IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE THIRTY APRIL TWO THOUSAND AND TEN PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED And THE HON'BLE MR JUSTICE B. SESHASAYANA REDDY WRIT PETITION NO : 20662 OF 2007 Between: H. Shankaraiah, S/o Lingaiah and 2 others ..... Petitioners & 1. The Government of AP rep. by its Prl. Secretary, Finance Department (Works & Projects) Hyderarbad & Others. .....RESPONDENTS WRIT PETITION NO : 3253 OF 2007 Between: ..... Petitioners & 1. The Government of AP rep. by its Prl. Secretary, Finance Department (Works & Projects) Hyderarbad & Others. .....RESPONDENTS THE HON'BLE SRI JUSTICE GHULAM MOHAMMED & THE HON'BLE SRI JUSTICE B. SESHASAYANA REDDY WRIT PETITIONS NO.20662 & 3253 OF 2007 COMMON ORDER: (Per Hon’ble Sri. Justice Ghulam Mohammed) Since common question of law and facts are involved, both the writ petitions are heard together and are being disposed of by this common order. WP No.20662 of 2007: 2. This writ petition is filed challenging the order dated 10-9- 2007 passed by the Tribunal in OA No.5485 of 2005. 3. The writ petitioners herein are applicants in OA No.5485 of 2005. They filed the OA seeking to declare the action of the official respondents in not promoting them to the post of Divisional Accounts Officer, Grade-I, Assistant Pay and Accounts Officer (APAO) and Pay and Accounts Officer (PAO) respectively by taking into consideration the date of passing the divisional test, in preference to the unofficial respondents 3 to 102, who passed the divisional test later to the petitioners, as being illegal and arbitrary and consequently direct the official respondents to place them over and above respondents 3 to 102 in the seniority list in the cadre of Divisional Accounts Officers Grade-II (DAO Grade-II), and promote the petitioners retrospectively to the post of Divisional Accounts Officer (Works) Grade-I with effect from 21-7-1997, APAO, with effect from 26-7-2005 and PAO with effect from 24-8-2005 with all consequential service benefits including the arrears of pay and allowances. 4. It is the case of the petitioners that they passed the accounts test in the years 1986 & 1991 respectively and were appointed by transfer as Divisional Accounts Officer Grade-II in the year 1994 and the 1st petitioner was further promoted as Divisional Accounts Officer (Works) Grade-I on 30-11-2005. As per AP Divisional Accounts Officers Service Rules, 1980, for short, ‘the Special Rules’ framed by the Government of AP, under Article 309 of the Constitution issued in GO Ms.No.290, dated 11-11-1982, two categories were constituted viz., Category I: Divisional Accounts Officer (Works) Grade-I and Category 2: Divisional Accounts Officer (Works) Grade-II. The Special Rules contemplate direct recruitment as well as recruitment by transfer among the Superintendents and Senior Assistants, from various Engineering departments, who passed divisional test. The Divisional Accounts Officers Grade II, who were appointed by direct recruitment, shall have to pass the divisional test within the prescribed period of two years as per the orders envisaged in GO Ms.No.304 (F & P), dated 20-11-1979 and subsequent orders issued in GO Ms.No.308 (F & P) dated 7-12-1981 and GO Ms.No.290 (F & P) dated 11-11-1982. It is stated that in case of direct recruitment from open market, Rule 9 of the Special Rules contemplate that if one does not pass the divisional test, he shall be discharged from service with effect from the date of publication of results, but if his record of service as Divisional Accounts Officer Trainee is outstanding, it will be the discretion of the authorities to appoint him as Senior Assistant in any of the Public Works Division. It is also the case of the petitioners that they are entitled for seniority over and above those direct recruitees-unofficial respondents who have passed the divisional test much later to them. It is further the case of the petitioners that the official respondents did not fix their notional seniority as per the directions of the Supreme Court in JG PRASADA RAO vs. SECRETARY TO GOVERNMENT OF AP1 and the impugned seniority list prepared is in violation of the said judgment. 5. The Tribunal, by the impugned order dismissed the above OA. Aggrieved by the same, the present writ petition has been filed. WP No.3253 of 2007: 6. WP No.3253 of 2007 is filed challenging the order, dated 28-6- 2006 passed by the Tribunal in OA No.5469 of 2004. 7. The petitioners herein who are not the parties to OA No.5469 of 2004, have filed this writ petition with the leave of this Court. The petitioners herein, however, are the respondents in connected O.A.No.5485 of 2005, which is subject matter of WP No.20662 of 2007. 