IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWELFTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT HON'BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION No.1661 of 2000 Between: K. Suresh Kumar S/o. Sri K. Basaveswara Rao, Traffic Inspector, Grade II, A.P. State Road Transport Corporation, Venkatagiri Bus Depot, Nellore District. ... PETITIONER AND 1 Andhra Pradesh State Road Transport Corporation, Hyderabad. rep. by its Vice-Chairman and Managing Director, Musheerabad, Hyderabad - 500 020. 2 Executive Director (Administration) Andhra Pradesh State Road Transport Corporation, Mushirabad, Hyderabad-500 020. 3 Executive Director, Andhra Pradesh State Road Transport Corporation, Nellore Zone, Nellore. ...RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a writ of certiorari or any other appropriate writ, order or directions calling for records relating to impugned proceedings No.TR-1/255(3)/99-P.O.II dated 29.9.1999 on the file of 2nd respondent P.O.II dated 29.9.1999 on the file of 2nd respondent herein and quash the same with consequential directions the respondents to treat the appointment of the Petitioner as Traffic Inspector Grade II on 19.10.1991 as regular appointment for all purposes including seniority and promotion to next higher posts with all attendent benefits. Counsel for the Petitioner: MR. G. Ramachandra Rao Counsel for Respondents: C. Prakash Reddy (SC FOR APSRTC) The Court made the following Order: The petitioner, a Traffic Inspector Grade-II in A.P. State Road Transport Corporation, attached to Venkatagiri Bus Depot of Nellore District, filed this writ petition questioning the order dated 29-09-1999 passed by the Executive Director (Admn.), whereby his claim for regularization of his service as Traffic Inspector Grade-II in Nellore zone from 19-10-1991 is rejected. 2. Brief facts of the case in a nutshell are as hereunder: The petitioner was initially appointed as Traffic Apprentice vide proceedings dated 23-11-1989 and after undergoing training for a period of 18 months, he was appointed temporarily as Traffic Inspector Grade-II by proceedings dated 19-10-1991. Thereafter, by proceedings dated 26-10-1996, the services of the petitioner as Traffic Inspector Grade-II were regularized along with others with effect from 27-09-1996. The next promotion from the post of Traffic Inspector Grade-II is Traffic Inspector Grade-I. Based on the seniority, the petitioner was promoted to the post of Traffic Inspector Grade-I by order dated 21-07-1998. However, the said order was cancelled by office order dated 31-12- 1998 and the petitioner was reverted to the post of Traffic Inspector Grade-II. Aggrieved by the same, the petitioner filed a representation dated 12-01-1999 by way of appeal before the Executive Director (Admn.) of APSRTC. When the same was pending before the appellate authority, he filed W.P.No.3044 of 1999 before this court and the same was dismissed on the ground that he had already filed an appeal and the appellate authority was directed to hear and dispose of the said appeal. In compliance of the said order of this court, the claim of the petitioner was considered and an order dated 29-09-1999 was passed and the same is impugned in this writ petition. 3. During the year 1989, recruitment of Traffic Apprentices was made in Vikramasimha region of the APSRTC due to nationalization of routes. The petitioner was one of the 16 selected candidates who underwent training. However, by the time they completed their training as there were no vacancies for their appointment in Vikramasimha region, the petitioner, along with others, was appointed as Traffic Inspector Grade-II temporarily by order dated 19-10-1991. As per the A.P.S.R.T.C. Employees Recruitment Regulations, 1966, the post of Traffic Inspector Grade-II is to be filled in the ratio of 3:2 by promotion and also by selection from among the Traffic Apprentices. Although the petitioner was appointed on temporary basis on 19-10-1991, in view of the representation of departmental candidates seeking to promote them as Traffic Inspectors Grade-II, no orders were issued regularizing the services of the petitioner. But, after sufficient number of departmental candidates were promoted to fulfill the ratio of 3:2 order dated 26-10-1996 was passed regularizing the services of the petitioner. 