Thota Nagaiah vs The State Of Ap
2021 Latest Caselaw 829 AP

      THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                      WRIT PETITION NO.16578 OF 2020
ORDER:

This writ petition is filed under Article 226 of the Constitution

of India for issue of Writ of Mandamus, declaring the action of the

third respondent/Superintending Engineer, SSLC & SB Circle,

Nellore in not implementing the orders passed by the second

respondent i.e. the Engineer-in-Chief (Admn) vide Memo

No.RC/ENC/AW/V[2]1/2/E2929001/2019, dated 14.11.2019 as

illegal, arbitrary, violative of principles of natural justice and direct

the third respondent/Superintendent Engineer to revert the

unofficial respondent Nos.4 to 10 by revising the seniority list dated

12.05.2015 and consequently to promote the petitioners herein from

the date when the unofficial Respondent Nos.4 to 10 were promoted

with all consequential benefits including seniority, pay and other

benefits.

The petitioner Nos. 1, 3, 4, 5 & 6 are working as Junior

Assistants and petitioner Nos. 2 & 7 are working as typists. All the

petitioners including respondents Nos.4 to 10 were selected to the

said posts from the list of displaced persons under SSLC & SB Circle

Nellore by District Selection Committee, Sri Potti Sriramulu Nellore

District vide proceedings in RC.No.A2/1055/2005, dated

22.09.2011. It is submitted that as per the allotment order at

Clause No.7 it is stated that seniority of the candidates will be in

accordance with the rank shown in the allotment order, irrespective

of their date of joining in the unit. All the petitioners along with the

unofficial respondents have joined the service.

MSM,J WP_16578_2020

While the matter stood thus, a final seniority list was issued

by the third respondent Vide Memo No.SE/SSLC&SBC/NLR/S1

/EC.3/E.32/88 on 12.05.2014 wherein the names of the petitioners

have been pushed down and the names of respondent Nos. 4 to 10

were shown above the petitioners. The main grievance of the

petitioners is that, as per the appointment/allotment orders,

Respondent Nos. 4 to 10 were shown above the petitioners. It is the

main contention of the petitioners that, the seniority list dated

12.05.2014 issued by the third respondent was in total violation of

Clause 7 enumerated in the allotment order. Questioning the

same, the petitioners filed appeal before the Appellate Authority and

the Appellate Authority on 15.05.2015 kept in abeyance the

implementation of the seniority list. On the same day, i.e. on

15.05.2015, the third respondent illegally promoted the unofficial

respondents, thereby, the petitioners challenged the promotions of

the unofficial respondents before the Andhra Pradesh Administrative

Tribunal by filing O.A.No.2700 of 2015 and the same was dismissed

on 17.09.2018 with a liberty to pursue the remedies before the

Appellate Authority, as the appeal was pending.

The Chief Engineer had disposed the appeal vide Memo

No.CE/NTRTGP/TPT/C.2/F.15052015/2015-2 dated 24.06.2015,

while directing the third respondent to revise the seniority of the

circle of those persons appointed under the displaced persons quota

through District Selection Committee as per Rule 33(b) of the Andhra

Pradesh State and Subordinate Service Rules immediately and also

further directed that, if any erroneous promotions are given, the

same may be rectified and to report compliance. Another Memo MSM,J WP_16578_2020

dated 24.06.2015 was also addressed by the Chief Engineer to the

third respondent, reiterating the same, but the memo was signed on

05.08.2015.

Though two memos have been issued by the Chief Engineer on

24.06.2015, the third respondent sought clarification from the

second respondent to safeguard the interest of the unofficial

respondents. It is further submitted that the second respondent/

Engineer-in-Chief vide Memo No.RC/ENC/AW/V[2]1/E-2929001/

2019, dated 14.11.2019 had clearly stated that there is no need to

issue further clarification in this regard as the instructions issued

earlier by the Chief Engineer holds good and the seniority of the

displaced persons have to be fixed as per earlier clarifications only.

Though the second respondent/Engineer-in-Chief had issued

clarification and also directed to revise the seniority, the third

respondent did not implement the orders of his superiors. Inspite of

all this, the third respondent again referred the matter to the District

Collector and in turn the District Collector referred the file to the

District Audit Officer. The District Audit Officer vide

Lr.No.16/Special Audit/2019-20, dated 09.01.2020 submitted his

report clearly mentioning that the seniority list may be prepared as

per the appointment orders of the District Collector and Chairman of

District Selection Committee, SPSR Nellore read with Rule 33(b) of

the Andhra Pradesh State and Subordinate Service Rules, 1996.

MSM,J WP_16578_2020

Again, the third respondent appointed another committee to

examine the issue relating to the seniority of Junior Assistants in

SSLC & SB Circle, Nellore. The three Member Committee constituted

by the third Respondent, has submitted a report on 19.03.2020. In

the said report, the Committee stated that the seniority list cannot

be taken as criteria for their seniority for future promotion and

opined to seek clarification from the Government. The petitioners

contented that, until and unless the unofficial Respondent Nos.4 to

10 are reverted and the seniority list is revised, the petitioners will be

put to irreparable loss and therefore, the petitioners sought relief

stated above to avoid further loss of promotions.

