Thambala Sunitha vs State Of Andhra Pradesh
2023 Latest Caselaw 5151 AP

     THE HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

              I.A. No.1 of 2023 in W.P.No.16911 OF 2022
ORDER:-

       I.A.No.1 of 2023 is filed to vacate the interim orders passed by this

Court in W.P.No.16911 of 2022 dated 22.06.2022.

2.    The writ petition is filed aggrieved by provisional senior list issued in

the category of Deputy Commissioner of State Tax vide G.O.Ms.No.2,

Revenue (CT-I) Department, dated 08.01.2020 and also rejection of the

petitioners representation / objections dated 01.04.2022.

3.    The case of the petitioners is as follows:

4.    Petitioners as well as Respondent Nos.4 and 5 herein were initially

appointed as Commercial Tax Officers in the year 2009. Subsequently,

petitioner Nos. 1, 3 and 4 were promoted on 20.08.2020, petitioner No.2 on

31.07.2017, petitioner Nos.5 to 10 and 12 on 23.06.2020, as Assistant

Commissioners. However, petitioner No.11 was promoted on 07.02.2022.

Whereas, Respondent Nos.4 and 5 were promoted as Assistant

Commissioners on 20.08.2018 and 05.01.2018 respectively. The said post

of Assistant Commissioner is now re-designated as Deputy Commissioner.

5. It is evident that the petitioner Nos.1, 3 and 4 have been promoted as

Assistant Commissioners by the same proceedings and in the promotion list,

Respondent No.4 figures below the petitioner Nos.1, 3 and 4. In so far as

the petitioner No.2 is concerned, he has been promoted as Deputy

Commissioner on 31.07.2017 i.e. one year before to Respondent Nos.4 and NV,J

5. As per the seniority list prepared at the cadre of Commercial Tax Officers,

the petitioners figured above to both Respondent Nos.4 and 5 and they are

seniors to Respondent Nos.4 and 5. But, after affecting the promotions at

the cadre of Assistant commissioner of State Tax, some of the petitioners

were seniors to Respondent Nos.4 and 5. Later, the seniority of the

respondents is revived and they are sought to be placed above the

petitioners in the cadre of Deputy Commissioner by following Rule of

Reservation as contemplated under Article 16(4A) of the constitution of

India. Therefore, the said action of the Respondents putting Respondent

Nos.4 and 5 as seniors without any reasons is illegal and the said action is

under challenge in the present writ petition.

6. Learned counsel for the petitioners submits that the Respondent

Nos.4 and 5 were promoted by way of roster points (Rule of Reservation )

since they belongs to SC community. But seniority list at the cadre of

Assistant Commissioner / Deputy Commissioner, Respondent Nos.4 and 5

were promoted prior to the petitioners as per the Rule of Reservation on

16.05.2018. He further submits that the impugned provisional seniority list

published vide G.O.Ms.No.2, dated 08.01.2020 under which the

Respondent Nos.4 and 5 are shown as seniors to the petitioners, which is

contrary to the principles laid down by the Hon'ble Apex Court in Union of

India vs. Virpal Singh and others1, Jarnali Singh vs. Lachhmi Narain

Gupta2, B.K. Pavitra and others vs. Union of India3 and also in S.

1995 (6) SCC 684

Civil Appeal No.629 of 2022, dated 20.01.2022 NV,J

Panner Selvan and others vs. State of Tamil Nadu and others4, wherein

the Hon'ble Apex Court has evolved a principle of "Catch up Rule" by which

persons, who have been granted accelerated promotion by giving them the

benefit of reservation would have to be placed as juniors, when the general

category persons are promoted to the higher post later. i.e., a general

category employee would regain his seniority and would have to be shown as

senior over an employee, who has been promoted on the basis of

reservation.

7. Learned counsel for the petitioners further submits that the Hon'ble

Supreme Court in Union of India vs. Virpal Singh and others and in both

Ajith Singh Vs. the State of Punjab-I 5 and Ajith Singh Vs. the State of

Punjab-II6, has reiterated the said rule. In M. Nagaraj and others vs.

