IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT : : THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD W.P.No.24186 of 2010 Dated:27-06-2011 Between: D.Madhava Rao ….Petitioner And The District Judge, East Godavari and another ….Respondents. The Court made the following: THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD WRIT PETITION No. 24186 of 2010 Dated: 27-06-2011 ORDER: (per the Hon’ble Sri Justice Goda Raghuram) Heard Sri P.V.S.S.S. Rama Rao, learned counsel for the petitioner and Smt M.Bhaskara Laxmi, learned standing counsel for the respondents. The Order of the respondent No.2 bearing ROC.No.1504, 1622 and 1629 of 2004 and ROC.No.609 of 2005 – C1 (1) , dated 11.10.2006, is challenged herein. The petitioner having entered service in the judicial unit of East Godavari District as Record Assistant in 1978 was eventually promoted as Senior Assistant in August 2002. There were 4 available vacancies in the category of Superintendent – category– II in the Andhra Pradesh Judicial Ministerial Service Rules, for which there were 12 eligible candidates fit for consideration from the feeder categories, including the petitioner. The respondent No.1 called eligible candidates in the ratio of 1:3 and eventually conducted a written test for 10 candidates since two of the candidates within the zone of eligibility remained absent. Pursuant to the written test 4 persons including the petitioner were selected and appointed as Superintendents. Senior Assistants, who failed to obtain appointment preferred appeals to the respondent No.2 and on consideration of the same, the respondent No.2 by the Order impugned concluded that since no written examination was contemplated under the statutory rules to assess merit and ability of individuals for consideration for promotion to the category of Superintendent, the procedure adopted by the respondent No.1 cannot be sustained and the whole exercise must be redone by confining assessment of the merit of candidates to appraisal of their annual confidential reports. The respondent No.2 accordingly directed the respondent No.1 by the impugned proceedings to redo the whole exercise of selection and to reconsider the issue regarding the appointments to the post of Superintendent in the District, by confining assessment of the merit to the appraisal of annual confidential reports of the individuals, within the zone of eligibility and report compliance. As a consequence of the Order of the respondent No.2 impugned in this writ petition, the respondent No.1 issued proceedings dated 24.02.2007 revising the promotions and appointments to the post of Superintendent after assessment of the annual confidential reports of all persons falling within the zone of consideration. As a consequence of such de novo exercise, 20 individuals including the petitioner were selected and promoted as Superintendents and their inter se seniority was fixed as per the ranking in the said selection. The result of such de novo exercise and the altered dates of promotion and seniority consequent on the exercise were communicated to all the candidates on 11.10.2006. Sri Rama Rao, the learned counsel for the petitioner would strenuously contend that holding of a written examination for selection to the post of Superintendent though not provided in the relevant statutory rules i.e. A.P.J.M.S. Rules, 2003, is not illegal. Reliance for this contention is placed on the Judgment of the Division Bench of this Court in P.RAMAKRISHNA AND OTHERS V. DISTRICT AND SESSIONS JUDGE, CHITTOR AND ANOTHER[1]. Rule 8 of the earlier Andhra Pradesh Ministerial Service Rules, 1964 provided that promotion to Category-2 posts shall be made on grounds of merit and ability, seniority being considered only where merit and ability are approximately equal though the posts are described to be selection posts. In the facts and circumstances that had fallen for consideration in P.RAMAKRISHNA (referred supra) there were a large number of persons belonging to the feeder category eligible for consideration and appointment to the posts in category-2. In the circumstances the unit head evolved a system of holding written examination for the purpose of short listing the candidates pursuant to a circular dated 01.07.1996 issued by the High Court providing certain norms and guidelines for appointment under the rules. As per the Circular of the High Court dated 01.07.1996 when a large number of candidates compete for a limited number of posts, it would be legitimate to conduct a screening test for short listing of candidates since all of them cannot practically be interviewed. Accordingly, that system was followed and this Court upheld the consequent