IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) Wednesday ,THE 23rd DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE C.V.RAMULU WRIT PETITION NO : 3171 of 2006 Between: 1 State of A.P., Rep by its Prl. Secretary, Agriculture & Cooperation (Horticulture) Department, Secretariat, Hyderabad. 2 The Commissioner of Horticulture, Govt of A.P., Public Garden, A.P., Hyderabad. ..... PETITIONERS AND 1 P.M.Subhani, S/o.Masthan Khan, G.Madugula Visakhapatnam District. 2 Y.Vidya Sankar, S/o.Narasimha Rao, ODP, Guntur Dist. 3 B.Panduranga, S/o.Seshagiri Rao, Ongole, Prakasam District. 4 K.V.Ramana Rao, S/o.K.V.Ramana Rao, S/o.K.V.Subba Rao. Ongole, Prakasam District. 5 S.Rammohan Rao, S/o.Adinarayana, Visakhapatnam, Visakhapatnam District. 6 M.Venkateshwarlu, Nellore, Nellore District, Srisailam, Kurnool District. 7 K.Balaji Naik, S/o.Tirupam Naik, O/o.The Commissioner of Horticulture Public Gardens, Hyderabad. 8 T.V.Subba Rao, S/o.Venkateswarlu, O/o.The Commissioner of Horticulture, Public Gardens, Hyderabad. 9 Venkataramana, S/o.Seshanna, ITDA, Srisailam, Kurnool District. 10 P.Sunitha, S/o.Shyam Prakash, O/o.The Commissionerate of Horticulture, Public Gardens, Hyderabad. 11 K. Srinivasulu S/o.KS Parvathappa, aged 41 yrs. Occ:Horticulture Officer, Kollapur, Mahaboobnagar District 12. A. Muralimohan Reddy S/o.Ramakrishna Reddy Asst. Director Horiticulture, Kurnool 13. R. Srinivasar Rao S/o.Chinnamanaidu, Asst. Director Horiticulture, Cashew, Vishakapatnam 14. D. Umadevi, D/o.Raghuswamy Reddy, Horiticluture Officer O/o.COH, Hyderabad 15. YVS Prasad S/o.YV Sharma, Asst. Director Horiticultur, Chitoor 16. K. Kishan Rao S/o.Manik Rao, Horticluture Officer, COH, Hyderabad 17. A Durgesh S/o.Raghava Rao, Horticluture Officer, O/o. Asst. Director Horiticulture, West Godavari 18. P. Somaiah S/o.Yella Reddy, Horiticluture Officer, Yellandu, Khammam District 19. BJ Benny, S/o.Yesunadham, Horiticluture Officer, Salur, Vizianagarm District 20. P. Samma Reddy S/o.Yakub Reddy, Horiticluture Officer, O/o. Asst. Director Horiticulture, Khammam 21. K. Surya Narayana S/o.Narshimulu, Horticulture Officer, O/o. Asst. Director Horiticulture, Warangal 22. A. Venkateshwarlu S/o.Rami Reddy, Ph.D in Agriculture College, Hyderabad 23. Dr. Ch. Padmavati w/o.D. Ramesh, Asst. Director Horiticulture, AMR, APARD, Hyderabad 24. D. Nagi Reddy S/o.Narayana Reddy, Horiticulture Officer, MCH, Hyderabad 25. M.V. Madhusudan S/o Ramanujacharyul, Asst. Director Horiticulture, Krishana district 26. D. Ramesh S/o.Venkateswarlu, Horiticulture Officer, Tribal Welfare, Hyderabad 27. P. Hanumantha Rao S/o.late Subba Rao Asst. Director Horiticulture, Nellore, Nellore 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 will be pleased to issue a Writ of Certiorari or any other appropriate writ, Order or direction, call for the records relating to and connected with order dated.17-2-2004 in O.A.No.5274/2000 on the file of the Hon'ble A.P. Administrative Tribunal and quash the same and pass such other or further orders as are deem fit and proper. Counsel for the Petitioners :THE ADVOCATE GENERAL Counsel for the Respondent No.1: Mr.Abhinand Kumar Shavili Counsel for respondents 2 to 16 : Mr.B. Sudhakar Reddy WRIT PETITION NO : 15743 of 2007 Between: M.K.V.Srinivasulu S/o Guru Murthy Kandukur Prakasam District ..... PETITIONER AND 1 P.M.Subhani S/o.and age not known O/o. Asst.Director of Horticulture, Vizianagarm, Vizianagaram District Respondent /Applicant in OA.No.5274 of 2000 2 Ch.Padmavathi W/o.and age not known O/o.Andhra Pradesh Academy of Rural Development, Rajendranagar, R.R.District Respondent/Applicant in OA.No.4631 of 2000 3 Y.V.S.Prasad S/o. and age not known Chittoor, Chittoor District Respondent/Applicant in OA.No.4699/2000 4 C.Sanja Kumar S/o. and age not known C/o.O/o.Asst.Director of H.No.11-6-864, Hydervilla, Besides pragathi Printing press, Red Hills, Hyderabad-500004 Respondent/Applicant in O A.No.5354/2000 5 B.Venkateswarlu S/o and age not known Flat No.101, Sailaxmi Residency Gummakonda colony Athapur, Hyderguda, Hyderabad-48 Respondent/Applicant in OA.No.5378/2000 6 A.Murali Mohan Reddy S/o and age not known Kurnool, Kurnool District Respondent/Applicant in OA.No.5380/2000 7 A.Prem Singh S/o.and age not known C/o.O/o. Asst.Director of