Andhra Pradesh High Court - Amravati
K R Prasad vs The State Of Ap on 23 September, 2022
HIGH COURT OF ANDHRA PRADESH
MAIN CASE NO: W.P.No.1648 of 2019
PROCEEDING SHEET
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AVSS, J & BKM,J
23.09.2022
I.A.No.01 of 2021
Heard Smt.T.V.Sridevi, learned counsel for
the petitioner-respondent No.12 in W.P.No.1648
of 2019.
By way of the present application, filed
under Section 151 CPC, petitioner is seeking
clarification of the common order, dated
25.10.2019, passed by this Court in W.P.No.1648
of 2019 & batch.
Respondents 1 to 4 in the present
application filed O.A.No.2886 of 2018 on the file
of the A.P.Administrative Tribunal, questioning
the Memo, dated 12.05.2017, of the State
Government and the consequential Provisional
Seniority List in the category of Agricultural
Officers issued by the Special Commissioner of
Agriculture-7th respondent herein, dated
19.11.2018.
By way of the aforesaid Memo, dated
12.05.2017, the State Government issued
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clarification to the effect that the AEOs, who were
appointed within service candidates, are eligible
for promotion to the next category i.e.,
Agricultural Officers from the date of acquiring
the requisite qualification i.e., B.Sc.(Agri) degree
and that their seniority for the purpose of
promotion shall be counted from the date of their
acquiring B.Sc. (Agri) qualification. Respondents,
including the petitioner herein, contested the
matter by filing counter-affidavits. The said
O.A.No.2886 of 2018 came to be dismissed by the
Tribunal vide order, dated 31.12.2018.
Challenging the validity of the said order, passed
by the Tribunal, respondents 1 to 4 herein filed
the main Writ Petition. Rest of the respondents,
including the petitioner in the present
clarification petition, contested the said Writ
Petition.
This Court, vide order, dated 25.10.2019,
allowed the Writ Petition, setting aside the Memo,
dated 12.05.2017, issued by the State
Government and, consequently, directed the
respondents in the Writ Petition to reckon the
seniority of the writ petitioners (Diploma holders
initially) from the initial date of appointment and
to proceed further. Seeking clarification of the
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aforesaid order, the present application is filed by
the 12th respondent in the Writ Petition.
In the affidavit, filed in support of the
present application, it is stated that, in view of
the absence of any clarity with regard to the
further action, respondent authorities are not
adhering to Rules 5, 6 and 33 (b) of the A.P.State
and Subordinate Service Rules, 1996 (for brevity,
'Rules') and Rule 6 (b) of the Rules notified vide
G.O.Ms.No.16 Agriculture & Cooperation (FP-I)
Department, dated 21.01.2000 r/w G.O.Ms.No.1
Agriculture & Cooperation (Agri-I), dated
03.01.2017.
It is contended by the learned counsel for
the petitioner in the present application that,
taking advantage of the absence of such clarity in
the order, the authorities are not adhering to the
above provisions of law and preparing the
seniority list, contrary to law.
On the contrary, Sri K.G.Krishna Murthy,
learned senior counsel, representing respondents
1 to 4 (writ petitioners), contends that the very
application filed by the petitioner herein is not
maintainable and that the issue in the main Writ
Petition was not with regard to the seniority list
and the challenge was only to the extent of the
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Memo, dated 12.04.2017, issued by the State
Government, with regard to the mode of
reckoning the service. It is further contended by
the learned senior counsel that, when similar
attempt was made in the Writ Petition, this
Court, in the order in the Writ Petition, declined
to consider the said request on the ground that
the same was premature. It is further submitted
by the learned senior counsel that the present
application is a disguised review and the same
cannot be entertained. It is further contended
that the reality remains that, assailing the
subsequent events, petitioner in the present
application has already filed Writ Petitions, as
such, the present application is liable to be
rejected.
In support of his submissions, learned
senior counsel places reliance on the judgment of
the Hon'ble Apex Court in State of Haryana and
others v. M.P.Mohla1.
Learned Government Pleader,
Smt.J.Sumathi, contends that the respondent
authorities are taking action strictly in
accordance with law.
(2007) 1 SCC 457
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In the above background, now the issue,
which this Court is called upon to consider and
answer in the present application, is:
"Whether the present application is
maintainable, under Section 151 CPC, and
whether any clarification is required with
regard to the order passed by this Court in
the main Writ Petition?".
The essence of the case of the petitioner in
the present application is that, while preparing
the seniority list, respondent authorities are not
adhering to the relevant provisions under the
Rules, including Rule 33 (b) of the Rules, and the
respondents are not indicating any column for
the merit also. It is further submitted that, in all
the seniority lists that are prepared subsequent
to the disposal of the Writ Petition, respondent
authorities are referring to the order passed by
this Court in the Writ Petition and committing the
mistake of contravention of the mandatory
requirements of law.
It is absolutely not in controversy that,
when a similar contention came to be advanced
on behalf of the petitioner in the present
application, this Court, at paragraph No.18 of the
order in the Writ Petition, held as follows:
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"The contention of the learned counsel
Smt.T.V.Sridevi that since the instant post
is a selection post, merit alone is the
criteria, as rightly pointed out by the
learned senior counsel Sri K.G.Krishna
Murthy, is premature, and the said aspect
needs no consideration at this stage for
the purpose of adjudicating the issue on
hand. The judgments cited by Smt.
