HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE NOUSHAD ALI + W.P.Nos.3089, 3274, 3381 and 3859 of 2004 % Dated 28.01.2010 # A. Balaram Reddy & others ….Petitioners Vs. $ K.V. Narasimha Murthy & others ….Respondents ! Counsel for petitioner : Sri S. Sriram Reddy ^ Counsel for Respondent No.1 : Sri J. Prabhakar Counsel for Respondent No.4 : Sri V. Venkataramana Counsel for Respondent No.6 : Sri A. Rajasekhar Reddy Counsel for Respondent No.7 : Sri B. Adinarayana Rao Counsel for Respondent Nos. 2 and 3: GP for Services II <GIST: > HEAD NOTE: ? Cases referred 1997(4) ALD 395 (D.B.) AIR 1990 Supreme Court 1607 (2003)8 Supreme Court Cases 1 (1998) 5 Supreme Court Cases 468 (2000) 10 Supreme Court Cases 383 (2009) 4 Supreme Court Cases 170 AIR 1984 Supreme Court 161 1970 SLR 351 AIR 1979 Supreme Court 193 AIR 1990 Supreme Court 1607 1972 Andhra Weekly Reporter 370 HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE NOUSHAD ALI W.P.Nos.3089, 3274, 3381 and 3859 of 2004 COMMON ORDER: (Per Hon’ble Sri Justice A. Gopal Reddy) All these petitions are filed under Article 226 of the Constitution of India seeking to quash the order dated 06.02.2004 passed by the Andhra Pradesh Administrative Tribunal, Hyderabad in O.A.No.926 of 1997, which was disposed of by the Tribunal along with O.A.No.1854 of 1998 filed by the 4th respondent in O.A.No.926 of 1997. As all these petitions are filed against the very same order and since the parties in these petitions and the parties before the Tribunal are same, these petitions are heard together and are being disposed of by this common order. For the sake of convenience, the parties herein are referred to as they are arrayed before the Tribunal in O.A.No.926 of 1997. Applicant before the Tribunal in O.A.No.926 of 1997 (1st respondent in all these writ petitions) challenged the proceedings in Dis.No.2169/96/SC dated 29.10.1996 passed by the Special Court under Andhra Pradesh Land Grabbing (Prohibition) Act, Hyderabad (hereinafter referred to as ‘the Special Court’), wherein the services of the writ petitioners were regularized in the post mentioned in the order therein and sought to promote him to the post of Assistant Section Officer from the date of passing the departmental examination or from the date of the impugned proceedings and for consequential benefits. Applicant in O.A.No.1854 of 1998 (4th respondent in O.A.No.926 of 1997 and the 5th respondent in W.P.Nos.3089 and 3274 of 2004) sought for a direction to consider his case for promotion to the post of Assistant Section Officer under Rule 15 read with Rule 4 of the Andhra Pradesh Land Grabbing (Prohibition) Special Court (Officers and Employees) Service Rules (hereinafter referred to as ‘the Service Rules’) as regular promotion instead of on temporary basis under Rule 16 of the Rules. The facts, in brief, which led to filing of the O.A.926 of 1997 before the Tribunal are as follows. The applicant in O.A.No.926 of 1997 (1st respondent in all the writ petitions) was appointed as Assistant in the Special Court as per the proceedings in Dis.No.455/92 dated 10.06.1992, joined on 11.06.1992 and his services were regularized with effect from that date. He was declared as full member in the category of Assistant as per the Special Court’s proceedings in Dis.No.956/96 dated 30.04.1996. On his passing the Accounts Test for Subordinate Officers Part I and the Civil Judicial Test Parts I and II became eligible for promotion to the post of Assistant Section Officer in Category II as prescribed under the Service Rules. He stood qualified in the last requisite test i.e. the Civil Judicial Test Part-I, held on 10.06.1996, and thereby become eligible for promotion to the post of Assistant Section Officer from the date of passing the test i.e. 10.06.1996. The 3rd respondent in O.A.No.926 of 1997 (petitioner in W.P.No.3381 of 2004) was initially appointed as Record Keeper in the Special Court vide proceedings in Dis.No.1533/Estt/20/91 dated 31.12.1991 and was shifted to the post of Assistant with effect from 09.02.1994 since both the posts carry the same scale of pay. His services as Record Keeper were not regularized because the proposals for amendment of service rules in respect of conversion of the post of Record Keeper to the post of Assistant were pending. However, during the pendency of the application, after due correspondence with the Government for amendment to the Service Rules regarding the post of Record Keeper, the Service Rules were amended through G.O.Ms.No.1239 Revenue (Act & Rules) Department dated 21.06.2005 ordering retention of the post of Record Keeper in Category-6(c) instead of the post of Record Assistant in Category-10. His services as Assistant were regularized with effect from 09.02.1994 vide Special Court’s proceedings in Dis.No.1358/95 dated 25.09.1995. He was also declared as approved probationer as per the Special Court’s proceedings in