THE HON’BLE SRI JUSTICE V. ESWARAIAH W.P.Nos.10604 of 2004 and 10965 of 2005 W.P.No.10604 of 2004 Between:- P.Bhaskar and others. …Petitioners. And The Government of A.P.,rep.by its Secretary, Revenue Department, Secretariat, Hyderabad and others. …Respondents. W.P.No.10965 of 2005 Between:- D.Venkateshwar Rao …Petitioner And The Government of Andhra Pradesh Rep.by its Secretary, Revenue Department, Secretariat, Hyderabad and others. Date: 22-08-2005. COMMON ORDER: - The petitioners in W.P.No.10604 of 2004 are the applicants in O.A.No.6246 of 1998 on the file of the Andhra Pradesh Administrative Tribunal, Hyderabad (for short ‘Tribunal’). They filed the said original application for the following reliefs: (a) to hold that the applicants are entitled to be placed above the General Candidates of 1990 batch Deputy Collectors and consequently; (b) to declare the action of the respondents in not placing the applicants above the General Candidates of 1990 batch Deputy Collectors as illegal, arbitrary and unconstitutional and consequently; (c) to direct the respondents to place the applicants over and above the General Candidates of 1990 batch of Deputy Collectors with all consequential benefits like arrears of pay, seniority and promotion; and for the consequential amended relief to direct the respondents to place the names of the applicants also before the Selection Committee constituted for the purpose of selecting I.A.S. The said O.A. was dismissed by order dated 04-11-2003. 2. One Mr. D. Venkateshwar Rao filed W.P.M.P.No.13538 of 2005 seeking permission to implead him as petitioner No.8 in W.P.No.10604 of 2004, but, it is said due to an opposition for impleading him as petitioner No.8, learned Counsel for the said petitioner sought permission to withdraw the said petition, and accordingly, the said petition was dismissed as withdrawn on 28-04-2005. Thereafter, the said petitioner filed W.P.No.10965 of 2005 with leave of the Court questioning the order of the Tribunal dated 04-11-2003 passed in O.A.No.6246 of 1998 and to declare the action of the official respondents 1 to 4 in not placing the petitioner above the General candidates recruited in pursuance of Advt.No.8/1990 of the second respondent, as illegal, arbitrary and contrary to G.O.Ms.No.234 GAD (SER.-A) Department dated 27-03-1991 and consequently to direct the respondents 1 to 4 to place the petitioner above the candidates recruited in General category in pursuance of Advt.No.8/1990 of the second respondent. 3. The writ petitions were heard by a Division Bench of this Court consisting of Hon’ble Smt. Justice T.Meena Kumari and Hon’ble Sri Justice L.Narasimha Reddy and two separate judgments were delivered on 07-07-2005, expressing difference of opinion. The Hon’ble Smt. Justice T. Meena Kumari allowed the writ petitions setting aside the order of the Tribunal whereas the Hon’ble Sri Justice L.Narasimha Reddy dismissed the writ petitions upholding the order passed by the Tribunal. 4. In view of the dissenting judgments, the matter was referred to this Court. 5. Heard Sri E.Manohar, learned senior Counsel for Sri M.P. Chandramouli, learned Counsel for the petitioners in W.P.No.10604 of 2004; Sri B. Sudhakar Reddy, learned Counsel for the petitioner in W.P.No.10965 of 2005; Sri C.V. Mohan Reddy, learned Advocate General, for the State; Sri M. Vijaya Kumar, learned Standing Counsel for the Andhra Pradesh Public Service Commission (for short ‘APPSC); and Sri Nooty Rama Mohan Rao, learned Counsel for the un-official respondents. 6. It is the case of the petitioners that they are all Scheduled Tribe candidates and 12 unfilled ST vacancies of Deputy Collector in promotion quota carried forward were converted to that of the limited direct recruitment by Government vide Orders of 1991 and therefore, as per the notification Advt. No.8/90 dated 01-08-1990 issued by the APPSC for recruitment of the anticipated vacancies of General/Limited Candidates to Group-I and Group II-A services, the Limited Recruitment shall precede over the General Recruitment. Therefore, the Limited Recruitment Candidates for the post of Deputy Collectors shall have to be placed over and above the General Recruitment Candidates pursuant to the said composite Notification Advt.8/90. 7. It is the case of the respondents that 12 vacancies of the Deputy Collectors were converted for the Direct Recruitment in G.O.Ms.No.264, Revenue, Dated 01-04-1991 and therefore, the said 12 ST candidates cannot be placed over and above the General candidates, whose vacancies were not there as on 01-05-1990 and were subsequently converted. The conversion of the 12 S.T. promotion vacancies of Deputy Collectors into Direct Limited Recruitment was subsequent to 01-05-1990. The Tribunal delved deep into the matter and settled the controversy. The APPSC and the State Government have only implemented earlier directions of the Tribunal and therefore, the petitioners are not entitled for any relief. The second writ petition is hopelessly barred by limitation and both the