H.No.11-6-864, Hydervilla Besides pragathi Printing press, Red Hills Hyderabad-500004 Respondent/Applicant in OA.No.5382/2000 8 D.Ramesh s/o.and age not known commissioner of Tribal Welfare, AP Telugu Samkshema Bhavan, Masab Tank,Hyderabad Respondent/Applicant in OA.No.5383/2000 9 B.Babu S/o.and age not known Khammam, Khammam District Respondent/Applicant in OA.No.5385/2000 10 K.Kishan Rao S/o.and age not known State Horticulture Mission, Red Hills, Govt.Building No.30, Old Public Gardens,Red Hills, Hyderabad-500004 Respondent/Applicant in OA.No.5385/2000 11 D.Umadevi D/o.and age not known O/o.Commissioner of Horticulture Public gardens, Hyderabad Respondent/Applicant in OA.No.5418/2000 12 P.V.Bhagyalakshmi D/o.and age not known O/o.Dy.Mpl.Commissioner, L.B.Nagar Municipality Ranga Reddy District Respondent/Applicant in OA.No.5386/2000 13 M.Sarvanan S/o.and age not known Flat No.102, Sailaxmi Residency Gummakonda colony,Athapur Hyderguda, Hyderabad Respondent/Applicant in OA.No.5419/2000 14 S.Narsing Das S/o.and age not known Vizianagaram, Vizianagaram District Respondent/Applicant in OA.No.5420/2000 15 K.Srinivasulu S/o.and age not known APMJP Cell, Govt Building No.3, Old Public gardens, Red Hills Hyderabad-500004 Respondent/Applicant in OA.No.5421/2000 16 D.Nagi Reddy S/o.and age not known O/.o. Commisisoner, MCH, Hyderabad Respondent/Applicant in OA.No.5423/2000 17 L.Anuradha D/o.and age not known O/o.Commissioner, of Horticulture Hyderabad Respondent/Applicant in OA.No.4948/2000 18 G.Srinivas S/o.and age not known Now studying M.Sc.(Horticulture) Boys Hostel, college of Agriculture Bapatla,Guntur District Respondent/Applicant in OA.No.5111/2000 19 M.V.Madhusudhan S/o.and age not known Vizianagaram Vizianagaram District Respondent/Applicant in OA.No.5329/2000 20 B.J.Benny S/o.and age not known O/o.Assistant Director of Horticulture Vizianagarm Vizianagaram District Respondent/Applicant in OA.No.5246/2000 21 R.Srinivasa Rao S/o.and age not known CASHEW O/o. Assistant Director of Horticulture Visakhapatnam,Visakhapatnam District Respondent/Applicant in OA.No.5381/2000 22 Ravilala Srininvas Rao S/o.and age not known O/o. Assistant Director of Horticulture Khammam,Khammam District Respondent/Applicant in OA.No.5508/2000 23 A.Durgaiah S/o.and age not known O/o. Assistant Director of Horticulture Rajahmundry, East Godavari District Respondent/Applicant in OA.No.5514/2000 24 K.Suryanarayana S/o.and age not known O/o. Assistant Director of Horticulture Khammam District Respondent/Applicant in OA.No.5515/2000 25 P.Somaiah S/o.and age not known O/o. Assistant Director of Horticulture Khammam, Khammam District Respondent/Applicant in OA.No.5583/2000 26 P.Viswa Prasad S/o.and age not known HUDA Hyderabad Respondent/Applicant in OA.No.5584/2000 27 P.Samma Reddy S/o.and age not known Khammam,Khammam District Respondent/Applicant in OA.No.5585/2000 28 P.Hanumantha Rao S/o.and age not known Assistant Director of Horticulture Nellore, Nellore District Respondent/Applicant in OA.No.7478/1999 29 P.Lakshmana Prasad S/o.and age not known Horticulture, Visakhapatnam Respondent/Applicant in OA.No.5825/2000 30 B.Raghunatha Reddy S/o.and age not known O/o.Asst.Director of Horticulture kadapa, Kadapa District Respondent/Applicant in OA.No.5825/2000 31 The Commissioner of Horticulture, Government of Andhra Pradesh, Public Gradens, Hyderabad 32 State of Andhra pradesh, rep.by its Principal secretary Agriculture & Cooperation,(Horticulture) Department secretariat, Hyderabad Respondents/Respondents in1&2 in all O.As .....RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ, order or direction more particularly in the nature of writ of certiorari calling for the records relating to the order of the Hon`ble AP Administrative Tribunal 17.2.2004 in OA.No.5274of 2000 and batch and quash the same by holding it as illegal, bad and arbitrary, and to pass order or orders thereon in the facts and circumstances of the case. Counsel for the Petitioner: MR. J.R.MANOHAR RAO Counsel for the Respondent Nos. 31 and 32 GP FOR SERVICES I The Court made the following COMMON ORDER :: THE HON’BLE SRI JUSTICE GHULAM MOHAMMED & THE HON’BLE SRI JUSTICE C.V. RAMULU WRIT PETITION Nos.3171 OF 2006 & 15743 OF 2007 COMMON ORDER: (per Hon’ble Sri Justice Ghulam Mohammed ) Writ Petition No.3171 of 2006 is filed by the State of AP and Writ Petition No.15743 of 2007 is filed by one Sri MKV Srinivasulu. Since both these writ petitions arise out of the order dated 17-2-2004 in OA No.5274 of 2000 and batch passed by the AP Administrative Tribunal, Hyderabad, they are heard together and being disposed of by this common order. This Court by order dated 20-7-2007 in WPMP No.19408 of 2007 granted leave to the petitioner in WP No.15743 of 2007 to challenge the order dated 17-2-2004 as he was not a party to the said OA No.5274 of 2000 before the Tribunal. 