Dis.No.2179/96 dated 31.10.1996. He was temporarily promoted as Scrutiny Officer as per the Special Court’s proceedings in Dis.No.1570/95 dated 24.10.1995 under Rule 16 of the Service Rules and his services were regularized as such as per the proceedings in Dis.No.2169/96 dated 29.10.1996. The 4th respondent in O.A.No.926 of 1997 (5th respondent in W.P.Nos.3089 and 3274 of 2004 and the applicant in O.A.No.1854 of 1998) was initially appointed as Typist with effect from 18.04.1988 and his services were regularized as such with effect from 18.04.1988. He was converted as Assistant with effect from 26.10.1995 without prejudice to his seniority as per the proceedings of Special Court in Dis.No.1585/95/Estt/SC dated 26.10.1995 and later he was promoted as Assistant Section Officer with effect from 28.08.1996. The 5th respondent in O.A.No.926 of 1997 (petitioner in W.P.No.3089 of 2004) was initially appointed as Bailiff with effect from 18.03.1993 as per the Special Court’s proceedings in Dis.No.304/93/Estt/SC dated 18.03.1993 and he was temporarily promoted as Assistant with effect from 22.07.1994 vide proceedings in Dis.No.842/94 dated 22.07.1994 under Rule 16 of the Service Rules and his services were regularized and was declared full member in the category of Assistant with effect from 22.07.1994 as per the proceedings in Dis.No.956/96 dated 30.04.1996. He was promoted as Assistant Section Officer with effect from 24.10.1995 on temporary basis under Rule 16 of the Service Rules. The 6th respondent (petitioner in W.P.No.3859 of 2004) was initially appointed as Assistant with effect from 08.02.1994 as per Special Court’s proceedings in Dis.No.176/94 dated 08.02.1994 and his services as such were regularized and he was declared as full member in category of Assistant as per Special Court’s proceedings in Dis.No.956/96 dated 30.04.1996. He was promoted temporarily as Assistant Section Officer as per Special Court’s proceedings in Dis.No.79/96 dated 16.01.1996 under Rule 16 of the Service Rules and his services were regularized in that category. Similarly, the 7th respondent (petitioner in W.P.No.3274 of 2004) was initially appointed as Typist with effect from 23.07.1994 as per Special Court’s proceedings in Dis.No.850/94 dated 23.07.1994 and her services as Typist were regularized in Special Court’s proceedings in Dis.No.1358/95 dated 25.09.1995 and she was declared full member in the category of Typist as per Special Court’s proceedings in Dis.No.2179/96 dated 31.10.1996. She was temporarily promoted as Scrutiny Officer as per the Special Court’s proceedings in Dis.No.247/96 dated 12.02.1996 under Rule 16 of Service Rules and her services were regularized in this category. Though the 4th respondent, who is the applicant in O.A.No.1854 of 1998, was initially appointed as Typist with effect from 18.04.1988 and was converted as Assistant with effect from 26.10.1995 without prejudice to his seniority as per the proceedings of Special Court in Dis.No.1585/95/Estt/SC dated 26.10.1995 and was later promoted as Assistant Section Officer with effect from 28.08.1996, the said conversion has not been challenged in O.A.No.926 of 1997. The applicant in O.A.No.926 of 1997, on his becoming eligible for promotion to the post of Assistant Section Officer made a representation dated 03.09.1996 to the Registrar of the Special Court stating that the 4th respondent, who was confirmed as Typist with effect from 18.04.1988, and was a Typist till he was converted as Assistant on 26.10.1995 on his own request and in the said conversion proceedings it was mentioned that his (4th respondent) seniority as Typist would not be effected and the date of conversion of the 4th respondent to the post of Assistant from the post of Typist i.e. 26.10.1995 is subsequent to the date of his (applicant) appointment as Assistant i.e. 11.06.1992. He also mentioned therein the second proviso under Category-II in table appended to G.O.Ms.No.385 Revenue (A&R) Department dated 03.08.1995 which provides that in every cycle of 4 vacancies the third vacancy shall be filed from the category 7 i.e., Typist from qualified candidates if available. It is alleged that the said proviso shows a discrimination between Assistant and Typist and that for Assistants and others the first proviso will apply and, therefore, claimed that if a Typist is converted as Assistant at request he looses all hold on the Typist post and his seniority has to be reckoned only from the date of his conversion as Assistant and claimed that in view of the discrimination shown in the above rule, he will be the senior to the 4th respondent in the post of Assistant and he has a preferential claim over the 4th respondent for promotion to the post of Assistant Section Officer. Applicant also claimed that the confirmation proceedings dated 30.04.1996 shows the name of 4th respondent as Typist several places below his name and the confirmation