THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE N.RAVI SHANKAR WRIT PETITION Nos.27489, 27502 and 27557 of 2009 Dated:16.11.2010 Between: Y. Ashok .. Petitioner And The Government of Andhra Pradesh, Represented by its Principal Secretary, Agriculture and Cooperation (A.M.III) Department, Secretariat, Hyderabad and others .. Respondents THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE N.RAVI SHANKAR WRIT PETITION Nos.27489, 27502 and 27557 of 2009 COMMON ORDER: (Per Hon’ble Sri Justice Ghulam Mohammed) Since the controversy involved in these three writ petitions is one and the same, they are taken up together for disposal. 2. These writ petitions are filed assailing the common order dated 16.11.2009 passed in O.A.Nos.4982 and 3222 of 2009 and O.A.No.4148 of 2004 on the file of the Andhra Pradesh Administrative Tribunal, Hyderabad (Tribunal), whereby and whereunder the Memo No.14610/A.M.III(2)/ 2007-10 dated 18.02.2009 issued by the Principal Secretary of the Agriculture and Cooperation (A.M.III) Department i.e. 1st respondent in the O.As. was set aside as illegal. 3. The petitioner in these writ petitions is one and the same who was arrayed as 3rd respondent in the O.As. before the Tribunal. The unofficial respondents in W.P.No.27502 of 2009 are the applicants in O.A.No.4982 of 2009 and the unofficial respondent who is one and same in W.P.Nos.27489 and 27557 of 2009 is the applicant in O.A.No.3222 of 2009 and O.A.No.4148 of 2004. The official respondents 1 and 2 in these writ petitions have also been arrayed as respondents 1 and 2 in the O.As. before the Tribunal. 4. For the sake of convenience, the parties hereinafter referred to as they are arrayed before the Tribunal. 5. The facts, in brief, are as follows. All the applicants belong to A.P. Marketing Service and are governed by A.P. Marketing Service Rules issued in G.O.Ms.No.233, A&Co-op (MKTG.III) Department, dated 14.07.1999 and the post of Assistant Director of Marketing (ADM) is the feeder category for promotion to the post of Deputy Director of Marketing (DDM) and they were initially appointed as ADMs during November 1997 to July 1998 and were subsequently promoted as DDMs during December 2004 to March 2005. Subsequently, the applicants in O.A.No.4982 of 2009 were promoted as Regional Joint Director in February 2009 and the 3rd respondent was appointed as ADM on 14.09.2000 and was promoted as DDM in June 2007 as such he is junior to all the applicants in both the cadres. The post of ADM is a zonal post and the post of DDM is a State-wide post. The applicants belong to Multi Zone-I. Basing on the seniority in the category of ADM, the screening committee in its meeting held on 12.12.2003 considered the cases of eligible ADMs for the panel year 2003-2004 for filling up the posts of DDM and requested the Government to approve the panel of 4 ADMs for promotion and the names of all the applicants except the 4th applicant i.e., the 6th respondent in W.P.No.27502 of 2009 were found in the said list and the name of the 3rd respondent has not come up for consideration as per his seniority. The Government introduced reservation in promotions by issuing G.O.Ms.No.5, Social Welfare (SW.ROR.1) Department, dated 14.02.2003 and thereafter Scheduled Castes were categorized into A, B, C and D by A.P. Scheduled Castes (Rationalization of Reservation) Act i.e. Act 20 of 2000. When the validity of the said Act was challenged, the Supreme Court declared the same as null and void holding that the State legislature is not having such competence. While so, the Government issued Memo, dated 18.02.2009, increasing the cadre strength to 11 by adding 5 deputation posts for effecting reservation in promotion in favour of the 3rd respondent. It is alleged that by doing so, the respondents 1 and 2 wanted to effect reservation in promotion and thereby consider the case of the 3rd respondent at roster point No.7, which will affect the interests of other seniors in SCs and OCs in the category of ADMs and DDMs. The applicants submit that even if the 3rd respondent is given notional seniority in the category of ADMs with effect from 2000, he will be junior to them. It is alleged that the respondents 1 and 2 are trying to give notional seniority to the 3rd respondent in the category of DDMs by treating him as senior to them so that he can be further promoted to the post of Regional Joint Director of Marketing. It is stated that unless the post is substantive and born in the cadre within the said unit, question of treating the said posts as part and parcel of the cadre strength does not arise. It is also alleged that the