T.V.Sridevi, learned counsel have no
relevance to the case on hand.
A perusal of the order passed by this Court
in the Writ Petition, in clear and vivid terms,
shows that, while setting aside the Memo, dated
12.05.2017, this Court directed the official
respondents to reckon the seniority of the
petitioners in the Writ Petition from the initial
date of appointment and to proceed further. It is
to be noted that this Court, in the entire order,
did not touch the aspect of seniority in the light
of Rule 33 (b) of the Rules. It is also required to
be noted that, subsequent to the order passed by
this Court in the Writ Petition, respondent
authorities prepared seniority list in the years,
2017-2018, 2019-2020 and 2020-2021 and,
according to the learned counsel for the petitioner
in the present application, the said seniority lists
are also contrary to the instructions issued by the
General Administration Department. It is also
required to be noted that, in response to the
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seniority list prepared by the authorities,
petitioner in the present application filed
objections on 29.04.2020 and the second
respondent herein rejected the said objections
and issued a final seniority list vide Memo, dated
-07-2020 and, thereafter, petitioner herein filed
appeal on 28.05.2020 before the first respondent
and, when the first respondent did not pass any
orders in appeal, he filed W.P.No.20660 of 2020
and the said Writ Petition was disposed of on
10.11.2020 with a direction to pass orders in the
appeal within six weeks and, according to the
petitioner herein, the said appeal is still pending.
It is also clear from the pleadings available on
record that the second respondent also prepared
another seniority list in the year, 2020 vide Memo
No.A5(1) 73/2019, dated 08.06.2020, and,
according to the petitioner herein, the said
seniority list was issued without following Rules
5, 6 and 33 (b) of the Rules. It is also clear from
the pleadings that, thereafter, petitioner herein
filed objections to the said provisional seniority
list and the respondent finalized the second list
subsequently vide proceedings, dated
25.09.2020, and effected promotions also and,
aggrieved thereby, petitioner herein filed
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W.P.No.19634 of 2020 and, admittedly, the said
Writ Petition is still pending. It is also clear from
the pleadings that the second respondent herein
prepared a provisional seniority list, dated
26.05.2021, and, according to the petitioner, the
same is not in accordance with Rule 33 (b) of the
Rules and the petitioner herein filed objections
also to the same.
According to the petitioner, the present
application is filed seeking clarification of the
common order, dated 25.10.2019, passed by this
Court in W.P.No.1648 of 2019 & batch with
regard to preparation of seniority list for the post
of Agriculture Officers on transfer from AEOs
Grade-II.
As rightly pointed out by the learned senior
counsel, the scope of interpretation in the
Original Application and the Writ Petition was
only to the extent of the validity of the Memo,
dated 12.05.2017, and this Court allowed the
Writ Petition, setting aside the Memo, dated
12.05.2017, and directed the respondents to
reckon the seniority of the writ petitioner from the
initial date of appointment and to proceed.
It is very much clear from a reading of the
said order that this Court never issued any
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directions in the direction of giving scope to the
respondents to contravene the provisions of law.
Obviously, by way of the present application,
petitioner herein is seeking review of the order
passed by this Court in the Writ Petition. In fact,
as mentioned supra, when a very similar attempt
was made at the time of disposal of the Writ
Petition, this Court declined to accept the same
on the ground that the same was premature in
nature. In this context, it may be appropriate to
refer to the judgment of the Hon'ble Apex Court,
cited by the learned senior counsel in
M.P.Mohla's case (referred to supra). In the said
judgment, the Hon'ble Apex Court, at paragraph
No.15, held in the following manner:
"Reliance has been placed on
Sangramsinh P. Gaekwad and Others v.
Shantadevi P. Gaekwad (Dead) Through LRS.
and Others [(2005) 11 SCC 314] but therein the
court was considering the effect of an admission
made in the pleadings which was binding on the
party proprio vigore in the subsequent
proceedings. A review petition filed by
Appellants herein was not maintainable. There
was no error apparent on the face of the record.
The effect of a judgment may have to be
considered afresh in a separate proceeding
having regard to the subsequent cause of action
which might have arisen but the same by itself
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may not be a ground for filing an application for
review. Mr. Srivastava submitted that an
application for review in effect and substance
was an application for clarification of the
judgment of the High Court. We do not think so.
An application for clarification cannot be taken
recourse to achieve the result of a review
application. What cannot be done directly,
cannot be done indirectly. [Ram Chandra Singh
v. Savitri Devi and Others, MANU/SC/
0565/2004:2004(172)elt446 (SC)".
Having regard to the aforesaid judgment
and for the reasons mentioned supra, this Court
is not inclined to entertain the request of the
petitioner in the present application. However, it
is made clear that this order will not come in the
way of the petitioner herein to urge all the
contentions that are open, in accordance with
law, in the pending Writ Petition referred to
supra.
Accordingly, this application is disposed of.
________
AVSS,J
________
BKM,J
Tsy
W.P.No.1648 of 2019
