THE HON’BLE SRI JUSTICE J.CHELAMESWAR AND THE HON’BLE SRI JUSTICE M.VENKATESWARA REDDY WRIT PETITON Nos.3247 AND 4390 OF 2003 Dt.07-02-2007 WRIT PETITON No.3247 OF 2003 Between: Smt.G.Vani Mohan …. Petitioner A n d Government of Andhra Pradesh, Rep. by its Secretary, Revenue Department, Secretariat, Hyderabad and 10 others. …. Respondents WRIT PETITON No.4390 OF 2003 Between: Smt.K.Sunitha …. Petitioner A n d Government of Andhra Pradesh, Rep. by its Secretary, Revenue Department, Secretariat, Hyderabad and 12 others. …. Respondents THE HON’BLE SRI JUSTICE J.CHELAMESWAR AND THE HON’BLE SRI JUSTICE M.VENKATESWARA REDDY WRIT PETITION Nos.3247 AND 4390 OF 2003 COMMON ORDER: (Per Hon’ble Sri Justice M.Venkateswara Reddy) W.P.No.3247 of 2003: The 3rd petitioner in O.A.No.7497 of 1998 on the ﬁle of the Andhra Pradesh Administrative Tribunal (for short “the Tribunal”) ﬁled this writ petition questioning the dismissal of the said O.A. ﬁled by her and two others, in which they challenged the action of the oﬃcial respondents in treating the respondents 4 to 9 as Seniors to them by including them (unoﬃcial respondents) in the panels of earlier years. The 11th respondent was added as per orders dated 23.01.2006 made in the implead petition in W.P.M.P.No.3594 of 2005. W.P.No.4390 of 2003: W.P.No.4390 of 2003 is ﬁled by a third party with the leave of this Court challenging the same order i.e. the order of the Tribunal made in O.A.No.7497 of 1998 and impugned in the above writ petition No.3247 of 2003. In M.A.No.164 of 2002 in O.A.No.7497 of 1998 on the ﬁle of the Tribunal, the petition ﬁled by the petitioner herein to implead her in O.A.No.7497 of 1998 was dismissed by the Tribunal. Hence, this writ petition with leave. The admitted factual matrix of the case is as under: The petitioners in both the writ petitions were selected and appointed as Deputy Collectors in the Revenue Department during the year 1988-89. They joined in the said post in the year 1990 along with other successful candidates. They completed the probation period satisfactorily and their services were regularized. Both of them were also promoted to the next higher category i.e. Special Deputy Collector’s post in the year 1997. Both of them were placed in the panel prepared by the Andhra Pradesh Public Service Commission (for short “the Service Commission”). The respondents 4 to 6 i.e., Thippanna, Ramanjaneyulu and Venkateswarlu got qualiﬁed for appointment in Group-I posts in the A.P.State Civil Service in the year 1983-84. Group-I consists of several posts like Deputy Collector, Deputy Superintendent of Police, Regional Transport Oﬃcer, Deputy Registrar of Co-operative Societies. The post of Deputy Collector is supposed to be a hot cake. The 4th respondent expressed his unwillingness at the time of interview for his appointment to the post of Deputy Registrar of Co-operative Societies and Assistant Director, Survey and Land Records. Therefore, the Service Commission did not communicate the selection and allotment when fall out vacancies were taken up for those posts. Later, he was not considered for the fall out vacancies. One A.V.Bogeswarudu of the same Batch (1988-89) ﬁled a Civil Appeal No.4041 of 1989 on the ﬁle of the Supreme Court of India. In the said appeal, the Supreme Court held that when same candidates did not join, the vacancies remaining unﬁlled should be ﬁlled up by recommending the candidate next in order of merit out of the same list and not by fresh selection. One Mr.Sudhakar, referred to above, who secured lesser marks than Thippanna and Ramanjaneyulu, the 4th and 5th respondents, was appointed as Regional Transport Oﬃcer pursuant to the above said judgment of the Apex Court. The 4th Respondent approached the Tribunal in O.A.No.30084 of 1990. The said O.A. was disposed of with a direction to the Service Commission to forward his name to the Government with a simultaneous direction to the Government to appoint him as R.T.O. or to any other available post which he is prepared to accept in any S.C. carry forward vacancy in any department, since Mr.Sudhakar, above mentioned, who secured lesser marks was selected as Regional Transport Oﬃcer in the fall out vacancies. The 4th respondent then made a representation that he worked as M.R.O. for 16 years and therefore he may be considered to the post of Deputy Collector. In pursuance of the direction given by the Tribunal and on the basis of representation made by him, the Government issued G.O.Ms.No.620, dated 20.11.1995 appointing the 4th respondent as Deputy Collector against the carry forward vacancy reserved for S.C. community for the year 1983-84. Later, his services were regularized with eﬀect from 21.12.1988 and he was assigned last rank in the batch of Deputy Collectors for the year 1983-84. B.Ramanjaneyulu, the 5th respondent was selected as Assistant Director of Survey and Land Records. He