THE HON'BLE MRS JUSTICE T.MEENA KUMARI and THE HON'BLE MR JUSTICE P. LAKSHMANA REDDY WRIT PETITION NO : 2313 of 2001 JUDGMENT: (Per Hon’ble Sri Justice P.Lakshmana Reddy) This writ petition is filed seeking a writ of certiorari by calling records relating to and connected file OA 4626 of 2000 on the file of the A.P. Administrative Tribunal, Hyderabad and to set aside the orders dated 10.08.2000 by holding the same arbitrary, erroneous and unsustainable and also to declare the writ petitioners as seniors to the unofficial respondent No.3 in the cadre of Senior Assistants and also to direct the official respondents 1 and 2 to consider the case of the writ petitioners to the posts of Superintendents in the existing vacancies. 2. The relevant facts in brief are as follows: The 3rd respondent was recruited as Junior Assistant in the education department on 02.09.1980 at Kakinada. The first petitioner was appointed as Junior Assistant on 17.08.1982, the second petitioner was appointed as Junior Assistant on 12.08.1983 and the third petitioner was appointed as Junior Assistant on 05.09.1984 in the same department. All of them were regularized as Junior Assistants taking their dates of appointments into consideration. Thus, the third respondent was senior to the petitioners 1 to 3 in the cadre of Senior Assistants. While so, on 12.09.1988 the Government issued G.O.Ms.No.361 sanctioning Senior Assistant posts for the department in which the petitioners 1 to 3 and 3rd respondent are working. In order to get promotion as Senior Assistant one must pass the prescribed departmental tests. The petitioners 1 to 3 had passed all the departmental tests even prior to the year 1988. The third respondent passed three departmental tests prior to 1982 and appeared for remaining part-I Deputy Inspectors test in the year 1987. But, the results were published in A.P. Gazette declaring the results of the said test on 06.10.1988 and as per the said results the 3rd respondent passed that departmental test also. But, the said gazette was not printed and communicated to the department till December, 1988. As the posts were sanctioned on 12.09.1988, the department prepared combined seniority list on 11.10.1988 of Junior Assistants and Typists eligible for promotion as Senior Assistants. Though by then the 3rd respondent passed all the departmental tests, on account of non-printing of results in the official gazette and non-communication of the gazette to the department till December,1988, the entry could not be made in the service register of the 3rd respondent. As there was no entry regarding the passing of departmental test in the service register by 11.10.1988, the department did not include the name of the 3rd respondent in that seniority list of Junior Assistants prepared for the purpose of promotion to the cadre of Senior Assistants. The petitioners 1 to 3 were appointed as Senior Assistants on 18.10.1988 ignoring the 3rd respondent who is senior to them. The 3rd respondent made representation to the District Educational Officer to consider her for promotion to the post of Senior Assistant on par with her juniors since the promotions were effected given to the juniors. As there was no positive response, the third respondent approached the A.P. Administrative Tribunal in R.P.No.997 of 1998 on the file of the Tribunal and the Tribunal directed the District Educational Officer to reconsider her case basing on the results published in the Gazette on 06.10.1988. But, in spite of the orders passed by the Tribunal the District Educational Officer rejected the request of the third respondent. According to the third respondent, the Director of School Education also directed the District Educational Officer, Kakinada to consider third respondent’s case for promotion of Senior Assistant. Thereafter, on 27.04.1990, the third respondent was promoted as Senior Assistant saying that her seniority will be decided after receipt of the orders of the Director. Even prior to that the third respondent had approached the Tribunal again by filing R.P.No.15167 of 1987 and the said R.P. was ultimately disposed on 03.11.1995 without going into the merits of the case as by then the third respondent was promoted as Senior Assistant. On 03.04.1996, the service of third respondent was regularized with effect from 01.01.1990 in the cadre of Senior Assistant, whereas the petitioners 1 to 3 were regularized as Senior Assistants with effect from 04.11.1988. Thereafter, on 16.09.1998 the Deputy Secretary to Government issued a memo in respect of similar cases relating to two other persons viz. M.Balaiah and S.Phulamani to consider their cases as per the second proviso of Rule 6 of General Rules restoring their original places on par with the juniors in the higher category stating that the examination of the account test was conducted prior to 1st September of panel year. Basing on that memo, the third respondent made another representation on 02.01.2000 to reconsider her case fixing her seniority on par with her juniors. On 12.07.2000, the first respondent rejected the plea of the third respondent. Again the third respondent approached the Tribunal and filed O.A.No.4686 of 2000 and the Tribunal directed the authorities to implement the order of the first respondent dated 12.03.1990 restoring her seniority above the juniors in the cadre of Junior Assistants by giving notional date of promotion on par with the juniors in the cadre of Senior Assistants. 