*THE HON’BLE SRI JUSTICE G.BIKSHAPATHY AND *THE HON’BLE SRI JUSTICE P.S. NARAYANA +W.P.No.401 of 2004 and 4759 of 2005 % 18-03-2005 W.P.No.401 of 2004 #T.Venkat Reddy, s/o. Krishna Reddy, now working as Deputy Registrar of Co-operative Societies/Divisional Co-operative Officer, Medak, Medak District. .. Petitioner Vs. $ The Government of Andhra Pradesh, represented by its Principal Secretary, Agriculture and Co-operation Department, Andhra Pradesh, Secretariat, Hyderabad and 15 others. .. Respondent !Counsel for the Petitioner: MR.D.GNANESWARA NAIDU ^Counsel for the Respondents 1 and 2: GP FOR SERVICES-I Counsel for respondent No.3: Mr. M.VIJAY KUMAR Counsel for respondents 4 and 5: MR. P.V.SUBRAHMANYA SARMA. Counsel for respondent No.6: MR.RAJENDRA BABU. Counsel for respondents 7 and 8: MR.K.G.K.PRASAD. Counsel for respondents 9 to 16: MR.NOOTY RAM MOHAN RAO Writ Petition No.4759 of 2004 #Smt.Sarada, W/o. Sri N.R. Sastry, Sub-Registrar, Office of the District Co-operative Officer, Ranga Reddy District, R/o. Plot No.145/A, Saibaba Officers Colony, Sainikpuri, Secunderabad. Vs. Government of Andhra Pradesh, represented by its Principal Secretary, Agricultural & Cooperation Department, A.P. Secretariat, Hyderabad. And 5 others. .. Respondents !Counsel for the Petitioner: MR.S.ASHOK ANAND KUMAR ^Counsel for the Respondents 1 and 2: GP FOR SERVICES-I Counsel for respondent No.3: MR.M.VIJAY KUMAR. Counsel for respondent No.4: MS.BOBBA VIJAYA LAKSHMI Counsel for respondents 5 and 6: MR.Y.VENKATA SASTRY <GIST: >HEAD NOTE: ?CASES REFERRED : 1.1978(2) SLR 115. 2.1981(1) SLR 100. 3.AIR 1997 SC 250. 4.AIR 2004 SC.2767 5.1987(5) SLR 674. 6.1989(1) SLR 1. 7.1995(5) SLR 626. 8.1978(2) SLR 13. IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE EIGHTEENTH DAY OF MARCH TWO THOUSAND AND FIVE PRESENT THE HON'BLE MR JUSTICE G. BIKSHAPATHY And THE HON'BLE MR JUSTICE P.S.NARAYANA WRIT PETITION NO : 401 of 2004 AND WRIT PETITION NO : 4759 of 2005 WRIT PETITION NO : 401 of 2004 Between: T. Venkat Reddy, S/o Krishna Reddy, now working as Deputy Registrar of Co-operative Societies/ Divisional Co- operative Officer, Medak, Medak District. ..... PETITIONER AND 1 The Government of Andhra Pradesh, represented by its Principal Secretary, Agriculture & Co-operation Department, Andhra Pradesh, Secretariat, Hyderabad. 2 The Commissioner & Registrar of Co-operative Societies, Gruhakalpa, Nampally, Hyderabad. 3 The A.P.P.S.C. represented by its Secretary, Nampally, Hyderabad. 4 J. Dasaratha Ramaiah, s/o Chinna Ramaiah, Co-operative Sub-Registrar, Office of the Divisional Co-operative Officer, Hyderabad, East Division, Ranga Reddy District. 5 Y. Rajendereddy, s/o Narayan Reddy, Co-operative Sub-Registrar, Office of the Divisional Co-operative Officer, Hyderabad, East Division, Ranga Reddy District. 6 M.Surya Bhagavan, s/o late Peri Naidu, Sub-Divisional Co-operative Officer, Visakhapatnam, R/o Visakhapatnam (R6 is impleaded as per court order dt. 21.9.2004 in WPMP 21614 of 2004) 7 K. Nagarjuna S/o. Janaki Ramaiah, Co-operative Sub-Registrar, R/o. Somajiguda, Hyderabad 8 U. Naga Srinivas S/o. U. Bhaskar Rao, Co-operative Sub-Registrar, Guntur, R/o. Kothapet, Guntur. (Respondents 7 and 8 impleaded as per Court order dt. 16-12-2004 in WPMP 30802 of 2004) 9 B. Anjaneya Sharma, S/o. Agaiah Sharma, Co-operative Sub-Registrar, Office of the Divisional Co-operative Officer, Secunderabad Division, Hyderabad. 10 N. Srinivas Rao, S/o. Mallesham, Co-operative Sub-Registrar, Office of the Divisional Co-operative Officer, Hyderabad (West) Ranga Reddy District. 11 Ch. P. Satyanarayana Redddy, S/o. Pratap Reddy, Co-operative Sub- Registrar, Office of the Divisional Co-operative Officer, Secunderabad Division, Hyderabad. 12 V. Sujatha, W/o. K. Surendera Babu, Co-operative Sub-Registrar, Office of the Divisional Co-operative Officer, Charminar Division, Hyderabad. 13 K. Anitha, W/o. P. Viswanath Naidu, Co-operative Sub-Registrar, Office of the Divisional Co-operative Officer, Hyderabad. 14 K. Janardhan Reddy, S/o. Late Thimma Reddy, Divisional Co-operative Officer, Office of the Divisional Co-operative Officer, Golconda Division, Hyderabad. 