THE HON'BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT APPEAL No. 227 OF 2005 Date: 06.11.2009 S. Jaya Varma. … Petitioner and Secretary and Correspondent, Visakhapatnam Port Educational Society, 4th Floor, AOB, Port Area, Visakhapatnam-35 and four others. … Respondents. THE HON'BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT APPEAL No. 227 OF 2005 ORDER: (Per The Hon’ble Sri Justice Ramesh Ranganathan) This appeal is preferred against the order dated 26.07.2004 dismissing W.P. No.33822 of 1998 which was filed to declare the proceedings of the 1st respondent dated 27.11.1998 as illegal and void. For convenience sake, parties in the Writ Appeal shall, hereinafter, be referred to as they are arrayed in the writ petition. The petitioner, who belongs to the scheduled caste, possesses the educational qualification of having passed his X class examination. His father late Sri S. Musalaiah, who was working as a record assistant in the services of the 1st respondent, retired on medical grounds on 11.6.1992. While the petitioner applied to the 1st respondent seeking appointment on compassionate grounds, in the post held by his father, he was, however, appointed only as a watchman with effect from 18.09.1992. The petitioner submitted several representations seeking appointment as a record assistant. Eventually the 1st respondent, by proceedings dated 11.01.1995, appointed the petitioner as a record assistant. The petitioner claims that he was appointed, as a record assistant, after the 5th respondent had accorded approval thereto on 25.12.1994 and that he was extended regular scales of pay of Rs.1475-2870. While matters stood thus, the 2nd respondent filed W.P. No.637 of 1995 questioning the petitioner’s appointment as a record assistant claiming that it was he who should have been promoted to the said post. While the petitioner herein was arrayed as the 4th respondent, the 1st respondent school was arrayed as the 1st respondent in W.P. No.637 of 1995. This Court, by order dated 21.7.1997, allowed the writ petition holding that the 2nd respondent was entitled to be promoted as a record assistant in the vacancies which existed on the date on which he was entitled for promotion. This Court observed that the 4th respondent in W.P. No.637 of 1995, (the petitioner herein), was entitled to be appointed in any post to which he was eligible as on the date of his father’s retirement on medical grounds, including the post of record assistant. The 1st respondent was directed to examine these aspects following the prescribed procedure. This Court further held that reservation of posts, as stipulated in the hundred point roster in terms of Rule 22, should be implemented on the basis of the number of posts and the point at which each of the posts had to be filled up. While holding that this exercise should be completed within one month from the date of communication of a copy of the order, this Court directed that, till then, both the petitioner and the 2nd respondent should continue to function in the posts in which they were discharging their duties. This Court also held that the seniority list, for aided and unaided posts, should be separately maintained and that the respondents were at liberty not only to fix the pay scales from a particular date but also to fix seniority amongst such persons in accordance with the rules. Thereafter, the 5th respondent herein, vide letter dated 7.10.1997, while requesting the 4th respondent to accord approval, informed him that in view of the directions of this Court in W.P. No.637 of 1995, and the instructions of the Commissioner and Director of School Education dated 23.10.1996, the 1st respondent school had issued orders promoting the 2nd respondent as a record assistant in a grant-in-aid post and had posted the petitioner, on compassionate grounds, as an attender in a grant-in-aid post in the vacancy caused on the promotion of the 2nd respondent. The 4th respondent, vide proceedings dated 30.5.1998, approved the promotion of the 2nd respondent as a record assistant with effect from 28.5.1998 in the vacancy which arose as a result of Sri S. Musalaiah (petitioner’s father) having retired on medical grounds with effect from 11.6.1992. It is these proceedings dated 27.11.1998 which was subjected to challenge in W.P. No.33822 of 1998 and the said writ petition was dismissed, by order dated 26.7.2004, holding that the judgment in W.P. No.637 of 1995 dated 21.7.1997 did not confer any right on the petitioner to be considered as a record assistant straightaway and that the direction issued therein was only that the case of the petitioner be considered if there was any vacancy available to the scheduled castes, in the hundred point roster, as on the date of his father’s retirement on medical grounds. In so far as promotion of the 2nd respondent is concerned, the Learned Single Judge, while holding that the impugned proceedings could not be disturbed, however, held that the order did not preclude the authorities from considering his case for promotion to the post of record assistant if he was otherwise eligible, he satisfied the eligibility criteria against the roster point and if he possessed other qualifications required for appointment as a record assistant. Sri V. Srinivas, Learned Counsel for the petitioner, would rely on the earlier judgment of this Court in W.P. No.637 of 1995 dated 21.7.1997 to contend that, in terms of the said judgment, the authorities were only required to ascertain whether any vacancy, in the post of record assistant, was available to be filled up by the 2nd respondent who belonged to the open category. According to the learned counsel, since the roster point, at the relevant time, required the said post to be reserved in favour of the backward classes, and the next point in the roster was reserved in favour of the scheduled castes, the 2nd respondent could not have been appointed in either of these two posts and it was the petitioner, who belonged to the scheduled caste, who alone was eligible to be appointed as a record assistant. Learned Counsel would submit that, since the Government Memo dated 09.10.1996 was prospective in operation, the petitioner was entitled to be appointed in the vacancy which arose in the post of record assistant prior thereto. Sri A. Krishnam Raju, Learned Counsel for the 1st respondent, would submit that the A.P. State and Subordinate Service Rules, which are applicable to the 1st respondent school, did not provide for filling up the post of record assistant by direct recruitment, that the rules required the said post to be filled up only by promotion from the