Andhra Pradesh High Court - Amravati
R Bhaskar Reddy vs The State Of Andhra Pradesh, on 15 November, 2024
1
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
APHC010401212021
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3310]
(Special Original Jurisdiction)
FRIDAY ,THE FIFTEENTH DAY OF NOVEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE DR JUSTICE K MANMADHA RAO
WRIT PETITION Nos: 24572/2021 24543, 24549, 24996 and 25559 of 2021
WP No. 24572 of 2021
Between:
J.gopala Krishna and Others ...PETITIONER(S)
AND
State Of Andhra Pradesh and Others ...RESPONDENT(S)
Counsel for the Petitioner(S):
1. SRINIVASA RAO BODDULURI
Counsel for the Respondent(S):
1. GP FOR SERVICES IV
2. G V SHIVAJI
3. K LAKSHMI NARASIMHA
4. N BHARAT BABU
5. C SRINIVASA BABA
The Court made the following:
2
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
COMMON ORDER :
As the issue involved in all the writ petitions is one and the same, and
therefore, they are being taken up for hearing as well as disposed of by way of
this Common Order.
2. The main grievance of the petitioners in all these writ petitions is for
declaring the G.O.Ms.No.71, Panchayat Raj and Rural Development
Department, dated 05.10.2021, issued by the 1st respondent, as illegal and
arbitrary and consequently to set aside the said G.O.
3. Since the facts in all the writ petitions are similar and identical,
therefore WP No.25472 of 2021 is taken as lead case, and the facts therein
hereinafter will be referred to for convenience.
4. Brief facts of the case are that, the main dispute in this
W.P.No.24572 of 2021 is about seniority between two groups of Assistant
Executive Engineers (AEEs) of the Panchayat Raj Engineering Service of the
Andhra Pradesh Panchayat Raj Department. The petitioners herein represent
the group of Engineering graduates, who were drafted by the Employment
Exchange on the question of the Government for appointment to the post of
AEE. They were first appointed as Work Inspectors in the year 1991 and later
appointed as AEEs in the year 1994 and their services were regularized in the
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W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
year 2005 and they were directed to be placed in the seniority list just below
the last AEE directly recruited through APPSC prior to 1994.
Further, the un-official respondents herein were appointed in the year
1997 as AEEs pursuant to a notification of 1995 and selected by APPSC.
They want the petitioners' group to forego their entire service of 11 years and
become their juniors. Questioning the Government orders of regularization
and fixation of seniority, the un-official respondents have filed
Ο.Α.No.5018/2006 and batch before the Hon'ble Andhra Pradesh
Administrative Tribunal at Hyderabad, which were dismissed on 03.02.2011.
Aggrieved by the same, they preferred, W.P.No.4439/2011 and batch before
the High Court of Judicature, Andhra Pradesh at Hyderabad. While the issue
is pending adjudication, the unofficial respondents stealthily, behind the back
of the petitioners, procured a Government Order canceling the earlier orders
and upsetting the entire situation.
It is stated that the 1st respondent Government took up construction of
school buildings as part of the Andhra Pradesh Primary Education Project with
the financial assistance of the Government of United Kingdom in 1990. For the
purposes of the said project, the 1st respondent, issued G.O.Ms.No.89 dated
09.02.1990. Meanwhile, the 1st respondent, had taken up "Cyclone
Reconstruction Project" with the financial aid of the World Bank. To execute
the said project, the 1st respondent issued G.O.Ms.No.540 dated 30.08.1990,
which provided for, among other things, sanctioning of 306 posts of AEEs.
Due to there was dearth of AEEs in the Panchayat Raj Department, the
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Employment Exchange was requisitioned to sponsor candidates having
Engineering and other equivalent Degrees for the purpose of filing up of the
said posts of AEEs. The Employment Exchange in turn sponsored the names
of the petitioners herein and several others to the office of the Engineer-in-
Chief, Panchayat Raj Engineering Department. At this juncture, certain
existing employees of the Panchayat Raj Department of the cadre of Work
Inspectors, Draughtsman, Tracers etc. who were having Engineering Degrees
made a claim to the above sanctioned posts of AEEs and filed O.As before
the APAT seeking directions to the government to consider their candidatures
for appointment to the said Posts of AEEs and the same were allowed. In
pursuance of the same, the Government issued G.O.Rt.No.429 dated
06.03.1990 directing that Work Inspectors etc., who were working in the
Panchayat Raj Department and possessing engineering degrees should be
considered for temporary appointment as AEEs before taking in fresh
candidates like the petitioners.
After joining of the petitioners in the Panchayat Raj Department, the
Government has issued G.O.Ms.No.391 dated 30.06.1994 and several other
Orders sanctioning more AEEs posts for the purpose of Rural Water Supply
Projects etc. Meanwhile, O.A.No.533 of 1994 was filed before the APAT by
the Work Inspectors working in the Panchayat Raj Department, who were
actually sponsored for the post of AEEs, but could not be appointed. In the
said O.A., the Tribunal vide order dated 04.07.1994, directed the Government
to consider the Work Inspectors to be appointed to the post of AEEs. In the
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
face of the need for implementing various new projects, and also owing to the
Orders of the Tribunal, the 1st respondent issued G.O.Rt.No.1289 dated
10.08.1994, Work Inspectors, Draughtsman and Tracers with Engineering
degree like the petitioners to be appointed as AEEs. Pursuant to the above
said Government order and resultant selection process, the petitioners and
others were appointed as AEEs vide Proceedings dated 29.10.1994 of the 2 nd
respondent citing Rule 10 (a)(i)(1) of A.P State and Subordinate Service
Rules. It is further stated that the batch of cases were disposed of by an order
dated 19.02.1996 directing the Government to take a decision on the claim of
regularization of the AEEs, and till such time, the Government was asked not
to terminate their services. Later, on the basis of representations made by the
said AEEs and pursuant to the above-mentioned orders of the APAT, the 1st
respondent perfunctorily considered the claim of the AEEs for regularization of
their appointments by excluding the posts from the purview of the APPSC and
rejected the claim by G.O.Rt.No.997 dated 27.07.1996. Questioning the
rejection orders, the petitioners and others have filed O.A No.11465 of 2002
and batch before the APAT. The Tribunal passed a series of interim orders
suspending G.O.Rt.No.997 dated 27.07.1996 and the Government was
directed not to notify the vacancies occupied by the petitioners and other
AEEs to the APPSC for direct recruitment.
It is further stated that, the 1st respondent, keeping in view the earlier
orders of the APAT dated 19.2.1996 passed in OA No.5730 of 1995 and batch
referred to above, constituted a Cabinet Sub-Committee to examine the issue
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
of regularization and after considering the recommendations of the said
Committee, the 1st respondent has issued G.O.Ms.No.234 dated 27.06.2005
regularizing the services of all the AEEs like the petitioners appointed between
1990-1995, and fixing their seniority below the last regular candidate in the
category of AEEs. The order also stipulated adherence to the Presidential
Order relating to zones and the Rule of Reservation. The 1st respondent
directed that all the appointments made in between 1990-1995 and continuing
as such as on the date shall be excluded from the purview of APPSC under
the proviso to Clause 3 of the Article 320 of the Constitution of India.
As far as the above issue of seniority is concerned, several
representations were made to the 1st respondent as provided in the above-
mentioned G.O.Ms.No.234 dated 27.06.2005 which stated that on being
regularized, the AEEs appointed between 1990-1995 should be placed below
the last regular AEE, thereby depriving the AEEs (Regularized) of 10 years of
service. After deliberation, the 1st respondent issued G.O.Ms.No.262 dated
17.06.2006, partially modifying its earlier order to the effect that on
regularization, the AEEs appointed during 1990-1992 should be placed below
the last Regular AEE approached through APPSC prior to coming into force of
Andhra Pradesh (Regulation of Appointments to Public services and
Rationalization of Staff Pattern and Pay Structure) Act, 1994, which prohibited
temporary appointments with effect from 25.11.1993. It is further stated that,
the O.A.s of the AEEs (APPSC) were dismissed and the O.A.s of ΑΕΕ
(Regularized) appointed between 1993-1995 were allowed by a common
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W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
order dated 03.02.2011 in O.A.No.5933 of 2009 and batch, by the Tribunal.
Questioning the same, the AEEs (APPSC) were preferred WP No.4435 of
2011 before this Court. The High Court has granted status quo in so far as
promotions are concerned shall be maintained. But declined to interfere with
the regularization of the AEEs (Regularized) but, however, as AEEs*(APPSC)
claimed that promotions were going to be given to the posts of Deputy
Executive Engineer, status quo was asked to be maintained regarding
promotions only.
Later the Government issued G.O.Ms.No.334 dated 26.09.2011
implementing the common order in the above said O.A.s as well as G.O.Ms.