3. In the said O.A. the present writ petitioners are not made as respondents though they were made as parties earlier in the R.P.NO.15167 of 1989. Aggrieved by the said orders of the Tribunal in O.A.No.4686 of 2000 dated 10.08.2000 the writ petitioners with the leave of this Court filed the present writ petition contending that their services as Senior Assistant were regularized with effect from 04.11.1988, whereas the third respondent’s services were regularized as Senior Assistant only from 01.01.1990 and therefore their seniority cannot be disturbed. The third respondent had already approached the Tribunal impleading the writ petitioners also as respondents therein and in that R.P.15167 of 1989 the Tribunal refused to grant any relief to the present third respondent and it has become final an that after a period of 4 years. It is further contended that the third respondent again approached the Tribunal for the same relief which was earlier rejected without impleading the present petitioners as respondents therein and without disclosing the previous rejection, misled the Tribunal and obtained the impugned orders at the admission stage itself. If the impugned orders of the Tribunal are implemented the writ petitioner should become junior in the cadre of Senior Assistants to the third respondent and therefore the impugned orders obtained from the Tribunal without impleading the writ petitioners are not sustainable in law and are liable to be set aside. 4. As an alternative, it is further pleaded in the writ petition grounds that in any view of the matter, it is not the fault of the writ petitioners for non-inclusion of the name of the 3rd respondent in the Senior Assistants panel for the year 1987-88 and the writ petitioners are no way concerned regarding the exclusion of the name of third respondent in the panel for the years 1987-88 who are fit for promotion as Senior Assistants and that for no fault of the writ petitioners they cannot be penalized at this point of time and that the official respondents alone are to be blamed or found fault for exclusion of the third respondent’s name in the Senior Assistants panel for the year 1987-88 and hence the official respondents have to create a supernumerary post for the unofficial respondent No.3 in case the unofficial respondent No.3 is to be considered for retrospective seniority in the cadre of Senior Assistants. It is further pleaded that the Tribunal erroneously placed reliance on the on the memo issued by the State Government in the year 1998 in respect of Smt.S.Pulamani and Sri M.Pullaiah in whose favour the promotion orders were reviewed in their respective cadre with retrospective effect and the similar benefit cannot be extended to the unofficial respondent here in as 3rd respondent’s case is entirely different as he sought for restoration of promotion with retrospective effect in the cadre of Senior Assistant after long lapse of 10 years and as she was unsuccessful in getting the rejection orders dated 09.03.1989 set aside on earlier occasion. It is further pleaded that at any rate the Tribunal grossly erred in passing the impugned orders without impleading the writ petitioners who are the affected parties. 5. The unofficial 3rd respondent contested the writ petition contending that she filed R.P.15167 of 1989 before the Tribunal and simultaneously made representation/appeal to the first respondent requesting him to consider her case for promotion on par with her juniors and the said representation/appeal was considered by the first respondent viz. Commissioner and Director of School Education on 12.03.1990 and directed the second respondent viz. District Educational Officer, Kakinada to consider her case for promotion as Senior Assistant with effect from October, 1988 giving her due seniority in the cadre of Senior Assistant and that in spite of the directions the 2nd respondent kept the matter pending and asked for several clarifications in the matter and in the meanwhile the second respondent promoted her as Senior Assistant by proceedings dated 27.04.1990 with a condition that her seniority will be decided as soon as the orders of the 1st respondent are received in respect of the matter and the orders of the Tribunal and that the matter was kept pending