2. For the purpose of reference, the facts in OA No.5274 of 2000 filed by the 1st respondent herein are noted as it would advert to the grievance of all other applicants-respondents herein placed on par with him. The respondent-applicant was appointed temporarily as Horticulture Officer in February, 1991 under Rule 10 (a) (i) (1) of the AP State and Subordinate Service Rules, 1962, for short, ‘1962 Rules’ based on the recommendation made by the Selection Committee constituted for that purpose. The applicant was not placed on probation after his appointment under Rule 10 (a) (i) (1) of 1962 Rules. It is stated that the services of the applicant were regularized, along with other applicants appointed in the years 1990, 1991 and 1992, under Rule 23 (a) of 1962 Rules, with effect from the date of his initial appointment on 11-3- 1991 in proceedings Roc.No.Estt.(4)3404/92, dated 7-7-1994. However, while regularizing the services of the applicant, from the date of his initial appointment i.e. 11-3-1991, he was placed on probation for a period of two years on duty in a continuous period of three years and required the applicant to pass the requisite tests viz. agricultural departmental test, accounts test for executive officers and second class language test in Telugu during the period of probation. It is stated that some of the persons, who were appointed along with the applicant on temporary basis, passed the requisite tests, before the applicant could pass the test. 3. It is the further case of the applicant that as he could not pass through the requisite departmental tests within the period of probation, by proceedings No.Estt.1(2)316/98, dated 14-11-1998, his probation was declared under Rule 16 (h) of the AP State and Subordinate Service Rules, 1996, for short, ‘the 1996 Rules’ read with Rules 8 and 10 of the AP Horticulture Service Rules, 1989, for short, ‘the Special Rules’ with effect from 19-7-1997, the date on which the applicant cleared the requisite accounts test. It was also stated in the said proceedings that the applicant has completed the two years probation period with effect from 4-6- 1995 instead of 11-3-1991. The applicant and other similarly situated persons aggrieved by such method adopted by the authorities, made a representation dated 14-12- 1999, through the AP Horticulture Officers’ Association, to the Government to consider retaining the earlier date of regularization for those who have not passed the requisite tests within the period of probation. However, the Government vide Memo No.4126/Hort.99, Agri. & Co-op.(H) Department, dated 5-8-2000, rejected the said representation. 4. Aggrieved by the same, the applicant-1st respondent herein challenged both the proceedings dated 14-11-1998 altering his date of regularization from 11-3-1991 to 4-6-1995 consequently fixing his seniority based on the date of passing the departmental test and also the Memo dated 5-8-2000 passed by the Government rejecting the representation made by him and other similar applicants through their Association, by filing the above OA. The other applicants-respondents herein who are similarly placed have also filed OAs challenging the impugned action of the authorities in altering their dates of regularization and also the Memo dated 5-8-2000 passed by the Government. 5. The Tribunal, after considering the rival contentions, by common order, impugned in this writ petition, allowed the OA and set aside the Memo dated 5-8-2000 passed by the Government and also the proceedings dated 14-11-1998 altering the date of regularization, with a direction to restore the seniority of the applicant and similar other applicants from the date of their actual joining duty. Assailing the same, above writ petitions are filed. 