15 B. Nanda Kishore, S/o. Venkataswamy, Co-operative Sub-Registrar, Office of the Divisional Co-operative Officer, Secunderabad Division, Hyderabad. 16 M. Satyanarayana Goud, s/o. Kistanna Goud, Co-operative Sub-Registrar, Office of the Divisional Co-operative Officer, Hyderabad.(West), Ranga Reddy District. (RR9 to RR16 are impleaded as per Court Order dated 16/12/2004 in WPMP 23198/04) .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a Writ of certiorari calling for the records relating to the order passed in O.A.No. 5206 of 2003 dated 2-12-2003 on the file of Andhra Pradesh Administrative Tribunal and quash the same. Counsel for the Petitioner: MR.D.GNANESWARA NAIDU Counsel for the Respondents 1 and 2: GP FOR SERVICES-I Counsel for respondent No.3: Mr. M.VIJAY KUMAR Counsel for respondents 4 and 5: MR. P.V.SUBRAHMANYA SARMA. Counsel for respondent No.6: MR.RAJENDRA BABU. Counsel for respondents 7 and 8: MR.K.G.K.PRASAD. Counsel for respondents 9 to 16: MR.NOOTY RAM MOHAN RAO WRIT PETITION NO : 4759 of 2005 Between: Smt. Sarada, W/o. Sri N.R. Sastry, Sub-Registrar, Office of the District Co- operative Officer, Ranga Reddy District, R/o. Plot No. 145/A, Saibaba Officers Colony, Sainikpuri, Secunderabad. ..... PETITIONER AND 1 Government of Andhra Pradesh, represented by its Principal Secretary, Agricultural & Cooperation Department, A.P. Secretariat, Hyderabad. 2 The Commissioner for Co-operation and Registrar of Co-operative Societies, Gruhakalpa, APHB, Hyderabad. 3 Andhra Pradesh Public Service Commission, represented by its Secretary, Gruhakalpa, A.P.H.B. Hyderabad. 4 L. Srinivas Reddy, S/o. L. Ganga Reddy, Co-operative Sub-Registrar, Office of the Divisional Co-operative Officer, Nizamabad District. 5 Y. Rajender Reddy, S/o. Narayana Reddy, Co-operative Sub-Registrar, Office of the Divisional Co-operative Officer, Hyderabad West Division, Ranga Reddy District. 6 J. Dasaradha Ramaiah, S/o. Chinna Ramaiah, Co-operative Sub-Registrar, Office of the Divisional Co-operative Officer, Hyderabad, East Division, Ranga Reddy District. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a Writ order or Direction more particularly one in the nature of Writ of certiorari by calling for the records connected with the Order dated 18-1-2005 in O.A.No. 173 of 2005 on the file of the A.P.A.T. Hyderabad and quash the same. Counsel for the Petitioner: MR.S.ASHOK ANAND KUMAR Counsel for the Respondents 1 and 2: GP FOR SERVICES-I Counsel for respondent No.3: MR.M.VIJAY KUMAR. Counsel for respondent No.4: MS.BOBBA VIJAYA LAKSHMI Counsel for respondents 5 and 6: MR.Y.VENKATA SASTRY The Court made the following: COMMON ORDER: (per PSN.J.) The short question, which this Court is called upon to adjudicate, is whether Rule 4, Rule 37 or Rule 33 of A.P. State and Subordinate Service Rules (in short hereinafter referred to as the Rules) would be applicable in cases of re-allotment. No doubt there is some controversy in respect of re-allotment on the ground that all the necessary ingredients in relation thereto are not satisfied. 2. 4th respondent-T.Venkata Reddy in O.A.No.5206 of 2003 filed Writ Petition No.401 of 2004 and the applicants in the said OA are arrayed as respondents 4 and 5, viz., J.Dasaratha Ramaiah and Y.Rajendar Reddy, respectively in the aforesaid Writ Petition. 3. One Smt. Sarada filed Writ Petition No.4759 of 2005 questioning the interim order made in O.A.No.173 of 2005 dated 18.1.2005, wherein the applicants in O.A.No.5206 of 2003 are shown as respondents 5 and 6 respectively. 4. In O.A.No.173 of 2005, the Andhra Pradesh Administrative Tribunal (in short referred to as the Tribunal hereunder) made the following order on 18.1.2005: “The applicants (three in number) are direct recruit cooperative Sub- Registrars in Zone VI. It is stated that there was a dispute about the number of vacancies of Cooperative Sub Registrars in respect of direct recruits. After the number of posts have been arrived at, finally, the Andhra Pradesh Public Service Commission (APPSC) has prepared a revised merit list of Cooperative Sub-Registrars for appointment as such and recommended to the Registrar of Cooperative Societies by a letter dated 5.1.2005. According to the revised merit of the Cooperative Sub-Registrars, in the revised merit list, the name of the 1st applicant figures at Sl.No.1, the name of the 2nd applicant figures at Sl.No.3 and the name of the 3rd applicant figures at Sl.No.4. 