failed to join within the stipulated time. Later he also approached the Tribunal. In R.P.No.24294 of 1989, the Tribunal passed similar orders as passed in the case of 4th respondent Thippanna in his favour also. He made a representation to the Government stating that during 1984-85 he was selected for Group-I services and joined as Deputy Tahasildar and subsequently promoted as Tahasildar in which post he was working and that he may be considered for appointment as Deputy Collector. Therefore, the Government issued G.O.Ms.No.409, Revenue (Services-I) Department, dated 28.05.1996 appointing him as Deputy Collector. Both the 4th and 5th respondents were appointed as Deputy Collectors against the direct recruitment vacancies reserved for S.C. community by restoring their ranks in the list approved by the Service Commission under Group-I Services for the year 1983- 84. The vacancies of Deputy Collectors against which they were appointed were deleted from the future recruitment for S.Cs. Among the selected candidates of the Group- I posts of 1983-84 batch, one H.Ramulu, a S.T. Candidate and D.Vshala, an O.C. Candidate did not report within time. Therefore, the Service Commission communicated the name of the 6th respondent who was next in order of merit for appointment as Deputy Collector in the place of H.Ramulu, (S.T. Candidate) and accordingly G.O.Ms.No.883, dated 26.09.1990 was issued in consultation with the Service Commission appointing him as Deputy Collector. He was assigned the last rank in the batch of direct recruits. His services were regularized under G.O.Ms.No.395, dated 06.06.1998. Thus, Respondent Nos.4 to 6 who were not selected to the post of Deputy Collector initially as per merit list could successfully get that post subsequently. The Respondents 7 to 9 are promotee Deputy Collectors. They were working as M.R.Os by the date of their promotion as Deputy Collectors. It is stated that the name of R.7 was included in the ad hoc panel of Deputy Collectors for the year 1991-92 in the carry forward vacancy meant for S.Cs. His name was included in the ad hoc panel of Deputy Collectors for the year 1991. On a representation made by him that he shall be included in the regular panel of Deputy Collectors for the year 1988-89 by relaxing one day short fall of his service in the cadre of Tahasildar, the Government relaxed the rule in his favour making him eligible to be included in the panel of Deputy Collectors for the year 1989-90 with the concurrence of the Service Commission. Likewise, the name of R.8 was included in the Deputy Collectors’ panel of the year 1989-90 relaxing one day shortfall of his service in the cadre of Tahasildar after obtaining concurrence of the Service Commission. By the date of O.A. the name of R.9 was being examined for the inclusion in the panel of 1989-90. O.A.No.7497 of 1998 was disposed of along with O.A.Nos.6084 and 6195 of 1998 by the Division Bench of the Tribunal. Diﬀering opinions were given at by the Division Bench. The learned Acting Vice Chairman had chosen to dismiss the O.A. while the learned Member (Administrative) came to the conclusion that respondents 4 and 5 are not entitled for seniority with reference to the recruitment for Group-I services for the year 1983-84 and they are entitled for seniority only from the date of their appointment. So far as the 6th respondent is concerned, the learned Member held that it does not call for any interference. The learned Member also held that respondents 7 to 9 are not entitled for inclusion of their names in the panel of Deputy Collectors for the year 1989-90. Hence, the matter was referred to the learned Member (Judicial), who concurred with the orders made by the learned Acting Chairman. Consequently, all the three Original Applications were dismissed. Hence, the present writ petitions by the aggrieved petitioners in the O.A. and the person whose implead petition was dismissed by the Tribunal. The unoﬃcial respondent No.11 got impleaded in the writ petition No.3247 of 2003 subsequently. Her contention is that the petitioner in W.P.No.3247 of 2003 is junior to her in the selection list and as such any orders passed by this Court may aﬀect her. No counter is ﬁled in the writ petition either by the 11th respondent or any other respondent in both the writ petitions. It is contended before us, inter alia, that the order passed by the Tribunal is unknown to service jurisprudence; that the principle of audi altram partem was given a go-bye in ﬁxing the seniority to the respondents above the petitioners; that giving seniority with retrospective eﬀect though the respondents were appointed subsequent to the petitioners’ batch is illegal. The grievance of the writ petitioners is that Respondent Nos.4 to 9 were included in the earlier panels by giving notional seniority and they stole a march over the petitioners in seniority though