HON’BLE SRI JUSTICE V.SURI APPA RAO Writ Petition No.6173 of 2000 Date: 25-3-2011 Between K.Venkateswara Rao … Petitioner and 1. Government of Andhra Pradesh, Rep. by its Principal Secretary, Education Department, Hyderabad and 3 others … Respondents HON’BLE SRI JUSTICE V.SURI APPA RAO Writ Petition No.6173 of 2000 Order: This writ petition is filed seeking to issue a Writ of mandamus declaring that the order of the 1st respondent in G.O.Rt.No.3 dated 01- 01-2000 declaring that the order of seniority shall be considered from the date of regularization and not from the date of individual appointment is arbitrary and illegal and contrary to the principles of law laid down by the Hon’ble Supreme Court of India and consequential order of the 3rd respondent in its proceedings dated 16-3-2000 revising the seniority and the proceedings of the 4th respondent dated 09-7- 2001 issued on the basis of resolution of the 3rd respondent dated 18- 6-2001 as illegal, inoperative and without jurisdiction and contrary to the earlier seniority and actual date of appointment and to quash the same and direct the respondents 1 to 3 herein to consider the case of the petitioner for promotion with all consequential benefits on the basis of the seniority list prepared during 1993. 2. The brief averments of the writ petition are as under: It is submitted that the petitioner was appointed as Lecturer in Physics in the 3rd respondent college on 16-7-1966 and the 4th respondent, who is another Lecturer in Physics in the same college, was appointed on 30-7-1966. As an economy measure, the Government of Andhra Pradesh has imposed 10% cut in grants in the year 1967 and directed all the Universities and Colleges to increase the work load vide G.O.Ms.No.985 dated 29-4-1967. Consequent to the proceedings, the Andhra University in its Proceedings No.CC1/5257/64/Waltair dated 26-6-1967 has instructed all the colleges that the scheme has to be implemented without retrenchment of the present staff. The 3rd respondent college, without verifying the instructions of the University issued on 11-7-1967, erroneously terminated the services of the petitioner. Admittedly, the 4th respondent and one Sri Sai Sastry are junior to him as they were appointed much later to his entry into service. After realizing the mistake the Management has reinstated him into service by proceedings dated 27-7-1967. The orders passed by the Management on 27-7-1987 are not a fresh appointment and it clearly indicates that he was reinstated into service with all consequential benefits. The period of absence was treated as extra-ordinary leave and he was given continuity of service with all consequential benefits. The order of reinstatement passed by the Management on 27-7-1987 has become final. 3. It is further submitted that the Director of Higher Education in his Proceedings L.No.197 A2/DHE/67 dated 29-8-1967 issued further clarification to all the Managements of the private colleges to the effect that no retrenchment shall be effected due to increase in workload. Consequent on his reinstatement the service was also protected by duly giving the seniority. In the year 1968 the seniority list was prepared by the Management in which he was shown as senior to the 4th respondent. Aggrieved at that seniority list, the 4th respondent has preferred appeal to the Director of Higher Education and the seniority list was confirmed by the appellate authority in the year 1979. 4. It is further submitted that consequent upon fixing his seniority, he was appointed as Head of Department in Physics by Proceedings of the Management in Rc.212/Est/84 dated 23-4-1984. He has been continuing as such till date. The said appointment was also not challenged by the 4th respondent. One Sri A.Kutumba Rao has raised a dispute with respect to his seniority before this Court in writ petition. The matter went in appeal and a Division Bench of this Court by judgment dated 22-11-1992 in W.A.No.276 of 1987 has directed the Management to prepare a fresh seniority list after giving an opportunity to all the persons concerned. Consequent upon the directions given by this Court, the 3rd respondent has prepared a seniority list on 27-4-1993. Even in the said seniority list, the 4th respondent was shown as far junior to the petitioner who was placed at serial No.7 and the 4th respondent was shown at serial No.9. The said seniority list remained unchallenged and it has become final. 5. It is further submitted that after a lapse of three decades at the instance of the 4th respondent, the Management has reviewed the seniority by the proceedings dated 25-01-1987 without any notice to him. Aggrieved by the said order, he has preferred an appeal to the Regional Joint Director, Rajahmundry and the appellate authority after giving notice to the college as well as the 4th respondent has passed a detailed order in Rc.No.438/B1/97 dated 28-6-1997 setting aside the seniority list and also that his seniority has to be counted from the date of his initial appointment. 