will be according to strict seniority. In the said representation, he also contended that 7th respondent was by then working as Scrutiny Officer and she is also far junior to him as he was appointed as Assistant on 11.06.1992 and she was appointed as Typist only on 23.07.1994 much later to him but for to his ill-luck she got promotion as Scrutiny Officer prior to him. Since he is now fully qualified to the post of Assistant Section Officer from 10.06.1996, on which date he stood qualified in the departmental tests, his case should be considered for promotion to the post of Assistant Section Officer. He also claimed that the promotions given to his juniors were purely under Rule 16 of the Service Rules, and since he, being a fully qualified senior, is available, the continuance of a junior in the promotion post is adverse to the interests of the senior. The said representation was rejected by the proceedings of the Special Court in Dis.No.2174/96/Estt/SC dated 29.10.1996. Challenging the said rejection, he filed O.A.No.926 of 1997 before the Tribunal with the relief mentioned above. The 1st respondent which the Special Court through its Registrar filed a detailed counter affidavit before the Tribunal disclosing the service particulars of the applicant and the respondents 3 to 7 contending that once the applicant passed the requisite departmental tests held on 10.06.1996 he is entitled for promotion in the vacancy which arises from that date onwards but he cannot claim revocation of any promotion given earlier thereto. It is also stated that all the promotions were given prior to the applicant passing the examination and all of them are fully qualified to hold the promotional post and though they were promoted under Rule 16 of the Service Rules, since the applicant has not questioned the promotions earlier given to respondents 3, 5, 6 and 7 in the representation dated 03.09.1996 that he could not be promoted along with them as he was not qualified and as such he was qualified only on 10.06.1996, he cannot now question the promotions of the respondents 3 to 7 and the O.A. is liable to be dismissed. Respondents 5 and 6 filed separate counter affidavits contending that the Special Court has not been notified under the provisions of Administrative Tribunals Act as such this Tribunal has no jurisdiction to entertain the O.A. It is also stated therein that the Special Court constituted under the Andhra Pradesh Land Grabbing (Prohibition) Act (hereinafter referred to as ‘the Act’), represented by its Registrar has filed a writ petition against the Government in respect of service matters of employees working in Special Court as such the Tribunal has no jurisdiction to entertain the O.A. The Tribunal, by its impugned order, after taking into consideration all the rival contentions urged by the applicant as well as the respondents, observed that according to Rule 10 of Service Rules, a minimum service of not less than 3 years in the feeder category is required for the purpose of getting eligibility for promotion; that, according to Rule 15 which deals with promotion, one must complete probation in the feeder category; that, according to Rule 15 which deals with temporary appointments and promotions, every temporary appointment or temporary promotion has to be made in accordance with Rules 10 and 37 of the A.P. State and Subordinate Service Rules; that Rule 22 deals with the relaxation of the Service Rules governing the employees of the Special Court; that the Chairman of the Special Court may deal with any member of the Service to be appointed to the service in such a manner as may appear to him to be just or equitable; that the posts of Assistant Section Officer and Scrutiny Officer come under Category-2; that the post of Assistant falls under Category-6; that the post of Typist falls under Category-7; that the post of Record Assistant comes under Category-10 and, therefore, the post of Assistant Section Officer/Scrutiny Officer is to be filled up by promotion from categories 6 and 7 as per seniority; that Rule 4 of the Service Rules deals with the method of appointment according to which in every cycle of 4 vacancies, the 3rd vacancy shall be filed from the Category-7 i.e., Typist and that the post of Assistant falls under Category-7 and that it is to be filed up by promotion from Categories 10 and 11; held that none of the respondents, except the 4th respondent whose services were regularized through the impugned orders dated 29.10.1996, were promoted in accordance with the Rules. The Tribunal also observed that the promotion chances of the applicant have been adversely affected due to the irregular promotions accorded to respondents 3 and 5 and, hence, set aside the proceedings in Dis.No.2169/96/SC dated 29.10.1996 where the services of respondents 3, 5, 6 and 7 were regularized and also set aside the proceedings in Dis.No.2174/96/Estt/SC dated 29.10.1996 