with the first respondent by way of one clarification or the other and finally her representation came to be rejected by order dated 12.07.2000 and therefore she questioned the said order dated 12.07.2000 and as she challenged only that order she did not implead the writ petitioners as parties as they are not necessary parties. It is further pleaded that as the 2nd respondent did not implement the orders of the first respondent dated 12.03.1990 and after a period of 10 years the subsequent Director of School Education and District Educational Officer failed to implement the orders of the then Commissioner and Director of School Education by rejecting her representation she filed O.A. only against the respondents 1 and 2 for a direction to implement the orders of then Commissioner of School Education and hence the writ petitioners are not necessary parties. It is further contended that the writ petitioners have no locus standi to question the orders of the Tribunal in O.A.No.4686 of 2000. It is further pleaded that she cannot be found fault for non-printing of the publication in the official gazette and communicated the same to the department and she cannot also be found fault with the delay in implementing the orders of the then Commissioner and Director of School Education. Therefore, the contention of the writ petitioners that O.A. is barred by limitation and res judicata holds no water, and hence, the Tribunal rightly considered her case and allowed the O.A. and passed orders on 10.08.2000 by giving valid and justifiable reasons. It is further contended that admittedly the writ petitioners are juniors to her, and that they cannot have any grievance over her claim for restoring her seniority and if at all they are aggrieved, they have a remedy after the official process is started for the purpose of seniority and the writ petition is premature. It is further pleaded that if at all the petitioners are so aggrieved, they should approach the Tribunal in the first instance and the petitioners cannot directly approach this Court and hence the writ petition is liable to be dismissed. 6. The official respondents 1 and 2 filed common counter-affidavit almost supporting the case of the writ petitioners both on the ground of laches and also alleged res judicata. But, the facts that the third respondent was appointed much earlier to the writ petitioners as Junior Assistant and that the third respondent passed all the tests except one long prior to 1987, that for remaining one test she appeared in November, 1987 and passed the said test but the results were not published by the A.P. Public Service Commission till 06.10.1988 and even after the publication of results the same was not printed in the official gazette and communicated to the department till December, 1988, are not disputed. It is also not disputed that in R.P.No.997 of 1989, dated 13.01.1989 the Tribunal directed the official respondents to consider her case for promotion as Senior Assistant. It is also admitted that the then Commissioner and Director of School Education, Hyderabad issued proceedings in Rc.No.2852/F1-3/89, dated 12.07.2000 directing the then District Educational Officer to consider the case of the 3rd respondent for promotion as Senior Assistant with effect from October, 1988 giving her due seniority in Senior Assistant cadre but the respondents 1 and 2 herein in their counter-affidavit stated that in the said proceedings the Commissioner only informed the District Educational Officer but has not given orders to that effect. In respect of the memo issued by the State Government relating to Smt. S. Pulamani and Sri M.Pullaiah, the official respondents pleaded that the case of 3rd respondent is not similar to their cases as the said cases relate to the year 1998 whereas the case of 3rd respondent relate to the year 1988. The official respondents relied on the orders of the Tribunal in R.P.No.15167 of 1989 wherein the Tribunal observed that as the respondents stated in their counter that the case of the present 3rd respondent will be considered in the next vacancy and she must have already been considered for promotion in the vacancies subsequently arose and therefore, no further orders are necessary in the case and the case is accordingly disposed of. Thus, the official respondents in their counter affidavit supported the case of the writ petitioners only on technical grounds. 