The third respondent filed counter affidavit admitting the

entire proceedings referred in the petition, inter alia, contending that

certain Junior Assistants of the circle have approached the District

Collector, Nellore and represented that their seniority may be fixed

from the date of joining in the Circle instead of seniority mentioned

in the allotment orders of the District Collector, Nellore Proceedings

No.RC/A2/7055/2005 dated 22.09.2011. In response to the

representation of Junior Assistants, the District Collector, Nellore

Letter No.A2/1956/2015 dated 18.04.2015 has informed the office

that the list enclosed to the Proceedings No.RC/A2/7055/2005

dated 22.09.2011 is only a enumeration list of eligible awardees/

their dependents of displaced persons of Kandaleru Reservoir for

provision of employment and list is neither a merit ranking nor

selected candidates by observing rule of reservation. Further,

informed that the list prepared by the District Selection Committee is

neither a selection list nor APPSC in accordance with the service MSM,J WP_16578_2020

rules and Rule 33(b) of Andhra Pradesh State and Subordinate

Service Rules, 1996, does not attract. Finally, the District Collector,

Nellore has informed that the seniority of the candidates appointed

under displaced persons quota shall commence from the date of their

joining in the service/from the date of commencement of probation

in such service and condition mentioned in the said order is not

applicable in this case.

While things stood so, the Chief Engineer, NTR TGP, Tirupathi

has issued directions to this office vide Memo Dated 24.06.2015 and

24.06.2015 (signed on 05.08.2015) to revise the seniority list as per

Rule 33(b) of A.P. State and Subordinate Service Rules 1996 in light

of instructions already issued in Government Memo.No.16/Ser.A/

93-39 dated 21.04.1999 and ENC/AW/12 21458 /2011 dated

21.04.1999.

In Government Circular Memo.No.16/Ser.A/93-39 GA (Ser.A)

Department dated 21.04.1999 it has been clarified that:

(a) The inter-se seniority of the District Recruit shall be as per the Ranking assigned to them by Recruiting Agency irrespective of their dates of Joining provided that they all joined within the time allowed from them to join as per Rule 11 of Andhra Pradesh State & Subordinate Service Rules, 1996.

(b) The seniority lists already finalised by the various authorities based upon the Courts judgements in individual cases which have become final shall not be disturbed.

It is further submitted that, the seniority list of such

employees has been prepared duly taking into consideration of date

of joining in Service in the Unit duly following the orders of the

District Collector, Nellore vide Letter No.A2/1956/2015 dated

18.04.2015 and certain promotions were also affected accordingly.

After completion of the entire process, as narrated by the petitioners MSM,J WP_16578_2020

in their affidavit, the respondents admitted about fixing seniority

based on the rules in force and therefore, there is nothing wrong in

fixing the seniority and requested to dismiss the writ petition.

During hearing, Smt. Rajyalakshmi Kotagiri, learned counsel

for the petitioners strenuously demonstrated that, the impugned

order was issued in contravention of allotment letter and also the

clarification issued by the second respondent/Engineer-in-Chief. It is

further contended that, even as per the Government Circular Memo

No.16/Ser.A/93-39 dated 21.04.1999 referred in Paragraph No.10 of

the counter affidavit, a clarification was issued. Even the present

seniority list prepared by the respondents is not in accordance with

the clarification committed in the memo, and it was also in

contravention of the clarification issued by Engineer-in-Chief.

Learned counsel for the petitioners mainly contended that, the

seniority list must be prepared only in accordance with the allotment

order and no further clarifications need be issued. When once the

seniority list is fixed, it must be in accordance with the allotment

order and it cannot be revised in the absence of any rules. Apart

from that, Rule 33(b) of the Andhra Pradesh State and Subordindate

Service Rules, has no application, since it is not based on selection

on merit by concerned department and requested to restore the

original seniority mentioned in the allotment letter and issue

consequential directions as claimed.

Per contra, Sri Bhim Rao, learned Government Pleader for

Services-III supported the action of the respondents while contending

that the selection was not based on any merit, the appointments MSM,J WP_16578_2020

were given under displaced persons quota, therefore, Rule 33(b) has

no application. Apart from that, learned Government Pleader

contended that, the posts of Junior Assistant and Typist is a Circle

level post and not the State level post. Therefore, the Head of the

Circle alone is competent to fix the seniority of these petitioners and

the seniority list prepared as per the allotment letter is not legally

valid and thereby, the third respondent/Superintending Engineer

rightly exercised his power and fixed seniority of these petitioners in

accordance with law. Hence, the same cannot be disturbed by this

Court at this stage, while exercising power under Article 226 of the

Constitution of India and requested to dismiss the writ petition.

Considering rival contentions, perusing the material available

on record, the points that arise for consideration are as follows:

"Whether the posts of Junior Assistants and Typists are the Circle Level Posts. If so, whether the Superintendent Engineer is competent to fix the inter se seniority among the petitioners and Respondent Nos. 4 to 10. If not, whether the seniority fixed by the third respondent be liable to be set-aside?"

P O I N T.

Admittedly, the petitioners and Respondent Nos. 4 to 10

were selected under displaced persons quota in the cadre of

Junior Assistants and Typists. The appointment/allotment

order(s) were issued by the District Collector who is the

Chairman of District Selection Committee under displaced

persons quota. Junior Assistants and Typists being the

members of Irrigation & C.A.D Department are governed by the MSM,J WP_16578_2020

Andhra Pradesh State and Subordinate Service Rules, 1996. The

petitioners were neither selected based on merit by conducting any

examination nor appointed by transfer or promotion, but they were

appointed under special category i.e. displaced persons quota. For

appointment of persons under displaced persons quota, no

procedure is prescribed. Therefore, the seniority list in the allotment

order coupled with clarification issued by the second

respondent/Engineer-in-Chief is to be considered for fixation of

seniority, according to the contention of Smt. Rajyalakshmi Kotagiri,

learned counsel for the petitioners.