2. Learned counsel for the applicants states that while considering for promotion, the interse seniority i.e., placement in the merit list prepared by the APPSC and communicated to the 2nd respondent by a letter dated 5.1.2005 is not being taken into consideration and the promotions are being considered based on the earlier merit list communicated by the APPSC. 3 . Heard the learned Government Pleader. Learned Government Pleader states that since the letter has been addressed by the APPSC on 5.1.2005, appropriate action will be taken to revise the seniority. 4. Admit. Issue notice to the respondents returnable in four weeks. 5. It is seen that the APPSC has addressed a letter dated 5.1.2005 to the Registrar of Cooperative Societies. The relevant portion of the said letter reads as follows: “Having regard to the above order of APAT, the Commission herewith communicate the modified merit list of Cooperative Sub-Registrars of all Zones and request you to take further necessary action”. 6 As the list has already been communicated by the APPSC, the interse seniority of the direct recruits has to be fixed in terms of the proviso under Rule 33(b) of the A.P. State and Subordinate Service Rules, which reads as follows: “Provided further that the order of merit or order of preference indicated in a list of selected candidates prepared by the Public Service Commission or other selected authority, shall not be disturbed inter se with reference to the candidates position in such list or panel while determining the seniority in accordance with this rule and notional dates of commencement of probation to the extent necessary, shall be assigned to the persons concerned with reference to the order of merit or order of preference assigned to them in the said list” 7. It is, thus, seen that prima facie, there is a case that the claim of the applicant has to be considered for promotion with reference to the revised list communicated by the APPSC on 5.1.2005 insofar as direct recruits in that batch are concerned even though the earlier list was already communicated by the APPSC, prima facie, there is no justification for taking into consideration the earlier list in the fact of the revised given by the APPSC on 5.1.2005. 8 . In view of the clear rule position as extracted above, the respondents are directed to consider the claims of the applicants for promotion to the next higher post based on the revised merit list communicated by the APPSC on 5.1.2005 pending further consideration of the OA subject to ofcourse, their eligibility and sustainability in accordance with the rules. Above view shall not be considered as the final expression of the Tribunal. 9 . As the learned counsel for the applicants states that the DPC is likely to meet at 2 PM today, learned Government Pleader is directed to communicate the substance of this order orally by telephone to the authorities concerned”. Likewise in O.A.No.5206 of 2003 the Tribunal made the following order: “Learned counsel for the applicants submit that the applicants are Cooperative Sub-Registrars. They were appointed in pursuance to the selections held for Group-II-A examination conducted by the AP Public Service Commission. They submit that they belong to SC and OC categories respectively and they secured 426 and 456 marks. However, the applicants were allotted to Co-operative Department as Co-operative Sub-Registrars and ever since they are working. They submit that a provisional inter se seniority list was prepared on 27.4.2002 in which their names are figuring at sl.Nos.72 and 73. Aggrieved by the same, they filed objections stating that the ranking given by the APPSC has to be the basis for determining the seniority. However, the said request was negatived. Aggrieved by the said action, they have filed this OA. Learned