No. 262 dated 17.06.2006 for all the AEEs (Regularized), appointed between
1990-1995 removing the earlier distinction made between AEEs, appointed
between 1990-1992 and 1993-1995. The Hon'ble Court repelled the complaint
in its dismissal order 04.10.2013. In an unprecedented manner, like a bolt
from the blue, the 1st respondent has now issued G.O.Ms.No.71 dated
05.10.2021, cancelling the orders issued in favour of the AEEs (Regularized)
in G.O.Ms.No.262 dated 17.06.2006 and G.O.Ms.No.334 dated 26.09.2011
and ordered that the AEEs (APPSC) of 1997 batch shall be seniors to the
AEEs (Regularized) appointed during 1990-1995, which is highly illegal and is
in blatant violation of the principles of natural justice. Hence, the present writ
petitions came to be filed.
5. This Court, vide order, dated 29.10.2021, after hearing the matter at
length, has passed interim order in I.A No.1 of 2021 in WP Nos.24543, 24549
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
and 24572 of 2021. The main portion of the said interim order, reads as
under:
".................A prima facie case is made out on. Balance of
convenience is therefore in favour of the petitioners and the loss will also be
irreparable. Therefore, by preserving the status quo that exists as on date
interests of both the parties will be safeguarded. After a full-fledged hearing
this order can be reversed, modified or confirmed. Neither party will thus suffer
any irreparable loss. Hence, there shall be an interim order as prayed for
suspending the operation of G.O.Ms.No.71, dated 05.10.2021 for a period of
four weeks from today........."
The same is extended from time to time.
6. Later, during pendency of the present writ petitions, Sri Srinivasa
Rao Bodduluri, learned counsel for the petitioners filed I.A.No.1 of 2024
seeking to direct the respondents No.1 and 2 not to effect any promotions
pursuant to Memo vide No.PRR01-PREOESTT(MISC)/8/2019-ESTT-1, dated
02.07.2024 and 30.07.2024 issued by the 1st respondent pending disposal of
the WP No.24572 of 2021. Accordingly, this Court, vide order, dated
12.09.2024, has granted interim direction that the respondents are directed
not to proceed further in pursuance of the Memo vide No.PRR01-
PREOESTT(MISC)/8/2019-ESTT-1, dated 02.07.2024 issued by the 1st
respondent, till the next date of hearing. Later the matter is adjourned on five
occasions and the interim order has also been extended from time to time.
7. The pleadings which are cited by the appellant in W.P.No.24572 of
2021, the same are adopted by the other petitioners in other writ petitions i.e.,
WP Nos.24543, 24549, 24996 and 25559 of 2021.
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
8. The counter affidavits have been filed in all the Writ Petitions.
9. In the Counter affidavit filed by the 1st respondent in WP No.24572 of
2021, while denying all the allegations made in the petitions, inter alia, it is
stated that, the Government, taking a view based on the all the above
judgments, implemented the orders of the Hon'ble APAT., dt.12.4.2013, and
issued G.O.Ms.No.42, PR&RD (E.I) Deptt., dt.08.6.2016, cancelling its earlier
orders issued in G.O.Ms.No.388, PR&RD (E.III) Deptt., dt.12.11.2010. It is
stated that, the above issue is similar to the issue in the present cases in
W.Ps. filed before the Hon'ble High Court. Further, the Government have also
filed an Additional Counter Affidavit in the month of April, 2019, in W.P.
No.3954/2011 and batch filed by Sri Ch. Srinivasa Rao, AEE., PR and others.
The orders of the Hon'ble High Court are awaited in the matter. However, the
interim orders of the Hon'ble High Court in W.P.No.3954/2011, to maintain
status-quo to the extent of promotions in respect of AEEs appointed on
temporary basis in 1990-95 and AEEs appointed in 1997 through APPSC are
still in force. It is further stated that, when the issue stood thus, the A.P.
Panchayat Raj Asst. Executive Engineers Forum (1997 PSC Direct
Recruitees) have submitted representation to Government requesting to
safeguard the seniority of regularly appointed AEEs of APPSC batch and also
to take necessary action to limit the implementation of G.O.Ms. No.262,
PR&RD(Estt.III) Dept., dt.17.06.2006 & G.O.Ms.No.334, PR&RD (Estt.III)
Dept., dt.26.09.2011 to finalize seniority of the 1997 APPSC AEEs by keeping
the temporary AEEs (1990-1995) after last regular candidate as per the orders
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
issued in the undisputed G.O.Ms. No.234, PR&RD (Estt.III) Deptt., dt.
27.06.2005.
It is further stated that, on the above representation, the Engineer- in-
Chief, PR., A.P., Vijayawada, who was consulted has furnished a report,
dt.13.5.2019 stating that since the beginning of the department, as per past
precedents in all similar issues, the AEEs/AEs appointed on temporary basis
were regularized from the date of issue of their regularization orders placing
them next to the regular recruited candidate through the A.P.P.S.C. He has
further stated that after issue of G.O.Ms.No.262, PR&RD Dept., dt.17.06.2006
legal disputes were arose and vide W.P.No. 3909/2011 was filed by Sri
B.Sivaprasad and others and batch before Hon'ble High Court. The Hon'ble
High Court has issued orders to maintain status-quo to the extent of
promotions seniority of the aforesaid temporary and regular (APPSC) A.E.Es.
He has further stated that all the individuals in the seniority list of A.E.Es. upto
1992 APPSC batch were promoted as Dy.E.Es and the seniority beyond
APPSC 1992 batch i.e. 1990, 1991, 1994 batch and 1997 batch is not taken
up due to dispute between them in the Hon'ble High Court and it is inevitable
to prepare further seniority of A.E.Es. He has therefore requested the
Government to examine issue keeping in view of pending Court cases and
interim orders issued in W.P. No.3909 of 2011 and batch, and the orders
issued in the G.O.Ms.No.193, GAD, dt.14.03.1990, G.O.Ms.No.388, PR&RD
(Estt.III) Deptt., dt.12.11.2010 and G.O.Ms.No.42, PR&RD (Estt.III) Deptt.,
dt.08.06.2016 in respect of 1987-88 temporary AEES batch Vs 1989 APPSC
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
batch AEEs. It is further stated that, keeping in view of the above, the
Government have examined issue, with its advisory Departments, viz.,
General Administration and Law Departments, and observed that, as per Rule
16(a) of the A.P. State & Sub-ordinate Service Rule, 1996, the regularization/
re- regularization of temporary employees appointed as per Rule 10 should
not affect the seniority of the in-service regular candidates who were recruited
as per the rule and already regularized. It is also observed that, the Rule 33
(a) of A.P. State and Subordinate Service Rules specifies that seniority of a
person in a service, Class, Category or Grade shall, unless he has been
reduced to a lower rank as a punishment, be determined by the date of his
first appointment to such service, Class, Category or Grade.
In V.Sreenivasa Reddy Vs. Govt., of Andhra Pradesh 1 and also in
Registrar General of India Vs. V.Thippa Setty2, Government have observed
Direct Recruits take seniority from date of their appointment in the cadre and
regularization of temporary appointment shall be prospective and their
services shall not be regularized with retrospective effect. Further, as per Rule
16 (a) of A.P. State & Sub-ordinate Service Rules, 1996 and also keeping in
view of the orders issued in G.O.Ms. No.42, PR&RD (E.I) Deptt., dated
08.6.2016 and remarks of the Engineer-in-Chief, Panchayat Raj, A.P.,
Vijayawada, Government observed that orders issued, in regularizing the
service of the temporary AEEs batch who were appointed during 1990-1995,
in the G.O. Ms. No.262, P.R. & R.D (Estt.III) Deptt., dated 17.6.2006 and
1994(4) scale 469
1998 (8) SCC 690
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
G.O.Ms.No.334, P.R. & R.D (Estt.III) Deptt., dated 26.9.2011, from the date of
below the last regular Assistant Executive Engineer appointed through
A.P.P.S.C. prior to promulgation of Act 2/1994 and fixing their seniority before
1997 APPSC batch AEEs have to be reviewed and decided to cancel the said
orders, duly confirming their regularization as was ordered in the
G.O.Ms.No.234, PR&RD (Estt.JII) Department, dated 27.6.2005. Accordingly,
Government vide G.O.Ms.No.71, PR&RD (E.I) Department, dated 05.10.2021,
have issued orders, cancelling the orders issued in G.O. Ms. No.262, P.R. &
R.D (Estt.III) Deptt., dated 17.6.2006 and G.O.Ms.No.334, P.R. & R.D (Estt.III)
Deptt., dated 26.9.2011 and thereby fixed the seniority of 1997 APPSC batch
AEEs before the temporary AEEs appointed during 1990-1995, in Zone.I
Zone.IV, as was ordered in G.O. Ms.No.234, PR&RD (Est. II) Dept.,
dt.27.06.2005, subject to outcome of the W.Ps pending in the High Court of
Andhra Pradesh, and the Engineer-in-Chief, Panchayat Raj, AP, Vijayawada
was requested to take further necessary action in the matter, accordingly.