The petitioners and Respondent Nos. 4 to 10 are the members

of services of Irrigation Department. They are selected by District

Selection Board under displaced persons quota. The Rules governing

the services of Junior Assistants and Typists is not being dealt with

the provisions of the Andhra Pradesh State and Subordinate Service

Rules, 1996, but by the Ministerial Service Rules, 1998. As seen

from the communication between the Engineer-in-Chief, Chief

Engineer and the Superintendent Engineer, the seniority of the

employees shall be fixed in terms of Rule 33(b) of the Andhra

Pradesh State and Subordinate Service Rules, 1996. But before

deciding the cadre of these petitioners and Respondent Nos. 4 to 10,

it is appropriate to refer to the Rules governing the service conditions

of Junior Assistants and Typists.

The Andhra Pradesh State and Subordinate Service Rules,

1996 were issued under Article 309 of the Constitution of India.

these Rules shall apply to the State and Subordinate Services and to MSM,J WP_16578_2020

the holders of posts, whether temporary or permanent included in

any State or Subordinate Service except to the extent otherwise

expressly provided:

(i) by or under any law for the time being in force;

(ii) in respect of holders of any post, appointed by contract or agreement subsisting between such holders and the State Government.

If any provision in these rules are repugnant to the provisions

in the special rules applicable to any particular service in regard to

any specific matter, the latter shall, in respect of such service and

such specific matter, prevail over the provisions in these rules. Thus,

Clause (d) of Rule (1) of the Andhra Pradesh State and Subordinate

Service Rules, 1996, made it clear that, if these Rules are repugnant

to any other special Rules, those Rules will prevail, but not these

Rules. The cadre covered by these Rules are not specified, except

stating that the Rules are applicable to the Andhra Pradesh State

and Subordinate Service Rules, 1996. Curiously, there are Rules

known as The Andhra Pradesh Ministerial Service Rules, 1998,

which deals with service conditions and procedure for selection of

staff members dividing the same into CLASS-A and CLASS-B.

CLASS-A is again divided into Five Categories. Viz:

1. Superintendents

2. Senior Assistants

3. Junior Assistants

4. Assistant-cum-Typist

5. Telephone Operator MSM,J WP_16578_2020

CLASS-B is divided into Four Categories. Viz:

1. Special Category Steno

2. Senior Stenographer including the posts in the basic scale of pay of Senior Steno

3. U.D Typist

4. Junior Steno/Typist

The present dispute would fall within Category (3) - Junior

Assistant and Category (4) - Assistant-cum-Typist of CLASS-A.

The Andhra Pradesh Ministerial Service Rules, 1998 are also

enacted by the State by exercising power under Article 309 of the

Constitution of India and it applies to various categories under

Classes A and B specified therein. In terms of Clause (d) of Rule (1) of

the Andhra Pradesh State and Subordinate Service Rules, 1996, the

Andhra Pradesh Ministerial Service Rules, 1998 are applicable to the

services of Junior Assistants and Typists in terms of Rule 2 of the

Andhra Pradesh Ministerial Service Rules, 1998. The procedure for

selection, transfer and postings, unit of appointment, seniority are

dealt with in the Rules itself.

According to Rule 13 of the Andhra Pradesh Ministerial Service

Rules, 1998, for purposes of direct recruitment, promotion,

appointment by transfer, seniority, discharge and re-appointment

and appointment as full member to a service and such other matters

as may be specified by the State Government, a Departmental unit

shall mean:-

(a) each office of a Head of the Department or the Directorate as the case may be:

Provided that in the case of Irrigation, Roads and Buildings and Panchayat Raj Engineering Departments, all the Offices of Chief Engineers including the Offices of Engineer-in-Chiefs in each Department shall constitute one unit. Provided further that the offices of the Commissioner of Land Revenue, Commissioner of Settlements, Survey and Land Records, Commissioner of Land Reforms and Urban Land Ceilings, shall constitute a single unit: Provided also that MSM,J WP_16578_2020

the office of the Director of Anti-corruption Bureau and the Offices Subordinate to it in the State shall be treated as a single unit for all purposes.

(b) each office of a State Level Office/State Level Institution notified under Andhra Pradesh Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order, 1975 or a combination of such State Level Offices/Institutions into which several such Offices/Institutions are grouped by an order of the Head of the Department or the Directorate, issued with the prior approval of the Government;

(c) each of the Special Offices and Special Establishments notified under the Andhra Pradesh Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order, 1975, unless otherwise specified by an order to be issued by the Head of the Department, with the prior approval of the State Government; (d) in the case of posts which are within the purview of the Andhra Pradesh Public Employment (Organisation of Local Cadres .and Regulation of Direct Recruitment) Order, 1975;

(i) each department in each District or a group of offices in a part of the District into which the several offices in a District in that Department may be grouped, by an order of the Head of the Department issued with the approval of the Government for the categories of posts the minimum of the scale of pay which is equivalent to or less than the minimum of the scale of pay of Junior Assistants;

(ii) each Department in each zone specified in the second schedule to the Andhra Pradesh Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order, 1975 or a group of zones, as may be specified by the Government by an order under the said Presidential Order, 1975; or an administrative unit or units to be specified in a zone for all categories of posts, the minimum of the scale of pay of the post of Junior Assistants, by an order to be issued by the Head of the Department with the approval of the Government;

and

(e) in all other cases, the unit of appointment shall be, as may be specified by an order of the Head of the Department, with the prior approval of the Government.

