HON’BLE SRI JUSTICE GODA RAGHURAM AND HON’BLE SRI JUSTICE R.KANTHA RAO W.P.No.16342 of 2010 Between: B.Suresh Babu …Petitioner And H.Shiva Ram and others ….Respondents HON’BLE SRI JUSTICE GODA RAGHURAM AND HON’BLE SRI JUSTICE R.KANTHA RAO W.P.No.16342 of 2010 ORDER: (Per Hon’ble Sri Justice Goda Raghuram, J) Heard Sri P.Gangaiah Naidu, learned Senior Counsel instructed by Sri N.Bharat Babu for the petitioner, Sri P.Amarender, Sri P.Balakrishna Murthty, learned counsel for the respondent No.1 and the learned Government Pleader for Services-II for respondent Nos.2 and 3. In view of the manner in which the writ petition is disposed of, it may not be necessary to issue notices to the respondents 4 and 5 herein. This writ petition is directed against the order dated 10.03.2010 of the learned Andhra Pradesh Administrative Tribunal, Hyderabad (the Tribunal) in O.A.No.2439 of 2007. The petitioner entered service as Assistant Director of Industries in 1987, while the first respondent did so in 1988, the petitioner by direct recruitment and the first respondent by promotion from the feeder category of Supervisor in the Industries Department. In 1994 the petitioner and the first respondent were promoted as Deputy Directors and in 2003 were further promoted as the Joint Directors. The petitioner claims seniority over the first respondent in the three categories of Assistant Director, Deputy Director and Joint Director. It is asserted by the learned counsel for the first respondent Sri P.Balakrishna Murthy that the inter se seniority in the category of Deputy Director, Industries has not yet been finalized and therefore, the inter se seniority positions in the higher categories of the Joint Director and upwards is tentative. Be that as it may. On 27.07.2006 a final seniority list in the category of Deputy Directors was issued wherein the name of the petitioner is at Sl.No.120, while that of the first respondent is at Sl.No.136. A final seniority list in the category of the Joint Director was issued in G.O.Ms.No.90 Industries and Commerce (IE) Department, dated 24.04.2007 whereat the petitioner is placed at Sl.No.179 and the first respondent at Sl.No.191, indicating the seniority of the petitioner above the first respondent. Against the petitioner, certain disciplinary inquiries were pending since a long time. When in April, 2007 the Departmental Promotions Committee (DPC) was scheduled to meet for considering the Joint Directors for further promotion as Additional Directors, the petitioner (apprehending that his case would be overlooked for consideration and eventual appointment as Additional Director on account of pending inquiries), filed O.A.No.7389 of 2006, for a direction to the State and the concerned authorities to consider his case for promotion as Additional Director without reference to pending disciplinary proceedings. By an order dated 25.01.2007, in the O.A., the Tribunal directed the official respondents to consider the case of the petitioner for appointment as Additional Director without reference to pending disciplinary proceedings. The DPC met on 30.04.2007 but deferred the petitioner’s promotion, vide the order in G.O.Ms.No.95, dated 30.04.2007. Aggrieved thereby, the petitioner filed O.A.No.2564 of 2007 assailing the order in G.O.Ms.No.95. This O.A. was disposed of granting liberty to the petitioner to prefer a representation to the State for reconsideration of the decision in G.O.Ms.No.95. The petitioner filed W.P.No.10315 of 2007. In an interim order dated 04.06.2007, this Court while suspending G.O.Ms.No.95 directed the official respondents to consider the petitioner’s case for promotion in accordance with the earlier order of the Tribunal dated 25.01.2007 in O.A.No.7389 of 2006 (directing consideration of the petitioner’s case without reference to pending disciplinary proceedings). On 03.07.2007 W.P.No.10315 of 2007 was finally disposed of with a direction to the Tribunal to dispose of O.A.No.2564 of 2007 and directing till then continuance of the earlier interim order dated 04.06.2007. The first respondent filed W.P.No.28601 of 2007 challenging the interim order dated 04.06.2007 passed in W.P.No.10315 of 2007 (suspending G.O.Ms.No.95 and directing the official respondents to consider the case of the petitioner for promotion as per the earlier order of the Tribunal dated 25.01.2007 in O.A.No.7389 of 2006). W.P.No.28601 of 2007 was disposed of on 10.03.2008 directing the DPC to consider promotions to the post of Additional Director. The petitioner was promoted as Additional Director on 29.03.2008 while the first respondent is yet to be promoted. The first respondent then filed O.A.No.2439 of 2007 claiming that the action of the official respondents in not considering his case for promotion as Additional Director of Industries in preference to the 3rd and 4th respondents (the petitioner and the 4th respondent herein) (who are facing disciplinary charges) is illegal and seeking a direction to the official respondents to promote