THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE C.V.RAMULU WRIT PETITION No.6557 of 2007 30.4.2008 Between: Smt.M.S.Harshavardana … Petitioner AND High Court of Andhra Pradesh, represented by its Registrar (Management), High Court Buildings, Hyderabad And others … Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE C.V.RAMULU WRIT PETITION No.6557 of 2007 ORDER: (per Hon’ble VVSRJ) Petitioner is Judicial Ministerial employee in the unit of District Judge, Anantapur. At present she is working as Superintendent, category-II post as per Rule 5 of Andhra Pradesh Judicial Ministerial Service Rules 2003 (2003 Rules for brevity). A look at her service particulars would show that initially she was appointed as Junior Assistant under Andhra Pradesh Judicial Ministerial Service Rules 1964 (1964 Rules, for brevity). She was promoted as Translator, categoey-III of Division-IV, under 1964 Rules. Subsequently on 13.10.2003 she along with five others were interviewed for the post of Sheristhadar (Category-II of Division-IV) in the Court of Senior Civil Judge under 1964 Rules. She joined in the post of Sheristhadar on 10.12.2003 in the Court of Senior Civil Judge, Kadiri. 1964 Rules were superceded by 2003 Rules with effect from 05.12.2003. Date of notifying the Rules promulgated vide G.O.Ms. No.129, dated 12.11.2003. Therefore the posts included in Category- III, Head Clerks in District Munsif Courts (etc.,), and Category-II, Sheristhadars in Senior Civil Judge Courts (etc.,) of Division-IV as well as Category-IV posts, which are also Head Clerk posts, were merged into Category-II under 2003 Rules. Therefore she was also designated as Superintendent. In June 2005, learned District Judge called eligible candidates in Category-II for being considered to the post of Administrative Officer (Category-I) under 2003 Rules. Interviews were held on 10.6.2005. When third respondent did not receive notice of interview, he made representation on 09.6.2005. Another employee K.Lakshmikantham Setty also made a representation on 24.6.2005. They sought for restoration of their seniority in the category of Superintendents (Category-II) over and above petitioner. They raised two contentions; that petitioner was junior to them in the posts of Junior Assistant, Senior Assistant, and Head Clerk of Court of Junior Civil Judge, and therefore after merger of Category-II, III and IV posts as Superintendents, they should be treated as seniors in the post of Superintendents. Learned District Judge by proceedings dated 04.1.2006 considered representations of third respondent as well as K.Lakshmikantham Setty, and rejected their representations. Learned District Judge opined that promotion of petitioner in December 2003 was not challenged and that they sought redressal with considerable delay. Thereafter third respondent made representation to High Court on 13.3.2006 through proper channel. The same was treated as revision petition under Rule 12 of 2003 Rules. High Court issued notice to petitioner calling for her objections with regard to grievance of third respondent for restoration of seniority over and above petitioner. Petitioner sent her objections inter alia contending that revision petition of third respondent filed after lapse of three years cannot be considered. High Court by impugned proceedings dated 18.1.2007 passed orders as below. On consideration of the representation petition of Sri G.Hari, Superintendent, Junior Civil Judge’s Court, Kalyanadurg, for restoration of his seniority with retrospective effect from the date of promotion of his junior, and the remarks of the District Judge and connected records forwarded through the letter 1st read above, the objections of Smt.M.S.Harshavardana, Superintendent, in the unit of the District Judge, Anantapur, together with the remarks of the District Judge, Anantapur therein, and the relevant documents forwarded through the letters 3rd and 4th read above the High Court is pleased to pass the following: “The selected candidate, M.S.Harshavardana, does not dispute that she was selected against a future vacancy which was not notified for consideration. The emphasis in her representation is about thedelay. The judgments relied upon by her do not apply to the situation on hand. So is the case with the explanationoffered by the learned District Judge. Hence the seniority of Sri G.Hari, deserved to be restored.” Respondents filed separate counters. In the counter filed by District Judge, it is stated that petitioner is junior to third respondent in the category of Head Clerk of District Munsif Courts and that when two posts of Sheristhadars in Category-II of Division-IV under 1964 Rules fell vacant, six candidates were interviewed on 13.10.2003, and M/s.Mohd. Haneef and R.Kameswara Rao were selected based on their performance. Petitioner was also selected for promotion in post of Sheristhadar in future vacancy that would arise in June 2005 on retirement of Administrative Officer in the Court of Additional District Judge, Hindupur. 2003 Rules came into effect with effect from 05.12.2003 and petitioner joined as Sheristhadar (Superintendent) on 10.12.2003. Other aspects of the matter briefly noticed herein above are not seriously disputed nor denied. The Registrar (Vigilance) filed counter on behalf of High Court of Andhra Pradesh, opposing contentions with regard to validity of impugned order. Third respondent also filed counter affidavit denying allegation that revision petition is barred by delay. According to him, cause of action for seeking redressal before District Judge and thereafter to High Court arose only on 10.6.2005 when he was not called for interview and therefore there is no delay. Learned Counsel for petitioner, Sri O.Manoher Reddy, submits that in the absence of any communication to petitioner that she was selected in October 2003 in future vacancy, she cannot be denied her seniority in the post of Superintendent after lapse of about four years. Secondly he submits that even according to counter affidavit, R.Kameswara Rao, who was selected for one of the two posts, relinquished his promotion and therefore she was