6. Learned Special Government Pleader representing the learned Advocate General appearing for the petitioners-official respondents in the OA, contended that the Tribunal erred in not considering Rule 24 (c) of 1962 Rules as also Rule 16 (h) of 1996 Rules which postulate the change of date of commencement of probation if a probationer fails to pass the requisite departmental tests within the prescribed period under Rule 10 of Special Rules. Learned Special Government Pleader further contended that under Rule 16 (a) of 1996 Rules a person appointed commences his probation from the date of his joining duty or any other date as may specified by the appointing authority and as the applicant joined the post on 11-3-1991 his probation had commenced from that date and the observation of the Tribunal that the applicant did not commence his probation from 11-3-1991 is incorrect. Learned Special Government Pleader also contended that the Tribunal erred in accepting the plea of the applicant that he was not aware that he was required to pass the requisite tests within the probation period or within the extended period, as the case may be, as ignorance of law is no excuse. It is also contended that the Tribunal ought not to have entertained the OA as it was filed beyond the period prescribed under Section 21 of the Administrative Tribunals Act, 1985, for short, ‘the Act’ and no application was filed as contemplated under Section 21 (3) of the Act for condonation of delay. 7. Sri M. Surender Rao, learned counsel for the applicants- respondents, on the other hand, contended that the order dated 14- 11-1998 altering the date of regularization on the pretext that the applicant had not passed the requisite departmental tests within the prescribed time was ex-facie illegal because his appointment was made under Rule 10 (a) (i) (1) of 1962 Rules purely on temporary basis and during the period of temporary appointment he was not required to pass any test not being a regular appointment. Learned counsel further submitted that the Director of Horticulture had no power and authority to alter the date of regularization and it is the Government that has got power and considering all these aspects of the matter, the Tribunal rightly allowed the OA and quashed the impugned proceedings. Learned counsel relied on the Division Bench decision of this Court in M. RADHA KRISHNA MURTHY vs. GOVT. OF AP, TRANSPORT, ROADS AND BUILDINGS DEPARTMENT.1 8. Sri JR Manohar Rao, learned counsel for the petitioner in WP No.15743 of 2007 contended that under Rule 8 of the Special Rules, every person appointed by direct recruitment shall be on probation for a total period of two years on duty within a continuous period of three years and under Rule 10 of the Special Rules, every person appointed by direct recruitment to the post of Horticulture Officer shall within the period of probation pass the requisite tests prescribed under Clauses (i) & (ii) of Rule 10 of Special Rules and inasmuch as the applicants-respondents did not pass the requisite test prescribed within the period of probation from the date of the order of regularization i.e. 7-7-1994, the applicants have to take seniority next to those who have passed the requisite tests within the probation period and, therefore, the impugned common order passed by the Tribunal is liable to be set aside. In support of his contention learned counsel relied on decision of the Apex Court in STATE OF UP v. M.J.SIDDIQUI2. 9. Having regard to the above pleadings and contentions raised by the learned counsel for the parties, the following issues fall for our consideration : i) whether the applicant appointed under Rule 10 (a) (i) (1) of 1962 Rules, not placed on probation by virtue of the very nature of appointment being purely temporary and subsequently regularized his services placing him on probation requiring to pass the requisite tests as required under clauses i & ii of Rule 10 of Special Rules within a period of two years on duty in a continuous period of three years and the applicant and certain others not clearing the requisite tests, either both stated under clauses i and ii of Rule 10 of Special Rules or any one of the two tests, as a consequence thereof, the action of the petitioners herein is justified in altering the date of regularization of the applicant reckoning the date of their actual passing the requisite tests; and ii) whether the judgment of the Tribunal under challenge holding the action of the petitioners in altering the date of regularization is illegal and bad and consequently quashing the impugned proceedings therein is sustainable in law ? 