6. It is further submitted that the 4th respondent carried the matter in appeal to the 1st respondent. The notice of appeal was received by him on 12-6-1999. As he lost his son on 08-4-1999 at Madras, who was studying Engineering by then, he sought 3 weeks’ time for filing a detailed counter. The request of adjournment was also sent by telegram as well as in writing dated 14-6-1999. However, he made some arrangements to file vakalat through the counsel. On 19-6-1999 his counsel has filed vakalat and sought time for filing counter. The case was adjourned to 26-6-1999 on which date he filed a detailed representation by way of written arguments. Since the 1st respondent was held up in a meeting on 26-6-1999 his (petitioner’s) counsel was compelled to file written arguments in the office as he was not given an opportunity for meeting the 1st respondent. His counsel was informed that next date of hearing will be informed. To his surprise, he has received the impugned order along with covering letter of acknowledgment dated 16-3-2000 to the effect that the appeal filed by the 4th respondent was allowed. 7. It is further submitted that the impugned order passed by the 1st respondent in G.O.Rt.No.3 dated 01-01-2000 is illegal, inoperative and in violation of principles of natural justice. Though the order appeared to have been passed on 01-01-2000, he was not served with a copy of the order and the impugned notice was served for the first time by the Management along with their Memo dated 16-3-2000. The consequential order passed by the Managing reverting his seniority is illegal and without jurisdiction. The order of the 1st respondent is in violation of principles of natural justice and he was not heard before disposal of the appeal. He was not even given the notice of date of hearing of the appeal. The impugned order does not indicate whether the contentions raised by him in the reply have been considered. The order is totally biased and one sided. The 1st respondent appears to have proceeded on the basis that he was appointed on temporary basis and termination of his services is illegal and that he was reinstated after 48 days and his period of absence was stated as extra- ordinary leave. Therefore, he is not entitled for counting the period of services from the date of his initial appointment. The impugned order only extracts the observation of Management and his contentions were not considered. As per Rule 7 of Andhra University Conditions of Service of Teachers, seniority of a teacher in a grade shall be determined by the date on which he commences probation in a post. 8. It is further submitted that the petitioner was put on probation on 06-7-1966 itself. Mere extension of probation does not deprive his initial period of service for purpose of seniority. Termination orders were recalled by the Management on 29-8-1967 itself and he was reinstated into service with all consequential benefits. Consequent on his reinstatement, seniority list was prepared by the Management during 1968, 1984, 1991 and 1993. On all the occasions, the 4th respondent has not raised any issue on his seniority. In the year 1979, the 4th respondent has challenged the seniority unsuccessfully. The seniority prepared in the year 1968 has become final and is in operation for the last more than 3 decades. He was appointed as Head of the Department on the basis of seniority and he was also appointed as in charge Principal on some occasions. As per instructions of the Government, only senior most persons shall be appointed as Head of the Department as also the in charge Principal. Even in the year 1984 when he was promoted as Head of the Department or in the year 1991 he was made as in charge of the Principal, the 4th respondent has not raised any issue. The Management has no authority to review the seniority, which was prepared way back in the year 1968. In any event, the seniority list was prepared by the Management afresh in the year 1983 pursuant to the orders of this Court, after giving opportunity to all the concerned. The said seniority list was also filed in the Court as per directions. Any reconsideration of seniority would amount to reviewing the orders of this Court. Therefore, the 3rd respondent lacks jurisdiction to review the order. 9. It is submitted that the 1st respondent has not considered the material filed before it. The petitioner was also not given any notice of date of hearing before passing the order. The case earlier was adjourned after receiving objections without giving any date. Therefore, the order passed by the 1st respondent in G.O.Rt.No.3 dated 01-01-2000 setting aside the order of the Regional Joint Director, Collegiate Education, Rajahmundry is illegal and in violation of principles of natural justice. Consequently, the order of the Management dated 16-3-2000 also is illegal and inoperative in the eye of law. 10. The respondents 1 and 2 did not choose to file their counters. 