Union of India and others7, the Hon'ble Apex court had considered the

amendment made to the Constitution of India. He further submits that the

Hon'ble Supreme Court has held that 16(4A) and 16(4B) are only enabling

provisions, and the Constitutional five-judge Bench, while upholding the

legalities of the constitutional amendment has stated that before such power

under 16(4A) and 16(4B) could be exercised, quantifiable data would have to

be collected before granting reservations in promotions or consequential

seniority. He further submits that subsequently, the same was followed by

further judgments reiterating that the State is obligated to collect

2017 (4) SCC 620

2015 (10) SCC 292

1996 (2) SCC 715

1999 (7) SCC 209

2006 (8) SCC 212 NV,J

quantifiable data before providing reservations in promotions or before

consequential seniority can be granted i.e. S. Paneer Selvan and others

vs. State of Tamilnadu and others decided on 27.08.2017 and

B.K.Pavithra and others vs. Union of India-I dated 09.02.2017.

Thereafter, the Hon'ble Supreme Court in Pavithra vs. Union of India-II

had gone on to decide what quantifiable data is to be collected. It is stated

data showing inadequacy in the overall service would suffice and therefore

upheld an act of Karnataka in which consequential seniority was granted to

reserved candidates, who had been promoted on the basis of reservation. He

further submits that the Hon'ble Supreme Court in Jarnail Singh vs.

Lachhmi Narain Gupta had disagreed with the conclusion in B.K.Pavitra

and others vs. Union Of India.

8. Learned counsel for the petitioners further submits that before

reservations in promotions can be granted, the State would have to justify

such reservations with respect to each cadre to which the promotion is

made. In view of the same, the dicta laid down in Pavithra vs. Union Of

India-II is no longer good law. He further submits that the Division Bench of

this Court has read down G.O.Ms.No.26, Social Welfare Department, dated

20.02.2009 and held that reservations in promotions and consequential

seniority can only be granted subject to collection of quantifiable data, as

laid down by the Hon'ble Supreme Court in M.Nagaraj and others vs.

Union of India and others.

9. Learned counsel for the petitioners further submits that seniority list

has to be prepared as per Rule-33 of the A.P. State and Subordinate Service NV,J

Rules, 1996 (for short "the Rules, 1996), the original select list,

communicated by the Public Service Commission, the petitioners are shown

above the Respondent No. 4 and 5. In the earlier seniority list dated

16.05.2018, the 4th Respondent has been shown at Sl.No.866 below to the

petitioners, while in the present provisional list has been put above the

petitioners and no reasons are assigned for such upward movement. The

entire action is clearly illegal, arbitrary and capricious. He further submits

that this Court at the stage of admission was pleased to grant an interim

direction not to promote both the Petitioners and the Respondents. The Stay

was limited to both the petitioners and the Respondents in view of the

peculiar circumstances in which the seniors to both the petitioners and

Rspondents had filed Caveats and approached this Court to point out that

this would be unaffected by the lis in the present Writ Petition and if

omnibus stay of promotions are granted, their rights would be affected.

Therefore, in the peculiar circumstances, the stay order was limited only to

the Petitioners and the unofficial Respondents in the Writ Petition. The stay

was extended from time to time; but unfortunately the same could not be

extended and the stay has expired. The present petition has been filed

seeking extension of the same.

10. Learned counsel for the petitioners further submits that the present

action of the Respondents is clearly illegal and arbitrary and without proper

application of mind. No reasons were assigned as to why seniority has been

re-fixed in the cadre of Deputy Commissioners and it was purported only the NV,J

basis of reservations in promotions, which cannot be exercised except in

accordance with law.

11. In support of his contentions, the learned counsel for the petitioners

also relied upon the judgments rendered by the Hon'ble Apex Court in

Union of India vs. Virpal Singh and others, Ajith Singh vs. the State of

Punjab-I & II, S. Panner Selvan and others vs. State of Tamil Nadu

and others, B. K. Pavitra and others vs. Union of India and Jarnail

Singh vs. Lachhmi Narain.

12. The learned counsel for Respondent Nos.4 and 5 submits that the

present writ petition is not maintainable on the ground of delay as the

petitioners have approached this Court with unclean hands by suppressing

the material facts, after two and half years of issuance of provisional

seniority list at the cadre of Deputy Commissioner published vide

G.O.Ms.No.2 dated 08.01.2020. He further submits that the before

publication of subject seniority list, the respondents were called for

objections on 27.11.2019. Accordingly many were submitted their objections

and all the objections were considered and published the final seniority list

on 08.01.2020 as per the Rules, 1996. If any employee has grievance

regarding the final seniority list the same can be assailed by way of Appeal

within 30 days from the date issuance of final seniority list as contemplated

under Rule-26 of the Rules, 1996.