writ petitions are liable to be dismissed on the ground of laches on their part. Some of the General Candidates have also got promotions to the Special Grade Deputy Collectors and at the verge of considering their cases for conversion to I.A.S., the petitioners have resorted to file the said O.A. and the writ petitions. The conversion of 12 promotional S.T. vacancies into that of the Direct Limited Recruitment cannot be said as Limited Recruitment, but it is Special Recruitment alone and therefore, the petitioners cannot have a march over the General recruitees. It is further stated that the fifth respondent in W.P.No.10604 of 2004 who is also an ST candidate was selected, as Deputy Collector from among the General candidates pursuant to the common notification and therefore, the petitioners cannot be placed above the fifth respondent, without considering his case in the quota of the special recruitment. It is further stated that there were 34 vacancies of the Deputy Collectors and the fifth respondent is the only ST candidate selected among the Deputy Collectors and there are four other ST candidates selected for other posts other than the Deputy Collectors and therefore, the petitioners cannot claim seniority over and above 34 Deputy Collectors who are directly recruited in the General Recruitment. 8. It is further stated that Rule 33(a) of the Andhra Pradesh State and Subordinate Service Rules (for short ‘Rules) is the only Rule that governs the fixation of the seniority and in the absence of any exemption exempting Rule 33(a) of the Rules, the petitioners cannot claim seniority over the General candidates without impleading them and therefore, the writ petitions are liable to be dismissed on the ground of non-joinder of necessary parties. For the General candidates, main examination was held in November, 1991 and the selection process was over by December, 1993 and General candidates were appointed pursuant to G.O.Ms.No.1265 dated 09-12-1993 and whereas the main examination for the limited recruitment was over in May, 1993 and the petitioners were appointed by the orders of G.O.Ms.No.1251 dated 09-12-1994 i.e. a year after the General Candidates were appointed as Deputy Collectors and they have made a representation for the first time in May, 1998 and therefore, the writ petitions are liable to be dismissed on the grounds of laches as well as non-impleading the proper and necessary parties. 9. The learned Advocate General states that though in G.O.Ms.No.264 dated 01-04- 1991 the words “Limited Recruitment” were stated, but which do not fit into any of the provisions of Rule 22 of the Rules, and therefore, it was a Special Recruitment converting the 12 ST carried forward vacancies from promotion quota and those vacancies were converted for the first time on 01-04-1991, in exercise of the powers under Rule 47 of the Rules, relaxing the relevant rules of Rule 2 of Andhra Pradesh Civil Service (Executive Branch) Rules, 1992 and Rule 29 (b) of the Rules so as to enable the Commission to conduct a Limited Recruitment to fill up the said 12 ST carried forward vacancies. As per the judgment of the Tribunal, the vacancies as on 01-05-1990 alone shall be filled up and the vacancies of the petitioners were not created for Limited Direct Recruitment as on 01-05-1990 and therefore, the petitioners cannot have a march over the General Recruitment Candidates as Deputy Collectors whose vacancies arose as on 01-05-1990. Rules 29(a) and 33(a) of the Rules were not exempted and therefore, as per Rule 33(a) of the Rules, the petitioners cannot claim seniority over the General candidates. It is said that the said controversy has been resolved by the Tribunal in the earlier batch of O.A.s, being O.A.Nos.38195 of 1991 and batch dated 04-06-1992. The relevant facts to resolve the controversy are as follows-- 10. The APPSC issued Advertisement No.8/90 on 01-08-1990 advertising the names of posts, stating that applications are invited up to 5-00 P.M. on 31-08-1990 for direct recruitment (General/Limited) to the posts of Deputy Collectors in APPSC Executive Branch and other Group-I and Group II-A services. It is stated that the results in respect of the list of successful candidates for filling up of vacancies will be drawn up in respect of the posts likely to be reported during 1990-91. The controversy is only in respect of the posts of the Deputy Collectors in A.P. Civil Services Executive Branch alone. Admittedly, the number of vacancies have not been notified or identified. The notification indicates that a special rule for physically handicapped persons, Scheduled Castes, Scheduled Tribes and Backward classes etc., is applicable as provided for in the relevant Rules. It is also indicated that an age relaxation of 10 years was given for SCs and STs to apply for the vacancies meant for limited recruitment subject to maximum age of 45 years. The date of preliminary examination will be on 25-11-1990 and the main examination was indicated to be held in the month of February/March, 