him as Additional Director of Industries by excluding respondents 3 and 5 (i.e. the petitioner and the 5th respondent herein) from the zone of consideration, as per his eligibility, suitability and in accordance with the rules. The Tribunal extracting in extenso the contentions of the applicant (the first respondent herein) of the petitioner and the official respondents herein, in paragraphs 2 to 7 of its order. The ‘analysis’ and order of the learned Tribunal is recorded in paragraph 8 of its order, which reads: In the light of the contentions raised by both the parties, it is appropriate to direct the respondent No.1 and 2 to review the promotions given to the respondent Nos.3 to 5 by taking consideration the promotion list of Joint Director in G.O.Ms.No.228 dated 25.07.2003 and the disciplinary proceedings pending against the respondents 3 to 5 and pass appropriate orders according to the rules. The O.A. is accordingly disposed of directing the respondents No.1 and 2 to review the promotions given to the respondents No.3 to 5 by taking into consideration the promotion lit of Joint Director in G.O.Ms.No.228 dated 25.07.2003 and the disciplinary proceedings pending against the respondents 3 to 5 and pass appropriate orders according to the rules. Sri P.Gangaiah Naidu, learned senior counsel for the petitioner submits that the Tribunal failed to record any reasons whatsoever for directing the official respondents to review the promotions given to the petitioner, 4th and 5th respondents (respondents 3 to 5 in O.A.) by taking into consideration the promotional list of Joint Director in G.O.Ms.No.228 dated 25.07.2003 and the disciplinary proceedings pending against the respondents 3 to 5. It is contended that the final seniority list of Joint Directors issued in G.O.Ms.No.90 dated 24.04.2007 was not challenged in O.A.No.2439 of 2007, either expressly or by any implication in O.A. As G.O.Ms.No.90, the final seniority list in the category of Joint Directors is a formal act of the State (expressed by order and in the name of the Governor of Andhra Pradesh as required under Articles 162 and 166 of the Constitution) it must be formally challenged in judicial proceedings. It is further contended that the Tribunal failed to consider the fact that this Court by the interim order dated 04.06.2007 in W.P.No.10315 of 2007 had directed the official respondents to consider the case of the petitioner for promotion as per the earlier order of the Tribunal dated 25.01.2007 in O.A.No.7389 of 2006. In O.A.No.7389 of 2006 the Tribunal had directed that the case of the petitioner for promotion as Additional Director should be considered without reference to disciplinary proceedings pending against him. The validity of the earlier direction of the Tribunal was neither considered nor analysed in the judgment impugned herein. Per contra, Sri P.Balakrishna Murthy, the learned counsel for the first respondent contends that apropos Article 16(4-A), the State issued G.O.Ms.No.5, Social Welfare (S.W.-R.O.R.-I) Department, dated 14.02.2003 enabling reservation in promotions as well, in favour of the Scheduled Castes and Scheduled Tribes and in all services. Guidelines for operating the said reservation policy in promotions were issued in G.O.Ms.No.21, Social Welfare (ROR I) Department, dated 18.03.2003 wherein reservation in promotions is directed to be implemented in favour of the Scheduled Castes and Scheduled Tribes, in all categories of posts in all services whose total cadre strength is more than five. Since admittedly and demonstrably the number of posts available in the category of Joint Director is in excess of “5”, the affirmative action policy of the State pursuant to Article 16(4-A) and qua G.O.Ms.No.5 and in accordance with the guidelines issued in G.O.Ms.No.21 would operate, the petitioner entitled to be considered in accordance with the roster under Rule 22 of the A.P. State and Subordinate Service Rules and if so considered would be senior to the petitioner, is the contention of Sri Balakrishna Murthy. Notwithstanding that the first respondent is junior to the petitioner in the lower categories of Assistant Director and Deputy Director, the first respondent was considered (consistent with the affirmative action policy of the State in G.O.Ms.No.5 and G.O.Ms.No.21) and in G.O.Ms.No.228 dated 25.07.2003, a panel was drawn up for promotion of officers to category II posts i.e. Joint Directors of Industries wherein the first respondent is at Sl.No.8 (against a Scheduled Tribe vacancy) and was recommended for promotion. The petitioner was placed at Sl.No.24 (against an O.C. vacancy) and was recommended for promotion (in this panel). In accordance with this panel the first respondent ranks senior to the petitioner in the category of Joint Director and such seniority of the first respondent entitles his prior consideration for the next higher post of Additional Director is the contention on behalf of the first respondent. It is further contended by Sri