where the appeal of the applicant was rejected and also the conversion orders in respect of 4th respondent and directed that the case of 4th respondent shall be considered for promotion as Assistant Section Officer/Scrutiny Officer from the category of Typist strictly in accordance with the Rules in the slot earmarked for Typist. Questioning the same, the present writ petitions are filed. Sri B.Adinarayana Rao, learned counsel for the 7th respondent in the O.A. and the petitioner in W.P.No.3274 of 2004, contends that the post of Typist is a feeder category to the post of Assistant Section Officer and further contended that without challenging the promotion of the 7th respondent, the applicant cannot challenge her regularization. It is further contended that since the respondents who were appointed under the Service Rules issued under G.O.Ms.No.385 Revenue (A&R) Department dated 03.08.1995, unless the service is notified under Section 15 of the Administrative Tribunals Act, 1985, the Tribunal cannot entertain the O.A and the applicant cannot have the locus standi to question the promotion of the 7th respondent since she is from the feeder category of Typist and under the Service Rules the vacancy is mentioned under the Typist and she was initially appointed as a Typist. He further contended that the applicant acquired the eligibility criteria only on 10.06.1996 and by that date, the respondents 3 to 7 were already promoted to the post of Assistant Section Officer / Scrutiny Officer and, therefore, the entire order passed by the Tribunal is liable to be set aside. He placed reliance on K.MOHANLAL V. STATE OF A.P.[1] and contended that the Court constituted under the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 being a Special Court subordinate to the High Court discharging the judicial functions, for appointment of its members the consent of the Chief Justice of the High Court is a must and no selection is made of a judicial member without consulting the Chief Justice of the High Court. Sri S.Sriram Reddy, learned counsel appearing on behalf of the 5th respondent in the O.A. and the petitioner in W.P.No.3089 of 2004, while adopting the arguments of Sri B.Adinarayana Rao referred to above, contended that since the 5th respondent who is promoted as Assistant Section Officer on 24.10.1995, the entire grievance of the applicant in making his representation which he has to exhaust much before filing the O.A. is ventilating the grievance against the 4th respondent i.e. S.Padmanabha Rao who was promoted on 28.08.1996. He further contended that even if Rule 10 of the Service Rules prescribes that no person shall be eligible for appointment by transfer or promotion unless he has put in not less than three years of service in the category from which appointment by transfer or promotion is to be made, under Rule 22 the Chairman of the Special Court will have the power to relax the Rules and that once the probation of the 5th respondent is declared it shall be deemed that relaxation was made in their favour. For the said proposition, he relied on DIRECT RECRUIT CLASS II ENGG. OFFICERS’ ASSOCN. V. STATE OF MAHARASHTRA[2]. He further contended that the 5th respondent was promoted as Assistant on 22.07.1994 and his probation was declared on 30.04.1996 with effect from 22.07.1994 and the Service Rules issued in G.O.Ms.No.385 dated 03.08.1995 came into force with retrospective effect from 25.02.1988. The 5th respondent was promoted as Assistant Section Officer with effect from 24.10.1995 and by that date, as per the Service Rules, he was fully eligible to hold the said post having passed the departmental tests. Therefore, when the applicant was not eligible as on the date and when the petitioner was appointed he cannot question the appointment of the petitioner and his grievance if any is only against the 4th respondent but cannot make any grievance against the respondents 3, 5, 6 and 7. Sri V.Venkataramana, learned counsel appearing on behalf of the 3rd respondent in the O.A. and the petitioner in W.P.No.3381 of 2004, submits that the 3rd respondent was appointed as Record Keeper on 31.12.1991 and was shifted to the post of Assistant with effect from 09.02.1994 and his services as Assistant were regularized as per the proceedings dated 25.09.1995 and was declared approved probationer as per the proceedings dated 31.10.1996 and was temporary promoted as Scrutiny Officer as per the proceedings dated 24.10.1995 under Rule 16 of the Service Rules and his services as such were regularized as per the proceedings dated 29.10.1996 and contends that unless the service is notified under Section 15 of the Administrative Tribunals Act, 1985, the Tribunal does not have any jurisdiction to entertain the O.A itself and further contended that the observation of the Tribunal that the Service Rules do not exclude the jurisdiction of the Tribunal to adjudicate the service