IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDESDAY, THE TENTH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 19459 of 2003 Between: B.Srinivas s/o. Dr.B.Ramulu G.M.R.Polytechnic, Bhadrachalam, resident of Bhadrachalam, Khammam Dist. ..... PETITIONER AND 1 The Commissioner & Director of Technical Education BRKR Bhavan, Lower Tank Bund, Hyderabad 2 M.Ram Prasad s/o. Venkateswara Prasad Govt. polytechnic for Women, Warangal, Warangal Dist. 3 A. Murali S/o. Venkata Subba Rao Govt. Polytechnic, Visakhapatnam R3 is impleaded as per court order dt. 3-8-2006 in WPMP 9660 of 2005 4 P. Ramachandraiah S/o. Venkatesh S.V. Govt. Polytechnic, Tirupathi, Chittoor District R4 is impleaded as per court order dt. 3-8-2006 in WPMP 20229 of 2006 5 K. Venkat Reddy S/o. late Yadagiri Reddy R/o. Hyderabad R5 is impleaded as per court order dt. 23-10--2006 in WPMP 24724 of 2006 .....RESPONDENT(S) 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 one in the nature of writ of certiorari to issue a writ order or direction more particularly one in the nautre of writ of certiorari (A) by calling for the records relating to and connected with the order and judgment rendered in O.A.No.4095/93, dated 12-11-2002 on the file of the Hon'ble A.P. Administrative Tribunal, Hyderabad and quash or set aside by holding the same as erroneous unsustainable; (B) Declare that the petitioner herein is senior to the 2nd respondent in the cadre of Lecturer and senior Lecturer (Mechanical Branch) and on that basis, consider the case of the petitioner for further promotion as Head of Section in Mechanical Engineering and pass appropriate orders thereon. Counsel for the Petitioner : MR.ABHINAND KUMAR SHAVILI Counsel for the Respondent No.: GP FOR SERVICES I WRIT PETITION NO : 9072 of 2003 Between: 1 P. Bapa Rao S/o. P.S. Appa Rao Government Polytechnic, Srikakulam, Srikakulam District 2 J. Asha Ramani D/o. J. Babu Rao Government Polytechnic, Visakhapatnam, Visakhapatnam District 3 N. Vasanthi D/o. N.V. Bhaskar Rao Government Model Residential Polytechnic, Paderu, Visakhapatnam District 4 K. Sanyasi Rao S/o. K. Satyanarayana O/o. Regional Joint Director Kakinada, E.G. District ..... PETITIONER AND 1 M. Rama Prasad S/o. Venkateswara Rao Government Model Residential Polytechnic Bhadrachalam, Khammam 2 The Commissioner and Director of Technical Education, Andhra Pradesh, Hyderabad 3 R. Hari Murthy, Government Polytechnic Kothagudem, Khammam District 4 B.V.S. Seshagiri Rao, 5 A. Satyanarayana Reddy 6 M. Sampath Kumar Government Junior College, Hanamkonda, Warangal District 7 J. Krishna Reddy Associate Lecturer in Ele. Engg. Government Polytechnic, Kothagudem Khammam District 8 G. Vijayasimha Rao Associate Lecturer in ECE S.R.R.S. Government Polytechnic Sircilla, Karimnagar District 9 V. Suryaprakash Rao Associate Lecturer in ECE, Government Polytechnic for Women, Warangal 10 Mohd. Hyder Ali Khan Associate Lecturer in Civil Engg. 11 B. Srinivas Associate Lecturer in Mech. Engg. Government Model Residential Polytechnic Bhadrachalam Khammam District 12 P. Muralidhar Rao Associate Lecturer in Ele. Engg. Government Polytechnic, Warangal Warangal District 13 Ch. Venkateswara Rao Associate Lecturer in Civil Engg. Government Model Residential Polytechnic, Badhrachalam, Khammam District 14 A. Ravi Associate Lecturer in Civil Engg. GIPDCET, Ramanthapur, Hyderabad 15 B. Vijaya Kumar, Associate Lecturer in Civil Engg. Government Polytechnic, Adilabad Adilabad District 16 T. Sampath Rao Associate Lecturer in Civil Engg. 17 B. Eswaraiah Associate Lecturer in Ele. Engg. Government Polytechnic, Bhadrachalam Khammam District 18 G.V.R.L. Narasimha Rao Associate Lecturer in Civil Engg. Government Polytechnic Kothagudem, Khammam District 19 P. Bharadwaja Associate Lecturer in Civil Engg. Government Polytechnic, Adilabad, Adilabad District 20 V. Srinivasa Reddy Associate Lecturer in Ele. Engg. Government Model Residential Polytechnic Gajwel Medak District .....RESPONDENT(S) 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 appropriate order or direction more particularly one in the nature of Writ of Mandamus calling for the records relating to O.A.No. 4095/93 and set aside the orders dated 12-11-2002 passed by the A.P. Administrative Tribunal in O.A. No. 4095/93 as illegal, arbitrary, violation of articles 14,16 and 21 of the Constitution of India. Counsel for the Petitioners: MR.C.SRINIVASA BABA Counsel for the Respondents : MR.M.SURENDER RAO WRIT PETITION NO : 8803 of 2002 Between: 1 N. Harimurthy, S/o. M. Ramaiah, Warangal. 2 C. Muralidhar, S/o. Sri Nagisetty, Mahaboobnagar. 3 N. Ramanjaneyulu, S/o. Sri N. Narappa, Secunderabad. 4 B. Gokari, S/o. Sri S. Yellappa, Secunderabad. ..... PETITIONER(S) AND 1 Commissioner of Technical Education, Hyderabad, A.P. 2 State of A.P., Rep.by its Secretary, Eduction (TE) Department, Secretariat Building, Hyderabad. 3 B. Raja Rao, Srikakulam District. 4 A.C. Krishna Kumar, Nandyal, Kurnool District. 5 S. Nageasrinivasa Rao, Kothagudem, Khammam District. 