13. Learned counsel for Respondent Nos.4 and 5 further submits that

after lapse of more than two years the petitioners submitted a NV,J

representation dated 01.04.2022 seeking modification of the seniority list

and such request is barred by limitation as per Rule 26 of the Rules, 1996.

He further submits that since the representation of the petitioners was not

considered by the Respondents, they filed W.P.No.14081 of 2022 praying

that the respondents are proceeding for conducting departmental promotion

Committee for effecting promotions to the post of Joint Commissioners of

State Tax without considering the objections of the petitioners in

W.P.No.14081 of 2022, wherein this Court was pleased to pass an order

directing Respondent Nos.1 and 3 to consider the representation of the

petitioners dated 21.04.2022, received on 22.04.2022 strictly in accordance

with law preferably within a period of eight weeks from the date of receipt of

copy of this order. Subject to outcome of the same, it is open for the

Respondent Nos.1 and 3 to proceed with the next promotions in the cadre of

Joint Commissioners of State Tax as per law in continuation of the

proceedings of Respondent No.3 dated 05.05.2022.

14. Learned counsel for Respondent Nos.4 and 5 further submits that on

06.05.2022, pursuant to the orders of this Court, the Respondents herein

consider the representation of the petitioners in detail and rejected the case

of the petitioners vide Memo No. REV01-CCST0CCTE(PROM)/8/2022-CT-1,

dated 02.06.2022. The above rejection order was assailed in the present

writ petition. At the time of admission, after hearing, this Court was pleased

to pass an interim order dated 22.06.2022, as follows:

NV,J

"In the meanwhile, the official respondents are directed not to give

any promotions to the post of Joint Commissioner of State Tax, to the

parties in the present writ petition."

15. Learned counsel for the unofficial respondents submits that the

petitioners had invited the interim order which is against their interest and

also against the interest of Respondent Nos.4 and 5. The intention of the

petitioners in getting such order is to benefit other unreserved seniors to the

petitioners and juniors to Respondent Nos.4 and 5. Therefore, the filing of

the present writ petition itself is a proxy and sponsored litigation.

16. Learned counsel for the unofficial respondents further submits that

the Respondent Nos.4 and 5 got their positions in the seniority list of Deputy

Commissioners at Sl.Nos.85 and 80 respectively, whereas the petitioners got

their position from Sl.No.90 downwards only. Therefore, the petitioners are

not entitled for promotion of Joint Commissioner of State Tax since they are

most juniors to Respondent Nos.4 and 5. But, in view of Interim Order of

this Court, the unreserved who are juniors to the unofficial respondents and

seniors to the petitioners were promoted as Joint Commissioners whose

position at Sl.No.84 and 89 in the seniority list. Therefore, the petitioners

worked out their plan in the manner as stated above and this Court was

used as platform to fulfil their illegal plot.

17. Learned counsel for the unofficial respondents further submits that

even though Respondent Nos.4 and 5 filed vacate stay petition in January,

2023 but for one reason or other, interim direction granted earlier was not NV,J

vacated. Due to that, the juniors to Respondent Nos.4 and 5 are got

promoted as Joint Commissioner of State Tax. He further submits that the

"Catch up Theory" which was propounded in Union of India vs. Virpal

Singh and others and in Ajit Singh vs. the State of Punjab is no more for

consideration after judgment of the constitutional bench in M. Nagaraj and

others vs. Union of India and others.

