IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE SECOND DAY OF APRIL TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION Nos. 6935 of 2007 and 2291 of 2008 WRIT PETITION No. 6935 of 2007 Between: Tirumala Tirupati Devasthanams, rep by its Executive Officer, Tirupati, Chittoor District ..... PETITIONER AND 1 The National Commissioner for Scheduled Castes, rep by its Secretary, Government of India, 5th Floor, Loknavak bhavan, Khan Market, New Delhi-110003. 2 Sri P. Jagadeesh babu Maintenance-4, Tirumala Tirupati Devasthanams, Tirumala, Chittoor 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 call for the records from the 1st respondent and issue an appropriate Writ, order or Direction, particularly one in the nature of Writ of mandamus, declaring that the order passed by the 1st respondent in proceedings No. P-6/AP-26/2006-SSW-I dated 12-01-2007, directing the petitioner Devasthanams to consider the case of 2nd respondent for promotion as Deputy Executive Engineer from 1984 with consequential promotion and benefits, as illegal, unjust, contrary to law and without Jurisdiction; andpass such other order or orders as deemed fit and proper in the circumstances of the case. Counsel for the Petitioner: MR.A.K.JAYAPRAKASH RAO Counsel for the Respondent No.1: MR. PENJURI VENUGOPAL. Counsel for the Respondent No.2 : MR.T.RAJENDRA PRASAD *** WRIT PETITION NO : 2291 of 2008 Between: P.Jagadeesh Babu, S/o.Jayaramdas, T.T.D, Tirumala Chittoor Dist ..... PETITIONER AND 1 T.T.D. Rep.by its E.O, Tirupathi,Chittoor Dist 2 The Govt.Of A.P, rep.by its Principal Secretary Revenue(EndowmentsIII) Department,Secretariat,Hyd .....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 any appropriate writ, order or direction preferably a writ in the nature of Mandamus, declaring the order dt.6-12-2007 made in proceedings Roc.No.TLI/6119/2001 issued by the 1st respondent as being illegal, arbitrary un-constitutional and set aside the same consequently direct the 1st respondent to forthwith fix up the notional seniority of the petitioner in the cadre of Deputy Executive Engineer from 1984 in S.C Vacancy and direct the effect subsequent promotions with all consequential benefits. Counsel for the Petitioner: MR.T.RAJENDRA PRASAD Counsel for the Respondent No.1: MR. PENJURI VENUGOPAL Counsel for the Respondent No.2: GP FOR ENDOWMENTS The Court made the following : COMMON ORDER: The issue involved in these two writ petitions is identical and therefore they are heard together and are being disposed of by this common order. 2. Sri.P.Jagadeesh Babu is the petitioner in W.P.No.2291 of 2008. He was selected and appointed as Assistant Engineer (formerly known as Supervisor) in the SC backlog vacancy of the year 1976 on 15.3.1979. Regular recruitment was made in the year 1978 for the posts of Assistant Engineers. Appointment orders were issued to the selected candidates for the regular recruitment year 1978 on 6.1.1979. Appointment order to the petitioner, who was selected in 1976 backlog vacancy, was issued on 2.3.1979. The backlog vacancy was notified in the year 1979 and the petitioner was selected and appointed on 2.3.1979. The petitioner made a representation to fix his seniority over and above the persons who were selected for the regular recruitment year 1978. His representation came to be rejected by Tirumala Tirupati Devasthanam represented by its Executive Officer under proceedings dated 14.7.2004. The petitioner assailed the rejection order by filing W.P.No.1355 of 2005. The said writ petition came to be disposed of directing the respondent to implement the orders of the government dated 17.1.2004 and also made an observation that while implementing the said orders if the seniority of any of the juniors is being affected, Tirumala Tirupati Devasthanam (hereinafter referred to as TTD) shall give an opportunity to those persons and pass appropriate orders within a period of two months from the date of receipt of a copy of this order. The TTD filed W.A.No.2176 of 2005. The said appeal came to be allowed on 22.6.2006. The relevant portion of the order passed in the writ appeal reads as under: “ The order of the learned single judge to the extent the appellant herein has been directed to implement the orders of the government dated 17.1.2004 is set aside. However, in compliance with the order of the learned single Judge, the appellant herein shall give an opportunity of hearing to the 1st respondent – writ petitioner and all other affected persons and take an independent decision, without being influenced by the government memo dated 17.1.2004, as to whether or not the seniority list of Assistant Engineers requires revision.” In pursuance of the directions in the writ appeal, TTD issued notice to the petitioner and others who are being affected. All the effected persons including the petitioner appeared on 31.3.2006 and TTD permitted them to submit related evidence in