Therefore, the contention of the petitioners in the Writ Petitions is without any
legal basis and against the settled principles of law and hence prayed to
dismiss the writ petitions.
10. The counter affidavit has been filed by the respondent No.3 in WP
No.24572 of 2021. In the affidavit, while denying all the allegations, inter alia,
contended that, there is distinction when any order is quashed by the court
and any order is upheld by the court, Different considerations arise out of this
basic distinction. In case a particular order or rule has been quashed by the
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W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
court, then the executive may not revive that rule or the act without curing the
defect if any pointed out by the court. If the executive or the legislature re-
enacts any provisions which was struck down by the court, without first curing
the defects pointed out by the court, then such action may be challenged on
the ground that the executive has over-reached the judiciary.
But, in the present case, it is not the issue at all. A Government order
was upheld by APAT which does not prove anything. Just because such an
order was upheld it does not mean that the executive is bereft of any power to
withdraw such an executive order. Any executive order can be withdrawn any
time without any intervention of the court in spite of the fact that it was upheld.
As submitted above, there is a vital distinction i.e., when the court quashes an
order, can it be revived without curing the defect and the other one is when
the court upholds an executive order, cannot be withdrawn by the executive.
Hence in so far as the answer to this issue is concerned, any executive order
issued under Article 166 of the constitution be withdrawn equally under Article
166 of the Constitution of India even though such an order is upheld by the
Hon'ble Court.
The said GO was issued by the Government exercising its power under
Article 166 of Constitution of India. If the GO is quashed and the WP is
dismissed, then the scenario as depicted in this query will be a valid reason in
as much as the said GO remains quashed when the WP is withdrawn. The
order of Honble APAT is only upholding the GO and the said GO is withdrawn.
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
There is no order of the APAT which stands since the very foundation was
withdrawn and therefore this issue has become academic in nature.
It is highly relevant and pertinent to state that the Writ Petitioners and
other similarly situated persons were initially appointed contrary to Rules.
without there being a provision in the Special Rules governing the service and
the request for their regularization was initially rejected by G.O.Ms. No.997 PR
& RD Dept. dated: 27-07-1996, later on Humanitarian grounds they were
initially regularized with prospective seniority as per G.O.Ms.No.234 PR & RD
Dept. dated: 27-06- 2005 and placed them below the last regular in the cadre
AEE on that date. i.e., below this respondent. The Writ Petitioners without
notice to any one of them, suddenly re-regularized with retrospective seniority
and placed above these respondents by the G.O.Ms.No.262 PR & RD Dept.
dated 17.06.2006. The basis for issuing G.O.Ms.No.262 PR & RD Dept.dated:
17-06-2006 is the Representation of Joint Action Committee of Employees,
Teachers and Workers of Andhra Pradesh. Thus, it is very clear that the Writ
Petitioners themselves got the seniority over and above these respondents in
violation of principles of natural justice. It is stated that now it is not open for
them to raise an objection that the present impugned G.O. is issued in
violation of principles of natural justice. Further, a man shall not be allowed to
take advantage of his own wrong to gain favourable interpretation of this law.
On this ground alone the plea of the Writ Petitioners is liable to be rejected. It
is further stated that the very entry of the Writ Petitioners into service itself is
illegal and contrary to Special Rules. The person who enters the service
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
through back door method was conferred benefit with initial regularization in
2005 & again undue benefit of re-regularization of their services with
retrospective effect in 2006 affecting seniority of all the persons who are in
regular service recruited as per the service rules by direct recruitment through
APPSC notification in 1995 and joined the department in 1997. Hence, it could
be seen that the entire benefit that was conferred on the Writ Petitioners is
unknown to service jurisprudence and contrary to law.
It is also not out of place to state that there are several persons like 4 th
Respondent herein. This Respondent was initially appointed as Technical
Work Inspector (Grade II) vide Proceedings No. A2/12/91, dated 04.12.1991
of the Superintending Engineer, PR, Guntur and subsequently acquiring BE
degree got appointed as technical Work Inspector (Grade 1) vide proceedings
No. A3/459/8 dt. 02.02.1992 of the Executive Engineer, PR, Markapur. The
respondent did not get the back door entry as temporary AEE like the
petitioners and subsequently got regular appointment as AEE pursuant to
APPSC notification No. 8 of 1995 and got appointed vide proceedings no.
D5(4)/34137/97-Zone III dt. 05.12.1997. By upholding G.O. 262 & G.O. 334
the Tribunal and Government have given preferential treatment in seniority to
the temporary AEEs appointed through back door methods at the cost of the
seniority of the petitioner who opted to get selected by competing in open
competition as per service rules for the post of AEE through APPSC. By the
G.O. 262 & 334 persons like the 4th respondent & others become junior to
back door entry temporary AEEs, the only reason is they have followed Rule
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
of Law and got selected in direct recruitment selection through APPSC as per
the service rules. Looking at from any angle, the conduct of the writ petitioners
in staling march over every one is a clear case of illegality. Now the
Government reviewing these illegal GOs 262 & 334 has taken corrective
action and done justice by issuing G.O.Ms.No.71, dt. 05.10.2021, which is
legal and as per settled law, as per service rules and Supreme court
judgments.
It is stated that, now a seniority list dated 22.10.2021 was issued inviting
objections. Due to the stay granted, it cannot be implemented. In fact for
nearly 2 decades no seniority list is communicated to the Direct Recruit AEEs
of 1997 APPSC batch and no promotions were effected due to the pendency
of these cases. The writ petitioners are the beneficiary of illegal actions which
does not confer on than any right whatsoever. Therefore, prayed to dismiss
the writ petitions.
11. The counter affidavit has also been filed by respondent No.4 in WP
No.24572 of 2021 reiterating the contents made in the counter affidavit of R.3.
12. The counter affidavit has been filed by respondent No.5 reiterating
the averments made in the counters of R3 and R4. It is stated that the writ
petitioners raised several invalid grounds which do not stand for judicial
scrutiny. The Government can always review the decisions taken previously
which were not in accordance with law and blatantly illegal on the face of it.
The Judgment rendered by the Tribunal in O.A.Nos.5018/2009 & batch dated
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
3.2.2011 lacks ratio decidendi and violative of Judgment rendered by the
Hon'ble Apex Court in 'V.Sreenivasa Reddy's case (supra 1) whereunder it
held as under:
"The temporary appointees cannot be put on a higher pedestal over the
APPSC candidates who stood the test of merit and became successful and
secured ranking according to the merit in the approved list of the candidates
prepared by the APPSC. In Piara Singh's case, this Court reiterated that the
temporary candidates always be replaced giving way to the regular recruits
through the prescribed agency and appointments of tie regularly selected
candidates cannot be withheld or kept in abeyance for the sake of temporary
or ad hoc employees. Therefore we have no hesitation to hold that the
appellants cannot claim seniority over the APPSC candidates."
In view of the above binding judgment of the Hon'ble Supreme Court,
the very issuance of G.O.Ms.No.262 PR &RD (Estt.III) dept dated 17.6.2006
and G.O.Ms.No.334 PR &RD (Estt.III) dept dated 26.9.2011, are illegal,
Therefore, the Government reconsidered its decision rendered in ignorance of
law by following the binding Judgments rendered in V.Sreenivasa Reddy's
case and in Registrar General of India Vs V.ThippaSetty's case. The writ
petitioners cannot even claim equity on the basis of an illegal G.O regularizing
them with prospective effect. It is further stated that, the allegation that the
APPSC AEEs recruited in the year 1997 have been pressurizing the official
respondents through representations and through other dubious means to
upturn the apple cart and nullify the regulation and seniority orders, is
absolutely redundant and untenable. Probably, it was the temporary AEEs
who managed to get an illegal order in G.O.Ms.No.262 dated 17.6.2006 by
dubious means and that's why, they made such a preposterous allegation.
The Government rightly cancelled it by exercising its power to review the
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
administrative orders passed by it. The allegation that it is widely talked about
that the text of the order in G.O.Ms.No.71 dated 05.10.2021 was drafted by
the regular AEEs of 1997 batch, is equally ludicrous and non-sensical. There
is no legal sanction for issuing G.O.Ms.No.234 PR&RD dept dated 27.6.2005
regularizing their services prospectively or G.O.Ms.No.262 dated 17.6.2006
giving retrospective effect to their regularization, and hence, the writ
petitioners cannot claim any legal right on the basis of the order of the
Tribunal. That is precisely why the government initially issued G.O.Ms.No.997
dated 27.7.1996 rejecting the very request for regularization of the services of
the temporary AEEs, and thereafter the temporary AEEs mislead the
government by making a representation by citing Act 2 of 1994, which has no
application whatsoever. Therefore, all the averments made in the writ affidavit
are frivolous and misleading in nature, and they are hereby denied in toto.