As per first proviso to Rule 13(a) of the Andhra Pradesh

Ministerial Service Rules, 1998, Irrigation, Roads and Buildings and

Panchayat Raj Engineering Departments, all the Offices of Chief

Engineers including the Offices of Engineer-in-Chiefs in each

Department shall constitute one unit. Therefore, the offices of

Engineer-in-Chief and Chief Engineer are different units for the

purpose of recruitment, transfer and declaration of seniority.

Therefore, the Andhra Pradesh Ministerial Service Rules, 1998 are

alone applicable to recruitment, fixation of seniority of employees in MSM,J WP_16578_2020

Irrigation Department, but not the Andhra Pradesh State and

Subordinate Service Rules, 1996.

Rule 15 of the Andhra Pradesh Ministerial Service Rules, 1998

deals with fixation of 'Seniority'. According to it:

(1) Service rendered in a post or group of posts bearing a distinct designation and included in a category as constituted by rule (2) shall count for seniority in such category. post or group of posts irrespective of the Department or Office in which such service was rendered:

Provided that;

(i) in the case of a person those services are lent from one Department or office to another, the service rendered by him in any higher post in the Department or office to which his services were lent shall count for seniority in the parent Department or office only from the date of regular appointment to such higher post, in the parent Department or office;

(ii) the seniority of a member of the service who is transferred on administrative grounds from one department or office or unit of appointment to another department .or office or unit of appointment shall be fixed in the latter department or office or unit with reference to the date of his first appointment in the former department or office or unit;

(iii) the seniority of a member of the service who is transferred at his own request from one department or office or unit of appointment to another department or office or unit of appointment shall be fixed in the latter department or office or unit with reference to the date of his first appointment in the latter department or office or unit;

(2) (i) The seniority of a member of the service who is appointed by conversion from the post of Special Category Stenographer to the post of Superintendent or from the post of Senior Stenographer or U.D. Typist to the post of Senior Assistant shall be fixed with reference to the date of his first appointment as Special Category Stenographer or Senior Stenographer or UD. Typist as the case may be.

(2) (ii) The seniority of a member of service who is appointed by conversion from the post of Junior Stenographer / Typist to the post of Junior Assistant or Assistant-cum- Typist after 14.7.1998 shall be fixed with reference to the date of his first appointment as Junior Stenographer/ Typist as the case may be. Provided that the seniority of the Junior Assistants, who were already promoted as Senior Assistants shall be protected.

(3) The seniority of a Telephone Operator converted as Junior Assistant or Typist or Junior Stenographer or Assistant-cum-Typist shall be fixed in the latter category from the date of such appointment to the latter category.

(4) The seniority of a Superintendent, Senior Assistant and Junior Assistant or Typist or Junior Steno or Assistant-cum- Typist transferred and appointed as Superintendent, Senior. Assistant or. Junior Assistant or Typist or Junior Steno or Assistant-cum- Typist in the Office of the concerned Head of the Department or Directorate in terms of Note (1) , (2) and (4) of rule 3 shall be determined .with reference to the date of his joining as Superintendent or Senior Assistant or Junior Assistant or Typist or Junior Steno or Assistant--cum- Typist, as the case may be, in the unit of office to which he is transferred.

(5) The members of the service working in the Government House Department, Hyderabad including the Guest House there under, may be transferred to the Andhra Pradesh Guest House, New Delhi and Vice-versa, subject to the condition that the seniority of a member who is transferred on administrative grounds shall be fixed with. reference to the date of his appointment in the Department or office from which he is transferred; the seniority of member who is transferred at his own MSM,J WP_16578_2020

request shall be fixed with reference to the date of his appointment in the department or office to which he is transferred.

(6) A person converted from one category to another under rule-14 except the categories mentioned in Rule 15(2)(ii) shall take his seniority in the converted category from the date of commencement of probation in the latter category and shall be ranked below the last probationer in the latter category, as on the date of commencement of probation of such person in the latter category.

The seniority of the petitioners shall be fixed in terms of Rule

15 of the Andhra Pradesh Ministerial Service Rules, 1998, but not

under Rule 33(b) of the Andhra Pradesh State and Subordinate

Service Rules, 1996.

In the present case, both the Engineer-in-Chief, Chief Engineer

and Superintendent Engineer did not follow the exact Rules. Rule 15

of the Andhra Pradesh Ministerial Service Rules, 1998 or Rule 33(b)

of the Andhra Pradesh State and Subordinate Service Rules, 1996

dealt with appointment on the basis of merit. In such case, how the

seniority shall be fixed in case of displaced persons quota remains as

a question, which will be discussed later.

In view of my foregoing discussion, I am of the considered view

that the service conditions of Junior Assistants and Typists in the

Irrigation Department, including their seniority are governed by the

Andhra Pradesh Ministerial Service Rules, 1998 and the Andhra

Pradesh Ministerial Service Rules, 1998 are special rules which will

prevail over the general rules i.e. the Andhra Pradesh State and

Subordinate Service Rules, 1996.

In this context, it is appropriate to refer to the definition of

'Seniority'. Seniority, in service law, connotes the precedence or

preference in position of an employee over other employees similarly

situated. Seniority in simple English means a longer life than

another thing or person taken for comparison. In the case of a MSM,J WP_16578_2020

Government servant, it means 'the length of service'. If the service of

one person is longer than that of another the first named person is

called senior to the other.