8. The case of the petitioners herein is that they were recruited through direct recruitment by the AP Public Service Commission to the cadre of Divisional Accounts Officer (Works) Grade-II, vide G.O.Ms.No.134 F & P (WA.I) Department dated 19-5-1987. Subsequently, they were promoted as Divisional Accounts Officer Grade-I and then as Assistant Pay and Account Officers (APAO) and are working in their present places since 29-8-2006. 9. It is stated that the 3rd respondent filed the above OA stating that he should have been considered for promotion to the post of Divisional Accounts Officer Grade-I, Assistant Pay and Accounts Officer and Pay and Accounts Officer taking into consideration the date on which he passed the prescribed departmental test viz., divisional test in May, 1983 and to promote him retrospectively. The petitioners stated that the 3rd respondent had not shown them as party respondents in the OA filed by him, though they were affected persons. By the impugned order, the Tribunal disposed of the said OA and pursuant to the directions issued by the Tribunal, the 2nd respondent issued Memo No.DWA/HYD/SN.I/AI/2006-07/404, dated 12-1-2007 proposing to review the seniority of the 3rd respondent and asked the petitioners herein and others to file objections. Aggrieved by the same, this writ petition has been filed. 10. Sri D. Linga Rao, learned counsel appearing for the departmental promotees contended that as per the Special Rules, the categories of officers created by Government (a) in any Department of Government (b) in Panchayat Raj Engineering Divisions and (c) in the Municipal Corporation of Hyderabad shall consists of :- Category I –Divisional Accounts Officers, Grade-I, Category II- Divisional Accounts Officers, Grade II and appointment to the post of Divisional Accounts Officers Grade-I shall be made by promotion from Category II and Divisional Accounts Officers Grade-II shall be made by direct recruitment and recruitment by transfer from among the Superintendents working in the Circles Offices of Roads and Buildings, Irrigation including Major Project, PH Engineering and Panchayat Raj Engineering Departments and Offices of Directors of Accounts of the Projects and if there are no qualified Superintendents, from among the Senior Assistants working in the offices of Director of Accounts in Projects, Senior Assistants working in the accounts branches of the Public Works Divisions (Roads and Buildings Irrigation Branch) including Major Projects and AP Port Department. It is also stated that in each unit of four vacancies, 1st and 3rd vacancies shall be filled in by direct recruitment from open market and 2nd and 4th vacancies by departmental promotees. 11. Learned counsel further contended that the un-official respondents who were appointed as Divisional Accounts Officers Grade-II by direct recruitment shall have to pass the divisional test within the prescribed period of probation of two years and if they fail to pass the divisional test, they shall be discharged from service as specified in Rule 9 of the Special Rules. Learned counsel stated that inasmuch as the un-official respondents have not passed divisional test within the three chances and within the prescribed period of probation of two years, but passed subsequently, the official respondents ought not to have placed them above the petitioners in the order of seniority as the petitioners possessed the requisite qualification and passed the divisional test much prior to their appointment to the post of DAO Grade- II. Learned counsel also submitted that the Government issued GO Ms.No.151, dated 22-6-2004 wherein it was stipulated that persons appointed to a post, but have not acquired the specified qualification at the time of their initial appointment, their services shall be regularized from the date of acquiring such qualification and as such the services of all the un-official respondents is required to be regularized from the date of acquiring special qualification i.e. passing of divisional test, as specified in their orders of appointment. Learned counsel placed reliance on the decision of the Supreme Court in JG Prasada Rao’s case (1 supra) to contend that the date of passing of divisional test is the criterion for determining the inter-se seniority in the cadre of DAO (Works) Grade-II, as it is pre-condition as per the Special Rules. 