4. Initially, the APSRTC was divided into seven regions and each region was a unit for the purpose of recruitment, transfer and seniority. Subsequently, zonal setup had come into force with effect from 25-05-1994 and the seniority of various categories was revised with effect from 01-01-1995. The post of Traffic Inspector Grade-I, which is a promotion post from the post of Traffic Inspector Grade-II, was also brought into zonal level. As much as the petitioner was appointed in Vikramasimha Region after the zonal setup had come into force, options were called for, for the purpose of placement and promotion. Pursuant thereto, the petitioner opted Nellore Zone for the purpose of placement and Vijayawada Zone for the purpose of promotion. For the purpose of promotion to the post of Traffic Inspector Grade-I, the seniority of the petitioner would be maintained in the cadre of Traffic Inspector Grade-II of Vijayawada Zone as per his date of regularization in the post of Traffic Inspector Grade-II in Nellore Zone. The petitioner was temporarily promoted from the post of Traffic Inspector Grade-II to the post of Traffic Inspector Grade-I by order dated 21-07-1998. But, when it was noticed that he opted Vijayawada Zone for the purpose of promotion, the said promotion order was cancelled by order dated 31- 12-1998. The claim of the petitioner before the respondents as well as before this court is that as he was appointed as Traffic Inspector Grade- II on 19-10-1991 and as the said appointment is made by following regular procedure, he is entitled for seniority from the said date itself. It is also his grievance that the persons who are appointed along with him and juniors to him in the category of Traffic Inspector Grade-II are already promoted, as such, there is no reason or justification in depriving him of seniority from the date of his appointment as Traffic Inspector Grade-II, i.e. 19-10-1991, and further promotion to the post of Traffic Inspector Grade-I. 5. Heard Sri G. Ramachandra Rao, learned counsel for the petitioner and Sri C. Prakash Reddy, learned standing counsel appearing on behalf of the respondents. 6. It is contended by the learned counsel for the petitioner that as much as the petitioner was appointed pursuant to a regular notification in the year 1988 and as he was appointed to the service of the corporation with effect from 19-10-1991, the seniority of the petitioner has to be reckoned from the said date only. It is submitted that as juniors to the petitioner in the category of Traffic Inspector Grade-II were already promoted in other zones, as such, there is no reason to deprive the petitioner of his seniority. In support of his argument, the learned counsel placed reliance on a judgment of the Hon’ble Supreme Court in the case of Keshav Deo and another v. State of U.P. and others[1]. 7. On the other hand, it is contended by the learned Standing Counsel appearing for the respondents that the notification for recruitment to the post of Traffic Apprentices was issued anticipating vacancies in view of nationalization of routes, but as much as the process of nationalization was delayed and clear vacancies were not available, orders were issued appointing the petitioner on temporary basis, in the post of Traffic Inspector Grade-II. It is submitted that as per the regulations, the post of Traffic Inspector Grade-II has to be filled in the ratio of 3:2 among the departmental candidates and direct recruits and the said ratio has been followed while making appointments. It is submitted that the services of the petitioner could not be regularized immediately for want of vacancies. It is further submitted that, after sufficient number of departmental candidates were promoted, to fulfill the ratio, the services of the direct recruits have been regularized by order dated 26-10-1996, including the petitioner. It is stated that so far as regularization and seniority are concerned, as it was made clear in the very appointment order, the petitioner cannot seek any regularization from the date of his initial appointment on temporary basis, i.e. with effect from 19-10-1991, and consequential promotions. 8. With reference to the aforesaid arguments advanced by the learned counsel, the only question, which falls for consideration, is whether the petitioner is entitled for regularization of his services from 19-10-1991, i.e. from the date of his initial appointment on temporary basis. To determine the said aspect, few other relevant facts are to be noticed. The notification which was issued by the respondents in the year 1988 was only for the recruitment to the post of Traffic Apprentices. The said notification was issued in anticipation of vacancies in view of nationalization of routes. But, it is stated in the counter affidavit that there was delay in the process of nationalization and by that time, the previous recruits had completed their training and thus there were no clear vacancies in which the petitioner and others could have been appointed as Traffic Inspectors Grade-II. However, taking into account that they have already completed their training after their appointment as Traffic Apprentices, office orders dated 19-10- 1991 were issued appointing the petitioner and others as Traffic Inspectors Grade-II. In the very appointment order, it is made clear that the date of regularization and seniority will be published later. The relevant portion the order of appointment of the petitioner dated 29-09- 1999 is to the following effect: “Their present appointment is under Reg.17 of the APSRTC Employees’ (Recruitment) Regulations, 1966 and regularization of the services and fixation of their seniority vis-à-vis the departmental promotees will be published later.” 