support of their respective claims. TTD examined the objections and bio-data and service particulars furnished by the individual employees. It revealed that the petitioner completed his diploma in civil engineering on 28.9.1978 and registered his name in the employment exchange in October 1978 and he was called for interview for the post of Assistant Engineer in January, 1979. As on the date of calling for the list of candidates for the regular recruitment year 1978, the petitioner did not even acquire the requisite qualification of diploma in civil engineering and did not enroll his name in the employment exchange. The selection of candidates for the regular recruitment year 1978 was completed on 14.12.1978 and appointment orders were issued to the selected candidates and the selected candidates joined in service on 6.1.1979. Whereas the name of the petitioner was sponsored by the employment exchange for backlog SC vacancy of the year 1976, which came to be notified in the year 1979 and appointment order was issued to the petitioner on 2.3.1979, and he joined as Assistant Engineer in TTD on 15.3.1979. The grievance of the petitioner all through is that he should be placed above the candidates who got selected and appointed on 6.1.1979. TTD passed orders on 15.10.2006 pursuant to the directions given in the writ appeal. The petitioner approached National Commission for Scheduled Castes, New Delhi complaining that TTD had not followed the rule of reservation in promotion post of Deputy Executive Engineer. The National Commission for Scheduled Caste entertained the complaint of the petitioner and passed the following order: “ On perusal of the petitioner and their documents submitted by the TTD officials, the following observations are made: The petitioner, Shri.P.Jagadish Babu was appointed as a Supervisor (AE) by direct appointment under SC backlog post of Roster point No.2/1 cycle during the year 1979 which was bought forward from the year 1976. During the year 1984, 28 Deputy Executive Engineer posts were filled up by promotion without maintaining the roster and constituting DPC. The petitioner fulfilled all required qualifications for promotion as Deputy Executive Engineer by 1984. As per Rule 22 of AP SSS Rules, rosters one to be maintained for each cadre service, category etc. for both D.R. for promotion of the Roster registers would have been maintained the name of Shri.P.Jagadish babu would have figured in the promotion list by 1984 itself. The recruitment to the post of Dy.Executive Engineer was done by D.R. and promotion. Out of 28 Promotions made to the post of Dy.Exe.Engineer, there was not even a SC candidate given promotion. Further, guidelines laid documents as per G.O.No.337 GAD dated 18.6.1983 were not followed. The TTD management has not fixed any ratio for JEs and supervision who are holding degree and diploma. The petitioner is eligible for promotion within requisite qualification i.e. Dip. In Engineering within 5 years experience and pass in Accounts Test. In TTD when promotion were effected in 1992 also, his juniors (degree holders) were promoted based on the required qualification as per rules and the case of Shri.P.Jagadish babu was not considered. The above points may be communicated the TTD authorities and requested to consider his case for promotion as DEE from 1984 with consolidated promotion and benefits. File may be sent to the Hon’ble Member (DV) for kind perusal and further orders please.” 3. The National Commission for Scheduled Castes communicated the order dated 29.12.2006 for necessary action under letter dated 12.1.2007 for necessary action. The said letter is under challenge in W.P.No.6935 of 2007 by TTD. For better understanding of the grievance of the petitioner-TTD in W.P.No.6935 of 2007 I deem it appropriate to refer paras 14 to 16 of the affidavit, which read as under: “ 14. It is submitted that as per Rule 16 of the A.P. State and Subordinate Service Rules, a person appointed in accordance with the rules, otherwise than under Rule 10, by direct recruitment shall commence his probation from the date of his joining the duty. As per Rule 33(a) of the said Rules, the seniority of a person in a service, class, category or grade shall be determined by the date of his first appointment to such service, class, category or grade. It is further submitted that as per para 4 (iv) of G.O.Ms.No.277, dated 22.3.1976 the unfilled vacancies in any recruitment year shall be carried forward to the next recruitment year and it has to be filled by scheduled caste/scheduled tribe, as the case may be in the next recruitment year. As per para 4(iv) of the said G.O. in the beginning of each year the particulars of roster brought forward from previous year should be noticed in the register and appointment to such reserved vacancies be made first before the cycle of rotation is continued from the last point of the previous recruitment year. In