1991. In the meanwhile, the Government issued orders in G.O.Ms.No.234 GAD dated 27-03-1991. The said G.O. reads as follows--- “GOVERNMENT OF ANDHRA PRADESH ABSTRACT PUBLIC SERVICES – State and Subordinate Services – Special drive for limited recruitment to fill up the backlog vacancies reserved for Scheduled Castes and Scheduled Tribes candidates in the context of Direct recruitment Ambedkar’s Centenary Celebrations – Orders – Issued. GENERAL ADMINISTRATION (SERVICES –A) DEPARTMENT G.O.Ms.No.234. Dated 27th March, 1991 ORDER: Article 335 of the Constitution of India casts an obligation on the State Government to consider the claims of the members of Scheduled Castes and Scheduled Tribes in making appointment to the services or posts in connection with the affairs of the State. Having regard to the above provision adumbrated in the Constitution, special provisions have been made in the A.P. State and Subordinate Services Rules for special representation of the specified communities. According to General Rule 22 contained therein, a limited recruitment confined to the members of the Schedule Castes and Scheduled Tribes shall be under taken to make good the shortfall in the representation of the members belonging to the Scheduled Castes and Scheduled Tribes and any general direct recruitment open to all candidates to fill up the existing vacancies shall be undertaken only after this limited recruitment has been made. For this purpose, the existing vacancies in the various categories to the extent of the shortfall noticed and carried forward according to rules should be filled up first through limited recruitment and the remaining vacancies should thereafter be filled up by direct recruitment in the normal course. In the context of Dr. Ambedkar’s Centenary Celebrations it has been decided that a special drive be launched to hasten up this limited recruitment in compliance with the rules as stated above. 2. The Andhra Pradesh Public Service Commission will undertake limited recruitment in respect of all categories of posts which are within its purview, wherever there is a shortfall in the representation of the members of the Scheduled Castes and Scheduled Tribes and where such vacancies meant for them are carried forward according to the provisions contained in General Rule 22 of the A.P. State and Subordinate Service Rules. All the appointing authorities are therefore, requested to report the vacancies to be filled through such limited recruitment to the Andhra Pradesh Public Service Commission within one month. 3. The Heads of Departments and other appointing authorities in respect of posts which are outside the purview of the Andhra Pradesh Public Service Commission shall also undertake similar limited recruitment through the authorized recruiting agencies to the extent of shortfall in the representation of the members of the Scheduled Castes and Scheduled Tribes which have been carried forward in terms of General Rule 22 mentioned in the above para confining the limited recruitment to the members of the Scheduled Castes and Scheduled Tribes. 4. The method of selection of candidates to be followed for the limited recruitment shall be the same as is being adopted for the general recruitment. 5. The limited recruitment shall be subject to the provisions of the Andhra Pradesh Public Employment (Organization of Local Cadres and Regulation of Direct Recruitment) Order, 1975, relating to preference in favour of ‘Local Candidates’ in respect of such categories of posts to which the provisions of the said orders are applicable. 6. The Andhra Pradesh Public Service Commission and the other appointing authorities are requested to take immediate action to conduct and complete this limited recruitment within a period of six months. (BY ORDER AND IN THE NAME OFL THE GOVERNOR OF ANDHRA PRADESH) NARENDRA LUTHER CHIEF SECRETARY TO GOVERNMENT To All Departments of Secretariat (5 copies each) All Heads of Departments. The Secretary, Andhra Pradesh Public Service Commission, Hyderabad. All Collectors.” 11. The said G.O. was issued on a special drive for Limited Recruitment to fill up backlog vacancies reserved for Scheduled Caste and Scheduled Tribe candidates in the context of Direct Recruitment on account of Ambedhkar Centenary celebrations. It is specifically stated that Article 335 of the Constitution of India casts an obligation on the State to consider the claim of the SCs and STs in making appointments to the services and accordingly special provisions have been made in the Rules for special representation of the specified communities. According to Rule 22 of the Rules, a Limited Recruitment confined to the members of the SCs.,and STs., shall be undertaken to make good the shortfall in the representation of the members belonging to the SCs and STs and any General Direct Recruitment open to all candidates to fill up the existing vacancies shall be undertaken only after the Limited Recruitment has been made. For the said purpose, it was decided to fill up the carried forward