The proposed petitioners reserve their right to file detailed counter once they
are impleaded as parties in the writ petition. The petitioners herein are the
beneficiaries of the impugned G.O and hence they are proper and necessary
parties in the writ petition and hence the present IA has been filed seeking to
implead us to party respondents in the above writ petition, in the interest of
justice.
It is further stated that, for the for last 15 years this issue is in different
courts as the litigation made by the temporary AEEs and due to which
seniority of the 1997 APPSC AEEs has been unsettled. Due to this, even
though about 123 Deputy Executive Engineer posts are vacant, Government
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
is unable to give promotions to these respondents even after completion of 24
years of regular service in the cadre of AEEs. Therefore, prayed to dismiss the
writ petitions while vacating the interim orders granted by this Court.
13. The Counter affidavit has been filed by the respondents No. 8 and
10. In the affidavit, it is stated that, in the present case, the government
having realized that the G.O.Ms.No.262 dated 17.6.2006 and G.O.Ms.No.334
dated 26.9.2011 are illegal in nature in view of the undeniable legal position,
cancelled the said G.Os. It seems that the Regularized AEEs challenged the
order of the Hon'ble High Court of Telangana SLP(C). Nos. 4036 and
4038/2024. While the SLP was pending, the Government of Telangana issued
provisional seniority list on 26.7.2024 and it was challenged by way of filing
IA.No. 171150/2024 in the pending SLP. The Hon'ble Apex Court did not grant
any stay of the Judgment, but issued notice to the respondents. The
Government of Telangana after receiving objections, issued Final seniority list
on 12.8.2024 and the same was sought to be challenged in the SLP, and the
Hon'ble Apex Court granted only order of status quo in respect final seniority
vide orders dated 30.8.2024 and directed the matter to be listed in the 1st
week of November, 2024. In the state of Andhra Pradesh, the State
Government keeping in mind all these aspects and also the dire need of the
promotional posts, ordered for adhoc promotions subject to the outcome of the
pending writ petitions. In fact there is no stay/suspension of the order of the
Hon'ble High Court of Telangana in WP.No.3903/2011 & batch dated
21.09.2023, but granted order of status quo in respect of Seniority list. It is
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
well settled legal position that even if the original order is stayed or suspended
by the Appellate Court, only the implementation of the Judgement is stayed,
but the ratio laid down remains the same. The Government of Andhra Pradesh
rightly relied on the said Judgment of the Hon'ble High Court of Telangana.
The writ petitioners filed I.A..No. 1/2024 praying not to effect promotions in
pursuant to the memo dated 02.07.2024 and 30.7.2024. The said IA was
heard on 12.9.2024 and it was not brought to the notice of the Hon'ble court
that the promotions were already effected by the Engineer-In-chief, PR on
9.9.2024 and the candidates joined the duties as Deputy E.Es already on
10.9.2024, 11.9.2024 and 12.9.2024. It is stated that, the Hon'ble Court
passed interim direction on 12.9.2024 directing not to proceed further in
pursuance to the memo dated 2.7.2024 till the next date of hearing, and
posted the matter to be listed on 26.9.2024. In fact, the petitioners failed to
bring to the notice of this Hon'ble Court regarding the orders of promotions
dated 9.9.2024 and out joining on subsequent dates. It is further stated that,
as on 12.9.2024, the promotions were already effected and these respondents
have joined their duties as Deputy Executive Engineers and performing as
such since from the date of joining. It is further stated that, the Government
effected promotions which are only adhoc promotions subject to the outcome
of pending writ petitions by considering the administrative contingencies. The
same cannot be interfered with because there is no vice of illegality,
irrationality or procedural impropriety in effecting promotions to the posts
which could not filled up since last 26 years due to the pending cases.
DR.KMR,J.
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Therefore, the interim directions of this Hon'ble Court passed on 12.9.2024
are liable to be vacated, in the interest of justice. Under the circumstances, it
is therefore prayed to vacate the interim direction passed by this Hon'ble court
on 12.9.2024 in WP.No.24572/2021 and consequently to dismiss the main writ
petitions, in the interest of justice.
14. Heard Sri Adinarayana Rao, learned Senior Counsel representing
Sri Srinivasa Rao Bodduluri,; Sri M.R.Tagore, learned counsel and Sri
Surender Rao, learned Senior Counsel representing Sri Srinivasa Rao
Madiraju, learned counsels appearing for the petitioners; learned Government
Pleader for Services-IV appearing for the respondent No.1; Sri P.Gangaiah
Naidu, learned Senior Counsel, who appeared virtually representing Sri
N.Bharat Babu, Sri V.Nitesh, learned counsels appearing for the respondents
No.2 to 5; Sri C.Srinivasa Baba, learned counsel for the respondent No.6, Sri
K. Lakshmi Narasimha, learned counsel for respondent No.7; Sri G.V. Shivaji,
learned counsel, who appeared virtually through video conferencing, for the
respondents No.8 and 9 and Sri N.Ashwani Kumar, learned counsel
appearing for the implead respondent No.10.
15. On hearing, Sri Adinarayana Rao, learned Senior Counsel while
reiterating the averments made in the petitions, contended that, the impugned
G.O.Ms.No.71 dated 05.10.2021 was issued upsetting the status quo that was
existing since 1990 onwards. He submits that the petitioners herein were
appointed as Work Inspectors in the year 1991 and as Assistant Executive
Engineers in the year 1994 and their services were also regularized in the
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
year 2005. Learned Senior Counsel pointed out that once there is a judicial
recognition and an approval of the regularization of the petitioners, the
respondents cannot issue the impugned G.O. in the year 2021 invoking the
orders in G.O.Ms.No.234 dated 27.06.2005 by which services of the
petitioners were regularized. Learned Senior Counsel further submits that the
regularization and probation which are already declared cannot be set aside
by the present G.O. Learned Senior Counsel while relying upon Section 78 of
the A.P. Re-organization Act and the proviso thereunder, submits that, the
conditions of service of an employee cannot be altered to its detriment without
the permission of the Central Government. He mainly contended that the long
passage of time between regularization of the petitioners in 2006 and the
impugned order being passed in the year 2021 reversing the 2006 order
without notice to the petitioners or any other affected party. He further
submits that the G.O. regarding the regularization has been upheld by a
competent APAT Tribunal. He further submits that as on the date of G.O. the
challenge to the order of APAT was pending in the writ petition and an order of
status quo by the Hon'ble Supreme Court was in force.
16. To support his contentions, learned Senior Counsel has placed
reliance on a catena of decisions of Hon'ble Supreme Court reported in (i)
Amarendra Kumar Mohapatra and others versus State of Orissa and
others3, wherein the Apex Court held that :
(2014) 4 Supreme Court Cases 583
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
We may also refer to a three-Judge Bench of this Court in Union of
India and Anr. etc. etc. v. Lalita S. Rao and Ors. etc. etc. (2001) 5 SCC 384
where doctors appointed by Railway Administration on ad hoc basis had been
upon regularisation granted seniority from the date of their ad hoc
appointment. This Court held that proposition B stated in Direct Recruits case
(supra) permitted such seniority being granted. This Court observed:
"Obviously the Court had in mind the principle B evolved by the
Constitution Bench in the Direct Recruit Engineering Officers Association case
(supra). If the initial appointment had not been made in accordance with the
prescribed procedure laid down by the Recruitment Rules, and yet the
appointees Medical Officers were allowed to continue in the post
uninterruptedly and then they appeared at the selection test conducted by the
Union Public Service Commission, and on being selected their services stood
regularised then there would be no justification in not applying the principle 'B'
of the Direct Recruit Class II Engineering Officers Association case (supra)
and denying the period of officiating services for being counted for the purpose
of seniority."
67. Reference may also be made to the decision of this Court in State
of Andhra Pradesh & Anr. V. K.S. Muralidhar & Ors. (1992) 2 SCC 241 where
the Government of India gave weightage to service rendered by employees
prior to their regularisation. The dispute in that case was regarding inter se
seniority between the Supervisors who were upgraded as Junior Engineers
and the degree holders who were directly appointed as Junior Engineers. This
Court held that the State Government had as a matter of policy given
weightage to both the categories and that there was nothing unreasonable in
giving a limited benefit or weightage to the upgraded Supervisors in the light of
their experience. This Court said:
"The question to be considered is from which date the weightage of four
years' service should be given to the upgraded Junior Engineers namely the
Supervisors. Is it the date of acquiring the degree qualification or the date of
their appointment? Having given our earnest consideration and for the
reasons stated above we hold that the weightage can be given only from the
date of their appointment.
The Tribunal in the course of its order, however, observed that in
accordance with the existing rules the appointments of these Junior Engineers
from the notional date have to be cleared by the Public Service Commission
and the appointments cannot be held to be regular appointments as long as
they are not approved by the Public Service Commission.