According to Black's Law Dictionary (6th Edition Page

1362) "seniority" means: "Precedence or preference in position over

others similarly situated. As used, for example, with reference to job

seniority, worker with most years of service is first promoted within

range of jobs subject to seniority, and is the last laid off, proceeding

so on down the line to the youngest in point of service"

In Andhra Pradesh Cooperative Oil Seeds Growers

Federation Ltd. Vs. D. Achyuta Rao1, the Supreme Court has held

that seniority confers a very valuable right on an employee and his

entire future career is at times dependent upon such seniority.

Seniority, therefore, must be determined by rules validly framed or

norms enunciated and/or followed which are consistent with the

principles enshrined in Articles 14 and 16 of the Constitution of

India.

In State of Uttaranchal vs. Madan Mohan Joshi2, the

Supreme Court held that as seniority or inter se seniority is not a

fundamental right but a civil right the persons whose seniority might

be effected are necessary parties and such rights are to be

determined in their presence.

2007 (13) SCC 320

2008 (6) SCC 797 MSM,J WP_16578_2020

In State of U.P. vs. Dinkar Sinha3 and Suresh vs. Yeotmal

District Central Cooperative Bank Ltd4, the Supreme Court held

that although seniority may not be a fundamental right but a civil

right, the infringement of this right is permissible only if there are

validly framed rules to this effect. If however, any such rules takes

away such right it has to receive a strict construction. But even if on

such strict interpretation such civil right cannot be saved then it

may amount to arbitrary destruction of the right violating Articles 14

and 16 of the Constitution. Since it is civil right, the Supreme Court

has held that the questions of seniority cannot be effectively

adjudicated upon unless the persons who are shown senior to the

aggrieved employee are impleaded as parties.

In N.K. Chauhan vs. State of Gujarat5, the Supreme Court

observed that although length of services the generally accepted

norm for determining seniority, it is obvious that in some cases

length of service cannot be the basis for determining seniority e.g.

when two or more persons join a service on the same date. Therefore

other norms like merit or age have been adopted to meet such

situations where the criteria of length of service cannot be applied.

The question of assigning of seniority arises only in relation to

employees who are similarly situated i.e. where they are functioning

in the same rank, grade or cadre. This is because seniority is a

comparative or relative concept. The comparison obviously has to be

between employees who are equally circumstanced. If the employee

2007 (10) SCC 548

2008 (12) SCC 558

1977 (1) SCC 750 MSM,J WP_16578_2020

belongs to two distinct classes, the question of inter se seniority

between the members of such distinct classes does not arise.

In the present case, the District Collector being the Chairman

of the District Selection Committee fixed the order of seniority of the

persons appointed under displaced persons quota. The role of

District Collector is only to select the candidates, being the

Chairman of District Selection Board. Therefore, the District

Collector and Chairman of District Selection Committee issued

appointment order dated 22.09.2011 prescribing certain conditions

in the order of appointment itself. Condition No.7 is the relevant

condition which pertains to seniority. The same is extracted

hereunder:

"The seniority of the candidates shall be in accordance with the rank shown in the allotment order irrespective of their date of joining in the unit"

Thus, Condition No.7 made it clear that the seniority is

only in accordance with the allotment order of the Junior

Assistants and Typists by the District Selection Committee,

irrespective of their date of joining in the unit. Therefore, such

order of allotment and seniority mentioned in the allotment

order cannot be disturbed normally by the Head of the

Department. However, for one reason or the other, the

Engineer-in-Chief (Administration Wing), Irrigation & C.A.D

Department, addressed Letter No.Rc/ENC(AW)/I(2)/

21458/2011 dated 05.07.2012 to the Chief Engineer, NTR

Telugu Ganga Project, Srikalahasti, specifically stating as

follows:

MSM,J WP_16578_2020

"Thus, the seniority of the office Sub-

ordinates of SKDGNSS Project Circle, Kadapa who were appointed under displaced quota through District Selection Committee shall be fixed in accordance to the list approved by the Committee as per Rule 33(b) of A.P. State & Subordinate Service Rules."

The Engineer-in-Chief, being the Head of Irrigation &

C.A.D Department, clarified that the seniority of the office

subordinates of SKDGNSS Project Circle, Kadapa who were

appointed under displaced quota through District Selection

Committee the list approved by the Committee shall be fixed as

per Rule 33(b) of A.P. State & Subordinate Service Rules, such

clarification is also contrary to Rule 15 of the Andhra Pradesh

Ministerial Service Rules, 1998.

Again, the Superintending Engineer, SSLC & SB Circle,

Nellore/Respondent No.3 herein through Memo No.SE/SSLCB

& SBC/NLR/S1/EC.3/E.32/188 dated 12.05.2014 forwarded

the final seniority list in respect of the Junior Assistants as on

01.04.2015 and forwarded to the individual concerned for

information, changing the seniority list forwarded by the

District Collector in the allotment order. In the initial list of

allotment, the name of the fist petitioner was shown against

Serial No.5, but in the final list prepared by Respondent No.3,

the name of the first petitioner was shown against Serial No.16.