the appointment of Respondent Nos.4 to 9 was subsequent to that of the petitioners. Among the unoﬃcial respondents 4 to 9 whose appointments are questioned, respondent Nos.4 and 5 fall into one category, the respondent No.6 exclusively constitutes one category and respondent Nos.7 to 9 constitute yet another category. We shall take up the issue relating to appointment of respondent No.6, ﬁrst. He was kept in waiting list as he could not secure requisite marks. In A.V.Bogeswarudu’s case, noted above, the Apex Court held that when some candidates did not join, the vacancies remaining unﬁlled should be ﬁlled up by recommending the candidate next in order of merit out of the same list and not by fresh selection. One H.Ramulu, a S.T. Candidate and one D.Vishala, a O.C. candidate did not report for joining within time and therefore the Service Commission communicated the name of the respondent No.6 for appointment as Deputy Collector in the place of H.Ramulu and therefore, the Government issued G.O.Ms.No.833, dated 26.09.1990 in consultation with the Service Commission appointing the respondent No.6 as Deputy Collector. He was assigned last rank. Thus, he was appointed in a fall out vacancy. The appointment relates back to 1983-84 recruitment. In respect of ﬁxation of seniority as per Rule 33 (b) of the Andhra Pradesh State and Subordinate Services Rules, the roster point against which he was appointed has to be taken into consideration. He was given seniority accordingly. I n STATE OF MAHARASHTRA v. JAGANNATH ACHYUT KARANDIKAR [1], the Apex Court held that making an employee to suﬀer adversely for the default or lapse on the part of the Government itself would be unjust, unreasonable and arbitrary. In PILLA SITARAM PATRUDU v. UNION OF INDIA[2], where the appointment was delayed due to lapse on the part of the Railway administration and where after his appointment in 1981, the petitioner before the Apex Court passed the requisite test within two years and his case was not considered for promotion as Executive Engineer, it ruled that he is entitled for appointment and to the ranking in the selection list. In SURENDRA NARAIN SINGH AND OTHERS v. STATE OF BIHAR AND OTHERS[3], the Apex Court ruled that for delay in forwarding supplementary list, appointees cannot be made to suﬀer. In another case K.MANMADHA RAO v . GOVERNMENT OF ANDHRA PRADESH AND OTHERS[4], where the petitioner before the Apex Court who appeared for limited recruitment for the post of Assistant Engineer was declared selected in the year 1978, but he was informed of the selection in the year 1979 only, the Apex Court ruled that he is entitled to seniority higher in rank than those whose services were recognized and Government is justiﬁed in revising the earlier proceedings and restoring the seniority of the petitioner. In respect of the respondent No.6 he was not at fault. The delay had occasioned for other reasons. In the teeth of the ratio of the above cases, it would be far fetched to say that he is not entitled to seniority over the subsequent recruits. Therefore, for the foregoing reasons, the appointment and ﬁxation of seniority of respondent No.6 as fixed have to be upheld. This brings us to the issue relating to ﬁrst category i.e. respondents 4 and 5. Respondent No.4 expressed his unwillingness at the time of interview for appointment to the post of Deputy Registrar of Co- operative Societies and Assistant Director, Survey and Land Records. Therefore, the Service Commission did not communicate the selection and allotment when fall out vacancies were taken up. He approached the Tribunal in O.A.No.30084 of 1990. Since one Sudhakar who secured less marks than him was appointed as Deputy Collector, the Tribunal directed the Government to appoint him as Deputy Collector or to any other available post, which he is prepared to accept in any S.C carry forward vacancy in any department. In pursuance of the said direction and on a representation made by him that he served as M.R.O for 16 years, he was appointed as Deputy Collector. As already noted, the 5th respondent failed to join in the stipulated time and in R.P.No.24294 of 1989 the Tribunal passed similar orders as that passed in the case of the 4th respondent and taking into consideration his representation that he was working as Tahasildhar, he too was appointed as Deputy Collector. It may be noted that there is no direction by the Tribunal that they shall be appointed as Deputy Collectors. The fact that they were already working in the Revenue Department appears to have weighed with the Government in appointing them as Deputy Collectors. The question here is wither there were fall out vacancies or carry forward vacancies reserved to S.C. candidates. The learned Member (Administrative) gave a ﬁnding on this question while the learned Acting Chairman and the learned Member (Judicial) did not. The learned