12. Learned Counsel for the petitioners further contended that the rule of rota and quota is meant for filling the number of vacancies, but not for fixing the inter se-seniority and that mere grant of extension of time for passing the divisional test will not amount to compliance of the Special Rules. Learned counsel lastly contended that un-qualified service cannot be counted for the purpose of seniority and seniority should be amongst eligible persons only and a person becomes member of the service only on his successful completion of probation and passing of prescribed test. 13. In support of his contentions, learned counsel relied on the decisions in S.BHEEM PRASAD vs. STATE OF AP,2 SHARAD vs. STATE OF MAHARASHTRA,3 OM PRAKASH SHRIVASTAVA vs. STATE OF MP,4 MUNICIPAL CORPORATION, RAIPUR vs. ASHOK KUMAR MISRA,5 FINANCIAL COMMISSIONER (REVENUE) vs. GULAB CHAND,6 ROSHAN LAL TANDON vs. UNION OF INDIA,7 R.PRABHA DEVI vs. GOVERNMENT OF INDIA,8 K. HARIDAS vs. HIGH COURT OF KERALA9 & SECRETARY, STATE OF KARNATAKA vs. UMA DEVI.10 14. Sri D. Prakash Redddy, learned senior counsel appearing for Sri K. Ramesh Babu, learned counsel for the direct recruitees, on the other hand, contended that the persons promoted in excess of promotees’ quota are not entitled to count the entire length of service for the purpose of seniority, which has to be assigned only from the date of availability of their quota and omission to make direct recruitment due to inaction on the part of the Government would not amount to breaking down of the quota rule. It is also stated that the total number of DAOs (Works) appointed by APPSC through direct recruitment from 1984 to 1995 was 126 and there is no direct recruitment since 1995. It is submitted that in Special Rules issued the Government clearly prescribed the rule of quota and rota and hence the promotees as a matter of right cannot put a claim on posts earmarked for direct recruits. It is stated that when promotion is outside the quota, the seniority would be reckoned from the date of vacancy within the quota, rendering the previous service fortuitous. It is further stated that promotions made would be regular only from the date of the vacancy within the quota and seniority shall be counted from the date of vacancy and not from the date of promotion and promotees appointed in excess of the quota shall have to be pushed down though it may work out hardship but it is unavaoidable and any construction otherwise would be illegal having the effect of nullifying the Special Rules and offend Articles 14 and 16 (1) of the Constitution. Learned senior counsel also submitted that as per Rule 3 of the Special Rules, in a unit of every four vacancies the 1st and 3rd have to be filled from open market i.e. direct recruits and 2nd and 4th vacancies by departmental promotees. It is also stated that as per Rule 36 (i) of AP State & Sub-ordinate Service Rules, 1996 in respect of the candidates selected by the APPSC, by direct recruitment, the seniority shall be with reference to the ranking assigned irrespective of date of commencement of probation in that category. 15. In support of his contentions, learned counsel relied on the decisions in MSL PATIL vs. STATE OFMAHARASHTRA,11 D. GANESH RAO vs. STATE OF JHARKHAND,12 & UTTARANCHAL FOREST RANGERS ASSOCIATION (DIRECT RECRUITS) vs. STATE OF UP.13 16. Sri JR Manohar Rao, learned counsel appearing for the direct recruits also stated that the direct recruits after their appointment have to pass the divisional test as contemplated under the Special Rules, but even otherwise, if they fail to pass the divisional test, the Government has power to relax the rule and the date of passing the divisional test is not the criteria for the purpose of fixing the inter-se seniority. 17. Learned Government Pleader for Services-II submitted that as per the ratio prescribed under the Special Rules for direct recruits and promotees, the strength of promotees has reached the requisite quota. It is also submitted that passing of the divisional test earlier than the direct recruits will not vest the departmental promotees a right to be appointed as DAO (Works) Grade-II. It is stated that the Government issued clear instructions vide Circular Memo No.16/Ser.A/93-39 of GA (Ser.A) Department, dated 21-4-1999 to the effect that the promotees cannot take the place of a direct recruitee in the slot earmarked for direct recruitment. It is further submitted that as the process of direct recruitment and the selections made thereto by the APPSC is statutory in nature, no modification at Government level is possible as to the ranking assigned to them, therefore the batch wise seniority, as per the assignment made by the APPSC holds good and is in terms of GO Rt.No.71, Finance & Planning (FW.WA-II) Department, dated 21-1-2000. It is lastly submitted that as per the Government Circular Memo No.57759/Ser.A/2004-1 of GA (Ser.A) Department, dated 20-5-2004, no request for revision of seniority shall be considered after lapse of three years period and as the last seniority list was issued in January 2000, no request for revision of seniority can be entertained now. 18. The controversy involved in these writ petitions is with regard to fixation of inter se seniority between the promotees and direct recruitees in the cadre of DAO Grade II. The matter rests on a narrow compass. The case of the petitioners-promotees is that they have passed divisional test and were appointed by transfer as Divisional Officers Grade-II and further promoted as DAO Grade-I and the un-official respondents-direct recruits have not passed the divisional test within three chances within the probation period of two years and they have passed the divisional test much later to them and therefore, the promotees are entitled for seniority over and above those unofficial respondents-direct recruits. 