appointed in the said vacancy, which would belie contention that petitioner’s appointment in the post of Sheristhadar was against future vacancy. Lastly he submits that under Rule 12 of 2003 Rules, High Court can entertain a revision petition within a period of six months subject to proviso but in this case there are no circumstances warranting exercise of revisional power after lapse of six months. Learned Standing Counsel for High Court of Andhra Pradesh and learned Counsel for third respondent refuted various contentions raised. Two points would arise for consideration in this writ petition. We will consider one after the other. First point is whether impugned order suffers from any irregularity in restoring seniority of third respondent over and above petitioner in the post of Superintendent (Category-II). The admitted facts would reveal that in October 2003, for two posts of Sheristhadars in Category- II of Division-IV under 1964 Rules, six candidates in the ratio of 1 : 3 were interviewed on 13.10.2003. Xerox copy of original record is placed before this Court showing remarks of learned District Judge at the time of interview. Learned District Judge selected M/s.Mohd. Haneef and R.Kameswara Rao finding them eligible and suitable for promotion to Category-II in the post of Sheristhadars. The case of M/s.J.Basava Rajau, G.Hari (third respondent herein) and K.Lakshmikantham Setty, was rejected on the ground of their performance. Insofar as petitioner is concerned, learned District Judge made following remarks. “She has performed well in the interview and answered properly. She has got knowledge on both sides that is civil and criminal and also hardworking person. Hence selected for promotion to Category-II for the future vacancy that will arise in the month of January on the retirement of Administrative Officer of Additional District Judge Court, Hindupur, and on promotion from Category-II as Administrative Officer. Earlier she was in the higher place in seniority to the above persons. Though she deserves promotion on selection for Category-II, she was ignored. For all the above reasons she is selected for promotion to Category-II for future vacancy.” The analysis of above reasoning would reveal the following. As on 13.10.2003 there was no third vacancy of Sheristhadar in Category- II of 1964 Rules. That post is likely to arise when another Category-II Sheristhadar is promoted to the post of Administrative Officer, which was falling vacant in the Court of Additional District Judge, Hindupur. Secondly in the post of Head Clerk of Junior Civil Judge Court (Category-III) she was senior and she was unnecessarily ignored for promotion whereas third respondent and others were promoted. A perusal of the record placed before us would show that observation of learned District Judge made in the interview record that petitioner is senior to third respondent is a mere surmise. In the categories of Junior Assistant, Senior Assistant as well as Head Clerk (Category-III of Division-IV) third respondent was senior. Indeed third respondent was promoted as Head Clerk on 23.1.1999 whereas petitioner was promoted as Translator on 20.12.2000. Secondly learned District Judge went beyond his jurisdiction in assuming that there is likely vacancy of Category-II post. It is no doubt true that on retirement of Administrative Officer of the Court of Additional District Judge, Hindupur, a post of Administrative Officer would be vacant. There is no vacancy in the post of Sheristhadars (Category-II). It is a very uncertain event and based on which a person cannot be promoted. Nextly the law does not contemplate promoting a person to a future vacancy. It would certainly violative of fundamental rights of all eligible candidates under Articles 14 and 16(1) of Constitution of India. It is not denied nor can be disputed that posts of Sheristhadars in Category-II are selection posts and all eligible candidates in the ratio of 1 : 3 have to be called for interview. In contra, if any of the candidates like petitioner is selected in a future vacancy, it would result into infirmity. First, it would result in giving a go-bye to procedure of calling eligible candidates for interview. Secondly, filling up a future vacancy, which does not exist as on the date of notification, is an irregularity. (see Union of India v V.Valluvan[1]). The procedure followed by learned District Judge is an irregularity, which has been correctly noticed and rectified by High Court restoring seniority of third respondent. Be it noted after merger of Categories-II, III and IV of Division-IV under 1964 Rules in category of Superintendents under 2003 Rules if seniority of petitioner and third respondent are considered, third respondent is certainly senior to petitioner. Argument based on delay is misconceived. It is only to be stated for the purpose of rejection. Third respondent was not called for interview in June 2005. It is nobody’s case, by that time seniority list of Sheristhadars was published and third respondent was aware of the same. It is only when he was called not for interview, he came to know the same. At or about same time, he made representation. He made a representation to District Judge seeking redressal, which was ultimately rejected on 03.1.2006. Within two months thereafter on 13.3.2006 third respondent made a representation to High Court through proper channel, which was accepted as revision and impugned order was passed. We are afraid, we cannot accept submission of learned Counsel for petitioner. However, we make it clear in this case only question with regard to inter se seniority of petitioner and third respondent in the category of Superintendent and question of petitioner’s appointment to the post of Sheristhadar (Category-II) under 1964 Rules, which is now Superintendent under 2003 Rules, is not contentious issue. Therefore, as and when petitioner is eligible, her case can be considered for the next higher post. The writ petition, with the above observations, is accordingly dismissed. No costs. _____________ (V.V.S.RAO,J) _______________ (C.V.RAMULU,J) April 30, 2008 YS [1] (2006) 8 SCC 686