7 . During the course of hearing, the learned counsel for the writ petitioners reiterated the contentions raised in the writ petition. He submitted that as per the then existing rules’ entry cannot be made regarding the passing of departmental tests till the publication of results are printed in the official gazette and communicated to the concerned department and that as admittedly, the gazette was not printed and communicated by 18.10.1988 on which date the promotions were effected and the official respondents did not promote the 3rd respondent and also rightly rejected the representation made by the 3rd respondent. It is further contended that at any rate, the third respondent kept quiet even when she was regularized with effect from 01.01.1990 as Senior Assistant and she did not challenge the orders of the Tribunal passed in R.P.No.15167 of 1989 and after a period of almost eight years, the third respondent again raised the issue of seniority, and therefore, she is guilty of laches and that the Tribunal, without considering the said aspects, allowed the O.A. at the admission stage itself though the effected parties are not made as parties to the O.A. 8. The learned counsel submitted that the proviso under Rule 6 of A.P. State and Subordinate Service Rules (for short ‘The Rules’) does not come to the aid of third respondent in the instant case to restore her seniority. Regarding the laches on the part of the third respondent, the learned counsel placed reliance on two Apex Court decisions: 1. RABINDRA NATH BOSE AND OTHERS v. UNION OF INDIA AND OTHERS wherein in it was held that the petition filed challenging the seniority after a period of 15 years cannot be entertained. 2. UNION OF INDIA AND ANOTHER v. S.S. BOTHIYAL AND OTHERS, wherein it was held that the delay and laches would defeat the remedy. 9. The counsel for the third respondent reiterated the contentions raised in the counter-affidavit filed on behalf of the third respondent. It is submitted that the second proviso contained in Rule 6 of the Rules, mandates the review of the panel prepared in cases, where the names of persons, who appeared for the examinations of departmental tests, were not included on account of non- publication of results as the publication of results dates back to the date of appearance for the examination, and hence, the Tribunal has rightly allowed the O.A. filed by the third respondent and there is no need for interference by this Court. Regarding non-impleadment of writ petitioners as respondents in the said O.A., he submitted that as the then Commissioner and Director of School Education has already issued an order directing the District Educational Officer to promote the respondent NO.3 as Senior Assistant with effect from October, 1988 along with her juniors and as the said order was not implemented by the District Educational Officer and the present Commissioner and Director of School Education, the third respondent impleaded only the present Commissioner and the District Educational Officer. The O.A. is filed for enforcement of the order of the then Commissioner and Director of School Education, and hence, there is no need to implead the present writ petitioners in such an O.A. 10. No arguments are advanced on behalf of the official respondents 1 and 2. 11. The points that arise for consideration in this writ petition are: 1. Whether the promotion of the third respondent as Senior Assistant is to be given effect from the dates on which promotions of her juniors in the Junior Assistant cadre were given effect as contended by the third respondent? 2. Whether the 3rd respondent id barred from making such a claim in view of the orders passed by the Tribunal in R.P.No.15167 of 1989 dated 03.11.1995? 3. Whether the Tribunal erred in allowing O.A.No.4686 of 2000 by its order dated 20.08.2000? 4. Whether the impugned orders of the Tribunal are liable to be set aside on the ground that the present writ petitioners were not made as parties to the said O.A. and on the ground of laches on the part of the R-3? 5. To what result? 12. POINT NO.1: It is not in dispute that the third respondent was appointed on 02.09.1980 as Junior Assistant and she passed three departmental tests i.e. Account Test, Part-II Test of Deputy Inspector, and Part-III Test of Deputy Inspector by 22.11.1982 and she appeared for Part-I Test of Deputy Inspector Test on 28.11.1987. In the normal course, results ought to have been published before July, 1988. It is also not in dispute that the present writ petitioners 1 to 3 were appointed as Junior Assistants on 17.08.1982, 12.08.1983 and 05.08.1984 respectively, and therefore, they were juniors in the cadre of Junior Assistants to the third respondent. It is also not in dispute that the Senior Assistant posts were sanctioned in September, 1988 and the combined panel of the names of Junior Assistants and the typists eligible to get promotions were prepared on 18.10.1988 and by then the results of departmental tests held on 28.11.1987 were published on 06.10.1988 in which the third respondent passed the departmental test which is a mandatory requirement for promotion to the cadre of the Senior Assistant. It is also not dispute that the third respondent filed a representation before the District Educational Officer along with the letter issued by the