counsel for the applicant further submits that the issue involved in this matter is squarely covered by the earlier orders of this Tribunal issued in Oas.753/2003 and 848/2003 dated 4.4.2003. Learned counsel appearing on behalf of the party respondent submits that as per the counter of the APPSC, OA.3/93 is pending on the file of this Tribunal. Therefore, this OA cannot be disposed of. This Tribunal has perused the orders passed in O.As.753/2003 & 848/2003 dated 4.4.2003 and convinced that the applicants are also entitled for similar relief. Having regard to the facts and circumstances obtaining in this case, this OA is disposed of in terms of O.As.753/2003 & 848/2003 dated 4.4.2003. Pending the exercise to be taken in pursuance of the directions of this Tribunal, the respondents shall maintain status quo with regard to filling up of the posts of Deputy Registrars”. 5. A perusal of the above order though shows that it is an elaborate order, it is an order based on the orders made in OA.Nos.753 of 2003 with VMA.No.192 of 2003 and OA.No.848 of 2003 on 4.4.2003 and in view of the same the relevant portion of the said order may also be looked into for better appreciation of the facts of the case and in this regard paras 5 to 7 of the said order read as hereunder: “This case has got some chequered history. From the facts of this case it is seen that earlier as many as 533 vacancies were shown for recruitment of the post of Deputy Tahsildars as per the Notification. Later, on account of certain decisions taken by the Government such vacancies were reduced to 386 only. All the 386 Deputy Tahsildar vacancies were filled by way of direct recruitment even though 533 vacancies were shown as per the Notification. Thus, posting orders were not given to the 147 candidates who would have been given appointment orders to the post of Deputy Tahsildars provided selection was made in accordance with the vacancy position shown in the Notification. To the ill-luck of the applicants, as per their merit they were there in the said 147 numbers. In the meanwhile those who got lesser marks than the applicants and those who opted for Inspectors/Sub-Inspectors of Prohibition and Excise were given posting orders. Later the Government issued posting orders to the applicants in the follow-up vacancies of other categories of Group-II A Serivices. Thus, both the applicants were given appointment orders as Sub-Inspectors of Prohibition and Excise. In this process there was abnormal delay and the applicants on account of their ill-luck were made to join as Sub-Inspectors of Prohibition and Excise of the same department later than their brethren who did join earlier even though they secured lesser merit than the applicants. As the ill-luck again daunted them, the respondents instead of giving seniority to the applicants strictly in accordance with Rule 33(b) of General Rules placed them in the provisional seniority list prepared by the 2nd respondent below some of their batch mates who secured lesser merit in the Group-II A post selections. Thus, they are before this Tribunal challenging the final seniority list dated 3.10.2002. When the applicants sought for their placements in the selection list as per their merit, the Deputy Commissioner of Prohibition and Excise, Guntur by his Ref.No.108/2002/A2 dated 11.7.2002 stated that their representations were examined and accordingly they were informed that the names of direct recruit Sub-Inspectors would be placed in the provisional and final seniority list as per the list communicated by the AP Public Service Commission and their cases would be decided on receipt of further communication, if any, by the APPSC. In fact, the respondent practically admitted all the contentions raised by the applicants. While accepting their contentions, the respondents 1 and 2 came forward with a version that the impugned seniority list was drawn based on Rule 33(a) of General Rules. With due respect to them the stand taken by them is not in accordance with the Rules. Admittedly, the seniority ought to have been given to the applicants based on their merit in the rank list. In