respondents 1 and 2 have already implemented the reservation in promotion in respect of selection grade secretaries in A.P. Agricultural Market Committee Secretaries Services and again issued Memo No.14610/A.M.III(2)/2007-10 dated 18.02.2009 treating the 5 posts of selection grade secretaries as part and parcel of Agricultural Market Service thereby conferring double benefit to the 3rd respondent. The said memo was challenged in O.A.Nos.4982 and 3222 of 2009. In O.A.No.4148 of 2004, the applicant therein sought to declare the action of the respondents 1 and 2 in not considering his case for promotion to the post of DDM as against S.No.7 in the place of Shyam Rao, which is earmarked for SC-C in the absence of SC-B candidate for effecting promotion to the post of DDM in spite of the policy of the Government laid down in G.O.Ms.No.2, Social Welfare (SW.ROR.I) Department, dated 09.01.2004 as illegal and arbitrary and for a consequential direction to them to give effect to the recommendations of the Departmental Promotion Committee (DPC) for promotion to the post of DDM as against S.No.7 of the approved list of candidates. 6. In the counters filed by the respondents 1 and 2 before the Tribunal while reiterating the factual aspects mentioned supra contended that the law department opined that the seniority of the 3rd respondent in the cadre of ADM was revised with effect from 14.09.2000 and when the orders are issued permitting the appointing authorities to revise the seniority and place the matter before the review DPC for giving notional promotion, the judgment of the Supreme Court dated 05.11.2004 in respect of the Act 20 of 2000 does not come in the way as the 3rd respondent was notionally promoted on 14.09.2000. 7. The 3rd respondent in the counter affidavits filed before the Tribunal contended that the seniority shall not be the criteria while filling up a post as per the roster point and following rule of reservation and the only point to be considered in such situation is whether or not the person to be promoted is eligible and qualified and even if a person is last in the seniority if the roster point falls for that category he is bound to be given promotion over and above his seniors. It is also contended that the State Government under Sections 25 and 26 of the General Rules is empowered to revise the seniority and give all notional and consequential benefits for sufficient reasons and for special cases and that the judgment of the Supreme Court and the High Court are not applicable to the present case on the ground that a vested right which was accrued to an individual cannot be taken away by way of subsequent change of law and since a right accrued to him was rectified by the State Government by issuing the impugned memo the same cannot be taken away. In his additional counter affidavit, he submitted that he belongs to SC-B community and was appointed as Price Reporter Grade-II on 19.12.1988 and subsequently got promotions as Price Reporter Grade–I on 19.10.1994 and as Marketing Assistant on 26.11.1996. While so, the State Government notified three posts of ADMs by creating an Audit and Vigilance-cum-Enforcement Cell in the Directorate of Marketing vide G.O.Ms.No.708 dated 09.12.1994. According to him, in spite of selection of his name by DPC for promotion to the said post, his promotion was withheld, on account of the status quo orders obtained by some of the employees of Central Market Fund by filing O.A.No.7875 of 1999 before the Tribunal. Feeling aggrieved by the same, he filed O.A.No.2452 of 2000 before the Tribunal seeking implementation of the decision taken by the DPC. The Tribunal dismissed the O.A. filed by the third parties by order dated 01.11.2000 and allowed the O.A. filed by him by order dated 27.11.2003. Thereafter, he submitted a representation dated 03.12.2003 before the Commissioner and Director of Marketing i.e. the 2nd respondent for considering his case for promotion. After completing the necessary formalities, the 2nd respondent vide proceedings dated 15.10.2004 directed notional promotion to be given to him with effect from 14.09.2000. His grievance is that four years delay has occurred in giving promotion to him due to the pendency of cases before the Tribunal. He further contended that since the applicant in O.A.No.3222 of 2009 and O.A.No.4148 of 2009 has made a representation to consider his case against the vacancy meant for SC-B though he belongs to SC-C as no candidate in SC-C was available and cannot now contend that that categorization is bad especially when he (3rd respondent) was a beneficiary. 