Similarly, the seniority of others is also changed by the

Superintending Engineer/Respondent No.3 herein who

prepared the final list. On account of representation received

from the Junior Assistants, the Chief Engineer, NTR TGP MSM,J WP_16578_2020

Tirupati vide Memo No.CE/NTRTGP/TPT/C.2/F, 15082015/

2015 dated 15.05.2015 requested the Superintending Engineer

to keep the seniority list in abeyance in respect of Junior

Assistants. However, in vide Memo No.CE/NTRTGP/TPT/

C.2/F.15052015/2015-2 dated 24.06.2015, the Chief

Engineer, NTR TGP Tirupati instructed the Superintending

Engineer, SSLC & SB Circle, Nellore to revise the seniority of

the circle scale establishment of his circle who are appointed

under displaced persons quota through District Selection

Committee and fix in accordance to the list approved by the

District Selection Committee as per Rule 33(b) of A.P. State &

Subordinate Service Rules immediately and if any erroneous

promotions are given, the same may be rectified and report

compliance to the office of Chief Engineer. Rule 33(b) of the

Andhra Pradesh and Subordinate Service Rules, 1996 is

referred, which is not governing the services of Junior

Assistants and Typists, question of fixation of seniority as

directed is erroneous.

As no reply was received from the third

respondent/Superintending Engineer, the Chief Engineer, NTR

TGP Tirupati issued another Memo No.CE/ NTRTGP/TPT/C.2/

F.15052015/2015-2 dated 24.06.2015 (signed on 05.08.2015)

once again reiterating his earlier Memo dated 24.06.2015

which reads as follows:

"Superintending Engineer, SSLC & SB Circle, Nellore is once again instructed to revise the seniority and promotions of the circle Scale Establishment of his circle immediately as per Rule 33(b) of A.P. State & Subordinate Service Rules and report compliance to this office immediately. If he fails to implement the MSM,J WP_16578_2020

instructions of this office, the same may be informed to the Engineer-in-Chief, A.W/Government for necessary action. This may be treated as Most Urgent."

Despite this order, the third respondent did not adhere to

the instructions issued by the Chief Engineer, NTR TGP

Tirupati dated 24.06.2015 to revise the disturbed seniority list

communicated to the Junior Assistants vide Memo dated

12.05.2014. Thereupon, few Junior Assistants filed

O.A.No.2700 of 2015 before the Andhra Pradesh Administrative

Tribunal and the same was dismissed on 17.09.2018 with a

liberty to pursue their alternative remedy by way of appeal

before the appellate authority. Thereafter, Memo dated

14.11.2019 was issued by the Engineer-in-Chief (Admn.)

drawing the attention of the third respondent herein

/Superintending Engineer, SSLC & SB Circle, Nellore to the

order in O.A.No.2700 of 2015 dated 17.09.2018, wherein the

Tribunal dismissed the said O.A. holding that the Junior

Assistants are at liberty to pursue their remedies before the

Appellate Authority i.e. the Chief Engineer. The Engineer-in-

Chief (Admn.) made few remarks in the concluding paragraphs

of the Memo dated 14.11.2019 which are extracted hereunder

for better appreciation of the case:

"The Chief Engineer, NTR TGP Unit, Tirupati who is the appellate authority in this case has issued clear instructions to the Superintending Engineer, SSLC & SB Circle, Nellore to revise the seniority in respect of individuals who are appointed under displaced persons quota in SSLC & SB Circle, Nellore vide reference 1st cited. Further as per APAT Orders, the Chief Engineer has again issued instructions vide references 2nd cited to take appropriate action at Circle level.

In view of the above, there is no need to issue any further clarification in this regard as the instructions were already issued by this office as MSM,J WP_16578_2020

well as the Chief Engineer, NTR TGP Unit, Tirupati (Appellate Authority) for fixation in seniority respect of Displaced persons of Somasila Project who are appointed in different categories in SSLB & SB Circle, Nellore."

Instead of following the above instructions, the matter

was referred to the District Collector and Chairman of District

Selection Committee, who in-turn appointed an Audit Officer to

examine and report. The Audit Officer in Lr.No.16/Special

Audit/2019-20 dated 09.01.2020 expressed the following opinion:

"Audit Observations:

1. Govt. has issued orders through reference 3rd cited for Rehabilitation provision of Employment to the Displaced Persons or his/her son, daughter or spouse there being no other earning member in the family. The applications for appointments from the eligible candidates shall be made to the District Collector concerned within a period of one year from the date of actual displacement of the family. Preference shall be given with reference to the date of displacement and to those applicants whose house and lands are acquired against those whose land or house only is acquired.

2. The District Collector & Chairman of District Selection Committee, SPSR Nellore District has issued appointment orders through reference 5th cited with the condition i.e. the seniority of the candidates shall be in accordance with the rank shown the allotment order irrespective of their date of joining in the unit.

3. In reference 6th read above, the District Collector & District Magistrate, SPSR Nellore District has issued certain instructions that the candidates whose names have been given approval by the Government were allotted to difference Irrigation Circles and the list enclosed to the said order was only in enumeration list, but not selection list and the Rule 33-b of A.P. State and Sub-ordinate Service Rules does not attract and the seniority of the candidate appointed under displaced persons quota that his seniority shall commence from the date of his joining into service/from the date of commencement of his probation in such service.

4. The Engineer-in-Chief (Admn. Wing) I & CAD, A.P., Hyderabad, has issued clarification the seniority of the office subordinates of SKDGNSS Project Circle, Kadapa who were appointed under displaced quota through District Selection Committee shall be fixed in accordance to the list approved by the Committee as per Rule 33(b) of A.P. State and Subordinate Service Rules vide reference 7th cited.

5. The Hon'ble APAT, Hyderabad has issued orders in OA No.2700/2015 dated 17.09.2018 i.e. the applicants will be at liberty to pursue their remedies before appellate authority through reference 9th read above.