the present case the roster point 2/1, 16/1 and 22/1 are reserved for scheduled caste and 8/1 is reserved for scheduled tribe, which were left unfilled was carried forward to the next recruitment year, i.e. in the year 1979. Accordingly, as the only candidate i.e. the 2nd respondent was available for recruitment interview was conducted in 1979 and he was given appointment on 2.3.1979 and the 2nd respondent joined duty on 15.3.1979. It is further submitted that the contention of the 2nd respondent that he has to be placed on the top of the persons recruited in the recruitment year 1979 is justified. But the 2nd respondent cannot seek that he should be placed over and above persons recruited in the previous years. It is submitted that the seniority of the 2nd respondent has to be fixed only from the date of appointment in the petitioner- Devasthanams in the cadre of Assistant Engineer as per rule 33(a) r/w Rule 16 of the A.P. State and Subordinate Service Rules. Accordingly, the seniority of the 2nd respondent was fixed by the petitioner. It is respectfully submitted that in pursuance of the directions given by the Division Bench of this Court in W.A.No.2176 of 2005 dated 22.6.2006 the petitioner gave opportunity to all the persons and passed a speaking order on 15.10.2006, taking into consideration the contentions of all the persons including the 2nd respondent. It was informed to the 2nd respondent that in pursuance of the orders passed in the writ appeal, the matter has been examined in detail and found no reason to revise the existing seniority of the following employees in the Assistant Engineer cadre: 1) N.Monoharan 2) B.O.Deva Kumar 3) T.Venkateswarlu 4) U.V.Subramanyam 5) C.Ravi Varma 6) N.Nadamuni 7) P.Jagadeesh Babu. 15. It is submitted that the 2nd respondent in pursuance of the directions given by this court in W.A.No.2176 of 2005 dated 22.6.2006 submitted a representation before the 1st respondent on 26.7.2006, seeking a direction that the petitioner may be directed to decide the case of the 2nd respondent for promotion from time to time from 1984 with all consequential benefits. 16. I humbly submit that in pursuance of the representation submitted by the 2nd respondent, the 1st respondent called for report in respect of allegations made by the 2nd respondent and accordingly the Petitioner Devasthanams submitted a report to the 1st respondent on the representation of the 2nd respondent. It is further submitted that the 1st respondent issued summons to the Petitioner Devasthanams to appear on 15.11.2006 and again on 12.12.2006. Accordingly, the petitioner appeared before the 1st respondent on 12.12.2006 and submitted all the papers including the judgment rendered by this Hon’ble Court. It is respectfully submitted that the 1st respondent erroneously usurped the jurisdiction not vested in him in respect of the claim already adjudicated by this Hon’ble Court and which has become final, and in pursuance of the directions given by this Hon’ble Court, the Petitioner Devasthanams passed orders on 15.10.2006 and the 2nd respondent, if at all aggrieved, he ought to have challenged the same before this Hon’ble Court. But instead of challenging before this Hon’ble Court, 2nd respondent approached the 1st respondent and the 1st respondent, without considering the legal contentions and factual contentions, erroneously directed to consider the case of 2nd respondent for promotion as Deputy Executive Engineer from 1984 with all consequential promotion and benefits. It is not out of place to mention that on the basis of seniority, the 2nd respondent was given promotion on 30.12.2005.” 4. Rule Nisi came to be issued on 5.4.2007. The order impugned in the writ petition came to be suspended on the even date vide WPMP.NO.8839 of 2007. The 2nd respondent-P.Jagadeesh Babu entered appearance and filed WVMP.No.2301 of 2007. This court disposed of the vacate stay petition on 4.10.2007. The relevant portion of the order reads as under: “ In the order passed by TTD on 15.10.2006 there is no reference as to whether the case of R2 was considered as per the constitutional provisions, particularly Article 16(4A). On the other hand, learned counsel for the petitioner strenuously contended that simply because R2 is appointed in 1979 under the reserved category of Sc, he has no right whatsoever to be promoted to the higher post as per Article 16(4A) of the Constitution of India. Prima facie, I am of the opinion that R2 is entitled for higher promotions whenever a roster point is available in the said promotional categories for SC candidates, as per Article 16(4A) of the Constitution of India. This seems to have not been considered by the petitioner. Under those circumstances, the interim order is modified as under: “The petitioner is directed to consider case of R2 for promotion to the post of Deputy Executive Engineer. If there is any roster point available against the cadre strength of that promotional post, R2 shall be considered as per the provisions of Article 16 (4A) of the Constitution of India, and pass appropriate orders, within a period of eight weeks from the date of receipt of a copy of this order.” Pursuant to the order passed in the vacate stay petition, the TTD reconsidered the case of P.Jagadeesh Babu and issued proceedings dated 6.12.2007 negativing the claim of P.Jagadeesh Babu of his promotion to the post of Deputy Executive Engineer prior to 14.2.2003. The said proceedings are challenged in W.P.No.2291 of 2008. 