18. Learned counsel for the unofficial respondents further submits that by

insertion of Article 16(4A) vide 77th Constitutional Amendment, the "Catch

up Theory" became redundant in as much as reserved candidates can only

get promoted earlier than the unreserved candidate from category-A to

category-B by virtue of reservations in promotions and when unreserved

candidates are promoted to category-B from category-A though belatedly,

they would be preferred to category-C from category-B in preference to

earlier promoted reserved candidates though they are seniors in category-B

only based on their original seniority in category A, meaning thereby the

very purpose and object of introducing reservations in promotions under

Article 16(4A) became redundant. He further submits that the Parliament

amended the constitution once again by amending Article 16(4A) vide 85th

Constitutional Amendment in words "consequential seniority" in Article

16(4A) so that the reserved candidates can not only get accelerated

promotion by virtue of reservation in promotion as per original Article 16(4A)

but also get consequential seniority so that such accelerated promotion

cannot go waste and be of use for further promotions for such reserved

candidates. Pursuant to the 85th Constitutional Amendment, Respondents NV,J

are entitled for Rule of Reservation even in consequential seniority.

Respondent No.1 also framed a policy by upholding consequential seniority

under G.O.Ms.No.5 dated 14.02.2003 which was not challenged in the

present writ petition.

19. Learned counsel for the unofficial respondents further submits that

that in view of the 77th as well as the 85th constitutional amendments and

introduction of Article 16(4A), the duty of State is not only to provide

reservations in Direct Recruitment but also in promotion by virtue of Article

14 and amendment of Article 16 (4A) of the Constitution of India in

providing consequential seniority for SC and ST, which was upheld by

Constitutional Bench of Hon'ble Apex Court in M. Nagaraju and others vs.

Union of India and others on 19.10.2006. Respondent No.1 also issued

G.O.Ms.26 dated 20.02.2009 clarified that the reservations to be

implemented with consequential seniority. He further submits that the said

G.O. was upheld by Division Bench of this Court in W.P.Nos.4415 of 2016

and batch. Therefore, respondents are entitled for consequential seniority

and by which they entitled for promotion as Joint Commissioner of State

Tax as per provisional list dated 08.01.2020, for which the respondents

relied upon judgments rendered by Hon'ble Apex Court in M. Nagaraj and

others vs. Union of India and others.

20. In support of his contentions, learned counsel for the unofficial

Respondents relied upon the judgments rendered by Hon'ble Apex Court in

S. Panner Selvani and others vs. State of Tamil Nadu and others,

Jarnail Singh vs. Lachhmi Narain Gupta and B. K. Pavithra and others NV,J

vs. Union of India and others. He also relied upon the common Judgment

rendered by the Division Bench of this Court in W.A.Nos.566 and 587 of

2018, dated 01.10.2018 and the common order rendered by the Division

Bench of this Court in W.P.Nos.4415 of 2016 and batch, dated 11.12.2018.

21. Learned Additional Advocate General also filed Counter Affidavit

wherein it is stated that the Government vide Memo No.

REV01-CCSTOCCTE (PROM)/8/2022-CT-I, Revenue (CT.I) Department,

dated 02.06.2022, the representations of the petitioners in W.P.No.14081 of

2022 have been carefully examined by the Government and disposed of the

representations as follows:

1. The main contention of the petitioners is that the "catch up rule" was

not followed in drawing the seniority lists of DCs(ST). While

highlighting the "catch up rule", the petitioners also narrated the

circumstances which led to inserting articles 16 (4A) and 16 (4B) in

the Constitutions of India providing for reservations in promotions

with consequential seniority and the Judgments of the Hon'ble

Supreme Court thereon.

2. In this regard it should be noted that Parliament, in order to overcome

the judgment of the Hon'ble Supreme Court in the case of "Indira

Sawhney vs. Union of India" in which it was inter-alia held that

reservation in promotions is ultra-vires, inserted Article 16 (4A) after

Article 16 (4) providing for reservation in promotions with NV,J

Consequential seniority through 77th Constitution amendment wef

17.06.1995. Article 16 (4A) reads as under:

"(4A) Nothing in this article shall prevent the State from

making any provision for reservation in matters of promotion,

with consequential seniority, to any class or classes of posts

in the services under the State in favour of the Scheduled

Castes and the Scheduled Tribes which, in the opinion of the

State, are not adequately represented in the services under

the State".

3. Following insertion of Article 16 (4A) in the Constitution, several State

Governments including the state of A. P. amended their service rules

providing for reservations in promotions. As far as the State of A.P. is

Concerned, Government issued orders in G.O.Ms.No.5, Social Welfare

(SW.ROR-1) Dept., dated 14.02.2003 providing for reservations in

promotions in all categories of posts in all State Government

departments. Subsequently orders were issued in G.O.Ms.No.26,

Social Welfare (ROR1) Dept., dt.20.02.2009 providing for reservations

in promotions with consequential seniority in favour of Schedule

Castes and Schedule Tribes in all categories of posts in all state

Government departments.