post of attender, and that, consequent upon the retirement of the petitioner’s father on medical grounds, the petitioner, who was working as a night watchman, could only have been considered for appointment to the post of attender on compassionate grounds. Learned counsel would rely on the Government memo dated 9.10.1996 in this regard. Sri K. Jaganmohan Reddy, learned counsel for the 2nd respondent, would contend that, as the petitioner’s appointment as record assistant was contrary to the extant rules, and in as much as the post was covered under grant-in-aid, the official respondents had rightly held that his appointment was illegal and had, consequently, promoted the 2nd respondent to the post of record assistant and, in the resultant vacancy, had appointed the petitioner as an attender. The State Government, in its memo dated 9.10.1996, notes that, as per Rule 3 of the A.P. General Subordinate Service Rules, among the prescribed methods of appointment to various categories of posts, there was no provision for direct recruitment to the post of record assistant, that any appointment made, under the scheme of appointment to dependents of those who retired on medical invalidation, should be treated as direct recruitment and, as there was no provision in the A.P. General Subordinate Service Rules for direct recruitment to the post of record assistant, the dependents, of employees who retired on medical invalidation, could not be considered for appointment, on compassionate grounds, to the said post of record assistant. The contention, that the Government memo must be applied only from the date of its issuance on 09.10.1996 and not to vacancies which arose prior thereto, does not merit acceptance as the Government memo dated 09.10.2006 merely clarifies the pre- existing position that, under the A.P. General Subordinate Service Rules, the post of record assistant cannot be filled up by direct recruitment and that it could only be filled up by promotion from the category of attenders. It is not even the petitioner’s case that he was entitled to be considered for promotion to the post of record assistant. The petitioner’s claim is for appointment to the said post on compassionate grounds which can only be under the direct recruitment category. Since the rules do not provide for appointment to the post of record assistant by way of direct recruitment, the petitioner is not entitled to be appointed to the said post on compassionate grounds. While a feeble attempt is made by Sri V. Srinivas, Learned Counsel for the petitioner, to contend that a few others were also appointed as record assistants by direct recruitment, it is wholly unnecessary for this Court to examine the validity of such appointments for, even if such appointments had, indeed, been made, such illegal acts would not confer any right on the petitioner to claim that he should also be illegally appointed as record assistant contrary to the extant rules. The petitioner’s claim for being appointed as a record assistant on compassionate grounds, therefore, necessitates rejection. It is evident from the proceedings of the 5th respondent dated 07.10.1997 that the petitioner was appointed as an attender in the grant-in-aid post in the vacancy which arose as a result of the 2nd respondent’s promotion to the post of record assistant. The petitioner was not reverted to the post of attender but was appointed afresh. Even otherwise, the contention that he cannot be appointed to a post he never held, if accepted, would only result in the petitioner’s services being terminated instead of his being appointed as an attender. Viewed from any angle, we find no merit in this submission. The fact, however, remains that the respondents have failed to comply with the directions of this Court in W.P. No.637 of 1995 dated 21.7.1997, while promoting the 2nd respondent to the post of record assistant, though the said judgment is binding inter-parties. The petitioner, the 2nd respondent and the 1st respondent were all parties to the said writ petition and the order passed therein has attained finality. All of them were bound by the directions issued therein. The 1st respondent was, therefore, obligated to examine whether the 2nd respondent was entitled to be promoted to the post of record assistant in the vacancy available on the date of his promotion, with reference to the roster point in the hundred point roster. As the 2nd respondent belongs to the open category he could not have been appointed as a record assistant in the roster point earmarked either for the backward classes or the scheduled castes. A feeble attempt is made by Sri K. Jaganmohan Reddy to contend that, since the petitioner’s claim for being appointed as a record assistant has not found favour with this Court, he cannot question the promotion of the 2nd respondent. It must not be lost sight of that, irrespective of whether or not the petitioner is entitled to be considered for appointment to the post of record assistant, the directions of this Court in W.P. No.637 of 1995 dated 21.7.1997 necessitates adherence by the respondents more so, as it is a judgment inter-parties and, having attained finality, is binding on the parties to the writ petition. The directions issued in W.P. No.637 of 1995 dated 21.07.1997 required the respondents to consider the 2nd respondent’s candidature for promotion to the post of record assistant as per the roster point in the 100 point roster. No material is placed before this Court to show that this direction has been complied with. A direction must, necessarily, follow that the official respondents (respondents 1, 4 and 5) shall consider the 2nd respondent’s entitlement to be appointed as a record assistant, in the light of the observations made in W.P. No.637 of 1995 dated 21.7.1997, within a period of two months from the date of receipt of a copy of this order. Needless to state that, before orders are passed afresh, the 2nd respondent shall be put on notice and given an opportunity of being heard. The appointment of the 2nd respondent as a record assistant, by the impugned proceedings, shall be subject to the result of the said exercise. Till this exercise is completed, and orders are passed afresh, the 2nd respondent shall continue to discharge the duties/functions of a record assistant. The order of the Learned Single Judge in W.P. No.33822 of 1998 dated 26.7.2004 is modified to the extent indicated hereinabove. The Writ Appeal is disposed of accordingly. However, in the circumstances, without costs. _______________________ B. PRAKASH RAO, J Date: 06-11-2009 _____________________________ RAMESH RANGANATHAN, J ASP