A.P. Public Service Commission to the effect that she passed the departmental test, but the District Educational Officer rejected her request on the ground that there is no entry in the service register to that effect as the results were not printed in official gazette and communicated to the department. Thus, the name of the third respondent could not be included in the panel prepared on 18.10.1988 though the third respondent passed the test as per the results published on 06.10.1988. The District Educational Officer may be right to state that unless there is an entry in the service register, the name of the third respondent cannot be included in the seniority list prepared on 18.10.1988. But, when the third respondent was given promotion as Senior Assistant after the official gazette was communicated, the District Educational Officer ought to have reviewed the panel prepared on 18.10.1988 giving her the original place as contained in the seniority list of the Junior Assistants. As seen from the Rule 6, panel have to be prepared for promotion in the month of September every year taking first September of the year as the qualifying date to determine the eligibility of the candidate for such appointment. As per second proviso contained therein, the panel of candidates so prepared, shall be reviewed after a period of six months reckoned from the date of approval of the panel, for the purpose of considering the cases of such other persons, whose names were not included in the panel prepared earlier for not passing the prescribed tests or for not having special qualifications prescribed under the rules, if they have subsequently passed those tests or acquired the said qualifications and are otherwise found suitable for inclusion in the panel of the year. In the instant case, the third respondent appeared for the departmental test in November 1987 itself, and the results ought to have published before the end of July 1988 and for no fault of third respondent, the results were not published by the A.P. Public Service Commission and the results were published subsequently, on 06.10.1988 and even after that those results could not be printed in official gazette till December, 1988. For such lach on the part of the A.P. Public Service Commission, the third respondent cannot be penalized. In fact, in the grounds of writ petition, the petitioners themselves in para 4 at page 10 stated that the official respondents alone to be blamed or found fault for exclusion of the unofficial respondents names in the Senior Assistants panel for the year 1987-88. The writ petitioners also did not find fault on the part of the third respondent for non-inclusion of her name in the panel prepared for the year 1987-88. The Government of Andhra Pradesh in Memo No. 2745/T.E.2/98-4, dated 16.09.1998, drew the attention of the Commissioner of Technical Education that in case the candidates appeared for the examination for the departmental tests prior to 1st September of panel year, their names should be considered for that panel year though the results were announced lately, as per the second proviso contained in rule 6 of A.P. State and Subordinate Rules that their original place on par with their juniors shall be restored in the higher category also. It is also the common practice to restore to the original places in the higher category in case the promotion of the candidate could not be considered earlier for no fault of that particular candidate. For example, if a departmental enquiry is pending against an employee, his name will not be considered for promotion for that reason and in case the employee is absolved of all the charges after due enquiry, he shall not only be promoted but also be given his original place on the principle that for no fault of his own, he cannot be deprived of his promotion with original seniority. The same principle applies here also because in November, 1987 itself the third respondent appeared for departmental test and the results ought to have been published before July, 1987 as per the rules of the A.P. Public Service Commission. However, when the third respondent passed the test appeared in November 1987, the result of the examination shall date back to the date of writing the examination. In fact, in the instant case, by the time the juniors of third respondent were considered the results were also published on 06.10.1988 but her name could not be included on some technical ground of non-communication of printed gazette copy. As already observed supra, third respondent was in no way responsible for such late publication of the results. However, the fact remains that she passed the examination conducted in November, 1987. Therefore, the respondent deemed to have been qualified for promotion as Senior Assistant along with her juniors who were promoted and regularized with effect from 04.11.1989. In fact,