4. While the amendments to the services rules of several State

Governments were challenged before the High Courts and Hon'ble

Supreme Court with different degrees of success, the amendments to NV,J

the service rules in A.P. remain unchallenged and are fully in force.

Therefore the contention of the petitioners regarding failure to adopt

"catch up rule" in drawing seniority lists of DCS(ST) is liable to be

rejected.

22. Heard Sri M. Vijaya Kumar, learned senior counsel representing

Sri M. Srikanth, learned counsel for the petitioners, Sri Sasi Bhusan,

learned Government Pleader representing the office of learned Additional

Advocate General for Respondent Nos.1 to 3 and Sri J. Sudheer, learned

counsel for Respondent Nos.4 and 5 and also perused the material placed

on record.

23. The contention of the learned counsel of the petitioners that as per

the selection list of the selection agency i.e. APPSC, the petitioners are

seniors to the unofficial respondents. Due to the application of Rule of

Reservation, Respondent Nos.4 and 5 were promoted as Assistant

Commissioner / Deputy Commissioner of State Tax on 16.05.2018

bypassing the petitioners herein. Later, the petitioners also promoted as

Assistant Commissioners / Deputy Commissioner of State Tax. But, they

were placed below to Respondent Nos.4 and 5, which is contrary to Rule

33 of the Rules, 1996 and also ratio laid down by the Hon'ble Apex Court

as stated above.

24. Therefore, the provisional seniority list at the cadre of Deputy

Commissioner of State Tax published vide G.O.Ms.No.2, dated 08.01.2020

is liable to be considered and petitioners should be placed much before to NV,J

the unofficial respondents as per the seniority of the original selection list,

once they promoted as Deputy Commissioners on par with unofficial

Respondent Nos.4 and 5, in view of the principle of "Catch up Rule". The

contention of the learned counsel for the petitioners that the principle of

catch up Rule is in existence in view of the constitutional amendments

and after inception of Articles 16(4A) and 16(4B) into the constitution of

India.

25. The other contention of learned counsel for the petitioners that the

Hon'ble Apex Court as held that the Article 16 (4A) and 16 (4B) are only

enabling provisions, while exercising the power under Articles 16(4A) and

16(4B) of the Constitution of India made applicable for granting

reservation in promotions or consequential seniority, after having collected

quantifiable data to come to an assessment of Adequacy of Reservation in

a particular cadre should be followed while in application of Rule of

Reservation in promotions and in consequential seniority is valid and

liable to be upheld. But, in the case in hand, there is no ample evidence

is put forth by the petitioners to prove that either in the cadre of Deputy

Commissioner of the State Tax or at the cadre of Joint Commissioner of

State Tax. The Rule of Reservation already achieved in accordance with

the principle of Rule of adequacy. Therefore, in the absence of the

quantifiable data / adequacy in Rule of Reservation in promotions, the

Right of the unofficial respondents for consideration for further promotion

and Rule of Reservation cannot be stalled as held by the Division Bench of

High Court of Andhra Pradesh in W.A.Nos.566 and 587 of 2018, dated NV,J

01.10.2018. The Rule of Reservation in promotion and consequential

seniority can only be granted subject to collection of quantifiable data and

also ratio laid down by the Hon'ble Apex Court in M. Nagaraj and others

vs. Union of India and others is to be considered subject to availability

of data as on the date of application of Rule of Reservation in promotions

and consequential seniority.

26. the other contention of the learned counsel for the petitioners that

in view of the ratio laid down by the Hon'ble Apex Court as stated above

and in view of the interim order of this court, the unofficial respondents

are not entitled for further promotion to Joint Commissioner of State Tax

by passing the petitioners at the cadre of Deputy Commissioner of State

Tax is untenable and liable to be rejected on the ground till the attainment

of Rule of Adequacy, the respondents are entitled for further promotion.