unfilled promotional posts first, through the Limited Direct Recruitment before the general direct recruitment. In the context of Ambedhkar’s Centenary celebrations, it has been decided that a special drive be launched to hasten up this Limited Recruitment. Accordingly, the appointing authorities were requested to report the vacancies to be filled through such Limited Recruitment through APPSC within one month. The APPSC was also requested to take immediate action to conduct and complete the Limited Recruitment within a period of six months. The aforesaid policy decision was taken in deviation to the normal course of filling up of unfilled carried forward posts by Limited Recruitment, before the Direct Recruitment, but as a special drive to hasten up the Limited Recruitment, to make the shortfall in the representation of the members of the SCs and STs where such vacancies meant for them. 12. Pursuant to the said policy decision taken by the Government to hasten up the Limited Recruitment as a special drive on account of Dr. Ambedhkar’s Centenary celebrations, the Government, issued orders in G.O.Ms.No.264 dated 01-04-1991 which is extracted as under:- ”GOVERNMENT OF ANDHRA PRADESH A B S T R A C T PUBLIC SERVICES – A.P.S.C.(Ex.Br.) Limited Recruitment of Deputy Collectors – Filling up of carried forward vacancies of S.Ts by Limited Recruitment vacancies – Notified – Orders – Issued. REVENUE (SERVICES-I) DEPARTMENT G.O.Ms.No.264 Dated: 1-4-1991. Read the following:- From the CLR D.O.Lr.No.D1/3586/90, dt.15-11-90. ORDER: In the meeting of the Committee on Welfare of Scheduled Tribes held on 27-10-90, the committee was informed that 12 S.T. carried forward vacancies remained unfilled for want of qualified S.T. candidates for promotion to the category of Deputy Collectors and that in view of large number of carried forward vacancies the Chairman of the above Committee has suggested to fill up the above vacancies by conducting limited recruitment. 2. The suggestion of the Chairman of the Committee on Welfare of Scheduled Tribes has been examined by the Commissioner of Land Revenue and he has stated among others that 12 carried forward vacancies of STs now available from promotion quota are as per the roster maintained for appointment to the category of Deputy Collectors by transfer/promotion. They are not meant for direct recruitment. If a limited recruitment is to be conducted to fill up these 12 carried forward vacancies the ratio of 2:1 fixed in Rule 2 of the A.P.C.S.(Ex.Br.) Rules may be exceeded in so far as the direct recruits are concerned. In order to conduct limited recruitment as suggested by the Chairman of the Committee, Rule 2 of the A.P.C.S (Ex.Br.) rules needs to be relaxed in so far as the ratio of 2:1 is concerned. Similarly, the 12 carried forward vacancies will have to be exempted from the purview of Rule 29(b) of the A.P. State and Subordinate Service Rules and to be brought within the purview of Rule 22(ii)(e) of the said Rules so as to notify these vacancies to be Andhra Pradesh Public Service Commission to conduct limited recruitment as the Public Service Commission to conduces the general recruitment for appointment to the posts of Deputy Collectors. 3. The Commissioner of Land Revenue has finally requested to consider relaxation of above relevant Rules in order to conduct limited recruitment to fill up 12 S.T. carried forward vacancies. 4. Government have examined the proposal of the Commissioner of Land Revenue for filling up 12 S.T.carried forward vacancies through limited recruitment in relaxation of relevant rules as suggested by the Chairman of the Committee on Welfare of S.Ts., and they accept the proposal of Commissioner of Land Revenue to relax the relevant rules and so notify 12 S.T carried forward vacancies of Deputy Collectors to Andhra Pradesh Public Service Commission to conduct limited recruitment. 5. Under Rule 47 of A.P. State and Subordinate Service Rules Governor of Andhra Pradesh hereby relaxes Rule 2 of A.P.C.S (Ex.Br.) Rules and Rule 29(b) of A.P. State and Subordinate Service Rules so as to enable the Andhra Pradesh Public Service Commission to conduct limited recruitment to fill up 12 S.T. carried forward vacancies. 6. The Secretary, Andhra Pradesh Public Service Commission is requested to take immediate necessary action to conduct limited recruitment for the 12 S.T. carried forward vacancies of Deputy Collector and send list of selected candidates to Government for taking further action in the matter. (BY ORDER AND IN THE NAME OF THE GOVERNMENT OF ANDHRA RADESH) K.S.R.MURTHY PRL.SECRETARY TO GOVERNMENT To The Secretary, Andhra Pradesh Public Service Commission, Hyderabad. The Commissioner of Land Revenue, Hyderabad.” The perusal of the D.O.Lr.No.D1/3586/90, dated.15-11-90, referred in the aforementioned G.O. goes to show that the Committee on Welfare of Scheduled Tribes in its meeting held on 27-10-1990 informed that 12 ST carried forward vacancies remained unfilled for want of qualified ST candidates for promotion to