6. The Enginer-in-Chief (Admn), Water Resources Department, Vijayawada, A.P., has issued directions to the Superintending Engineer, SSLC & SB Circle, Nellore in reference 11th cited that MSM,J WP_16578_2020

there is no further clarification in this regard as the instruction were already issued by his office as well as and the Chief Engineer, NTR TGP Unit, Tirupati (Appellate Authority) for fixation in seniority respect of displaced persons of Somasila Project who are appointed in difference categories in SSLC & SB Circle, Nellore.

Audit Opinion:

A.P. State and Subordinate Service Rules, 1996 Rule 33(b) - The appointing authority may, at the time of passing an order appointing two or more persons simultaneously to a service, fix either for the purpose of satisfying the rule of reservation of appointment or for any other reason the order of preference among them, and were such order has been fixed, seniority shall be determined in accordance with it.

Provided further that the order of merit or order of preference indicted in a list of selected candidates prepared by the Public Service Commission or other selecting authority, shall not be disturbed inter-se with reference to the candidates position in such list or panel while determining the seniority in accordance with this rules and notional dates of commencement of probation to the extent necessary, shall be assigned to the persons concerned, with reference to the order of merit or order of preference assigned to them in the said list.

In view of the above rule positions and clarification issued by the Engineer-in-Chief (Admn), Water Resources Department, Vijayawada, A.P, the seniority list may be prepared as per the appointment orders of the District Collector & Chairman of District Selection Committee, SPS Nellore District issued in reference 5th cited read with Rule 33(b) of A.P. State and Subordinate Service Rules, 1996."

In pursuance of the instructions of the District Collector,

the Superintending Engineer, Telugu Ganga Project, Nellore

issued orders appointing the following officers as Committee to

examine the issue relating to seniority of Junior Assistants in

SSLC & SB Circle, Nellore.

1. Deputy Superintending Engineer, SSLC & SB Circle, Nellore

2. District Audit Officer, Nellore

3. Divisional Administrative Officer, o/o Revenue Divisional Officer, Nellore

The above said Committee finalized it's report on

19.03.2020 expressing it's opinion, final conclusions are as

follows:

MSM,J WP_16578_2020

"In this connection, it is submitted that the seniority lists have been prepared for provision of employment to the displaced person on their dependants. All the candidates in the seniority lists have not been provided employment at a time. All the candidates were not provided employment in one circle. Basing on the arising of the vacancies and duly observing the rule of reservations employment is being provided in different circles. Hence, the seniority list cannot be taken into criteria for their seniority for future promotion.

The Government in General Administration Department has already issued instruction not to disturb the seniority lists already settled. Hence, it is better to sought a clarification from the Government."

Despite the report submitted by the District Audit Officer

on 09.01.2020 and Committee on 19.03.2020, the third

respondent herein/Superintending Engineer did not consider

the opinion expressed by the Audit Officer and the Committee,

but promoted the juniors to these petitioners to the higher

cadre, disturbing the seniority fixed by the Chairman of District

Selection Committee, despite the directions issued by the Engineer-

in-Chief and Chief Engineer in various memos referred above.

Therefore, the third respondent/Superintendent Engineer being the

in-charge of the Head of the SSLC & SB Circle, Nellore, though

entitled to fix seniority of the Junior Assistants who are in the cadre

of the Circle, such exercise ought not to be undertaken when the

Head of Irrigation & C.A.D Department and Appellate Authority

including the Chairman of District Selection Committee made it clear

that the seniority must be in accordance with the allotment order

and it must be in accordance with Rule 33(b) of the Andhra Pradesh

State and Subordinate Service Rules, 1996.

MSM,J WP_16578_2020

Admittedly, there are no specific rules for fixing of seniority of

the persons appointed under displaced persons quota. Rule 15 of the

Andhra Pradesh Ministerial Service Rules, 1998 deals with 'Seniority'

of Junior Assistants and Typists. (Rule 15 is extracted in earlier

paragraphs)

In the present case, the selection was not based on merit by

conducting any examination. Consequently, Rule 15 of the Andhra

Pradesh Ministerial Service Rules, 1998 has no application.

The learned Government Pleader for Services contended that,

Rule 33(b) of the Andhra Pradesh State and Subordinate Service

Rules, 1996, is applicable only to the selection, based on merit by

conducting any examination or interview. The same cannot be

accepted for the reason that, when the District Selection Committee

fixed seniority, that is final. Even assuming that there is no other

Rule governing the seniority of displaced persons, the circular

memos issued by the Government are final and administrative

instructions issued by the Government are the basis for fixation of

seniority in the absence of any rule.

Where there are no specific rules or administrative instructions

for fixation of seniority, the employer is entitled to fill up the gap by

an executive order.

Even if there are no statutory rules in force for determining

seniority in a service or even if there are statutory rules but they are

silent on any particular subject, it is competent to the Government

by an executive order to make appropriate Seniority Rules or to fill in

the lacuna in the statutory rules by making an appropriate seniority

rule in regard to the subject on which the statutory rules are silent.

MSM,J WP_16578_2020

(vide Sant Ram Sharma v. State of Rajasthan & Anr6; Union of

India v. H.R. Patankar & Ors7, and State of Gujarat v. Akhilesh C.

Bhargav & Ors8).

In Bimlesh Tanwar v. State of Haryana and others9, the

Apex Court held that, it is also well settled that in the absence of

rules governing seniority an executive order may be issued to fill up

the gap. Only in the absence of a rule or executive instructions, the

Court may have to evolve a fair and just principle which could be

applied in the facts and circumstances of the case.