8. The Tribunal considering the material on record and the decisions of the Supreme Court and also of this Court observed that the attempt of the Department in the year 2009 to bring the plea of adequacy of 15% reservation for SCs by taking the cadre strength of Deputy Directors as 11 instead of 6 by including the 5 posts of Selection Grade Secretaries on deputation in response to the representation dated 18.01.2008 of the SC and ST Employees Welfare Association in order to place the name of the 3rd respondent at roster point No.7 of 2003-2004 panel of ADMs, does not help for giving notional promotion as it is against the clarification of the Supreme Court given in I.A.No.5 in Civil Appeal No.6758 of 2000, wherein it is clarified that no promotion granted subsequent to the judgment dated 05.11.2004 of the Supreme Court given in E.V.CHINNAIAH vs. STATE OF A.P[1]. (Civil Appeal No.6758 of 2000) shall be valid and that after 05.11.2004, trying to include the name of the 3rd respondent in the panel of ADMs for 2003-2004 by considering the adequacy of Rule of Reservation based on A, B, C and D categorization of SCs as per G.O.Ms.No.2 dated 09.01.2004 which was modified as per G.O.Ms.No.18 dated 17.02.2005 read with G.O.Ms.No.16 dated 17.02.2005 is not in accordance with G.O.Ms.No.2 as it stands now and also tantamounts to breach of the law laid down by the Supreme Court. The Tribunal rejected the plea of the 3rd respondent that the O.A.No.4982 of 2009 itself is not maintainable as the applicants therein do not belong to SC category on the ground that giving unjust notional promotion to him would jeopardize the interests of the applicants therein as they are seniors to him. While observing so, the Tribunal has set aside the impugned memo as illegal. Aggrieved by the same, the 3rd respondent filed these writ petitions. 9. In the affidavits filed in support of these writ petitions the 3rd respondent reiterated the above factual aspects. He also stated that the 1st respondent adopted Act 20 of 2000 vide G.O.Ms.No.5 dated 14.02.2003 and following the said G.O., the 1st respondent fixed up the roster points vide G.O.Ms.No.21 dated 18.03.2003 and G.O.Ms.No.2 dated 09.01.2004 and under the said categorization the 2nd and 7th posts were earmarked for SC-A women and SC-B categories respectively. But as no candidates were available in the respective categories, the respondents 1 and 2 filled up the vacancies of the post of DDMs by giving promotion to Sri K. Srinivasa Rao, who belongs to SC-B in 2nd vacancy and to Mr. S. Shyam Rao, who belongs to SC-C in 7th vacancy. According to him, since Shyam Rao attained the age of superannuation, on 28.02.2004, he became eligible for the 7th vacancy. 10. The respondents 1 and 2 and all the applicants have filed counter affidavits before this Court. In the counter filed by the respondents 1 and 2, it is stated that the 3rd respondent and the applicants before the Tribunal belong to A.P. Marketing Service and are governed by A.P. Marketing Service Rules notified by G.O.Ms.No.233, dated 14.07.1999. According to the said rules, the post of ADMs is a multi-zonal post and the post of DDMs is a State wide post and it is organized as category No.4 of the service and is intended to be filled up by promotion of ADMs who is having a minimum service of two years as ADMs. It is further stated that the Government have formulated policy of providing reservations in promotions in respect of SC/ST categories notified vide G.O.Ms.No.5, dated 14.02.2003, where the cadre strength is more than five and also adopted categorization of A, B, C & D in respect of SC category. It is pleaded that the Government issued G.O.Ms.No.2, dated 09.01.2004, for implementation of rule of reservation in respect of SC/ST categories, duly computing adequacy of representation of SCc/STs as on 1st September of panel year. It is contended that the posts of DDMs is a second level gazetted post. For the panel year 2003-04, 13 posts of ADMs were approved for promotion to the post of DDMs vide G.O.Ms.No.4 dated 05.01.2004. Later, it was modified vide G.O.Ms.No.43, dated 10.02.2004, including a person, by name Sri M.Narsi Reddy at S.No.5. According to them, as per this G.O., the name of Sri K.Srinivasa Rao, ADM, who belongs to SC-B category, was placed at roster point No.2 of SC-A category, due to non-availability of SC- A candidate. Similarly, the name of Sri Shyam Rao, who belongs to SC-C category, was placed at roster point No.7 of SC-B category and since he retired from service on attaining the age of superannuation, the same is kept vacant. Further, the name of the applicant in O.A.No.3222 of 2009 and O.A.No.4148 