11. Respondent No.3 filed a Counter-Affidavit submitting that the petitioner was appointed on 16-7-1966, he was retrenched on 08-6- 1967 and was appointed again on 27-7-1967, pursuant to the instructions issued by the Andhra University dated 26-6-1967, received on 11-7-1967. Hence his appointment commences from 27- 7-1967, whereas the 4th respondent is in continuous service from 30-7- 1966. 12. He denied that the Management erroneously terminated the service of the petitioner without the instructions of the University. G.O.Ms.No.985 regarding the increase in work load for college teachers and imposing 10% cut in grants to aided colleges was issued on 29-4-1967. In pursuance of the said G.O., the services of the petitioner were terminated on 08-6-1967. The Management of the college in view of its discretionary power vested with it, retained the services of the 4th respondent and another Mr. G.Krishna Mohan Rao as they were considered to be more meritorious than the petitioner. After the petitioner was terminated from service on 08-6-1967 the Andhra University issued instructions in Proceedings No.CCI/5257/67/Waltair dated 26-6-1967, which was received by the college on 11-7-1967. Pursuant to the said directions and on appeal by the petitioner, he was appointed again on 27-7- 1967. He denied that the Management after realizing the mistake reinstated the petitioner into service with all consequential benefits on 27-7-1967. The instructions of Andhra University, issued on 11-7-1967 and the proceedings of the Director of Higher Education Lr.No.197/A2/ DHE/67, dated 29-8-1967 apply to permanent/regular employees but not for ad hoc/temporary/probationary employees. The Management had not paid the salary for his period of absence (48 days) from 08-6-1967 to 26-7-1967, and postponed the date of increment and his probation was also extended. While preparing the seniority lists in 1968 to 1993, the Management was of the opinion that the date of first appointment is the criteria in fixing the seniority. As mentioned by the petitioner, the 4th respondent aggrieved by the seniority lists, made several appeals to the Management to rectify the error. 13. It is further submitted that as per the existing seniority list at that time, the petitioner was given charge as Head of the Department. The post of the Head of a Department is not a promotion from that of Senior Lecturer and it carries no additional payment. A Division Bench of this Court vide its order in W.A.No.276 of 1987 dated 22-11- 1992 directed the Management to prepare a fresh seniority list to settle the disputes between one Sri P.V.B. Kutumba Rao and others. He denied that the Management revived the seniority by its proceedings dated 25-01-1997 without giving notice to the petitioner. The Management prepared an ad hoc seniority list on 06-4-1996 and circulated the same to all members concerned asking them to submit objections/representations, if any, to the said seniority list on or before 30-5-1996. During that period, the petitioner submitted his objections/representation and after thoroughly verifying all the concerned records, final seniority list was approved by college Committee on 25-01-1997 and the same was circulated to all the staff. The petitioner aggrieved by the seniority list circulated on 25-01-1997 made an appeal to the 2nd respondent and the 2nd respondent set aside the seniority list of 1997 holding that the date of initial appointment should be the criteria in fixing the seniority. 14. It is further submitted that the 4th respondent aggrieved by the decision of the 2nd respondent preferred an appeal to the appellate authority i.e., the 1st respondent through the Management on 28-8- 1997. The 1st respondent posted the hearing on 19-6-1999 after due intimation to the petitioner. The representative of the Management appeared before the 1st respondent and submitted the facts on 19-6-1999. The counsel for the petitioner sought time for filing a counter and the 1st respondent gave him time to submit his written arguments within a week. He denied that the petitioner was not given any opportunity. 