A perusal of entire material, it is evident that the candidates

selected by the District Selection Board were allotted to different

circles, but they joined in the office whenever vacancy arose in the

Circle. If, date of joining is taken into consideration to fix seniority, in

such situation, it would cause serious prejudice to individual and

will have its serious impact on their future career. To avoid such

effect on career, the District Selection Board fixed seniority and

incorporated such Condition No.7, but Respondent No.3 totally

disturbed the seniority which caused heart burning to seniors who

are pushed down.

In view of the law declared in the above judgments, assuming

for a moment that Rule 15 of the Andhra Pradesh Ministerial Service

Rules, 1998, has no application and applicable only to the selection

based on merit, conducting test or interview, the executive

instructions issued by the Engineer-in-Chief and Chief Engineer are

binding on the third respondent herein/Superintendent Engineer.

[1968] 1 SCR 111

[1985] 1 SCR 400

[1987] 3 SCR 1091

(2003) 5 SCC 604 MSM,J WP_16578_2020

But, for one reason or the other, the third respondent changed the

seniority, obviously for the reasons best known to him. Therefore, the

act of the third respondent in disturbing the seniority fixed by

District Collector and Chairman of District Selection Committee is

declared as illegal and arbitrary, while making it clear that the

seniority list prepared by the Engineer-in-Chief and Chief Engineer is

final. The third respondent/Superintendent Engineer is directed to

revise the disturbed seniority list and take appropriate steps to revert

the persons who are erroneously pushed down. Despite the

directions, the third respondent did not adhere to the same. The

conduct of the third respondent is illegal, arbitrary, contrary to

Government Circular Memo.No.16/Ser.A/93-39 GA (Ser.A)

Department dated 21.04.1999 and violative of the law declared by

the Apex Court in the judgments referred supra. Therefore, the

action of the third respondent/Superintendent Engineer in

disturbing the seniority of the petitioners is illegal and the same is

liable to be set-aside.

One of the major contentions raised by the learned

Government Pleader for Services is that, when once remedy of appeal

is available, writ petition cannot be entertained and placed reliance

on the judgment of Apex Court in Genpact India Private Limited v.

Deputy Commissioner of Income Tax and another10. As per Rule

26 of the Andhra Pradesh State and Subordinate Service Rules, 1996

or Rule 17 of the Andhra Pradesh Ministerial Service Rules, 1998,

appeal would lie to the Chief Engineer against the order passed by

the Superintending Engineer. But, without exhausting the statutory

(2019) 311 CTR (SC) 737 MSM,J WP_16578_2020

remedy, the petitioners approached this Court and on this ground

alone, the respondents sought for dismissal of the writ petition.

There is no dispute about the law declared by the Apex Court

in Genpact India Private Limited v. Deputy Commissioner of

Income Tax and another (referred supra). But, this Court can

exercise such jurisdiction under Article 226 of the Constitution of

India when the third respondent was not vested with the power to

revise or disturb the seniority list as per the allotment order as

directed by the Engineer-in-Chief and Chief Engineer. Thus, when an

order is passed without any jurisdiction, this Court can exercise

power under Article 226 of the Constitution of India to set right the

administrative chaos. Therefore, the contention of the learned

Government Pleader for Services is rejected.

In view of my foregoing discussion, it is clear that the post of

Junior Assistant and Typist is a Circle post and these petitioners

were appointed under the quota of displaced persons, whose land

was acquired. In such case, Government Circular

Memo.No.16/Ser.A/93-39 GA (Ser.A) Department dated 21.04.1999,

alone is applicable. Therefore, the seniority list prepared by the

District Collector and Chairman of District Selection Committee in

the allotment order is final. The third respondent herein/

Superintendent Engineer is directed to follow the Government

Circular Memo.No.16/Ser.A/93-39 GA (Ser.A) Department dated

21.04.1999, as the list prepared by the District Selection Committee

is final. But, the third respondent exercised his power arbitrarily,

changed the seniority list and communicated the same to the Junior

Assistants and Typists without any authority of law. Therefore, the MSM,J WP_16578_2020

act of the third respondent/Superintendent Engineer is declared as

illegal and arbitrary and consequently, the seniority list prepared by

the third respondent dated 12.05.2014 is hereby set-aside, while

restoring the original seniority list as per allotment order by the

District Selection Board.

One of the reliefs claimed by these petitioners is to restore the

seniority of these petitioners and promote them, while reverting the

juniors who are promoted. When once the seniority list prepared by

the third respondent dated 12.05.2014 is set-aside, automatically,

the seniority list prepared by the District Collector and Chairman of

District Selection Committee as per allotment order is deemed to

have been restored and the same seniority is to be followed. The

third respondent herein/Superintendent Engineer is bound to give

effect to the seniority list as per the allotment order and revert the

persons who are juniors to these petitioners and promote these

petitioners from the date of promotion of juniors to the next higher

cadre, since these issues are consequential to the allotment order.

Accordingly the point is answered in favour of the petitioners

and against the respondents.

In the result, writ petition is allowed, directing the

respondents, to give effect to the seniority list as per the allotment

order and revert the persons who are juniors to these petitioners and

promote these petitioners to the next higher cadre from the date of

allotment, within four weeks.

Consequently, miscellaneous petitions pending if any, shall

also stand closed.

MSM,J WP_16578_2020

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:15.02.2021 SP