P.Balakrishna Murthy that since the petitioner and the other non-official respondents are subject to pending disciplinary proceedings, the first respondent is entitled to exclusive consideration and appointment as Additional Director of Industries. It is also contended that the first respondent specifically challenged the seniority list of Joint Directors issued in G.O.Ms.No.90, in another O.A. and the same is pending; that O.A.No.2564 of 2007 filed by the petitioner herein against the order dated 30.04.2007 of the DPC (deferring his case for promotion as Additional Director) was dismissed. Sri P.Gangaiah Naidu, and Sri P.Balakrishna Murthy, learned counsel would respectively contend that the above O.As. filed by the respective parties were dismissed for default and the applications for restoration of the respective OAs. are pending. Be that as it may. In O.A.No.2439 of 2007 (whose order is impugned herein), the first respondent/applicant does not specifically challenge the seniority list in the category of Joint Director notified in G.O.Ms.No.90 dated 24.04.2007. The relief sought in O.A.No.2439 of 2007 proceeds on the syllogism that: a) Article 16(4-A) enables reservation in promotions as well; b) The State has acted in furtherance of the enabling architecture of Article 16(4-A) and issued G.O.Ms.No.5 providing for reservations in promotions; c) Guidelines for operating reservations in promotions were issued in G.O.Ms.No.21; d) In accordance with this affirmative policy of the State, the first respondent must rank senior to the petitioner and the non-official respondents herein in the category of Joint Director; and e) The seniority of the first respondent over the petitioner and the non-official respondents herein is reflected in the panel prepared in G.O.Ms.No.228 dated 25.07.2003, for promotions to the category of Joint Directors of Industries; In view of the above factual chronology and legal architecture, the seniority list issued in G.O.Ms.No.90 dated 24.04.2007 is patently illegal, a nullity and is void ab initio and should be eschewed and the official respondents directed to consider the first respondent’s case for promotion to the post of Additional Director in preference to the petitioner and the non-official respondents herein and ignoring the seniority list issued in G.O.Ms.No.90. In the considered view of this Court there is a fundamental flow in the assumptions of the first respondent and in the framing reliefs in O.A.No.2439 of 2007. G.O.Ms.No.90 is the notified and operative seniority list in the category of Joint Director which is the basis (being the feeder category) for promotions to the category of Additional Director. G.O.Ms.No.90 is a formal instrument issued by the State. The judicial branch including the Tribunal cannot disregard the formal executive expression of power reflected by G.O.Ms.No.90 except after formally invalidating or suspending its operation in a proper and formal proceeding. Till the G.O.Ms.No.90 is either invalidated finally or is suspended ad-interim, the inter se seniority in the category of Joint Directors as reflected in G.O.Ms.No.90 would operate proprio vigore. The petitioner and the first respondent must therefore be considered for the present in accordance with their inter se seniority positions as reflected in G.O.Ms.No.90. In our considered view, the order of the learned Tribunal impugned herein while commendable for its brevity must be held (with respect) to have recorded inadequate reasons on the relevant aspects adverted to herein. As relevant factors have not been considered (no such consideration is apparent from paragraph 8 of the order impugned), we set aside the order dated 10.03.2010 of the Tribunal in O.A.No.2439 of 2007 and remand the matter to the learned A.P. Administrative Tribunal for a de- novo consideration of the issues pleaded and arising in the said O.A. in accordance with law and with such expedition as is considered appropriate in the discretion of the learned Tribunal and in the light of the observations recorded herein. None of the observations made herein are however intended to be a pronouncement by this Court on the respective contentions of the petitioner or the first respondent with regard to their inter se seniority, either in the context of the validity of the order in G.O.Ms.No.90 (stated to have been challenged by the 1st respondent in another O.A.) or as regards the consequences flowing from the provisions of Article 16(4-A), G.O.Ms.No.5 or G.O.Ms.No.21. The learned Tribunal in the appropriate original applications shall consider the respective contentions of the parties, in accordance with law and dispose of the same on merits. With the above observations, the writ petition is disposed of. There shall however be no order as to costs. ____________________ GODA RAGHURAM,J ___________________ R. KANTHA RAO,J Date: 20.07.2010 Kvrm/ccm HON’BLE SRI JUSTICE GODA RAGHURAM AND HON’BLE SRI JUSTICE R.KANTHA RAO W.P.No.16342 of 2010 (Per Hon’ble GR,J) Date:20.07.2010