INRC)551 5/ AIR 1974 SC 2271 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY FOURTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE G.BHAVANI PRASAD WRIT PETITION NO : 2113 of 2003 Between: K.Venkateswara Rao S/o. Govinda Rao Government Institute of Post Diploma Courses in Engineering & Technology Visakhapatnam - 7 ..... PETITIONER AND 1 Sri I.V.Nageswara Rao Govt. Polytechnic for women Bhimunipatnam Visakhapatnam Dist 2 Commissioner of Technical Education Govt. of A.P., Hyderabad 3 Principal G.I.P.D.C.E.T. Visakhapatnam - 7 4 Regional Joint Director of Technical Education, Kakinada .....RESPONDENT(S) 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 to issue a writ or order or direction more in the nature of writ of mandamus declaring the order passed in OA.No. 6899/2001 Dt.9/1/2003 on the file of the Hon'ble Andhra Pradesh Administrative Tribunal as illegal, arbitrary against the A.P.State and Subordinate Service Rules 1962 and the Administrative Tribunal Act, 1985 and consequently direct the respondents to declare the petitioner as senior than the first respondent in the categories of Sr. Assistant and Superintendent and pass such other order. Counsel for the Petitioner: MR. P.V.S.S.S.RAMA RAO Counsel for the first Respondent: MR.D.LINGA RAO Counsel for Respondents 2 to 4: G.P. FOR SERVICES I The Court made the following : THE HON’BLE MR.JUSTICE GHULAM MOHAMMED & THE HON’BLE MR.JUSTICE G.BHAVANI PRASAD Writ Petition No.2113 of 2003 ORDER: (per Ghulam Mohammed,J) This writ petition is filed seeking to quash the order, dated 9.1.2003 in O.A.No.6899 of 2001 on the file of the Andhra Pradesh Administrative Tribunal ( for short ‘the Tribunal’) by virtue of which the Tribunal has directed to review the promotions of respondent No.1 and the petitioner as Senior Assistant as per their relevant seniority and eligibility according to Rules and regulate the consequential promotions as Superintendents accordingly. 2. The case of the petitioner is that he was appointed as Junior Assistant on 10.5.1986 in the Department of Technical Education and then he passed the Accounts Test for Subordinate Officers Part-I in the month of November,1988 and he is eligible for promotion to the post of Senior Assistant. As per the General Rule 4 (ii) of Andhra Pradesh State and Subordinate Rules, 1962, a panel was prepared consisting of all the eligible candidates for the year 1989-90 including his name, for promotion to the post of Senior Assistant. The name of the first respondent was not included in the panel prepared for the year 1989-90, as he could not pass the Accounts Test for Subordinate Officers Part-I, which is a pre-requisite qualification for promotion to the post of Senior Assistant. As there were vacancies which had arisen on 10.5.1990, petitioner’s name was considered for promotion to the post of Senior Assistant and, accordingly, he was promoted to the post of Senior Assistant by orders of the second respondent dated 12.09.1990 and subsequently, he was promoted to the post of Superintendent vide proceedings of the second respondent dated 25.9.2001. The petitioner’s promotion to the post of Senior Assistant was not challenged by the first respondent at any point of time and waited till he got his promotion to the post of Superintendent and after a lapse of considerable period, the first respondent filed O.A. No. 6899 of 2001 before the Tribunal challenging the proceedings dated 25.09.2001. The relief sought for by the first respondent is very ambiguous, as he is not sure in which post his seniority to be fixed. The case of the petitioner is that the first respondent has not challenged his promotion to the post of Senior Assistant in O.A.No.6899 of 2001, but he challenged the proceedings dated 25.09.2001 whereunder he was promoted to the post of Superintendent. Though the first respondent has not challenged his promotion to the post of Senior Assistant, the Tribunal has erroneously directed the official respondents to review the promotions of the petitioner and the first respondent in the category of Senior Assistant and regulate the consequential promotions. Even though, the claim of the first respondent about the seniority in the category of Senior Assistant is barred by limitation as per Section 21 (i)(a) of the Administrative Tribunal Act, 1985, the Tribunal has erroneously entertained the O.A. The presumption of the Tribunal that no panel is required to be prepared for promotion to the post of Senior Assistant is contrary to the General Rule 4 (ii) of the Andhra Pradesh State and Subordinate Service Rules, 1962. The petitioner’s name was included in the panel period from 1.11.1989 to 30.4.1990 and also panel period from 1.5.1990 to 31.8.1990 for the post of Senior Assistant, but due to administrative delay, he was promoted by order dated 12.9.1990 and in fact his promotion has to be preponed to the above said panel period as the vacancies of Senior Assistant post were available during the said panel period and he was fully qualified to hold the post. Therefore, the impugned order dated 9.1.2003 passed by the Tribunal is liable to be set-aside. 