5. Heard learned counsel appearing for the parties and perused the affidavits filed in support of the writ petitions and counter affidavits filed thereto. 6. The parties are hereinafter referred to as they are arrayed in W.P.No.2291 of 2008. 7. At the cost of repetition I may state that W.P.No.2291 of 2008 is filed by P.Jagadeesh Babu assailing the proceedings dated 6.12.2007 issued by TTD pursuant to the interim directions passed by this court in WPMP.No.8839 of 2007 in W.P.No.6935 of 2007 and whereas TTD filed W.P.No.6935 of 2007 with a prayer to issue a writ of mandamus declaring the order passed by the National Commission for Scheduled Castes, New Delhi in proceedings dated 12.1.2007 directing to consider the case of P.Jagadeesh Babu for promotion as Deputy Executive Engineer from 1984 with consequential benefits and promotions as illegal, unjust and contrary to law. 8. Learned counsel appearing for the petitioner submits that the petitioner is entitled to seniority over and above the regular recruited candidates in the year 1978 since he came to be recruited in the backlog vacancy of the year 1976. He further submits that TTD has not followed the rules and regulations and also instructions or orders issued by the Government from time to time with regard to reservation in promotions and thus the action of TTD in not promoting the petitioner to the post of Deputy Executive Engineer by following rule of reservation in promotions is highly unjustified and in which case necessary direction need to be given to TTD to promote the petitioner to the post of Deputy Executive Engineer from the date of getting his eligibility i.e. from the year 1984. He further submits that the petitioner is to be considered as senior to all the persons who have been appointed pursuant to the regular recruitment notifications commencing from the year 1976 since the petitioner came to be appointed in the backlog vacancies of 2 of 1st cycle of 25 vacancies of the year 1976. He would also contend that the impugned proceedings do not speak of promotion being given to the petitioner pursuant to the implementation of Article 16(4A) in the Constitution of India. Learned counsel by referring the list of candidates promoted to the cadre of Deputy Executive Engineers w.e.f. 1976 contends that some of the persons who joined in service subsequent to the petitioner have been promoted as Deputy Executive Engineers and thus the action of TTD in not promoting the petitioner as Deputy Executive Engineer in the year 1984 is contrary to the rule of reservation in promotions as enshrined in Article 16(4A) of the Constitution of India. 9. Learned counsel appearing for TTD contends that the petitioner joined in service on 15.3.1979 and whereas other candidates were selected pursuant to 1978 regular recruitment notification and therefore the petitioner cannot claim seniority over the candidates who joined in service on 6.1.1979. In elaborating his arguments, he contends that the candidates who joined in service as Assistant Engineers on 6.1.1979 are pursuant to 1978 regular recruitment and whereas the petitioners joined in service on 15.3.1979 pursuant to 1979 back log recruitment notification. To buttress his submissions, learned counsel refers to Rules 16 and 33 of A.P. State and Subordinate Service Rules. He would also contend that rule of reservation in promotion came to be implemented in TTD from February 2003 as per G.O.Ms.No.5, dated 14.2.2003 and the petitioner has been given the benefit of the said G.O. and accordingly promoted to the post of Deputy Executive Engineer on 30.12.2005. Learned counsel contended that the petitioner approached this Court earlier by filing writ petitions and ultimately a direction came to be issued in W.A.No.2176 of 2005 to hear the petitioner and other effected parties and pass appropriate orders. The petitioner having approached this court and got direction is not justified in approaching the National Commission for Scheduled Castes, New Delhi, with self same complaint. He took me to the provisions enunciated in a book titled as A BRIEF HAND BOOK, published by Government of India with regard to the powers of National Commission for Scheduled Castes. Guideline No.4 of the said book reads as under: “ 4. What you can do? In case of grievance of any nature, individuals as well as Scheduled Caste Associations (recognized/un-recognized) can represent the matter directly to the Chairman/Members or any other authorized authority of the Commission in writing on a plain paper. Petitioner should give full address; grievance and remedy sought should be briefly narrated. All petitions will be acknowledged and Commission will maintain transparency while investigating the contents of the petition. The following aspects may be kept in mind while filing complaints before the Commission: 1) The complaint should be directly addressed to the Chairman/Vice Chairman/Secretary, National Commission for Scheduled Castes, New Delhi or the head of its State Offices. 