19. The case of the direct recruits is that the persons promoted in excess of promotees’ quota are not entitled to count the entire length of service for the purpose of seniority, which has to be assigned only from the date of availability of their quota and the promotees are recruited far in excess of their quota and against the direct recruits quota and therefore, the petitioners-promotees are not entitled to make any claim. 20. Right of promotion is not a fundamental right, but it is only a civil right. In matters of promotion, the only right that accrues is the right of consideration of the case for promotion. Discrimination cannot be made in favour of recruits from one source against the recruits from the other source in the matter of further promotion as once they are absorbed in one cadre they formed one class. The origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to the post the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. 21. Reliance is placed on the decision of the Supreme Court in JG Prasada Rao’s case (1 supra) and contended that inter-se seniority of the petitioners has to be fixed as per the directions of the Supreme Court in JD Prasada Rao’s case (1 supra). It is relevant to mention here that prior to 1980 Divisional Accountants were under the control of Accountant General, AP. But the Government took a decision to absorb them into State service on the recommendation made by Three Member Committee and accordingly issued GO Ms.No.304, dated 20-11-1979 and absorbed the Divisional Accountants from the administrative control of Accountant General subject to certain terms and conditions. Prior to taking over of the services of Divisional Accountants into State service, they were governed by the Manual of Accountant General issued by CAG (Controller and Auditor General) of India. The dispute in JD Prasada Rao’s case (1 supra) was among the Divisional Accounts Officers Grade-I and Grade-II who were appointed in terms of the Manual of Accountant General issued by Controlller and Auditor General of India and absorbed into State service. It was held that previous service rendered by them either as Divisional Accountants Grade-I or Grade-II, prior to taking over by the Government, has to be reckoned for the purpose of their eligibility for promotion to the next higher cadre and inter-se seniority should be determined with reference to the date of passing the accounts test and the respective annexures prepared by the State. The facts in JD Prasada Rao’s case (1 supra) are distinguishable to the facts on hand. In the instant case, the departmental candidates are promoted in excess of promotees quota and, therefore, they are not entitled to count the entire length of service for the purpose of seniority, and the seniority has to be reckoned only from the date of availability of their quota. Promotion in excess of quota makes an employee an ad-hoc employee and seniority cannot be given to such employees on the basis of ad-hoc promotion. When the promotion is outside the quota, the seniority would be reckoned from the date of the vacancy within the quota rendering the previous service otiose. The previous promotion would be regular only from the date of the vacancy within the quota. As stated above, Rule 3 of the Special Rules stipulate that in a unit of every four vacancies the 1st and 3rd have to be filled from open market i.e. direct recruits and 2nd and 4th vacancies by departmental promotees. 22. It is stated by learned counsel for direct recruits that while the cadre of erstwhile Divisional Accountants was under the administrative control of Accountant General AP, all the posts were filled in by direct recruitment and those directly recruited Divisional Accounts Offices have to undergo rigorous training and those who pass the divisional test alone were posted as regular DAOs to discharge the functions as such and rest were continued as trainee DAOs till they passed the divisional test. It is stated that the Divisional Accountants of 1971 batch had been under training upto 1974 i.e., nearly three years and none of them was discharged from service and after the cadre was taken over by the State Government, the direct recruitee DAOs are posted to divisions as a matter of routine and owing to the work load in Division Offices and several other factors some of them could not pass within three attempts and since they were not allowed to take the examination beyond three attempts they had to wait till the relaxation orders in GO Ms.No.259 F & P (FWWA-I) Department, dated 23-7-1994 were issued. 