3. The first respondent filed his counter stating that he was appointed as Junior Assistant in the Department of Technical Education on 11.8.1982 and subsequently, he passed Accounts Test for Subordinate Officers Part-I in June,1990 and he was promoted as Senior Assistant vide proceedings dated 1.7.1991 and he joined as Senior Assistant on 13.7.1991. It is stated that in spite of passing of the Accounts Test for Subordinate Officers Part-I in June,1990, the petitioner was promoted as Senior Assistant on 12.9.1990 ignoring his seniority, which is in contravention of rule of Promotion and Rule of Seniority. It is stated that for making promotions to the posts of Senior Assistant and Superintendent which are non-gazetted, no panels are required to be prepared and the persons eligible as on the date of promotion are to be considered on the basis of seniority-cum-fitness as provided under Rule 5 (b) of State and Subordinate Service Rules. The posts of Senior Assistants and Superintendents being non-selection posts, preparation of panels and relative merits do not arise. The first respondent should have been promoted with effect from 12.9.1990, the date on which the petitioner was promoted to the post of Senior Assistant as he has passed the requisite Accounts Test earlier to the said date. The first respondent had made several representations to the Commissioner of Technical Education to fix up his seniority over and above the petitioner in the cadre of Senior Assistant and promote him to the post of Superintendent, but however, no orders have been issued and instead the petitioner was promoted to the post of Superintendent by proceedings dated 25.09.2001. It is further stated that no interse seniority list was prepared in the cadre of Junior Assistant or Senior Assistant before making promotion to the post of Senior Assistant. Thus, taking in to consideration the facts and circumstances of the case, the Tribunal has rightly directed to review the promotions of the first respondent and the petitioner as Senior Assistant as per their relevant seniority and eligibility according to rules and regulate the consequential promotions as Superintendents accordingly, and the order does not call for any interference by this court and the writ petition is liable to be dismissed. 4. Respondents 2 to 4 filed counter stating that the petitioner was appointed as Junior Assistant on 10-5-1986 and passed the Account Test for Subordinate Officers Part-I in the month of November,1988. There were 2 vacancies of Senior Assistant in zone-I during the Half Yearly Panel with effect from 1-11-1989 to 31.4.1990 and also one vacancy arose on 10.5.1990. As on the date of 1st November,1988, respondent No.1 did not pass the Account Test for Subordinate Officers Part-I, which is requisite qualification for promotion to the post of Senior Assistant, whereas the petitioner had passed Account Test for Subordinate Officers Part-I during the month of November,1988 and eligible to include his name in the Half Yearly Panel commencing from 1st November,1989 as per G.O.Ms.No.456 G.A.(Ser-B) Department, dated 9-8-1989. Subsequently, Government in their G.O.Ms.No.4, G.A.(Ser.D) Department, dated 3.1.1990 issued orders dispensing of Half Yearly Panels and G.O.Ms.No.438 G.A.(Ser.D) Department, dated 16.7.1990 ordered that the list in operation on the date of commencement of the yearly panel shall continue to be valid and operative till 31-5-1990 and whereas the list that has to be prepared on the basis of reckoning yearly panels shall be prepared 1st November,1989 which shall also ceased to be in force as on 31.8.1990. Accordingly, a panel has to be prepared reckoning 1st November,1989 is the qualifying date for promotion to the post of Senior Assistant. Respondent No.1 passed Account Test Part-I during the month of August,1990 and he is not eligible to include his name, for the panel period 1989-90, whereas the petitioner is fully qualified to promote in the panel period from 1st November,1989 to 30-04-1990 and also panel period from 1-5-1990 to 31.08.1990. The promotion of petitioner was ordered on 26.9.1990 due to Administrative delay and in fact his promotion has to be preponed