27. The contention of the learned counsel for the Respondents that the

writ petition is not maintainable on the ground of delay as the petitioners

approached this Court with unclean hands by suppressing the material

facts after two and half years of issuance of seniority list at the cadre of

Deputy Commissioner vide G.O.Ms.No.2 dated 08.01.2020, and also

contrary to the Rule-26 of the Rules, 1996 is valid and acceptable, in view

of the given facts and circumstance on record that the seniority list was

finalized on 08.01.2020 after following the procedure as contemplated

under the law and after considering the objections said to have been

submitted by the aggrieved persons of the provisional seniority list.

NV,J

28. The other contention of the learned counsel for the Respondents

that as per Rule-26 of the Rules, 1996, if any employee has grievance

regarding final seniority list the same can be challenged by the aggrieved

person within a period of 30 days from the date of issuance of final

seniority list. In the instant case, the seniority list was issued vide

G.O.Ms.No.2 dated 08.01.2020 but the petitioners kept quiet and

submitted their representation on 01.04.2022 after lapse of two years

which is an afterthought and the petitioners are not entitled for any

consideration.

29. The other contention of the learned counsel for the Respondents

that after lapse of two and half years, the petitioners filed present writ

petition and obtained an interim order on 22.06.2022 which is against

their interest and also against the interest of unofficial respondents, with

an intention to benefit other unreserved seniors to the petitioners and

juniors to the Respondents as seniors is nothing but depriving the

entitlement of Respondent Nos.4 and 5 for further promotion as per Rule

of Reservation as entitled by them by way of proxy and sponsored

litigation is to be considered, in view of the admitted fact that the final

seniority list was published vide G.O.Ms.No.2, Revenue (CT-I) Department,

dated 08.01.2020 by following the G.O.Ms.No.5, Social Welfare (SW.ROR-

1) Department, dated 14.02.2003 as well as the G.O.Ms.No.26, Social

Welfare (ROR1) Department, dated 20.02.2009. But, these G.O.'s are not

under challenged.

NV,J

30. It is an admitted fact that pending interim orders of this Court dated

22.06.2022, the unreserved category juniors who were juniors to the

unofficial Respondents and seniors to the petitioners have got promoted as

Joint Commissioners, since the candidature of the petitioners as well as

unofficial respondents were subject to interim order of this Court dated

22.06.2022.

31. The other contention of the learned counsel for the Respondents

that in view of the 77th as well as 85th constitutional amendments and

introduction of the Articles 16(4A) and 16(4B) into the constitution of India

and in view of the ratio laid down by the Hon'ble Apex Court as stated

above, Respondent Nos.4 and 5 are entitled for Rule of Reservation in

promotions and consequential seniority. Even as per the Common

Judgment of Division Bench of this Court in W.A.Nos.566 and 587 of

2018, dated 01.10.2018 and also in view of the G.O.Ms. No.26, dated

20.02.2009 issued by Respondent No.1 which is remained unchallenged

even in the present writ petition, the unofficial respondents are entitled for

promotion subject to vacating the interim order is valid, sustainable and

liable to be upheld, on perusal of the G.O.Ms.No.26, dated 20.02.2009 and

the ratio laid down by the Hon'ble Apex Court in M. Nagaraj and others

vs. Union of India and others and also Common Judgment rendered by

the Division Bench of this Court in W.A.Nos.566 and 587 of 2018, dated

01.10.2018.

32. For the reasons as discussed above, the unofficial respondents are

the seniors to the petitioners at the cadre of Deputy Commissioner of NV,J

State Tax and in the absence of any quantifiable data to prove that the

"Rule of Adequacy" was already achieved at the cadre of Joint

Commissioner of State Tax in SC/ST category, Respondent Nos.4 and 5

are entitled for consideration with immediate effect than unreserved

category juniors who were already promoted as Joint Commissioners. But,

due to the interim orders of this Court dated 22.06.2022, the respondents

were deprived of the same cannot be continued further. Therefore, the

interim order granted by this Court on 22.06.2022 is liable to be vacated.

33. Accordingly, I.A.No.1 of 2023 is ordered and the interim order granted

by this Court dated 22.06.2022 is vacated.

34. Post the matter after four weeks under the caption "for hearing".

_____________________________________________ JUSTICE VENKATESWARLU NIMMAGADDA

20th October, 2023 KNR NV,J

HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

WRIT PETITION.No.16911 of 2022

20th October, 2023

KNR