short, they ought to have considered the cases of the applicants for placement in the seniority list as per Rule 33(b) of General Rules. The Government truly indicated in their counter stating that if the APPSC sends up the modified merit list, they have no objection to act on it. In TEJINDER SINGH SANDHU V. THE STATE OF PUNJAB AND OTHERS (1978(2) SLR 115), the Apex Court held that taking charge on divergent dates based on mere fortuitous circumstances cannot effect the seniority of the respondents who got higher merit and they are entitled to their seniority over and above the appellant even though they did join later. In SYED SHAMIN AHMED V. THE STATE OF RAJASTHAN AND OTHERS (1981(1) SLR, 100), the Division Bench Rajasthan High Court held that ranking in the list remains the same irrespective of date of joining. Thus, there cannot be any doubt that the date of joining shall not affect the seniority. Added to it, there is a statutory rule i.e., Rule 33(b) of General Rules in Andhra Pradesh State. Thus, the APPSC represented by its Secretary, R-3 is directed to issue modified merit list among the candidates who were appointed as Prohibition and Excise Sub-Inspectors, of course, based on rule of reservation within one month from the date of receipt of copy of this order. As and when such modified ranking list is received from the APPSC, the respondents 1,2 and 10 are directed to strictly adhere to it and accordingly modified that seniority list is to be drawn and issued. Apart from party respondents, if there are some other affected parties, the respondents are directed to put them on notice. This whole exercise shall be completed within three months from the date of receipt of copy of this order. Till this process is completed, the respondents are directed not to effect promotions to the post of Inspector of Prohibition and Excise. O.As. are accordingly allowed and VMA is dismissed.” 6. Mr.E.Manohar, learned Senior Counsel representing the writ petitioner in Writ Petition No.401 of 2004 would maintain that in the light of the pleadings it is a clear case of re-allotment and for which Rule 37 of the Rules would be applicable and not Rule 33 of the Rules. The learned counsel also pointed out that the Tribunal made the order in O.A.Nos.753 of 2003 and 848 of2003 in the light of the ratio laid down in TEJINDER SINGH SANDHU vs. THE STATE OF PUNJAB AND OTHERS1 and SYED SHAMIN AHMED vs. THE STATE OF RAJASTHAN AND OTHERS2 and the counsel would maintain that these decisions are distinguishable and not applicable to the facts of the present case. The counsel also further contended that in the provisional seniority list the writ petitioner was shown as No.3 and respondents 4 and 5 were shown as Nos.72 and 73. Respondent No.4 in fact had not filed any objections and no doubt 5th respondent filed objections, and the final seniority list was drawn, which had been not been challenged, but the provisional seniority list alone had been called in question. The learned Senior Counsel also had further pointed out to the contents of G.O.RT.No.47, Revenue (Ser.III) Department, dated 11.1.1996 and the other proceedings, which would point out that Rule 37 of the Rules alone would be applicable to the facts of this case. These submissions were virtually adopted and further elaborated by Mr.Nooty Ram Mohan Rao, the counsel representing the implead petitioners and also Mr.Ashok Anand Kumar, the counsel representing the writ petitioner in Writ Petition No.4759 of 2005. 7. Mr.P.V.Subrahmanya Sarma, learned counsel representing the contesting respondents 4 and 5 in Writ Petition No.401 of 2004 made elaborate submissions initially pointing out that these parties were non-parties to O.A.No.3 of 1993 and batch. The learned counsel also would maintain that though the Tribunal proceeded on the assumption in the light of the pleadings that it is a matter of re-allotment, in fact it is not a case of re-allotment, but non-availability of the posts. The learned counsel also would maintain that here is a case where for no fault of these respondents 4 and 5, they had been penalized and they were deprived of the seniority and in view of the same, the Tribunal arrived at a correct conclusion, which need not be disturbed. The learned counsel also placed reliance on the Judgments of the Apex Court reported in P.S.PATRUDU vs. UNION OF INDIA3 and P.SRINIVAS vs. M.RADHAKRISHNA MURTHY4 in this regard. 