to the panel period from 1.11.1989 to 31.5.1990 as the vacancies of Senior Assistant were available during the said panel period and the petitioner was fully qualified to hold the post. Further, it is stated that respondent No.1 did not challenge the promotion orders of the petitioner from the post of Junior Assistant to Senior Assistant but all of a sudden he challenged the further promotion order of the petitioner as Superintendent and also to review the promotions in the category of Senior Assistant. As per General Rule 4 (ii) of Andhra Pradesh State Subordinate Rules, 1962, the panels are relevant for the purpose of promotions. During the panel year 1989-90, respondent No.1 was not qualified for promotion to the post of Senior Assistant, therefore, his name was not taken into consideration, whereas the petitioner was fully qualified to hold the post of Senior Assistant, hence, his name was considered for the panel period 1989-90 and promoted as Senior Assistant. As the petitioner having all requisite qualifications for the promotional posts, accordingly he was promoted from Junior Assistant to Senior Assistant and further promoted from Senior Assistant to Superintendent and said promotions were effected as per seniority, eligibility and as per Rules and said promotional orders are valid and justified. 5. The learned counsel for the petitioner contended that as per Section 21 (i) of the Administrative Tribunal Act, 1985, the Tribunal ought not to have admitted the O.A., which was not filed within one year from the date on which final order has been made. He relied on decisions of Apex Court in Ramesh Chand Sharma V. Udham Singh Kamal and others [1] wherein it was held as under: “ On a perusal of the materials on record and after hearing counsel for the parties, we are of the opinion that the explanation sought to be given before us cannot be entertained as no foundation thereof was laid before the Tribunal. It was open to the first respondent to make proper application under Section 21 (3) of the Act for condonation of delay and having not done so, he cannot be permitted to take up such contention at this late stage. In our opinion, the O.A. filed before the Tribunal after the expiry of three years could not have been admitted and disposed of on merits in view of the statutory provision contained in Section 21 (1) of the Administrative Tribunal Act,1985. The law in this behalf is now settled (See Secretary to Govt. of India v. Shivram Mahadu Gaikwad, (1995 Supp (3) 231: 1995 SCC L&S 1148: (1995) 30 ATC 635). 6. He also relied on a decision in Dr.A.K.Mitra, DG, C.S.I.R. and another v. D.Appa Rao and another [2] wherein it was held as under: “ We do not find any difficulty in holding that the Tribunal went wrong in appreciating the facts placed before it while coming to the above conclusion. First of all, the Tribunal failed to appreciate the fact that the first respondent’s representation about his non-selection to the post of Assistant (General) in April, 1972 was rejected by the appellants and the same question was again reopened by the first respondent when the subject of further promotion was considered and again the representation of the first respondent was turned down by the appellants. The Tribunal by the impugned order has allowed the first respondent to reopen the issue that was settled in the year 1972 in an indirect manner holding that the first respondent must be deemed to have been appointed to the post of Assistant (General) w.e.f.11.4.1972. For coming to that conclusion, no provision of law or any other material was shown to support the same by the Tribunal. The Tribunal was not justified in entertaining the claim of the first respondent to reopen an issue relating to the year 1972 in the year 1988. It must be noted that after the appointment of third respondent as Office Assistant(General) in the year 1972, the first respondent was regularly promoted to the post of Office Assistant only on 6-4-1983 and that being the position and he having accepted the promotion without challenge, it was not open to him to contend that he must be deemed to have been promoted as Assistant (General) w. e. f. 11.4.1972 when the third respondent was appointed by direct recruitment to that post. Furthermore, the first respondent in response to the advertisement for the ex cadre post for direct recruitment, applied and appeared for the examination and took a chance and thereafter made representation that he should be promoted to the post of Assistant (General) as a departmental candidate which was rejected immediately by the appellants.” 