Xx xx xx To sum up, our conclusions are as under:
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
(i) The weightage of four years in respect of upgraded Junior Engineers
as provided in G.O. Ms. No. 559 has to be reckoned from the date of
appointment and not the date of their acquiring the degree qualification;
(ii) On the basis of that notional date, their inter-se seniority has to be
fixed;
(iii) The regularisation of the degree-holder Junior Engineers who
passed the SQT by giving retrospective effect cannot be held to be illegal, and
their seniority among themselves shall be subject to the order of ranking given
by the Public Service Commission on the basis of the SQT;
(iv) The Government shall prepare a common seniority list of the
degree-holders Junior Engineers and the upgraded Junior Engineers on the
above lines and that list shall be the basis for all the subsequent promotions.
Promotions, if any, already given shall be reviewed and readjusted in
accordance with the said seniority list; and
(v) The approval of the Public Service Commission in respect of these
appointments and their seniority thus fixed need not be sought at this distance
of time." (emphasis supplied)
68. In Narender Chadha & Ors. v. Union of India & Ors. (1986) 2 SCC
157, this Court was dealing with a somewhat similar fact situation. The
petitioners in that case were not promoted by following the actual procedure
prescribed by the relevant Service Rules even though the appointments were
made in the name of the President by the competent authority. They had
based on such appointments, continuously held the post to which they were
appointed and received salary and allowances payable to incumbent of such
post. The incumbents were entered in the direct line of their promotion. The
question, however, was whether it would be just and proper to hold that such
promotees had no right to the post held by them for 15-20 years and could be
reverted unceremoniously or treated as persons not belonging to the service
at all. Repelling the argument that such service would not count for the
purposes of seniority, this Court observed:
" It would be unjust to hold at this distance of time that on the facts and
in the circumstances of this case the petitioners are not holding the posts n
Grade IV. The above contention is therefore without sub-stance. But we,
however, make it clear that it is not our view that whenever a person is
appointed in a post without following the Rules prescribed for appointment to
that post, he should be treated as a person regularly appointed to that post.
Such a person may be reversed from that post. But in a case of the kind
before us where persons have been allowed to function in higher posts for 15
to 20 years with due deliberation it would be certainly unjust to hold that they
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
have no sort of claim to such posts and could be reverted unceremoniously or
treated as persons not: belonging to the Service at all, particularly where the
Government is endowed with the power to relax the Rules to avoid unjust
results. In the instant case the Government has also not expressed its
unwillingness to continue them in the said posts. The other contesting
respondents have also not urged that the petitioners should be sent out of the
said posts. The only question agitated before us relates to the seniority as
between the petitioners and the direct recruits and such a question can arise
only where there is no dispute regarding the entry of the officers concerned
into the same Grade. In the instant case there is no impediment even under
the Rules to treat these petitioners and others who are similarly situated as
persons duly appointed to the posts in Grade IV because of the enabling
provision contained in the Rule 16 thereof. Rule 16 as it stood at the relevant
time read as follows :
16. The Government may relax the provisions of these rules to such
extent as may be necessary to ensure satisfactory working or remove in-
equitable results." (emphasis supplied)
69. The ratio of the decision in the above case was not faulted by the
Constitution Bench of this Court in Direct Recruit's case (supra). As a matter
of fact the Court approved the said decision holding that there was force in the
view taken by this Court in that case. This Court observed:
"In Narender Chadha v. Union of India the officers were promoted
although without following the procedure prescribed under the rules, but they
continuously worked for long periods of nearly 15-20 years on the posts
without being reverted. The period of their continuous officiation was directed
to be counted for seniority as it was held that any other view would be arbitrary
and violative of Articles 14 and 16. There is considerable force in this view
also. We, therefore, confirm the principle of counting towards seniority the
period of continuous officiation following an appointment made in accordance
with the rules prescribed for regular substantive appointments in the service."
(ii) In a case of Direct Recruit Class II Engineering Officers'
Association versus State of Maharashtra and others4, wherein it was held
that :
(1990) 2 Supreme Court Cases 715
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
".. 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.
The corollary of the above rule is that where the initial
appointment is only ad hoc and not according to rules and made as a
stop-gap arrangement, the officiation in such post cannot be taken into
account for considering the seniority.
(B) If the initial appointment is not made by following the
procedure laid down by the rules but the appointee continues in the post
uninterruptedly till the regularisa- tion of his service in accordance with
the rules, the period of officiating service will be counted.
(iii) In another case reported in S.Sumnyan and others versus Limi
Niri and others5, wherein the Apex Court held that:
" We may here also appropriately refer to another decision of this Court
in the case of G.P. Doval v. Chief Secy., Govt. of U.P. reported in (1984) 4
SCC 329, wherein this Court held that regularization of the services of a
person, whose initial appointment although not in accordance with the
prescribed procedure but later on approved by an authority having power and
jurisdiction to do so would always relate back to the dates of their initial
appointment. Para 13 is, which is reproduced hereinbelow:
"13. ..........................If the first appointment is made by not following
the prescribed procedure but later on the appointee is approved making his
appointment regular, it is obvious commonsense that in the absence of a
contrary rule, the approval which means confirmation by the authority which
had the authority, power and jurisdiction to make appointment or recommend
for appointment, will relate back to the date on which first appointment is made
and the entire service will have to be computed in reckoning the seniority
according to the length of continuous officiation. That has not been done in
this case.................. ........"
35. We may also usefully refer to the judgment of this Court in Direct
Recruit Class II Engineering Officers' Assn. v. State ofMaharashtra reported in
(1990) 2 SCC 715, which reads as follows:
"47. To sum up, we hold that:
(2010) 6 Supreme Court Cases 791
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
(A) 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.................................
......."
36. The other aspect of the matter which is to be noted is that when the
respondents were appointed to the service as Assistant Engineers on the
recommendation of the APPSC, the said appointment was on probation for a
period of two years. Some of the appellants had successfully completed their
probation period on 20.07.1989, after their cases had been taken up for
regularization by the APPSC. Therefore, when considered from any angle
there is no justification for denial of the benefit of seniority to the appellants
from the date of their initial appointment which is also in tune with the legal
principles laid down by this Court as referred to hereinbefore and in that view
of the matter the aforesaid decision which is relied upon by the counsel
appearing for the respondents is held to be not applicable to the facts and
circumstances of the present case.
17. On the other hand, Mr. Surender Rao, learned Senior Counsel also
while reiterating the averments made in the petitions, contended that as on
02.06.2014, the petitioners had the benefit of regularization vide
G.O.Ms.No.262, dated 17.6.2006 and they had also benefit of commencement
of probation w.e.f. 07.11.1993 and declaration of probation w.e.f 07.11.1993
and they have further benefit of declaration of probation w.e.f. 06.11.1995. In
this Connection, learned Senior Counsel has placed reliance on a decision of
Hon'ble Supreme Court reported in M.D Shukla vs. The State of Gujarat6,
wherein the Apex Court held that:
Counsel for the appellants contended that r. 138 only dealt with the
existing servants and did not prevent any additional members from being
amalgamated in the ministerial staff in the Secretariat. He also contended that
1970 CJ(SC) 253
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
the recruitment did not amount to admission of an officer for the first time in
the service. It is unnecessary for the purpose of this appeal to consider these
arguments. Assum- ing that r. 138 requires the State to follow a certain
method for recruitment to the ministerial service, that rule made under Art.
309 of the Constitution cannot take away the statutory right vested in the
personnel of the former Saurashtra and Kutch States which they acquired
under the States Reorganisation Act, 1956, to hold posts in the 'new State
which were equivalent and on terms which were not, unless the previous
approval of the Central Government was obtained, disadvantageous. Since
the arrangement which is made by the Government of the State of Gujarat
must be regarded as provisional and to enure so long as the Central
Government does not make a final decision, it is not open to the officers of the
Secretariat to challenge the authority of the Government of Gujarat either to
transfer officers from the Districts and to post and assign them duties in the
Secretariat or to fix their pay and seniority among the officers in the
Secretariat performing ministerial duties.
18. Learned Senior Counsel while relying upon the above decision,
contended that, the executive has no power to act contrary to either to a final
order or an interim order of this Court of competent jurisdiction. Learned
Senior Counsel has also placed reliance on a Division Bench judgment of this
Court in Nutalapati Jagadish vs Andhra Pradesh Public Service
Commission 7 and in D.D.A. v/s Skipper Carst Company 8 , wherein the
Hon'ble Supreme Court held that there is a duty cast on the Court even to set
at naught the actions taken/orders issued contrary to the Court judgment.