Member (Administrative) observed as under: “The A.P. Public Service Commission notiﬁed the vacancies reserved to be ﬁlled in by direct recruitment to various categories of posts in Group-I Services keeping in view the availability of vacancies. According to the counter ﬁled by A.P.P.S.C., for the recruitment year relating to 1983-84 3 SC vacancies were notified. There is no indication in the counter filed by APPSC that there were any carry forward Dy. Collectors vacancies meant to be ﬁlled in by SC candidates in the recruitment done during the year 1983-84. The counter ﬁled by the APPSC also goes to show that all the 3 vacancies were ﬁlled up by 3 candidates in order of merit and all of them have jointed service. Further, there were also no fall out vacancy in the SC category in the recruitment done during 1983-84. The candidates who were selected as Deputy Collectors have secured higher marks than the respondents 4 and 5. Therefore, the Respondents 4 and 5 cannot have any grievance if they were not appointed as Deputy Collectors in the selections relating to 1983-84. Their grievance can only be in respect of appointment to other categories of posts namely RTO/other posts included in Group-I service in which persons who got lesser marks than them were appointed ignoring their claims. Any appointments against vacancies notiﬁed in 1983-84 for direct recruitment could be made in respect of vacancies notiﬁed or that arose due to non-joining of selected candidates in the recruitment relating to 1983-84. As there were no vacancies available and as all available vacancies meant for SCs were ﬁlled up by candidates who obtained higher marks than Respondents 4 and 5 and as there are no fall out vacancies, the applicants cannot be legitimately appointed as Deputy Collectors in the recruitment relating to the year 1983-84. However, in the counter ﬁled by the Government it is stated that Respondents 4 and 5 were appointed against carry forward vacancies. It is not clear from the counter whether carry forward vacancies were available during 1983-84 which could be ﬁlled up by the party respondents 4 and 5 or carry forward vacancies were available at the time of the appointment of Respondents 4 and 5 in 1995-96. In the counter ﬁled by APPSC which is the recruiting agency there is no averment that there were carry forward vacancies available for SCs during the recruitment year 1983-84.” Thus, a ﬁnding is given by the learned Member (Administrative) that there were neither carry forward vacancies nor fall out vacancies. The fact that all the three vacancies reserved for S.C. candidates were ﬁlled up was noted in the judgment delivered by the learned Acting Chairman also. With regard to carry forward vacancies or fall out vacancies, the learned Acting Chairman observed as under: “The A.P. Public Service Commissioner made it clear that both Party Respondents 4 and 5 were not selected as carry forward vacancies much less the carry forward vacancies that were carry forward beyond 3 years. Thus, the A.P. Public Service Commissioner amply made it clear that Party Respondents 4 and 5 were selected in pursuance of the directions of this Tribunal in the said two O.As. They made it clear that both of them were selected in pursuance of Group-I Services 1983-84 batch. He got eligibility for selection for the post of Deputy Registrar of Cooperative Societies and Asst. Director of Survey and Land Records, but he did not join. Later, he was not considered for selection against fall our vacancies. Based on the directions of this Tribunal in O.A.No.30084 of 1990 the A.P. Public Service Commission communicated his case to the Government vide their letter dated 30-01-1995 for appointment to any equivalent post of Regional Transport Oﬃcer in Group-I Services. As he was already working as Mandal Revenue Oﬃcer, at that point of time, he represented to Government with a request to appoint him as Deputy Collector. The Government in their counter clearly indicated that after careful examination of his case, Government issued orders vide G.O.Ms.No.620, Revenue (Ser.I) Department, dated 20-11-1995 appointing him as Deputy Collector in A.P. Civil Services by direct recruitment against the carry forward vacancies reserved for S.C. community by restoring his rank in the list of approved by the A.P. Public Service Commission, under Group-I Services of direct recruitment for the year 1983-84, with the stipulation that his inter se seniority in a batch of Deputy Collectors for the year 1983-84 will be communicated at the appropriate time in consultation with the A.P. Public Service Commission. His date of officiation is 27-11-1995. Thus, the Government made it clear that Sri P.Thippana was appointed in carry forward vacancy.” From the above excerpt it appears that the learned Acting Chairman gained an impression that the 4th respondent was appointed in a carry