7. He further contended that the observation of the Tribunal that no panel is required to be prepared for promotion to the post of Senior Assistant and that the date of filling up the vacancy alone has to be taken into consideration is erroneous. As per Rule 4(ii) of the Andhra Pradesh State and Subordinate Service Rules, 1962, panels are relevant for the purpose of promotion. It is the legal obligation on the part of the competent authority to prepare the panel and fill up the vacancies from the eligible candidates included in the panel. He also further contended that the Tribunal ought to have considered that the petitioner passed the Account Test for Subordinate Officers Part-I in the month of November, 1988, which is a pre-requisite qualification for promotion to the post of Senior Assistant, and the petitioner’s name was included in the panel period 1989-90. The Tribunal failed to see that even though the first respondent was appointed prior to the petitioner in the category of Junior Assistant, the first respondent did not pass the Account Test during the relevant period and his name was not included in the panel period for 1989- 90. He lastly contended that the Tribunal has grossly erred in directing the official respondents to review the promotions of the petitioner and the first respondent as Senior Assistant as per their relevant seniority and eligibility according to rules and regulate the consequential promotions as Superintendents, and the impugned order is contrary to the Service Rules and is liable to be set-aside. Therefore, he prays to allow the writ petition. 8. The learned counsel for respondent No.1 vehemently contended that the respondent No.1 was appointed prior to the petitioner in the category of Junior Assistant and respondent No.1 had passed the Account Test for Subordinate Officers Part-I, which is prerequisite qualification for promotion to the post of Senior Assistant, as on the date of giving promotion to the petitioner as Senior Assistant, and that instead of giving promotion to respondent.1 as Senior Assistant, petitioner was promoted as Senior Assistant, which is in contravention of rule of promotion and rule of seniority and the Tribunal has rightly allowed the O.A. observing that no panel is required to be prepared for promotion to the post of Senior Assistant and the impugned order does not suffer from any infirmity and the writ petition is liable to be dismissed. He further contended that respondent No.1 challenged the order passed by the authorities promoting the petitioner as Superintendent and also the seniority and since the post of Senior Assistant is a non-selection post, seniority alone is criteria to give promotions. He also further contended that the jurisdiction of this court under Article 226 of the Constitution of India is very limited to interfere with such an order. 9. He relied on a decision in I.C.A.R. and another v. T.K.Suryanarayan and others, [3]wherein it was held as under: “We are, however, unable to accept the submission made by the learned counsel appearing in both these SLPs. Even if in some cases, erroneous promotions had been given contrary to the said Service Rules and consequently such employees have been allowed to enjoy the fruits of improper promotion, an employee cannot base his claim for promotion contrary to the statutory Service Rules in law courts. Incorrect promotion either given erroneously by the department by misreading the said Service Rules or such promotion given pursuant to judicial orders contrary to Service Rules cannot be a ground to claim erroneous promotion by perpetrating infringement of statutory Service Rules. In a court of law, employees cannot be permitted to contend that the Service Rules made effective of 1st October, 1975 should not be adhered to because in some cases erroneous promotions had been given. The statutory Service Rules must be applied strictly in terms of the interpretation of rules as indicated in the decision of Three Judges Bench of this Court in Khetra Mohan’s case (1994 AIR SCW 4154). When the said Service Rules were introduced w.e.f. 1st October, 1975, one time exercise was required to be made to decide the fitment of the employees in different grades. Except in case of fitment in grade T-I-3 of Category I and consequential accelerated promotion to grade T-2-3 of Category 2, on the basis of qualification in no other case accelerated promotion on the basis of educational qualification is permissible. If relaxation of educational qualification is made effective on the date of enforcement of the said service Rules it will be a case of review of initial fitment. In all other cases, promotion is to be given in accordance with the said Service Rules and not otherwise. The respondents in these appeal were not entitled to initial fitment in grade T-1-3. As a matter of fact, they got initial fitment in grade lower than Grade T-1-3 of Category 1. Therefore, they are not entitled to accelerated promotion on the basis of educational qualification consequent upon the initial fitment in Grade T-1-3 of Category 1. The impugned decisions of the Tribunal, therefore, cannot be sustained.” 