Paras 18 to 21 reads as under:
"The above principle has been applied even in the case of violation of
orders of injunction issued by Civil Courts. In Clarke v. Chadburn [1985 (1)
All.E.R. 211], Sir Robert Megarry V-C observed:
WP No.23606 of 2018, dated 10.04.2019
1996 CJ(SC) 443 dt 6.5.1996
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
"I need not cite authority for the proposition that it is of high importance
that orders of the court should be obeyed. Willful disobedience to an order of
the court is punishable as a contempt of court, and I feel no doubt that such
disobedience may properly be described as being illegal. If by such
disobedience the persons enjoined claim that they have validly effected some
charge in the rights and liabilities of others, I cannot see why it should be said
that although they ere liable to penalties for contempt of court for doing what
they did, nevertheless those acts were validly done. Of course, if an act is
done, it is not undone merely by pointing out that it was done in breach in law.
If a meeting is held in breach of an injunction, it cannot be said that the
meeting has not been held. But the legal consequences of what has been
done in breach of the law may plainly be very much affected by the illegality. It
seems to me on principle that those who defy a prohibition ought nat to be
able to claim that the fruits of their defiance are good, and not tainted by the
illegality that produced them."
To the same effect are the decisions of the Madras and Calcutta High
Courts in Century Flour Mills Limited v. S. Suppiah & Ors. [A.I.R.1975
Madras 270] and Sujit Pal v. Prabir Kumar Sun [A.I.R.1986 Calcutta 220]. In
Century Flour Mill Limited, it was held by a Full Bench of the Madras High
Court that where an act is done in violation of an order of stay or injunction, it
is the duty of the Court, as a policy, to set the wrong right and not allow the
perpetuation of the wrong-doing. The inherent power of the Court, it was held,
is not only available in such a case, but it is bound to be exercise it to undo the
wrong in the interest of justice. That was a case where a meeting was held
contrary to an order of injunction. The Court refused to recognize that the
holding of the meeting is a legal one. It put back the parties in the same
position as they stood immediately prior to the service of the interim order.
In Suraj Pal, a Division Bench of the Calcutta High Court has taken the
same view. There, the defendant forcibly dispossessed the plaintiff in violation
of the order of injunction and took possession of the property. The Court
directed the restoration of possession to the plaintiff with the aid of police. The
Court observed that no technicality can prevent the Court from doing justice in
exercise of its inherent powers. It held that the object of Rule 2-A of Order 39
will be fulfilled only where such mandatory direction is given for restoration of
possession to the aggrieved party. This was necessary, it observed, to prevent
the abuse of process of law.
There is no doubt that this salutory rule has to be applied and given
effect to by this Court, if necessary, by over-ruling any procedural or other-
technical objections. Article 129- is a constitutional power and when exercised
in tandem with Article 142, all such objections should give away. The Court
must ensure full justice between the parties before it."
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
19. Therefore, learned counsels appearing for the petitioners while
relying upon the above decisions, contended that, the impugned orders being
one issued without power and authority in terms of proviso to Section 78 of
A.P. Recognition Act 2014, the same is liable to be set aside and it is also
illegal and it is contrary to the final judgment of APAT in O.A.No.5108 of 2006,
dated 03.02.2011 and interim orders of this Court passed in W.P.No.3903 of
2011. Therefore, learned counsel requests this Court to pass appropriate
orders by declaring the impugned G.O.Ms.No.71, dated 5.10.2021 as illegal
and consequently prayed to set aside the same.
20. Per contra, Sri P.Gangaiah Naidu, learned Senior counsel
appearing for the respondents while denying the contentions made by the
learned counsels for the petitioners prayed to dismiss all the writ petitions as
there are no grounds to entertain the writ petitions. He mainly contended that
the posts of Assistant Executive Engineer (AEE) in Panchayat Raj
Engineering Services are classified as Class A-Category 6. He submits that
the method of appointment is by way of direct recruitment and one should not
complete 28 years of age as on 1st July of the year, in which notification for
selection is made. The unit of appointment for Class A Category 5 and 6 is
zone-wise and the qualifications prescribed for the post of AEE is Degree in
Civil or Mechanical Engineering or equivalent. He submits that through these
G.Os, the Government sanctioned 213 posts of AEEs under G.O.Ms.No.89
dated 9.1.1990 and another 386 posts under G.O.Ms.No.540 dated 30.8.1990
for implementation of certain projects which were time bound and to be
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
implemented on priority basis. Through these G.Os, the Government
permitted to appoint AEEs from out of the lists already available with APPSC
and if lists are not adequate, to draft from Employment Exchange and also
consider Work Inspectors/ Draughtsman/ Tracers, who are having degree in
Engineering on temporary basis under Rule 10(a)(1) of A.P. State and
Subordinate Service Rules. He further submits that some Work Inspectors,
Draughtsman and Tracers are appointed temporarily by the Chief Engineer
subject to the conditions.
21. Learned Senior counsel contended that the APPSC vide
Notification No.8/1995 dated 8.12.1995 notified 502 posts of AEEs and invited
applications. The temporary AEEs who were not selected by the APPSC for
regular AEEs submitted their representations to consider them for
regularization as AEEs without subjecting them to any test and by exempting
the posts from the purview of APPSC. Aggrieved by the inaction of the
Government in not considering the request of the temporary AEEs, batch of
OAs were filed before erstwhile APAT. Later, the APAT disposed of the OAs
to take a sympathetic view in considering the cases and pass appropriate
orders within a reasonable period, before resorting to appoint fresh recruits.
Accordingly, the Government examined the representations and rejected the
same by stating that there is no provision in the Rules for Regularization.
After due process of selection, the APPSC selected the candidates and the
selected candidates were appointed by the Government as AEEs. Their
probation was also declared and some reserved category candidates got
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
promoted to the next higher posts of Deputy Executive Engineers. The
Government have taken fresh opinion and decided to regularize the services
of all temporary AEEs appointed between 1990-1995 and continuing as such
by excluding from the purview of the APPSC, subject to the conditions i.e., (i)
the temporary appointees of 1990-1995 should be regularized by placing them
below the regular candidates in the cadre of AEEs; (ii) Ensure the
appointments in conformity with Presidential Order 1975 and (iii) Rule of
reservation be strictly followed.
22. To support his contentions, learned Senior Counsel has placed
reliance on the judgments reported in V. Sreenivasa Reddy and others vs.
Govt. of A.P. and others9 , wherein the Apex Court held that :
"We would also test the validity of the appellants' contention on grounds
of equity. It is seen that admittedly some of the temporary appointees had
appeared before PSC and were selected on competitive basis by direct
recruitment. The PSC candidates appeared for and Were selected in the order
of their merit. In Bhatnagar' case, this Court considered a situation where
temporary appointees between different periods and many a candidate availed
of the selection by UPSC who thought they were appointed later to the non-
selected temporary candidates, this Court upheld the seniority as per the list
drawn by the UPSC. All those tem-porarily appointed as earlier as 1964, were
made juniors to the candidates selected by the UPSC. This Court also made a
distinction between UPSC candidates and temporary candidates who do not
stand at part. The unregularised officers remained outside the cadre until 1977
and those officers should be placed below regular recruits through the 1970
examination. The same ratio applies to the facts in the case. The temporary
appointees cannot be put on a higher pedestal over the PSC candidates who
stood the test of merit and became successful and secured ranking according
to the merit in the approved list of the candidates prepared by the
PSC. In Piara Singh's case, this Court reiterated that the temporary
candidates always be replaced giving way to the regular recruits through the
prescribed agency and appointments of tie regularly selected can-didates
Civil Appeal Nos.6575-6580 of 1994 dated 5.10.1994
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
cannot be withheld or kept in abeyance for the sake of temporary or ad hoc
employees.
(ii) in a case of ARTS and CRAFTS Society vs. State of Andhra
Pradesh10, wherein the Andhra Pradesh High Court held that "a conspectus of
the expressions of the Hon'ble Apex Court and Division Benches of composite
High Cort, which binds this Court, mere stay of operation of the
judgment/order normally, will not wipe out of the ratio. In fact the ratio
declared need not be ignored."
(iii) in another case reported in K. Srinivas and another vs. The Govt.
of A.P rep. by its Principal Secretary, PR&RD Department and others 11,
wherein the High Court for the State of Telangana at Hyderabad held that:
"This Court having considered the rival submissions made by the
learned counsel on either side is of the considered view that the contesting
respondents were appointed in two spells i.e. during 1990-92 and again from
1993-95. Though the contesting respondents were appointed against the
sanctioned posts, however, their services could not be regularized for want of
amending the recruitment rules. Finally, the recruitment rules came to be
amended only in 1999 vide G.O.Ms.No.15 dt.8.1.1999 and the method of
recruitment by transfer was created for the first time only to the extent of 10%
and the State Government has taken a decision to regularize the services of
all the contesting respondents by duly taking into account that they have
rendered more than 10 years of uninterrupted service vide GO.M.No.234 dt.
27.06.2005.
...