10. Before going into the merits of the case, it is apropos to refer to certain clauses of Rule 10 of 1962 Rules, which read thus: “Rule 10. Temporary appointments:-- (a) (i) (1) Where it is necessary in the public interest to fill emergently a vacancy in the post borne on the cadre of a service, class or category and if the filling of such vacancy in accordance with the rules is likely to result in undue delay, the appointing authority may appoint a person temporarily otherwise than in accordance with the said rules. (2) No appointment under sub-clause (1) shall ordinarily be made of a person who does not possess the qualifications, if any, prescribed for the said service, class or category. Every person who does not possess such qualifications and who has been or is appointed under sub-clause (1) shall be replaced as soon as possible by a person possessing such qualifications.” “Rule 10 (a) (iii) : A person appointed under clause (i) shall, whether or not he possesses the qualifications prescribed for the service, class or category to which he is appointed, he replaced as soon as possible by a member of the service or an approved candidate qualified to hold the post under the said rules. (iv) A person appointed under clause (i) or (ii) shall not be regarded as a probationer in such service, class or category or be entitled by reason only of such appointment to any preferential claim to future appointments to such service, class or category. (v) The appointing authority shall have the right to terminate the service of any person in the post to which he is appointed under clause (i) or clause (ii) at any time without assigning any reason and without notice.” 11. Rule 8 and Rule 10 of Special Rules, reads thus: “ Rule 8.Probation:--Every person appointed by direct recruitment shall be on probation for a total period of two years on duty within a continuous period of three years and every person appointed by promotion or transfer shall be on probation for a total period of one year on duty within a continuous period of two years from the date on which one commences probation.” “Rule 10. Tests:--Every person appointed by direct recruitment to the post of Assistant Director of Horticulture and Horticulture Officer shall within a period of probation, pass the following tests namely:-- (i) Agriculture Departmental Tests till the Horticulture Departmental Test is prescribed. (ii) Accounts Test for Executive Officers. 12. Admittedly, the applicant was appointed as Horticulture Officer on 11-3-1991 under Rule 10 (a) (i) (1) of 1962 Rules purely on temporary basis and that he was to be replaced by a person, as soon as possible, appointed on regular basis possessing the requisite qualifications, as stipulated under Rule 10 (a) (i) (2) of 1962 Rules. But the applicant was not replaced by a person appointed on regular basis and he continued as such till his services are regularized by proceedings dated 7-7-1994 from 11- 3-1991 i.e. the date of his initial appointment subject to passing the tests prescribed under Rule 10 of Special Rules, within the period of probation under Rule 8 of Special Rules. 13. Rule 10 (a) (i) (1) of 1962 Rules lays down the circumstances under which a temporary appointment can be made in the post borne on the cadre of a service, class or category. Rule 10 (a) (i) (2) lays down the requisite eligibility criterion as regards appointment of a person temporarily, otherwise than in accordance with the Rules. Rule 10 (a) (iii), (iv) and (v) lays down that a persons appointed under Rule 10 (a) (i) (1) whether or not he possesses the qualifications prescribed for the post to which he has been appointed, be replaced as soon as possible, by a person qualified to hold the post under the rules and the person appointed under the said Rule, be not regarded as a probationer, and the appointing authority shall have the right to terminate his service at any time without assigning any reason and without notice. 