2) The complainant should disclose his full identity and give his full address and should sign the representations. 3) Complaints should be legibly written or typed and, wherever necessary supported by authenticated documents. 4) No action will be taken on matters which are subjudice. Hence subjudice matters need not be referred to the Commission as complaints. 5) Cases pending in Courts or cases in which a Court has already given its final verdict may not be taken up afresh with the Commission.” 10. The core issue involved in these writ petitions is whether the petitioner is entitled to seniority over and above the 1978 regular recruitment batch? 11. It is a matter of record that TTD made regular recruitment for the post of Assistant Engineers in the year 1978 and backlog recruitment in the year 1979 in respect of Scheduled Caste. The Assistant Engineers recruited pursuant to 1978 regular recruitment notification joined in service on 6.1.1979 and whereas the petitioner who came to be recruited in 1979 for the backlog vacancy of 1976 joined in service on 15.3.1979. On a reading of Rules 16 and 33 of A.P. State and Subordinate Service Rules, I am in no doubt to conclude that the petitioner commenced his probation from 15.3.1979 whereas the candidates who came to be recruited pursuant to 1978 regular recruitment commenced probation from 6.1.1979. The TTD has specifically pleaded in the counter affidavit in W.P.No.2291 of 2008 that the petitioner failed to pass the test within the probation period and therefore his seniority in the cadre has been commenced from the date of regularization i.e. 2.11.1981. Para 25 of the counter affidavit reads as under: “ 25. It is respectfully submitted that the allegation of the petitioner that juniors to him were promoted as Deputy Executive Engineers is absolutely incorrect. It is submitted that no junior to the petitioner was promoted as Deputy Executive Engineer. In fact, the petitioner was considered for promotion as Deputy Executive Engineer by over looking his seniors in Assistant Engineer cadre due to implementation of rule of reservation in promotions. It is further submitted that services of petitioner was regularized w.e.f. 2.12.1981, even though he was appointed as Assistant Engineer (Supervisor) on 15.3.1979, because the petitioner failed to pass prescribed test within his probation period. In the regularization orders it was clearly mentioned that seniority of petitioner in the cadre will commence only from the date of regularization i.e. from 2.12.1981. Therefore, the petitioner is not eligible for consideration promotion to the higher post from the year 1984 as claimed by the petitioner.” 12. There is no reply affidavit filed by the petitioner-P.Jagadeesh Babu contradicting the specific stand of the T.T.D. in the counter-affidavit with regard to his not passing the test within the probation period and subsequently clearing the tests and thereby his services came to be regularized with effect from 02.12.1981. As per Rule 16 of the A.P. State and Subordinate Services Rules, 1996, probation of a direct recruitee commences from the date of his appointment. Indisputably, the petitioner-P.Jagadeesh Babu came to be appointed subsequent to the 1978 regular recruitment candidates. Therefore, the petitioner cannot claim seniority over the 1978 recruitment candidates. By the date of the petitioner-P.Jagadeesh babu entering into service, he was governed by the Tirumala Tirupati Devasthanams’ Office Holders and Servants (other than hereditary office holders) Recruitment Rules, 1978, which came to be published through G.O.Ms.No.1350, Revenue (Endowments-III) Department, dated 02.08.1978. As per the Service Rules then in vogue, there was no post of Deputy Executive Engineer. The promotion post from the cadre of Assistant Engineer was the post of Executive Engineer. The relevant portion of the Service rules applicable to Engineering Branch (civil) read as follows: “II. ENGINEERING BRANCH (CIVIL) 1.Super- intending Engineer. 1.By loan of service of S.Es., from Government or 2. By promotion from the category of E.E., Same as those prescribed f o r the post of Superintending Engineers (PW.D.) in Government service. Selection post 2. Executive Engineer a) By promotion of Assistant Engineer, b) By loan