the category of Deputy Collectors and therefore, the Chairman of the Committee on Welfare of Scheduled Tribes suggested to fill up those vacancies by conducting limited recruitment. The said suggestion was examined with reference to the relevant rules. It is stated that 13 vacancies of STs remain unfilled during panel year 1983-84 for want of qualified ST candidates. Those vacancies have been carried forward to the panel year 1987-88. Out of the 13 carried forward vacancies only 1 ST candidate has been promoted as Deputy Collector. Thus, there remained 12 ST carried forward vacancies for the year 1987-88. The CLR further stated that according to Rule 22 (ii) (e) of the Rules if in any recruitment, qualified candidates belonging to ST are not available for appointment to any or all vacancies reserved for them, a Limited Recruitment confined to candidates belonging to SCs/STs may be made immediately after General Recruitment to select and appoint qualified candidates from among the persons belonging to these communities to fill such reserved vacancies. According to Rule 29(b) of the Rules, where an appointment to any service, class or category is according to rules both by direct recruitment and by transfer, vacancies against which persons have been recruited directly shall be regarded as distinct group while all other vacancies shall be regarded as another distinct group, and appointment to fill members in accordance with sub-rule (a) shall be made separately in each of these groups. According to Rule 2 of the APCS (Ex.Br.) Rules, every 3rd of the substantive vacancies shall be filled by direct recruitment that is in the ratio 2:1 between the promotees and direct recruitees. The 12 carried forward vacancies of STs now available for promotion quota as per the roster maintained for appointment to the category of the Deputy Collector by transfer/promotion and as they are not meant for direct recruitment, if a Limited Recruitment is to be conducted to fill up the 12 carried forward posts of the Deputy Collectors, the ratio of 2:1 fixed in Rule 2 of the Rules may have to be relaxed in order to conduct Limited Recruitment as suggested by the Chairman of the committee and similarly the 12 carried forward vacancies will have to be exempted from the purview of the Rule 29(b) of the Rules and to be brought within the purview of Rule 22 (ii ) (e) of the said Rules to conduct Limited Recruitment as the Public Service Commission conducts the General Recruitment for appointment to the post of Deputy Collectors. Accordingly, the Commissioner recommended for the relaxation of Rule 2 and exemption of Rule 29(b) of the Rules. The Government examined the proposal of the Commissioner and in exercise of powers under Rule 47 of the Andhra Pradesh State and Subordinate Service Rules the Governor of Andhra Pradesh relaxed the said rules to enable the APSC to conduct Limited Recruitment to fill up 12 ST carried forward vacancies under Rule 22(ii)(e) of the Rules. The Government also requested the APSC to take immediate necessary action to conduct Limited Recruitment for the 12 ST carried forward vacancies of the Deputy Collector. As the Preliminary examination was held pursuant to the composite notification for General as well as Limited Recruitment on 27-01-1991 and Second Preliminary Examination was also held on 14-04-1991 pursuant to the relaxation of age to the candidates other than the STs and SCs, several ST candidates filed the O.A.Nos.38195 to 38220 of 1991 in October, 1991 before the Tribunal making a grievance about the combining of both Direct and Limited Recruitment and raised a controversy about the manner of conducting the examinations for General as well as Limited Recruitment at a time without notifying the number of vacancies for the General Recruitment and in fixing a cut-off mark of ‘88’ for limited recruitment. Therefore, to resolve the said controversy, a Division Bench of the Andhra Pradesh Administrative Tribunal consisting of Hon’ble Sri Justice Upendralal Waghray and the Hon’ble Member Mr. K.V.V. Subrahmanyam, on 07-10-1991, directed the Standing Counsel of APPSC to furnish the required material. On perusal of the material and after passing several orders in the said O.As. from time to time, it was found that the cut-off mark to fill up the 14 ST vacancies was found fault with and the action of the APPSC was deprecated by order dated 20-12-1991, which reads as follows-- “…….When the cases are called for final hearing today, Mrs. K. Shanti representing Standing Counsel sought adjournment. The casual and callous manner in which the adjournment was sought in the batch of cases, which were already part heard, is highly deprecated. The respondent-Public Service Commission must be aware that the Tribunal had granted certain interim directions to proceed with the examination and not to evaluate the answer scripts until further orders of the Tribunal. The Tribunal had also directed not to hold supplementary examinations which were said to have been scheduled from 17th