disputes of the Special Court, hence it had jurisdiction is incomprehensible. Sri A.Rajashekar Reddy, learned counsel appearing on behalf of the 6th respondent and petitioner in W.P.No.3859 of 2004, submits that the petitioner was appointed as Assistant with effect from 08.02.1994 and his services as such were regularized as per the proceedings dated 30.04.1996 and he was promoted temporarily as Assistant Section Officer as per the proceedings dated 16.01.1996 under Rule 16 of the Service Rules and his services were regularized in that category and, by placing reliance o n S.P.BADRINATH VS. GOVT. OF A.P. AND OTHERS[3], contended that the respondent cannot claim seniority prior to his acquiring qualification and he can claim seniority only from the date of his acquiring qualification. Sri J.Prabhakar learned counsel for the applicant brought to the notice of this Court that the judgment of this Court in K.MOHANLAL (case 1 supra) was set aside by the Supreme Court in SUJATA V. MANOHAR[4] and contended that, therefore, the principle laid down by this Court in K.MOHANLAL (case 1 supra) cannot be taken into consideration to oust the jurisdiction of the Tribunal from dealing with the O.As. of this nature. He further contended that when the applicant acquired a right to promotion on passing the departmental examination, he made a representation to the 1st respondent and on rejection of his representation he filed the O.A. It is further contended that since Rule 10 of the Service Rules issued in G.O.Ms.No.385 dated 03.08.1995 prescribes that no person shall be eligible for appointment by transfer or promotion unless he has put in not less than three years of service in the category from which appointment by transfer or promotion is to be made, the Tribunal rightly set aside the said promotions. It is further contended that though Rule 22 of the Service Rules provides the Chairman of the Special Court the power to relax the Service Rules, there should be a specific order in that regard by the Chairman relaxing the Rules with respect to the employee who was given such benefit and mere promotion or regularization of the service does not amount to order of relaxation under Rule 22 of the Service Rules. For the said proposition, he placed reliance on M.MAZHARUDDIN ALI AND OTHERS VS. GOVT. OF A.P. AND OTHERS[5] and UNION OF INDIA VS. DHARAM PAL AND OTHERS[6]. He fairly conceded that the respondent is not eligible to be promoted unless he acquires the qualification by passing the Civil Judicial Test and for which he appeared on 10.06.1996. Even if the results are declared subsequently he is eligible to be promoted from the date when he appeared for the examination. Since the respondents were all promoted temporarily and his services were regularized on petitioner acquiring the qualification and eligibility he can always question their promotion and since the State Subordinate Rules are made applicable to the employees of the Special Court, notification under Section 15 of the Administrative Tribunals Act is not necessary and they will be deemed to be government servants and the Tribunal will have the jurisdiction and can entertain the O.A. In view of the rival submissions referred to above, the points that arise for consideration are – (1) Whether the Andhra Pradesh Administrative Tribunal will have jurisdiction to entertain the O.As. of this nature? (2) Whether the applicant can question the regularization of the respondents 3, 5, 6 and 7 who were promoted much prior to acquiring eligibility by the applicant without questioning their promotion? POINT No.1: Section 15(1) of the Administrative Tribunals Act confers jurisdiction on the State Administrative Tribunals in relation to – (a) recruitment, and matters concerning recruitment, to any civil service of the State or to any civil post under the State; (b) all service matters concerning a person not being a person referred to in clause (c) of this sub-section or a member, person or civilian referred to in clause (b) of sub- section (1) of Section 14 appointed to any civil service of the State or any civil post under the State and pertaining to the service of such person in connection with the affairs of the State or of any local or other authority under the control of the State Government or of any corporation (or society) owned or controlled by the State Government; (c) all service matters pertaining to service in connection with the affairs of the State concerning a person appointed to any service or post referred to in clause (b), being a person whose services have been placed by any such local or other authority or corporation (or society) or other body as is controlled or owned by the State Government, at the disposal of the State Government for such appointment. Under Section 15(2) of the Administrative Tribunals Act, the State Government may, by notification, apply with effect from such date as may be