23. A person appointed by direct recruitment to the post of Divisional Accounts Officer, Grade-II shall pass the divisional test examination within the period of probation. A person who does not pass the divisional test within the prescribed period shall be dealt with (a) if he is a departmental candidate, he shall be reverted to his parent department (b) if he is a direct recruit, he shall be discharged from service with effect from the date of publication of the results of the last examination. If his record of service as Divisional Accounts Officer Trainee is outstanding, the appointing authority may, at his discretion, recommend his appointment as Senior Assistant in any division. 24. But the Government relaxed Rules 7 and 9 of the Special Rules in GO Ms.No.259, dated 23-7-1994. Relevant portion of GO Ms.No.259, reads as follows: “9.Every person appointed by direct recruitment to the post of Divisional Accounts Officer, Grade II shall pass the Divisional Test Examination within the period of probation. Provided that if a direct recruit Divisional Accounts Officer-Grade II does not pass the Divisional Test Examination during the period of probation, the period of probation shall be extended upto a maximum period of six years from the date of completion of training allowing him a maximum of any six chances to pass the Divisional Test within the extended period of probation…” 25. To buttress the contention that a person becomes a member of service only on his successful completion of probation and passing of the prescribed test and passing of departmental test was a pre-requisite for regularization, learned counsel relied on the decisions of the Apex Court stated supra. In Sharad’s case (3 supra) it was held thus:- “18.We fail to understand as to what was the occasion for grant of such purported exemption. Appellant in fact had appeared in January 1987 examination. We, therefore, did not find any reason as to why he could have been granted any exemption from appearance. It is also conceded that there is no provision for grant of exemption in respect of 'attempt' which is purported to have been done in respect of the examination held in July 1987. It, furthermore, does not appear from the order passed by the learned Tribunal as also by the High Court that even such a contention had ever been raised before the said forums. Furthermore, the power to grant exemption is contained in Rule 6 of the Rules. It is not a well settled principle of law that in the event the power of exemption are hedged with conditions, those conditions must be satisfied before an order of exemption is passed. 19. The power of exemption are confined to such cases where the employee concerned had attained the age of 45 years on the appointed date or at any date thereafter. Conditions for grant of exemption so far as the appellant is concerned, thus, also do not appear to have been fulfilled. 20. It is also, in our opinion, incorrect to contend that five chances must be counted from July 1986. The Rules do not put an embargo on appearance at the examination by a trainee. The Rules are statutory in nature. They were required to be followed by all concerned. No reason has been assigned as to why appellant as a trainee could not appear at the examination held in July 1985 and January 1986. The requirements to pass the examination within a period of two years in three chances must, therefore, be counted from July 1985 and not from July 1986. 21. The consequence of not passing the departmental examination, in, that he would loose his seniority and would be placed after all those who had passed or exempted from passing the examination before him. The rule relating to appearance at the examination and the consequent failure to pass the same would entail the consequences which have been laid down in the Rule. We, therefore, do not find that any illegality has been committed by the respondents in placing the appellant below those who had passed the examination prior to him.” 26. In Om Prakash’ case (4 Supra) at para 10 it was held thus: “10. A bare reading of sub-clause (ii) of clause (a) of Rule 12 makes the position clear that the appointing authority has to decide as to from what date the direct recruit is to be assigned. It has to be decided whether seniority as assigned to him if he had been confirmed on the expiry of the normal period of probation or whether he should be