of 2009 who belongs to SC-C category was placed at S.No.12, on merit cum seniority basis. It is stated that in the Agriculture and Co-operation Department, there are 6 sanctioned posts of DDMs the Government have clarified vide memo dated 13.05.2005, that the sanctioned cadre strength alone has to be taken into consideration for calculating 15% adequacy while implementing rule of reservation in promotions in favour of SCs/STs. Against the said six posts, only one post goes to SCs at 15% adequacy and Sri K.Srinivasa Rao (SC-B) was already given the benefit at 2nd roster point. It is submitted that applicant in O.A.No.3222 of 2009 and O.A.No.4148 of 2009 who belongs to SC-C category, has made a representation for considering his case for notional promotion as DDM against roster point No.7, as no SC-B candidate was available and as he was senior. The 3rd respondent, who belongs to SC-B category, has represented to consider his case for placing his name against roster point No.7 for the panel year 2003-04. On the above claims, the 2nd respondent has submitted a detailed report dated 17.10.2007 requesting the Government to re-examine the issue keeping in view the objections raised by the applicants and to treat the cadre strength of DDMs as six only. It is further stated the seniority of the 3rd respondent who belongs to SC-B in the cadre of DDM was revised with effect from 14.09.2000 and when the orders were issued permitting the appointing authorities to revise the seniority and place the matter before the review DPC for giving notional promotion, declaration of the Act 20 of 2000 as unconstitutional by the Supreme Court on 05.11.2004 may not come in the way since his promotion was notionally fixed and accordingly considered promotion with effect from 14.09.2000 as ADM on par with his juniors. The Government issued instructions to the 2nd respondent vide memo dated 18.02.2009 to consider the name of the 3rd respondent for placing his name against 7th roster point in the panel for the year 2003-04 and effect notional promotion as DDM strictly following the procedure, keeping in view the objections of certain DDMs. 11. In the counter affidavit filed by the applicants, they reiterated the averments made in the O.As. before the Tribunal. 12. The learned counsel appearing for the parties submitted their arguments in the above lines. The learned counsel appearing for the 3rd respondent placed reliance on the judgments of the Apex Court given in STATE OF ORISSA AND OTHERS vs. GOPINATH DASH AND OTHERS[2], UNION OF INDIA vs. HEMRAJ SINGH CHAUHAN[3] and MOHD. RAISUL ISLAM vs. GOKUL MOHAN HAZARIKA[4] in support of his contentions and contended that the decision given in E.V.CHINNAIAH’s case (1 supra) is not applicable to the present case as the same is a per incuriam. 13. At the outset, it is pertinent to look into the decisions relied upon by the learned counsel for the 3rd respondent. In GOPINATH DASH’s case (2 supra) it is held that- “6. The correctness of the reasons which prompted the Government in decision making taking one course of action instead of another is not a matter of concern in judicial review and the Court is not the appropriate forum for such investigation. 7. The policy decision must be left to the Government as it alone can adopt which policy should be adopted after considering all the points from different angles. In matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental right is not shown Courts will have no occasion to interfere and the Court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the propriety of a decision of the Government the Court cannot interfere even if a second view is possible from that of the Government.” The judgment given in the said decision is distinguishable on facts and is not applicable to the case on hand. It is also to be kept in mind that the notional seniority to the 3rd respondent was not given as a policy decision especially when the fundamental rights of the appellants are being infringed. 14. The decision given in HEMRAJ SINGH CHAUHAN’s case (3 supra) it is held that- “25. It appears clearly that the authorities who are under a statutory mandate to re-examine the strength and composition of cadre are the Central Government and the State Government concerned. It can be noted in this connection that the word “ordinarily” in Rule 4(2) has come by way of amendment with effect from 1-3-1995 and along with the said amendment has also come the amendment of 5 years, previously it was 3 years. 36. It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution. 