10. He also relied on a decision in Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar and others, [4] wherein it was held as under: “Schedule Tribe Caste certificate scrutiny committee order- whether a co-employee of the respondent No.1 who was working as a Field Officer with the Maharashtra Pollution Control Board can maintain an independent special leave questioning the judgment of a High Court setting aside an order of the Schedule Tribe Caste Certificate Scrutiny Committee is the question involved herein. A special leave petition ordinarily would not have been entertained at the instance of the appellant. Validity of appointment or otherwise on the basis of a caste certificate granted by a committee is ordinarily a matter between the employer and the employee. This Court, however, when a question is raised, can take cognizance of a matter of such a grave importance suo motu. It may not treat the special leave petition as a public interest litigation, but, as a public law litigation. It is, in a proceeding of that nature, permissible for the court to make a detailed enquiry with regard to the broader aspects of the matter although it was initiated at the instance of a person having a private interest. A deeper scrutiny can be made so as to enable the court to find out as to whether a party to a lis is guilty of commission of fraud on the Constitution. If such an enquiry sub serves the greater public interest and has a far reaching effect on the society, in our opinion, this Court will not shirk its responsibilities from doing so. We could have dismissed this application on the simple ground that the appellant has no locus standi. We did not do so because as a constitutional court we felt it to be our duty to lay down the law correctly so that similar mistakes are not committed in future. Apart from the general power of the superior courts vested in it under Article 226 or Article 32 of the Constitution of India, this Court is bestowed with a greater responsibility by the makers of the Constitution in terms of Articles 141 and 142 of the Constitution. Decisions are galore wherein this Court unhesitatingly exercised such jurisdiction to resort to the creative interpretation to arrive at a just result in regard to the societal and/or public interest. We thought that it is a case of that nature. Invoking our jurisdiction under Article 142 of the Constitution of India, keeping in view the long history of the case and its backdrop, we are of the opinion that whereas it would not be proper for us to disturb the very appointment of the appellant but it must be declared that his appointment shall be treated to be that of a general category in the matter of promotion or otherwise. He shall not be eligible to any benefits as a member of a Schedule Tribe.” 11. The leaned counsel for the first respondent also further contended that official respondents ought to have filed writ petition against the judgment of the Tribunal, but not the writ petitioner herein, who is a co-employee. 12. He drawn the attention of this court to Rule 5 of the Andhra Pradesh State and Subordinate Service Rules,1996, which reads as under: “ Selection Posts:- (a) All first appointments to a State Service and all promotions/appointment by transfer in that service shall be made on grounds of merit and ability, seniority being considered only where merit and ability are approximately equal, by the appointing authority as specified in sub-rule (a) of rule 7 from the panel of candidates. Such panel shall be prepared as laid down in rule 6 by the appointing authority or any other authority empowered in this behalf. (b) Non-selection posts: No non-gazetted post should be treated as selection post. Promotion and appointment by transfer to higher posts other than those mentioned in sub-rule (a) shall be made in accordance with seniority-cum-fitness, unless (i) such promotion or appointment by transfer of a member has been with held as a penalty; or (ii) a member is given special promotion for conspicuous merit and ability.” 13. He also drawn the attention of this court to Rule 23 of the Andhra Pradesh State and Subordinate Service Rules,1996, which reads as under: Appeal Revision and Review of Orders of