forward vacancy, without going into the details. At one stage, the learned Acting Chairman observes: “The fact remains that the judgments rendered by this Tribunal in the aforesaid O.A. and R.P. have become ﬁnal and no alternative was left over to the oﬃcial respondents including A.P. Public Service Commission except to obey the directions contained therein.” At another place, the learned Acting Chairman observes: “Of course, there is some inconsistency with regard to the stand taken by the A.P.P.S.C and the Government. The Government took the view that they were appointed in carry forward vacancies. The A.P.P.S.C on the other hand did state that they were appointed in future vacancies. Herein, we want to make it clear that the Government is the competent authority to say in which vacancies the party respondents are accommodated. At this length of time such controversy is immaterial. The oﬃcial respondents are bound to obey the directions given by this Tribunal. Accordingly, the party respondents were accommodated. xxxxxx xxxxxx Herein the Government did not appoint the party Respondents 4 to 6 on its own accord. A mandate was given by this Tribunal to appoint party Respondent Nos.4 and 5. Party Respondent No.6 was appointed as per the ratio held in A.V.Bogeswarudu’s case. If such appointments were not made the oﬃcial respondents could have been hauled up for contempt. In those circumstances, the party Respondent Nos.4 to 6 were appointed, as they belonged to 1983-84 batch, and as their appointment were in accordance with the directions by the Courts. It cannot be thus said that the very appointments were improper.” A reading of the judgment rendered by the learned Acting Chairman would give suﬃcient indication that though there were conﬂicting stands taken by the A.P.P.S.C and the Government with regard to the existence of carry forward vacancies, the learned Acting Chairman was carried away by the fact that in pursuance of the directions given by the Tribunal, Respondent Nos.4 and 5 were appointed. No clear ﬁnding is given by him as to the existence of carry forward or fall out vacancies. His judgment is ambivalent in that regard. The learned Member (Judicial) to whom the matter was referred as there was diﬀerence of opinion between the Acting Chairman and the Member (Administrative), totally sailed with the Acting Chairman in his approach with regard to existence of vacancies. He also did not give any ﬁnding as to the existence of vacancies either carry forward or fall out. Ultimately he observes: “Hon’ble Sri A.Venkat Reddy, Acting Chairman has given an elaborate judgment consisting of 64 pages, whereas Hon’ble Sri Ch.Venkatapathi Raju, Vice Chairman wrote a brief judgment of 12 pages mainly holding that there were no carry forward vacancies and that giving seniority to the unoﬃcial respondents is not proper, but in the light of the discussion referred to above, I disagree with the views and ﬁndings given by Hon’ble Sri Ch.Venkatapathi Raju, Vice Chairman and fully agree with the view that has been rendered by Hon’ble Sri A.Venkat Reddy, Acting Chairman, by holding that there are no merits in the OAs., and they are liable to be dismissed.” It is not the case of the Government that to honour the judgments of the Tribunal, supernumerary posts were created and Respondent Nos.4 and 5 were accommodated therein. Thus, the whole issue hovers round the question whether Respondent Nos.4 and 5 were appointed as against the carry forward vacancies/fall out vacancies. This issue is not probed into by the Tribunal. The learned Member (Administrative) also gave ﬁndings as to the existence of those vacancies based on the silences in the counter of the Government. The learned Acting Chairman was carried away by the statement of the Government, though he comes to the conclusion that conﬂicting statements were made by the Government and the APPSC. The learned Member (Judicial) simply toed the line of the Acting Chairman. I n THE STATE OF PUNJAB v. JAGDIP SINGH[5], the Apex Court held that when there are no vacancies in which the conﬁrmation could take place, the order, conﬁrming the respondents in that case, as permanent Tahasildars, is wholly void. The Apex Court in ASHWANI KUMAR AND OTHERS v. STATE OF BIHAR AND OTHERS [6], where candidates were appointed in unauthorized manner and against non-existing vacancies and their appointments were conﬁrmed and regularized, held it a nullity. “So far as the question of conﬁrmation of these employees whose entry itself was illegal and void, is concerned, it is to be noted that question of conﬁrmation or regularisation of an irregularly appointed candidate would arise if the candidate concerned is appointed in an irregular manner or on ad hoc basis against an available vacancy which is already sanctioned. But if the initial entry itself is unauthorised and is not against any sanctioned