decision and found nothing unreasonable or arbitrary in the procedure and criteria adopted in making appointment to the posts in Category-II, though the relevant statutory Rules of 1964 did not provide for any such examination to be held. In the case on hand, there were admittedly only 10 candidates to be considered for 4 posts of Superintendents. The relevant rules also described the post of Superintendent to be selection post. The merit and ability of the competing candidates ought to be considered on the basis of their service record as reflected in their annual confidential reports. In these circumstances, the respondent No.2 – the appellate authority came to the conclusion that the procedure adopted by the respondent No.1 in conducting examination was inconsistent with the procedure contemplated by the statutory Rules viz., Andhra Pradesh Judicial Ministerial Service Rules, 2003. On the aforesaid analysis, the contention that the impugned Order passed by the respondent No.2 is at variance with the judgment of the Division Bench of this Court in P.RAMAKRISHNA (referred supra), does not commend acceptance by this Court. Another grievance presented by Sri Rama Rao, learned counsel for the petitioner, is that the petitioner’s seniority in the category of Superintendent stood revised as a consequence of the fresh exercise by the respondent No.1, based on the impugned Order of the respondent No.2 dated 11.10.2006. Smt M.Bhaskara Laxmi, learned standing counsel for respondents, does not contest the factual basis of the petitioner’s contention that no notice or opportunity was afforded to the petitioner before the revision of his seniority to his detriment. Relevant facts may be noticed. After the determination of the principle by the impugned administrative Order of the respondent No.2 dated 11.10.2006, the respondent No.1 by proceedings dated 24.02.2007 reviewed the promotions/ selections to the posts of Superintendents in the district and communicated the result to all the concerned including the petitioner. The proceedings of the respondent No.1 dated 01.04.2010 communicated to all the concerned employees including the petitioner is the annual gradation list 2008, wherein, insofar as the petitioner is concerned his date of appointment in the category of Superintendent stood revised from 19.06.2004 (earlier date of his promotion as Superintendent) to 05.08.2006 (the current date of such promotion), consequent on the reassessment by the respondent No.1. As a consequence of the gradation list now communicated the petitioner lost nearly two years of service and consequent seniority in the category of Superintendent, which he contends would adversely effect his future chances for appointment to the next higher post of Administrative Officer. As per settled principles of Administrative law, no adverse civil consequences can be inflicted on a person without notice or opportunity to him. The respondent No.1 is required to re-fix the petitioner’s date of appointment as Superintendent with consequent alteration of seniority, only after notice or opportunity to the petitioner. This not having been done, the action of the respondent No.1 in altering the petitioner’s date of appointment to the category of Superintendent and postponing it from 19.06.2004 to 05.08.2006 cannot be countenanced and is required to be set aside. The petitioner, however, cannot in principle resist the alteration of his seniority and re-fixation of the date of his appointment to the category of Superintendent, in view of the correct principle having been evolved in the respondent No.2’s proceedings dated 11.10.2006. Further, grant of relief to the petitioner by invalidating the gradation list of 2008 communicated to all the concerned persons by the Order dated 01.04.2010 is likely to result in adverse civil consequences to other officers in the category of Superintendent, who are arrayed above the petitioner. This could not be done without notice or opportunity to such effected persons. The petitioner has not chosen to implead the other officers, who have stolen a march over him in the matter of seniority, in the category of Superintendent. On the aforesaid analysis, this Court finds no case made out for grant of any relief to the petitioner in respect of the grievance of alteration of his seniority qua the gradation 2008, communicated in the respondent No.1’s proceedings dated 01.04.2010. The writ petition is thus devoid of merits. Accordingly, the Writ petition is dismissed. There shall be no Order as to costs. _____________________________ JUSTICE GODA RAGHURAM _____________________________ JUSTICE P. DURGA PRASAD Dated:27-06-2011 Ksp [1] 1997 (2) ALT 369