37. In Govt. Branch Press v. D.B. Belliappa [(1979) 1 SCC 477] a three-Judge Bench of this Court in relation to service dispute, may be in a different context, held that the essence of guarantee epitomised under Articles 14 and 16 is “fairness founded on reason” (see SCC p.486, para 24).” This case is also not of any help to the 3rd respondent as the facts on both the cases are different. 15. The decision given in GOKUL MOHAN HAZARIKA’s case (4 supra) it is held that- “33. The submission advanced on behalf of Respondents 1 to 8 herein is that once the process had commenced under the unamended Rules, appointments would have also to be completed under the said Rules, even though the Rules were amended in the meantime. The Division Bench of the High Court, while rehearing the writ appeal and the review petitions, reiterated the views expressed earlier on 26-8-2006, holding that the seniority of direct recruits and promotees would be governed by the unamended Rules as the selection process was initiated prior to the 1986 amendments. 34. Consequently, the Division Bench also held that the seniority between the promotees and direct recruits was to be determined on the basis of the quota fixed for recruitment from each source under Rule 4 of the 1960 Rules on the basis of the vacancies available in the calendar year, by applying quota and rota selectees to the extent of the vacancies in their quota as envisaged in the proviso to Rule 4(1) of the Rules as they stood prior to the 1986 amendments. The Division Bench, accordingly, amended its earlier judgment dated 24-8-2006 and set aside the provisional seniority list of ACS Class I Officers with the aforesaid modification and directed the authorities to recast the seniority in accordance with the said directions. 35. While arriving at the aforesaid decision, the Division Bench had occasion to refer to the decision of this Court in K. Ramulu (Dr.) v. Dr. S. Suryaprakash Rao [(1997) 3 SCC 59], wherein the question which fell for consideration was whether the Government was entitled to take a decision not to fill up existing vacancies on the relevant date unless the process of amendment was completed. This Court, after taking into consideration Rule 4 of the A.P. Subordinate Service Rules, held that the object of the said Rule was that all eligible candidates should be considered in accordance with the Rules. This Court held that the Government was entitled to take a conscious decision not to fill up any of the vacancies before the proposed amendment to the Rules was effected. 36. While at first glance the decision in K. Ramulu case may appear to be on a par with the facts of the instant case, there is yet a distinction which cannot be ignored. While in the present case a process of selection had been set in motion under the existing Rules and a list of selected candidates had also been recommended by APSC, in K. Ramulu case the Government had merely taken a decision not to fill up the vacancies until the amended Rules came into force. In K. Ramulu case no process had been initiated for the purpose of filling up any of the vacancies. In such circumstances, where no candidate had either been invited or interviewed or selected for appointment, as has been done in the instant case, this Court rightly held that the Government was competent to take a decision not to fill up the vacancies. 37. There can be no dispute that as a matter of policy the Government may take a conscious decision not to fill up vacancies for justifiable reasons, but at the same time, having started a process of selection under the unamended Rules, it cannot take the stand that it still was entitled not to make appointments of persons from amongst the candidates selected in terms of the process initiated under the old Rules. In fact, in the instant case, the recommendation made by APSC was submitted to the Government on 22-6-1986, before the amended Rules came into operation on 21-7-1986 whereby the quota system was discarded. In such a situation, in our view, the decision in K. Ramulu case cannot be applied to the facts of this case. 38. We are unable to agree with Mr Hansaria that the High Court had committed an error in relying on the unamended Rules since the law has been well settled that the process of selection commenced on the basis of the Rules then in existence would continue under the said Rules, even though the Rules may have been amended in the meantime. Accordingly, the seniority of members of the service would, no doubt, be governed under Rule 19, but the selection process has to be completed under Rule 4 in order to attract the provisions of Rule 19. The vacancies for which the advertisement