.." 32. The learned counsel for the contesting respondents has relied
upon the judgment rendered by the Supreme Court in Santosh Kumar (4
supra), wherein, the Supreme Court had an occasion to deal with the case of
the direct recruits and promotees. In that case, the temporary persons were
(2024) 1 AndhLD 165
WP Nos.3903 of 2011 & batch dated 21.09.2023
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
appointed against the promotion quota not against the direct recruitment
quota. In those set of circumstances, the Supreme Court said that there was
no necessity to issue notice to the direct recruits when the temporary
appointments were made against the promotion quota.
33. But in the instant case, the contesting respondents are also
claiming absorption under direct recruitment quota and they would be
emerging over and above the persons who were appointed through Service
Commission during 1997. Therefore, the order of the State Government in
G.O.Ms.No.262 dt. 17.06.2006 is liable to be set aside and accordingly the
same is set aside."
23. Sri K. Lakshmi Narasimha, learned Senior Counsel appearing for
the respondents, submits that basing on the representations of the petitioners,
the Government acceded to their request and to regularize the services of
temporary AEEs appointed during 1990-1992 by placing below the regular
AEEs appointed through APPSC prior to promulgation of Act 2/1994. By
virtue of this, the appointees under APPSC notification 8/1995 became juniors
to 1990-1992 temporary AEEs. Learned Senior Counsel further submits that
the Direct recruits filed batch of OAs vide O.A No.5018 of 2006 & batch
challenging the validity of G.O.Ms.No.262 dated 17.6.2006. The temporary
AEEs appointed during 1993-1995 filed these OAs vide O.A Nos.5818 of 2009
and batch, to declare that they are also entitled to the benefit given under
G.O.Ms.No.262 dated 17.6.2006. A common judgment was delivered by the
Hon'ble Tribunal by dismissing the OAs filed by direct recruits and
G.O.Ms.No.262 dated 17.6.2006 was upheld and consequently allowed the
O.As filed by temporary AEEs holding that the candidates appointed in 1993-
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
1995 are also entitled to on par with 1990-1992 batch recruits. Challenging
the same, the direct recruits preferred WP No.4441 of 2011 before this Court
and this Court granted status quo vide order dated 22.2.2011. He further
submits that, after bifurcation of the High Court, the cases pertaining to
candidates of A.P. were transferred to the High Court of A.P. The
Government issued orders extending the benefit of G.O.Ms.No.262 dated
17.6.2006 to the candidates appointed during 1993-1995 also, subject to
outcome of the writ petitions pending consideration. Some of the cases
pending before the Telangana High Court were allowed and some of the
cases pending before this Court are pending.
24. Sri G.Shivaji, learned counsel for the respondents, who appeared
virtually, submits that, to protect the seniority, the Direct recruits made
representations keeping in mind the judgments of the Apex Court in the matter
of fixation of seniority among direct recruits and temporary appointees.
Accordingly, the Government after considering the remarks submitted by
Engineer-in-Chief, the rules position, verdicts of the Apex Court and other
material, has issued the present G.O.Ms.No.71 dated 5.10.2021. The present
writ petitions are filed challenging the said G.O. by temporary AEEs without
making the regular candidates/affected as parties.
25. Sri N. Ashwani Kumar, learned counsel appeared and submits that
he has filed implead petitions to implead the respondents as they are being
affected by the interim orders. He submits that the said implead petition was
already allowed on 20.07.2022. Further, he adopted the arguments advanced
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
by the learned Senior Counsels for the respondents and prayed to dismiss the
writ petitions.
26. Sri C. Srinivasa Baba, learned counsel also adopted the arguments
advanced by the learned Senior Counsels appearing for the respondents.
27. Perused the material on record.
28. As seen from the impugned G.O.Ms.No.71 Panchayat Raj (Estt.1)
Department, dated 05.10.2021, this Court observed as under:
" ...5. In the G.O. 3rd read above, orders were issued in partial
modification of the orders issued in G.O.Ms.No.No.234, PR&RD(Estt.III)
Dept., dt. 27.06.2005, and directed the Engineer-in-Chief, PR to
regularise the services of the Assistant Executive Engineers who were
appointed during the period 1990-92 below the last regular Assistant
Executive Engineer appointed through APPSC prior to Act.2/1994.
6. In the G.O. 5th read above, orders were also issued extending
the similar benefit of the seniority to the candidates appointed from 1993
to 1995 on par with the candidates appointed from 1990-1992 as
ordered in G.O.Ms.No.262, PR&RD(Estt.III) Deptt., dt.17.06.2006,
subject to outcome of W.Ps pending in the Hon'ble High Court of Andhra
Pradesh."
29. It is further observed that, in the said G.O., while relying upon the
decisions of Hon'ble Supreme Court in a cases of V.Sreenivasa Reddy's
case and V.Thippa Setty's cases, mentioned in paras 18 and 19 as under:
18. In light of the above, the Public Service Commission candidates
take seniority from the date of their appointment in the cadre and
regularisation of temporary appointment shall be prospective only and their
services shall not be regularised with retrospective effect. Further, as per Rule
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
16 (a) of A.P. State & Sub-ordinate Service Rules, 1996 and also keeping in
view of the orders issued in G.O.Ms. No.42, PR&RD (E.I) Deptt., dated
08.6.2016 and remarks of the Engineer-in-Chief, Panchayat Raj, Government
observed that orders issued, in regularizing the service of the temporary AEEs
batch who were appointed during 1990-95, in the G.O. Ms. No.262, P.R. &
R.D (Estt.III) Deptt., dated 17.6.2006 and G.O.Ms.No.334, P.R. & R.D (Estt.III)
Deptt., dated 26.9.2011, from the date of below the last regular Assistant
Executive Engineer appointed through APPSC prior to Act 2/1994 and fixing
their seniority before 1997 PSC batch AEEs have to be reviewed and decided
to cancel the said orders, duly confirming their regularization as was ordered
in the G.O. 2nd read above.
19. Accordingly, Government hereby cancel the orders issued in G.O.
Ms. No.262, P.R. & R.D (Estt.III) Deptt., dated 17.6.2006 and G.O.Ms.No.334,
P.R. & R.D (Estt.III) Deptt., dated 26.9.2011 and thereby fix the seniority of
1997 Public Service Commission batch AEEs before the temporary AEEs
appointed during 1990-95. in Zone.l to Zone. IV, as was ordered in G.O.
Ms.No.234, PR&RD(Estt.III) Dept.. dt.27.06.2005, subject to outcome of the
W.Ps pending in the High Court of Andhra Pradesh."
30. This Court further observed from the order of erstwhile APAT
passed in O.A No.5018 of 2006 & batch, wherein the applicants therein have
contended that the respondents have considered the representations of
temporary AEEs who have not been appointed through APPSC and by
transfer as per the Service Rules issued in G.O.Ms.No.156 dated 1.5.2022
and had taken a decision to grant concession on humanitarian grounds by 2 nd
respondent filled up the above mentioned posts during the period from 1992 to
1995 on temporary basis by stipulating the conditions in the appointment
orders.
31. It is the contention of the petitioners/temporary AEEs who were not
selected and failed to avail the opportunities for selection as regular AEEs
through APPSC submitted representations to the Government in the year
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
1995 requesting to regularize their services as AEEs on regular basis without
subjecting them to any test such as Special Qualifying Test etc by exempting
the posts from the purview of APPSC. However, the Government has
rejected their request stating that there is no provision in the Rules for
recruitment to the post of AEE either by promotion or by appointment by
transfer and that the Engineer-in-Chief regularizing the services of the
temporary AEEs appointed between 1990 and 1995 and continuing as such
on the vide G.O.Ms.No.234 PR&RD Deptt., dated 27.6.2005, keeping them
below the last regular candidate in the category of AEE, subject to Presidential
Order and Rule 22 of A.P. State and Subordinate Service Rules.
32. Further, it is observed that, the APAT, after considering the material
on record and on considering the submissions of both the parties, have
allowed the O.As filed by the petitioners/temporary AEEs holding that the
candidates appointed from 1993 to 1995 are also entitled for the similar
benefit as that of the candidates appointed between 1990-1992 and directed
the Government to issue a separate G.O extending the benefit of seniority to
the candidates appointed from 1993 to 1995 as per the dates of their entering
into service on par with the candidates appointed from 1990 to 1992 with all
consequential benefits from the respective dates of entering into service.
However, the OAs filed by the petitioners/Direct recruits were dismissed.
Subsequently, in the year 2021 the previous Government have issued the
impugned G.O.Ms.No.71 dated 5.10.2021 cancelling orders issued in favour
of the petitioners pertains to the batch of AEEs 1990-1995 in G.O.Ms.No.262
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
dated 17.6.2006 and G.O.Ms.No.334, dated 26.9.2011. Challenging the same,
the present writ petitions are filed.