9. Though the petitioner was appointed along with 156 others in Vikramasimha Region vide proceedings dated 19-10-1991, their services were regularized only in the year 1996. Although it appears that there was abnormal delay in regularizing their services, but the reasons for such delay as stated by the respondents in the counter affidavit are plausible. The post of Traffic Inspector Grade-II is to be filled up in the ratio of 3:2 from the promotees, i.e. departmental candidates and recruits from among the Traffic Apprentices. It is stated that as such ratio was not followed, there were representations from the departmental candidates. When the petitioner was initially appointed, it is stated that there were only 54 sanctioned posts from Vikramsimha Region and by that time, there were 56 Traffic Inspectors Grade-II on rolls, i.e., 2 persons in excess of the sanctioned posts. It is the case of the respondents that after sufficient number of departmental candidates were promoted, to fulfill the ratio as referred above, as per the requirement in the statutory regulations, orders were issued on 26-10-1996 promoting the petitioner and others. At the same time, it is also to be noticed that, thereafter, when the zonal setup has come up, options were called for, for the purpose of placement and promotion. It is also not in dispute that so far as the petitioner is concerned, he has given his option for continuance in Nellore zone for the purpose of placement and Vijayawada zone for the purpose of promotion. As such, for the purpose of promotion in Vijayawada zone, in view of the option given by the petitioner, the date of regularization as Traffic Inspector Grade-II in Nellore zone was the criterion for the purpose of promotion. Though it is submitted by the learned counsel for the petitioner that juniors to the petitioner were promoted, it is to be seen that the petitioner’s case was not considered for promotion only on account of the option given by him. When the zone is a unit, promotional avenues will all depend on upon the date of regularization and the vacant posts in the unit which one opts for, for the purpose of promotion. In view of the vacancy position in the particular zone, juniors to the petitioner must have been regularized even earlier to him. However, the services of the petitioner were not regularized along with the said persons only on account of the fact that he opted for placement in Nellore zone and there was imbalance in the filling up of the post of Traffic Inspector Grade-II. The delay which has occurred in regularizing the aforesaid post in Nellore zone, which has ultimately affected promotional avenues, was for valid reason, i.e. to make good the candidates as per the ratio laid in the regulations framed under Section 45 of the Road Transport Corporation Act. Though learned counsel for the petitioner has placed reliance on the judgment of the Hon’ble Supreme Court in the case of Keshav Deo (1 supra), it is to be noticed that the candidates therein were selected by the departmental promotion committee and promotions were within the quota fixed by them and there were sufficient number of vacancies reserved for departmental candidates. It is also to be noticed that the petitioner was appointed on temporary basis in absence of any clear vacancy. By the time the petitioner and others were appointed as Traffic Inspectors Grade-II, there were no clear vacancies for the purpose of recruitment from the quota meant for direct recruits from Traffic Apprentices. In that view of the matter, it cannot be said that the petitioner was unduly deprived of his seniority from the date of his initial appointment, on 19- 10-1991, and, therefore, the judgment relied upon by the learned counsel for the petitioner would not render any assistance in support of his argument. Moreover, the Hon’ble Supreme Court in the case of Official Liquidator v. Dayanand[2] has held that the decision of the employer to create or abolish posts or cadres or to prescribe source or mode of recruitment, etc. is not immune from judicial review, but the power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision. Relating the said judgment to the facts of the present case, it cannot be said that the action of the respondents is contrary to any statutory provision. The delay that was caused in regularizing the services of the petitioner, as alleged, is only to comply the statutory provision for maintaining the prescribed ratio as referred above. Hence, I do not find any justification in the claim of the petitioner that his services are to be regularized from the date of his initial appointment, i.e. 19-10-1991, to grant the relief as prayed for. 10. The writ petition is devoid of merits and is accordingly dismissed, however, in the circumstances, without any order as to costs. _____________________ R. SUBHASH REDDY, J. February 12, 2009 MRR [1] 1998(7) SLR 469 2(2008) 10 SCC 1