6 K. Venugopal, Kothagudem, Khammam District. .....RESPONDENT(S) 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 or order of direction especially one in the nature of Mandamus :- (i) declaring the order of the Hon'ble A.P. Administrative Tribunal made in O.A.No.4916/93, dt: 6-2-2002 be set aside; (ii) declare the proceedings Rc.No.G4/11161/91, dt: 11-2-93 of the Commissioner of Technical Education, A.P., Hyderabad giving the date of regularization to the petitioners from1991 A.P.P.S.S. candidates as illegal, arbitrary and unsustainable in law; (iii) declare the petitioners are entitled for regularization from the date of their appointment (iv) to grant all consequential relief flowing from out of prayer (iii) above; and (v) to grant such other reliefs which are deemed fit and proper. Counsel for the Petitioners : MR.SIVA Counsel for the Respondent : GP FOR Services –I The Court made the following : Common Order :: THE HON'BLE MR JUSTICE GHULAM MOHAMMED & THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION Nos:19459 of 2003, 9072 of 2003 & 8803 of 2002 COMMON ORDER: (per Hon’ble Sri Justice Ghulam Mohammed,J) WP No.19459 of 2003 & WP No.9072 of 2003 are filed against the order dated 12-11-2002 passed in OA No.4095 of 1993 & WP No.8803 of 2002 is filed against the order dated 6-2-2002 passed in OA No.4916 of 1993, respectively by the AP Administrative Tribunal, Hyderabad. 2. Since the subject matter in these writ petitions is one and the same, they are clubbed, heard together and being disposed of by this common order. As common question of law is raised in these three writ petitions, suffice if facts in WP No.8803 of 2002 are adverted to. 3. The facts stated are:- The applicants-petitioners are graduates in Engineering in various faculties from various Universities in the State and they got their names registered with the respective Employment Exchanges. It is stated that in the year 1987 there was dearth of posts of Associate Lecturers in Government Polytechnic Colleges and the Andhra Pradesh Public Service Commission (APPSC) has not taken up the recruitment of Associate Lecturers, the Government with the permission of the APPSC has filled-up the posts of Associate Lecturers by calling for the names from the respective Employment Exchanges. That in pursuance of the requisition made by the authorities, the respective Employment Exchanges have sponsored the names of the petitioners and others for appointment to the posts of Associate Lecturers in Government Polytechnic Colleges. It is further stated that for the propose of selection, the Government constituted a selection committee consisting of officials of department of technical education, subject experts from appropriate field of engineering, under the Chairmanship of the then Principal, Regional Engineering College, Warangal. That the selection committee considering the merit, experience and suitability of the candidates prepared a panel and submitted to the 1st respondent-Commissioner of Technical Education, AP Hyderabad. It is stated that about 250 candidates including the petitioners were appointed in the selection made for the posts of Associate Lectures in the year 1987 and orders were issued appointing them under Rule 10 (a) (i) (1) of the AP State & Sub-ordinate Service Rules, 1962, for short ‘the Rules’ (pre amended Rules). It is stated that in the meanwhile, the posts of Associate Lecturers in the Government Polytechnic colleges were notified by the APPSC in the year 1987 and the selection process was completed and appointment orders were issued based on the selections made by the APPSC in the year 1989. It is stated that subsequent recruitment was also made by the APPSC in the year 1990 for the said posts. It is further stated that the posts held by the petitioners and others, who are similarly placed, were not notified by the authorities to the APPSC. It is further case of the petitioners that they approached the authorities for regularization of their services and their services are regularized in terms of GO Ms.No.193, dated 14-3-1990. But the main grievance of the petitioners is that their services were regularized from the date subsequent to the date of regularization of the services of the candidates selected and appointed by the APPSC in the years 1989 and 1990. That on the basis of the seniority list issued in the year 1993, promotions to the posts of heads of departments is being effected by placing the petitioners and others appointed in the year 1987, below the candidates appointed by the APPSC in the year 1989 and 1990 and that would cause serious and irreparable loss to their career, the petitioners challenged the said action of the respondents by way of the present OA, being OA No.4916 of 1993. The Tribunal, by the impugned order, having observed that the initial appointment of the petitioners is purely temporary made under Rule 10 (a) (i) (1) of the Rules and the appointments made was only to meet the contingency, and also in view of the conditions imposed in GO Ms.No.193, dated 14-3-1990 issued in that behalf, dismissed the OA. Hence, this writ petition. 