14. The applicant, in the instant case, possessed the requisite qualifications to be appointed as Horticulture Officer, therefore, the authorities, in their discretion and also, perhaps, having regard to the language used in Rule 10 (a) (i) (2) of 1962 Rules to the effect that “no appointment under sub-clause (1) shall ordinarily be made of a person who does not possess the qualifications, if any, prescribed for the said service, class or category….” considered it necessary to regularize the services of the applicant and accordingly by proceedings dated 7-7-1994 his services were regularized. Therefore, it follows that from the date of his initial appointment i.e. 11-3-1991 till the date of issuance of proceedings dated 7-7-1994, regularizing the services of the applicant, by necessary implication, the applicant is deemed to be a temporary appointee and cannot not be regarded as probationer in view of Rule 10 (a) (iv) of 1962 Rules and, therefore, the question of application of Rule 8 and Rule 10 of Special Rules to the case of the applicant does not arise, during that period. 15. It may be necessary to notice that, since selection process for regular appointment was not followed, there was no occasion to verify the antecedents of the applicant and others, as such, they were appointed under Rule 10 (a) (i) (1) of 1962 Rules. Admittedly, only after verification of antecedents, the applicant was on put on probation by proceeding dated 7-7-1994 with a condition to pass the departmental tests within a period of two years on duty in a continuous period of three years. Therefore, merely because a person appointed under Rule 10 (a) (i) (1) of 1962 Rules pass the departmental tests, even before putting him on probation, that does not gain any advantage over others, who could not pass the departmental tests before their regularization. Whether one has passed the departmental tests or not, during the temporary appointment, it makes no difference. 16. It is to be noted that the applicant was placed on probation through proceedings dated 7-7-1994 for the first time and there was no rationale in requiring the applicant to pass the requisite tests as contemplated under Rule 10 of Special Rules within the continuous period of three years from the date of appointment, as the said period has already expired even before the issuance of the proceedings dated 7-4-1994, the date of initial appointment of the applicant being 11-3-1991. 17. The contention of the learned Special Government Pleader that the appointment of the applicant made under Rule 10 (a) (i) (1) of 1962 Rules was nothing short of a regular selection cannot be accepted for the reason that no clarification was given by the petitioners to the effect that Rule 10 of Special Rules will apply to the applicant from the date of his appointment though he was appointed under Rule 10 (a) (i) (1) of 1962 Rules. The applicant has attempted to pass the requisite tests pursuant to the proceedings dated 7-7-1994, but he could not clear the account test for executive officer within the period of probation. 18. It is pertinent to note that there is no order passed by the authorities either extending the period of probation by not more than one year or discharging the applicant from service after giving one month’s notice or pay lieu thereof. Since the authorities have not chosen either of the options contemplated under Rule 17 (a) (ii) of 1996 Rules, the probation of the applicant is deemed to be extended till the date of qualifying the account test for executive officers under Rule 18 (b) (ii) of 1996 Rules. Even in case the probation is extended for passing the requisite test, such extension of period of probation cannot result in losing the seniority, as under 1962 Rules, it is nowhere envisaged that if a departmental test is prescribed and if it is not passed within the stipulated period of probation and it is passed in the extended period of probation, the seniority would reckon from the date of passing of such departmental test. 19. In the instant case since the services of the applicant are regularized by proceedings dated 7-7-1994, he is to be treated as a person appointed on