33. It is the contention of the petitioners that this Court has suspended
the said G.O.Ms.No.71 on 29.10.2021 and the Hon'ble Supreme Court has
ordered vide its interim order dated 30.8.2024 directed to maintain status quo
on the writ petitions filed by the petitioners/temporary AEEs batch vide Special
Leave to Appeal (C) No(s) 4036-4038 of 2024. So, it is observed that, in view
of the above, the G.O.Ms.No.262 dated 17.6.2006 and G.O.Ms.No.334 dated
29.09.2011 are in force and operative.
34. As stated by learned counsels for the petitioners that though the
interim orders passed by this Court that directed the respondents concerned
to stop the Adhoc promotions to the 1997 batch proposed by the Engineer-in-
Chief until further orders vide order dated 12.09.2024 in I.A No.1 of 2021 in
these writ petitions, even then the promotion orders are issued on 17.9.2024
by the Engineer-in-Chief with Ante date of 9.9.2024 which is highly illegal and
arbitrary.
35. Moreover, it is the contention of the respondents counsels that, in
WP No.3093 of 2011 & batch, the contesting respondents are also claiming
absorption under direct recruitment quota and they would be emerging over
and above the persons who were appointed through Service Commission
during 1997, therefore, G.O.Ms.No.262 dated 17.6.2006 is liable to be set
aside. Further, as far as the orders of APAT in O.A. No.5018 of 2006 & batch,
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
dated 3.2.2011 are concerned, when the State Government has rejected the
cases of such of those temporary appointees who were appointed during 1993
to 1995 i.e, after promulgation of Act 2 of 1994 the APAT was not justified in
extending the benefit to them under G.O Ms.No.262 dated 17.6.2006
therefore the above orders of the APAT are also liable to be set aside and
therefore after considering the material on record, the High Court of
Telangana has allowed the above batch writ petitions and set aside the APAT
order passed in O.A No.5018 of 2006 and batch.
36. A perusal of G.O.Ms.No.234 dated 27.6.2005 would show that, the
Government after careful examination of the matter have decided to regularize
the services of all temporary AEEs appointed in between 1990-1995 and
continuing as such as on today and in pursuance of this direct that:
(1) The services of all temporary AEEs, who were appointed in between 1990-1995
should be regularized below the last regular candidate in the category of AEEs;
(2) ...
(3) ...
(4) The Government direct that all temporary appointments made in the between
1990-1995 and continuing as such as on the date shall be excluded from the
purview of APPSC under the proviso to Clause 3 of the Article 320 of the
Constitution of India.
37. And on a perusal of the G.O.Ms.No.262 dated 17.6.2006, would
show that, in partial modification of the above G.O.Ms.No.234, dated
27.6.2005 the Government direct the Engineer-in-Chief, Panchayat Raj,
Hyderabad to regularize the services of the AEEs who were appointed during
the period 1990-1992 below the last regular AEE appointed through APPSC
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
prior to promulgation of Act 2/94, which is observed as holds good now in this
case as far as the Non PSC AEEs appointed between1990-92 is concerned..
38. Even as seen from the orders of APAT in O.A No.5818 of 2009 &
batch, the erstwhile APAT has allowed the batch of OAs filed by the temporary
AEEs, who are petitioners herein and directed the Government to issue a
separate G.O extending the benefit of seniority to the candidates appointed
from 1993 to 1995 as per dates of their entering into service along with all
consequential benefits from the respective dates of entering into service on
par with the AEEs appointed between 1990-92.
39. Therefore, on perusing the material on record and by observing the
decision of Hon'ble Supreme Court in Direct Recruit's case (supra 4), this
Court is of the opinion that, 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. Further it is
also to be noted that if the initial appointment is not made by following the
procedure laid down by the rules but the appointee continues in the post
uninterruptedly till the regularization of his service in accordance with rules,
the period of officiating service will be counted.
40. Moreover, in the present case, it is observed that, the
respondents/AEEs who are appointed by APPSC Direct recruits are about ten
years away from retirement, whereas, the petitioners/temporary AEEs 1990-
1995 batch were already retired more than 50% as AEEs only and the rest are
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
on the verge of retirements very shortly within the coming two years. It is also
observed that the petitioners were appointed and promoted although without
following the procedure prescribed under the rules, but they continuously
worked for long periods of nearly 25-30 years on the posts without being
reverted.. So, viewed from any angle, there is no justification for denial of the
benefit of seniority to the petitioners from the date of their initial appointment
which is also in tune with the legal principles laid down by the Hon'ble Apex
Court as referred to above. In that view of the matter the aforesaid decisions
which are relied upon by the learned counsel for the respondents are not
applicable to the present facts and circumstances of the cases.
41. It is also observed that, without challenging the APAT orders
passed in O.A.Nos.5018 of 2006 & batch, the Government in issuing
G.O.Ms.No.71 is not proper and ultravirus. Further, it is also observed that,
once the O.A. orders are become final and unchallenged, the Government has
followed and implemented the orders of APAT.
43 It is pertinent to mention here with regard to Section 78 of A.P. Re-
organisation Act, reads as under:
78 : Other provisions relating to services :
1) Nothing in this section or in section 77 shall be deemed to affect, on or after the
appointed day, the operation of the provisions of Chapter I of Part XIV of the
Constitution in relation to determination of the conditions of service of persons
serving in connection with the affairs of the Union or any State:
Provided that the conditions of service applicable immediately before the appointed
day in the case of any person deemed to have been allocated to the State of Andhra
Pradesh or to the State of Telangana under section 77 shall not be varied to his
disadvantage except with the previous approval of the Central Government.
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
(2) All services prior to the appointed day rendered by a person,--
(a) if he is deemed to have been allocated to any State under section 77, shall be
deemed to have been rendered in connection with the affairs of that State;
(b) if he is deemed to have been allocated to the Union in connection with the
administration of the successor State of Telangana, shall be deemed to have been
rendered in connection with the affairs of the Union, for the purposes of the rules
regulating his conditions of service.
(3) The provisions of section 77 shall not apply in relation to members of any All-India
Service.
44. On a plain reading of the above provision, it clearly shows that,
without any power and authority, the Government has issued the impugned
G.O.Ms.No.71.
45. In a case of State of Maharashtra and another vs. Chandrakant
Anant Kulkarni and others12, wherein the Hon'ble Supreme Court held that :
"....21. In the end, reverting back to the main question. On an overall view of
things, we are satisfied that the State Government acted with best of intentions. It
endeavoured to strike a balance between the competing claims to relative seniority.
When sub-section (5) of Section 115 of the Act speaks of "fair and equitable
treatment", obviously it envisages a decision which is fair and equitable to all...."
46. It is also to be noted that, challenging the orders dated 21.09.2023
passed in WP No.3903 of 2011 & batch by the High Court for the State of
Telangana, the petitioners herein have preferred SLP (C ) Nos.4036 and
4038/2024 before the Hon'ble Supreme Court and the Hon'ble Apex Court
has directed both the parties to maintain status quo. So, this Court is of the
view that, even though this Court has granted interim order as prayed for
suspending the operation of G.O.Ms.No.71, dated 5.10.2021 and the said
(1981) 4 Supreme Court Cases 130
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
order is in force, and also the Hon'ble Supreme Court has also directed to
maintain status quo, while issuing promotions with Ante date i.e., vide
Proc.No.Ser.IV(2) /961/2015-1, dated 9.9.2024 by the 2nd respondent, are not
proper and liable to be set aside.
47. Hence, in view of the foregoing discussion, viewed from any angle,
the petitioners are entitled for extending the benefit of seniority to the
candidates appointed from 1993 to 1995 as per dates of their entering into
service along with all consequential benefits from the respective dates of
entering into service on par with the candidates appointed between 1990-
1992. Hence, this Court is inclined to allow all these writ petitions by setting
aside impugned G.O.71.
48. Accordingly, all the Writ Petitions are allowed. The impugned
G.O.Ms.No.71, Panchayat Raj and Rural Development Department, dated
05.10.2021, issued by the 1st respondent is hereby set aside and the
petitioners herein are entitled to for extending the benefit of seniority to the
candidates appointed from 1993 to 1995 as per dates of their entering into
service along with all consequential benefits from the respective dates of
entering into service, in terms of the order passed by the erstwhile APAT.
Further, the Adhoc promotion proceedings which were issued with Ante date
i.e., vide Proc.No.Ser.IV(2) /961/2015-1, dated 9.9.2024 by the 2nd respondent
are also hereby set aside. There shall be no order as to costs.
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
49. As a sequel, all the pending miscellaneous applications in all the
writ petitions, shall stand closed.
______________________________
DR. K. MANMADHA RAO, J.
Date : 15 -11-2024
Note : LR Copy to be marked.
(b/o)Gvl
DR.KMR,J.
W.P.Nos.24572, 24543, 24549, 24549 & 25559 of 2021
HON'BLE DR. JUSTICE K. MANMADHA RAO
WRIT PETITION Nos: 24572/2021 24543, 24549, 24996 and 25559 of 2021
Date : 15.11.2024
Gvl