8. Ms.Bobba Vijaya Laxmi, learned counsel representing Mr.Srinivas Reddy in Writ Petition No.4759 of 2005 would explain that due to the belated appointment of this party, there was no occasion for him to raise objections to the seniority list. The learned counsel also explained the circumstances under which he was appointed at a later point of time though covered by the same notification. 9. Mr.Y.Venkata Sastry, learned counsel representing respondents in Writ Petition No.4759 of 2005 would raise a preliminary objection stating that the very Writ Petition is not maintainable since the same had been preferred questioning an interim order. The learned counsel also pointed out that it is not a case of re- allotment at all since none of the ingredients relating to re-allotment are satisfied. The learned counsel also would maintain that the pleadings of the parties would be of no consequence, the Court may have to interpret and arrive at a conclusion whether, in fact, in the facts of the given case it would fall under re-allotment or not and hence the counsel would maintain that since the essential ingredients relating to re-allotment are not satisfied, it cannot be said that Rule 37 of the Rules would be applicable. 10. The learned Government Pleader for Services-I on the other hand would contend that in the light of the undertakings and the affidavits filed by both these parties, it would not lie in the mouth of respondents 4 and 5 to contend that Rule 37 of the Rules is not applicable and on the contrary Rule 33 of the Rules would be applicable. The counsel would also maintain that Rule 33 of the Rules is the general Rule whereas Rule 37 of the Rules is the specific Rule concerned with re-allotment and hence Rule 37 of the Rules alone would be applicable. 11. Heard the learned counsel for the parties at length. 12. Respondents 4 and 5 in Writ Petition No.401 of 2004 filed OA.No.5206 of 2003, wherein it was pleaded that respondents 4 and 5 appeared for Group-II-A test as advertised by 3rd respondent in advertisement No.8/1990 and they were selected for the posts of Deputy Tahsildars. The marks of 4th respondent being 427 under SC category and that of 5th respondent being 456 under OC category. It is further stated that 533 candidates including these respondents were selected for Deputy Tahsildar posts. The process was taken up to the year 1995. When all the 533 candidates have taken an agitation, 386 candidates were issued with the appointment orders. 147 candidates were remained without appointment order and later 45 out of 147 have joined in non-joining Deputy Tahsildar posts. Finally 102 candidates were left without appointment orders as Deputy Tahsildars. Some similarly situated persons to the applicants filed O.As. and the Government was directed to allot the D.T. selected candidates to the other Departments. It is said that the said O.A.Nos.3 of 1993, 670 of 2000 etc. are still pending. It is brought to the notice of this Court that at present these O.As. had been dismissed. It is further stated that both these respondents referred to above as applicants were allotted to Co-operative Department as Co-operative Sub-Registrars, under Group I-A category, while awaiting the result of the OA., filed for appointment as Deputy Tahsildars and they joined as C.S.Rs. along with other selected Deputy Tahsildars. While the matter stood thus, the 2nd respondent published a provisional inter se seniority list dated 27.4.2002, in which respondents 4 and 5 were shown at serial Nos.72 and 73 respectively. It is further stated that both of them filed objections. Evidently it appears to be not a correct statement. It is further stated that the 2nd respondent sent a reply dated 23.1.2003 to the 5th respondent herein, which was served in the month of March, 2003. It is stated that the reply issued is