IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FIRST DAY OF MAY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 6094 of 2008 Between: 1 B. Sattaiah S/o. Sri Lakshmaiah R/o. Thormala Village,Maddur Mandal, Warangal District. 2 P.V. Satyanarayana Murthy S/o. Sri Narasimha Murthy H.No. 1-3-104, Geethanagar, Jangaon, Warangal District. ..... PETITIONERS AND 1 The Andhra Pradesh Transmission Corporation,Rep. by its its Chairman & Managing Director, Vidyut Soudha, Khairatabad, Hyderabad. 2 The Andhra Pradesh Northern Power Distribution Companya Ltd., Rep. by its Chairman & Managing Director, Warangal. 3 Chief General Manager -HRD The Andhra Pradesh Northern Power Distribution Company Ltd., Warangal. 4 Superintending Engineer (O) The Andhra Pradesh Northern Power Distribution Company Ltd., Warangal. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue sa writ of Mandamus , order or direction declaring the action of the respondents to treat the seniority of the petitioners with effect from 22nd March 1993 and pass Counsel for the Petitioner:MR.S.RAVINDRANATH Counsel for the Respondent No.: P.R.BALARAMI REDDY(SC FOR AP TRANSCO) The Court made the following : O R D E R: 1. The petitioners who are two in number are Diploma Holders in Electrical Engineering (AEE). The 1st petitioner belongs to BC-D and the 2nd petitioner belongs to SC category. The Superintendent Engineer (Operation), Warangal-4th respondent sent a request to the Employment Exchange, Warangal for sponsoring the names of the candidates for selection to the post of Sub-Overseer (redesignated as Sub-Engineer) in Warangal Circle. The employment exchange sponsored diploma holders numbering 130 including the petitioners. A written test was conducted on 10.5.1993 by APSE Board. The petitioners are among the candidates who became successful and accordingly their names came to be included in the selected list comprising 12 candidates. By the end of July, 1993, 7 out of 12 candidates were appointed as Sub-Oversears, four months thereafter two more candidates in the selected list were appointed as Sub-Oversears. The Chief Engineer, Warangal Zone on 22.3.1993 passed an order in respect of the petitioners herein which reads as under: “ “The candidates mentioned in Annexure (writ petitioners) are selected for appointment to the post of Sub-Engineer in APSEB Board. The Superintending Engineer, Operation, Warangal is requested to issue appointment orders to the candidates and post them against the existing vacancies. He is requested to instruct the concerned officer to satisfy himself regarding the qualifications, age, physical fitness, community etc., before accepting the joining report of the candidates and intimate the date of joining of the candidates direct to Board under intimation to the office. He is requested to intimate to employment exchange the circumstances under which he had to fill up the vacancies over and above the numbered notified earlier.” 2. In the meanwhile, the erstwhile APSE Board had issued B.P.Ms.No.58, dated 6.5.1993 in which the post of Supervisor and Sub- Overseer was integrated into one category with a new designation as Sub-Engineer. By virtue of the said Board Proceedings, the erstwhile APSE Board wanted to select in service candidates and appoint Sub- Engineers by transfer. To give preference to the in-service candidates, the petitioners were not permitted to join the post of Sub-Engineer. Thereupon, the petitioners approached this Court assailing the action of the respondents in giving preference to the in-service candidates instead of permitting them to join in the post for which they have been selected. The Writ Petition being W.P.No.16228 of 1993 came to be allowed on 28.8.2002. The relevant portion of the order passed in the writ petition needs to be noted and it is thus: “ On a perusal of the impugned memo, it is clear that it merely mandates filling up of the vacancies first by inservice candidates and balance vacancies left over after such filing up should be filled up by those candidates who are in the merit list of the candidates who were already interviewed. As stated above, the proceedings issued on 10.6.1993 by the 4th respondent-Superintendent Engineer clearly indicates that 4 vacancies are available in addition to the 7 posts sanctioned vide B.P.Ms.No.1134 dated 25.10.1989, which are kept in abeyance totaling to 11 vacancies of sub-Engineers and the same are vacant as on that date. The 4th respondent – Superintending engineer sought for permission to fill up three posts with the candidates who have been selected. The Chief Engineer by the letter dated 22.3.1993 also informed the concerned Superintending Engineer that the candidates mentioned in the annexure with that letter were selected for appointment to post of Sub-Engineer and requested to issue appointment orders to the candidates and post them against the existing vacancies. Considering these circumstances, as the regulations 10 does not confer any preference to in-service candidates, the impugned memo cannot override the regulation No.10 which permits that the vacancies be filled up first by direct recruitments and then by the transferees. The aspect in the impugned memo that the vacancies shall be filled up by in-service candidates first, in my considered view is illegal and is not permissible and is contrary to the regulation 10 and the procedure contemplated there under. For the foregoing reasons, the writ petition is allowed and the impugned proceedings are set aside only to the extent of construing that the in-service candidates are eligible and are entitled for preference, which in my considered view is illegal. Accordingly, there shall be a direction to the respondents to consider the cases of the petitioners and issue necessary orders for appointment within a period of six weeks from the date of receipt of a copy of this order.” 