15. It is further submitted that the petitioner was given consequential benefits when he was taken into service again on 27-7- 1967. It is admitted that the petitioner was not paid salary for the period of absence, date of increment was postponed and probation was also extended. The probation of the petitioner was declared by the Governing body on 13-10-1968, whereas the probation of the 4th respondent was declared on 11-8-1968. The petitioner made contradictory statements in his Affidavit. It is denied that the 4th respondent has never challenged the seniority of the petitioner. The petitioner himself admitted in paragraph Nos.4 and 9 of his Affidavit that the 4th respondent has challenged the seniority of the petitioner. The Management, whenever the post of Principal fell vacant, can appoint one among the senior members as Principal-in- charge even though he was not the senior-most. However, he was later replaced by another senior member Sri V.Lakshmi Narayana, Head of the Department of Botany, who was senior to him. The Management had every right to review the seniority lists of its employees from time to time depending on the qualifying service rendered by its employees. 16. Therefore, it is submitted that there is no illegality in the seniority list prepared by the 3rd respondent pursuant to the orders passed by the 1st respondent dated 01-01-2000 and prayed to dismiss the writ petition with costs. 17. The 4th respondent has filed a Counter-Affidavit stating that he held M.Sc., qualification in Physics of the Andhra University with high second class in Nuclear Physics (57%). He was selected and appointed to the post of Lecturer in Physics in the 3rd respondent college on 30-7-1966. When there was retrenchment in the staff of the college, the petitioner herein was retrenched while he was continued in service in view of his satisfactory and meritorious service. The petitioner herein was reinstated into service on 27-7-1967. Thus, the petitioner is junior to him. On an erroneous view the Management treated the services of the petitioner as continuous with effect from 16- 7-1966 and shown him as senior to him. In that connection, there was break in service of the petitioner between 08-6-1967 and 27-7-1967 and he was not on duty for a period of 48 days. The said 48 days was treated as extra-ordinary leave on loss of pay with postponement of increment and extension of probation. Thus, the petitioner has completed his probation on 02-9-1969 while he completed his probation on 01-8-1968 itself. His first increment was drawn on 01-8- 1967. A person who is drawing less pay and whose probation was extended cannot be treated as senior to him. In that position he made a representation on 10-01-1997 in response to the notice of the Management dated 07-01-1997 enclosing ad hoc seniority list and calling for the objections. In pursuance to his objections, the Management issued seniority list by its proceedings dated 25-01- 1997. The petitioner herein filed an appeal to the Regional Joint Director of Higher Education, Rajahmundry, who passed the orders in Rc.No.438/B1/97, dated 28-6-1997 setting aside the seniority list prepared by the Management in its proceedings dated 25-01-1997. As against the same, he preferred an appeal to the Government and the Government issued G.O.Rt.No.3 dated 01-01-2000 setting aside the order of the Regional Joint Director of Collegiate Education, Rajahmundry and restoring the order of the Management. The said G.O., dated 01-01-2000 is just and valid. The order of the Regional Director was set aside as the same was passed without hearing him. The said order of the Government dated 01-01-2000 is in question in the above writ petition. Recognizing his merit and seniority the Management has kept him as in charge of Intermediate Wing. The 3rd respondent college is a composite college having Intermediate, Degree and Post-graduate Courses. The present incumbent Sri K.Subba Rao, Principal is retiring on 31-7-2000. He is entitled to be considered for promotion to the post of Principal in view of his experience as being the in charge of the Intermediate Wing of the college and also on the basis of his seniority. The petitioner with a view to make a claim for principalship which will occur with effect from 01-8-2000 he filed the above writ petition. Seniority is not the sole criteria for appointment to the post of Principal and it involves a selection process by a duly constituted Selection Committee as per the Government Orders. In view of the above position, filing of the writ petition itself is unnecessary and the petitioner filed the writ petition with a mala fide intention of finding fault with the Management and the Government. The selection has to be made from out of three senior most staff members of the college. The case of the petitioner will also come up for consideration for appointment as Principal along with him and another. 