4. The respondents filed counter affidavit, inter alia, contending that since the posts of Associate Lecturer was made as initial gazetted post, vide GO Ms.No.948, dated 23-12-1982, the said posts were brought under the purview of APPSC. That as there was imperative need for filling up the said vacancies, and the process of selection of candidates by the APPSC would take considerable time, the Government was addressed to permit the Director of Technical Education to take up the process of filling up of vacancies of Associate Lecturers purely temporary basis. That the Government by letter dated 13-8-1985 addressed the APPSC to communicate its concurrence to take up temporary recruitment of candidates duly relaxing the ban orders, then in vogue. Since the APPSC agreed for making temporary appointments, the Government in GO Rt.No.853, dated 2-4-1986 permitted the Department to fill up the vacancies in the category of Associate Lecturers in all the faculties from the candidates sponsored by the Employment Exchange in terms of the orders issued in GO Ms.No.24, dated 22-1-1986. It is stated that pursuant to the selection made, the selected candidates were allotted to their respective zones and their appointment was purely on temporary basis liable to be terminated at any time without any notice and without assigning any reason. But on the representation made by the petitioners and others to regularize their services, the Government issued GO Ms.No.193, dated 14-3-1990 paving way for regularization of the petitioners and others appointed under Rule 10 (a) (i) (1) of the Rules on fulfillment of conditions stipulated therein with prospective effect and also the candidates appointed through the APPSC. It was further stated that the petitioners and other similarly placed candidates appointed under Rule 10 (a) (i) (1) of the Rules have been regularized from the date of their eligibility i.e. in accordance with para (4) (2) of GO Ms.No.193, dated 14-3-1990. 5. Heard Sri Abhinand Kumar Shavili, Sri Siva and Sri C. Srinivasa Baba, the learned counsel appearing for the petitioners and the learned Government Pleader for Services-I and Sri M.Sunder Rao, learned counsel for the party respondents. Perused the impugned order passed by the Tribunal. 6. Learned counsel for the petitioners contended that inasmuch as the selection of the petitioners was made by a selection committee constituted for that purpose and the petitioners have undergone the regular process of selection, their selection is not irregular. Learned counsel further contended that when once the jurisdiction of APPSC is excluded by invoking Clause (3) of Article 320 of the Constitution, and the petitioners possessed the requisite qualification of engineering as on the date of their initial appointments, the petitioners are entitled for regularization from the date of their initial appointment. It was also contended that inasmuch as the petitioners are drawn from the respective Employment Exchanges and undergone the process of selection, their seniority has to be reckoned from the date of their initial appointments. In support of their contentions, learned counsel relied on the decisions in ANURADHA BODI vs. MUNICIPAL CORPORATION OF DELHI1 & DIRECT RECRUIT CLASS-II ENGINEERING OFFICERS’ ASSOCAITION vs. STATE OF MAHARASTRA.2 7. On the other hand, learned counsel for the party respondents contended that though the petitioners, as such, were not entitled to regularization, the Government has given them concession by issuing GO Ms.No.193, dated 14-3-1990 and evolved a scheme for regularization of their services. It was also contended that the petitioners having accepted their initial appointments as ad- hoc/temporary under Rule 10 (a) (i) (1) of the Rules, cannot seek for regularization from the date of their initial appointment. Learned counsel further submitted that as rightly observed by the Tribunal, the petitioners got eligibility from the date of GO Ms. No.193, dated 14-3- 1990. Learned Government Pleader also contended that inasmuch as the very appointment of the petitioners was under Rule 10 (a) (i) (1) of the Rules, they cannot claim any preferential claim, muchless regularization of their services, but the Government taking a sympathetic view decided to regularize the services of the petitioners subject to exhausting candidates approved for appointment allotted to the unit by the recruiting authority i.e. APPSC, if any, waiting for appointment. The decisions in EXCISE COMMISSIONER, KARNATAKA vs. V. SREEKANTA3 & K. NATARAJAN v. STATION COMMANDER, AIR FORCE STATION, HYDERABAD4 are relied on by them. 8. The controversy involved in this case relates to seniority in the cadre of Associate Lecturers between the candidates (petitioners) appointed on ad-hoc/temporary basis under Rule 10 (a) (i) (1) of the Rules and the candidates appointed through the APPSC. 