3. The Board challenged the orders passed by this Court in W.P.No.16228 of 1993 by filing W.A.No.154 of 2003. A Division Bench of this Court dismissed the appeal upholding the order passed by the learned Single Judge by judgment dated 29.10.2004. The relevant portion of the judgment passed in the writ appeal is to be noted and it is thus: “ There is no such controversy in the present case. The writ petitioners were selected out of the selected list already nine people were appointed and given posting orders, whereas the writ petitioners were also issued appointment orders, but their joining report was not accepted and in the meantime the impugned order came to be passed. Surprisingly even by impugned order the appointment order of the petitioners was not cancelled. Therefore that order remained as it was. It merely stated, “ Chief Engineers are therefore authorized to pool up the vacancies available in their jurisdiction, operate the merit list of the already interviewed candidates and issue appointment orders to the eligible candidates duly following the rule of reservation.” But what was the mischief was that the order laid down, “ The Chief Engineers of Zones and Projects are requested to fill up the vacancies first by those employees who are working in lower categories. The balance vacancies left over after such filling up should be filled up by those candidates who are in the merit list of the candidates who were already interviewed.” Even the life of select list was extended by three months. But, on the other hand, the posts were filled up by those who were in the department. In our view, this could not have been done in terms of the rules. B.P.Ms.NO.58, dt.6.5.1993 as it does not lay down that any preference should be given to in-service candidates. It does not lay down even a proportion for making appointment between the direct recruitment and recruitment by transfer. It merely says that the method of recruitment would be by direct recruitment and by appointment by transfer. Secondly, in our view, when the impugned order was passed, the petitioners already stood appointed and their appointment order was not recalled at any point of time. Therefore, the contention of the appellants that the learned single Judge could not have ordered the appointment of the writ petitioners cannot also be taken into consideration because the appointment orders had already been issued by the appellants themselves. Therefore, what is needed is to give an effect to the orders passed by the Chief Engineer by his memo dated 22.3.1993. With these observations, we dismiss the writ appeal. No costs.” 4. The petitioners came to be appointed on 31.3.2005 as Sub- Engineers. According to them, their seniority in the cadre of Sub- Engineer is to be reckoned w.e.f. 22.3.1993. They made representations to the respondents. There being no response to their representations, they approached this court invoking the jurisdiction under Article 226 of the Constitution of India with a prayer to issue a Writ of Mandamus to direct the respondents to treat their seniority in the cadre of sub- Engineers w.e.f. 22.3.1993. 5. Rule nisi came to be issued on 17.4.2008. R3 filed counter affidavit resisting the claim of the petitioners. It is stated in the counter affidavit that the petitioners are not eligible for getting their seniority reckoned in the cadre of Sub-Engineers w.e.f. 22.3.1993. 6. Heard learned counsel appearing for the petitioners and learned Standing Counsel appearing for the respondents. 7. Learned counsel appearing for the petitioners submits that the department did not permit the petitioners to join in the post for which they have been selected and once the action of the department has been found to be illegal, the petitioners are entitled to reckon their seniority from 22.3.1993. A further submission has been made that the department is to be held responsible for not permitting the petitioners to join in the post for which they have been selected and in which case their seniority is to be reckoned from the date of the proceedings issued by R4. In support of his submissions, reliance has been placed on the decision of the Supreme Court in BALWANT SINGH NARWAL v. STATE OF HARYANA[1], wherein the Supreme Court held that the candidates who were selected against earlier vacancies but could not be appointed along with others of the same batch due to certain technical difficulties, when appointed subsequently, will have to be placed above those who were appointed against subsequent vacancies. 8. Whereas learned Standing Counsel appearing for the respondents submits that the affected persons have not been made as parties to the writ petition and therefore the writ petition is liable to be dismissed for non-joinder of necessary parties. Responding to the contention advanced by learned Standing Counsel, it is submitted by learned counsel appearing for the petitioners that where a criteria of the department is questioned, the presence of the affected parties is not necessary for proper adjudication of the issue involved in the writ petition. In support of his submissions, reliance has been placed on the decision of this Court in K.ESWARA DUTT v. CHAIRMAN, FOOD CORPORATION OF INDIA[2]. 9. There is no dispute with regard to the proposition of law that where criteria adopted by the department is questioned, the writ petition cannot be dismissed on the ground that affected parties are not joined as party respondents. 10. This is the second journey of the petitioners to this Court. On earlier occasion the petitioners approached this Court by filing writ petition when the department did not permit them to join in the post for which they have been selected. The petitioners became successful in the earlier round of litigation. Now the dispute is with regard to seniority in the cadre of Sub-Engineer. It is the claim of the petitioners that seniority in the cadre of Sub-Engineer is to be reckoned w.e.f. 22.3.1993. It is a matter of record that many persons have been appointed as Sub-Engineer by way of promotion from lower category from 1993 to 2005. The petitioners submitted their representations on 6th August 2007 to the respondents to reckon their seniority in the cadre of Sub-Engineer w.e.f. 22.3.1993. Their representations are stated to be pending consideration. In that view of the matter, I deem it appropriate to dispose of the writ petition directing the respondents to consider their representations dated 6th August, 2007 of the petitioners after putting on notice the affected parties and pass appropriate orders within four weeks from the date of receipt of the order. 11. Accordingly, this writ petition is disposed of. No costs. 01st May, 2009. (B.Seshasayana Reddy,J) Note: Isue C.C. within a week. B/O Tnb ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1) 2 CD copies Form-NIC-OGS/WP{VSMI} THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO.6094 OF 2008 1ST MAY 2009. [1] (2008) 7 SCC 728 [2] 1998(4) SLR 675