18. It is further submitted that the petitioner did not state why he was retrenched in pursuance of G.O.Ms.No.985 dated 29-4-1967. The fact that the petitioner was chosen for retrenchment in spite of the fact that he was appointed earlier to him shows that this respondent is more meritorious and the college wanted his service. During the probation, the service of anybody can be terminated without notice. The termination orders issued to the petitioner were not questioned by him. Therefore, the petitioner cannot say he is more meritorious than him. Even when the petitioner was reinstated into service the period between the date of his retrenchment i.e., 08-6-1967 and reinstatement of 27-7-1967 was treated as extra-ordinary leave on loss of pay. It was also stated in the order, the absence from duty will have the effect of postponement of his increment. The date of completion of probation of this respondent is 01-8-1968 while that of the petitioner was 02-9-1968. The 2nd increment of the petitioner was drawn only on 02-9-1968 while his second increment was drawn on 01-8-1968 itself. This was not questioned by the petitioner at any time. He was drawing less pay than him. Due to the mistaken impression of the Management, the petitioner was treated as senior to him even though there was break of service and there is postponement of increment besides the extension of probation. Taking advantage of the same, the petitioner cannot now say that he is the senior in the college. 19. It is further submitted that appointment of the petitioner as Head of the Department is also not correct. He has been sending representations to correct the illegality. In view of the fact that Head of Department is not a post having a separate scale of pay, appointment of anyone as Head of the Department cannot confer any better right on him. Therefore, the question of his challenging that order in a Court of law will not arise. In any view of the matter, the seniority of the Lecturers was directed to be considered by this Court in W.A.No.276 of 1987 dated 22-11-1992. In that writ appeal, the Management was directed to prepare fresh seniority list after giving an opportunity to all the persons concerned. This respondent is not aware of any seniority list being prepared on 27-4-1993. 20. It is further submitted that the 3rd respondent-Management had prepared a seniority list and issued a notice dated 07-01-1997 to all the concerned to submit objections. This respondent submitted his objections on 10-01-1997. His objections were considered and a seniority list was issued in Rc.No.438/B1/97, dated 25-01-1997 by the 3rd respondent. The allegation that the seniority list was revised on 25-01-1997 without notice to the petitioner is not correct. He was not given notice by the Regional Joint Director, Rajahmundry in the appeal said to have been preferred by the petitioner. The order passed by the Regional Joint Director on 28-6-1997 without giving an opportunity to him is itself illegal and is liable to be set aside. The order is rightly set aside by the Government in G.O.Rt.No.3, dated 01-01-2000. 21. It is further submitted that when he filed the appeal against the order of the Regional Joint Director dated 28-7-1997 passed without giving notice to him, the Government rightly issued notice to the petitioner. It was admitted by the petitioner that he was served with notice on 12-6-1999. As the petitioner sought time for filing a detailed counter by 3 weeks, the same was considered by the Government and the matter was adjourned. Again when Telegram was received by the Government from the petitioner, the case was adjourned to 26-6-1999. On that date, a detailed representation was submitted by the petitioner. The petitioner also had filed written arguments. It is unjust to say that there was no notice to the petitioner when he had filed written arguments. On the basis of that written arguments and all the other material available with the Government, the Government had passed the orders in G.O.Rt.No.3, dated 01-01-2000. The G.O., categorically says the order is sent through Regional Joint Director of Higher Education, Rajahmundry. The Management had also sent the Memo dated 16-3-2000. The petitioner cannot say that he got notice of G.O.Rt.No.3 dated 01-01-2000 only after 16-3-2000 when he received the order direct. He denied the allegation that the order of the 1st respondent dated 01-01-2000 is in violation of principles of natural justice, etc. Admittedly, the petitioner was given notice and his Advocate had filed Vakalath on 19-6-1999 and he also asked for further time for arguments. The case was posted to 26-6-1999. On 26- 6-1999 the counsel for the petitioner filed his written arguments. The fact that the petitioner filed written arguments shows he never wanted further hearing. As a matter of fact, none were heard after 26-6-1999. The allegation that the impugned order does not indicate that the contentions raised by the petitioner have been considered or not is not correct. The order of the Regional Joint Director was set aside by taking into consideration the fact that the Regional Joint Director of Higher Education did not give notice to this respondent, who is the affected party. The G.O. categorically says that the Regional Joint Director of Higher Education passed orders without giving any opportunity to him. The seniority has to be counted