9. Admittedly, the petitioners were appointed under Rule 10 (a) (i) (1) of the Rules by the selection committee constituted for that purpose. Paras 1 and 2 of the appointment order dated 2-3-1987 issued to the petitioners reads thus: “Under the provisions of Rule 10 (a) (i) (1) of General Rules for Andhra Pradesh State and Sub-ordinate Services, the candidates show in the Annexure to this order and whose names are sponsored by the Regional Employment Officer, Hyderabad, are temporarily appointed as Associate Lecturers in Polytechnics and Government Degree/Junior Colleges under vocationalization in the scales of pay of Rs.1380-60-1980-70-17-5017 and posted in the Institutions as shown against their names in the existing vacancies from the dates of their assuming charge of the posts. 2. The appointments shown in the annexure to this order are purely temporary and liable to be terminated at any time without notice and without assigning any reason, and they will be replaced whenever regular appointments are made by the Andhra Pradesh Public Service Commission under due notification by the Commission in response to which they may also apply and they shall not claim any preferential treatment at the time of such regular selections by the Andhra Pradesh Public Service Commission.” 10. The petitioners were recruited as Associate Lecturers in Government Polytechnic Colleges by a duly constituted Selection Committee which included experts from appropriate field of engineering, viz. the Principal, Regional Engineering College, Warangal and others. The need to appoint the petitioners, according to the respondents, arose as there was dearth of Associate Lecturers in Government Polytechnic Colleges, the Government with the permission of the APPSC, permitted the Department to fill-up the posts of Associate Lecturers by calling for names from the respective Employment Exchanges. It is true that the selection committee considered the merit, experience and suitability of the petitioners and prepared a panel for their appointment, pursuant to which they were appointed. Though the petitioners were appointed by a selection committee constituted for that purpose, the appointments are made under Rule 10 (a) (i) (1) of the Rules, and in the appointment order itself it was made clear that their appointment was purely temporary and in case the petitioners intend to get selected on regular basis, they are required to respond to the notification issued by the APPSC and they cannot claim any preferential claim by virtue of their appointment under Rule 10 (a) (i) (1) of the Rules. The decisions relied on by the learned counsel for the petitioners is not applicable to the facts of the present case. The propositions laid down by the Constitution Bench of the Apex Court in Direct Recruit Class-II Engineering Officers’ Association’s case (2 supra) was followed by the Apex Court in another decision in Anuradha Bodi’s case (1 supra). The propositions laid down by the Apex Court in Direct Recruit Class- II Engineering Officers’ Association’s case (2 supra) it to the effect that when once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. In the instant case, the very nature of appointment was made known to the petitioners that it is purely temporary and they will have to compete for regular selection and they will be replaced by regularly selected candidates by the APPSC. But, the Government, as a special case, and also in view of the representation made by the petitioners, took a policy decision to regularize the services of the petitioners excluding the jurisdiction of the APPSC under proviso to Clause (3) of Article 320 of the Constitution, and in pursuance of which, GO Ms.No.193, dated 14-3-1990 was issued whereby the services of the petitioners were regularized subject to certain conditions. In view of the specific terms mentioned in the order of appointments issued to the petitioners and the petitioners having accepted the same and joined duties, now cannot claim parity with the recruits selected by the APPSC. The Division Bench of this Court in K. Natarajan’s case (4 supra) discussed the parameters for exercise of the High Court’s power to issue a writ of certiorari and observed that finding of fact reached by the inferior Court, Tribunal etc., as a result of the appreciation of evidence, cannot be reopened or questioned in writ proceedings except when the judgment, order or award suffers from an error of law apparent on the fact of the record. 11. In that view of the matter, we do not find any illegality or irregularity in the impugned order passed by the Tribunal warranting interference by this Court. The writ petition fails it is accordingly dismissed and consequently the other two writ petitions are also dismissed. No order as to costs. _____________________ Ghulam Mohammed, J ______________________ B. Seshasayana Reddy, J Dated: 10-12-2008 Nrg. 1 1999 LLJ-1-560 2 AIR 1990 SC 1607 3 AIR 1993 SC 1564 (1) 4 2007 (6) ALD 122 (DB)