Telangana High Court

P. Ajit Kumar S/O Late Gopal Rao vs The Government Of Andhra Pradesh, on 23 August, 2022

Bench: Abhinand Kumar Shavili, K. Sarath

          IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH
                            AT HYDERABAD

                                       (Special Original Jurisdiction)


                      THURSDAY, THE TWENTY EIGHTH DAY OF APRIL
                              TWO THOUSAND AND FIVE



                                                 PRESENT

              THE HON'BLE MR JUSTICE G. BIKSHAPATHY

                                            and
                          THE HON'BLE MR JUSTICE P.S.NARAYANA



                                   WRIT PETITION NO. 10510 OF 2004



                     Between:

1. P. Ajit Kumar S/o late Gopal Rao, aged about 52 years,

occu: Working as Assistant Director of Agriculture,O/o Commissioner

of Agriculture, Andhra Pradesh, Hyderabad.



2. M. Ramesh s/o Narayana Murthy, aged about 51 years, occu:

Assistant Director of Agri (S.C.) Siddipet, Medak District.

                                                   ..... PETITIONERS

AND



1.The Government of Andhra Pradesh, rep. by its Secretary, Food

and Agricultural Dept, Secretariat, Hyderabad.



2.The Commissioner & Director of Agriculture, Andhra Pradesh,

Hyderabad.



3. G. Narasimhulu, Assistant Director of Agriculture, F.T.C.

Suryapet, Nalgonda District.
 4. A. Ravinder Reddy, occu: Assistant Director of Agriculture®,

Hayathnagar, Ranga Reddy District.



5. T. Someswara Rao, occu: Assistant Director of Agriculture,

F.T.C. Suryapet, Nalgonda District.



6. P. Venkatrami Reddy, occu: Assistant Director of Agriculture,

O/o Joint Director of Agrl. Mahabubnagar.



7. K. Aravind Kumar, occu: Assistant Director of Agriculture,

F.T.C. Sanga Reddy, Medak District.



8. M.A. Bantu, occu: Assistant Director of Agriculture,

WALAMTARI, Rajendernagar, Ranga Reddy District.



9. M. Krishna Banerjee, Occu: Assistant Director of Agriculture,

B.C. Labs, Mahabubnagar District.



10.V. Ramachandra Reddy, occu: Assistant Director of

Agriculture, F.T.C. Rajendernagar, Ranga Reddy District.



11.G.Surendra Reddy, occu: Assistant Director of Agriculture,

Soil Testing Laboratory, Rajendernagar, Ranga Reddy District.



12. G. Jayapala Reddy, occu: Assistant Director of Agriculture,

F.T.C. Suryapet, Nalgonda District.



13. K. Govinda Reddy, occu: Assistant Director of Agriculture,

Mahabubnagar District.
                                                     .....RESPONDENT(S)

       Petition under Article 226 of the Constitution of India praying that in the
circumstances stated in the Affidavit filed herein the High Court may be pleased to
issue writ order or direction more particularly one in the nature of writ of Certiorari
calling for the records relating to the Orders passed in O.A.No. 5610 of 1997 by the
Hon'ble Andhra Pradesh Administrative Tribunal, Hyderabad dated: 15.4.2004 and
also Proc. No.Estt/VII(I)/753/93, dated: 7.6.1996 and Memo No. Estt.VII(1)/753/93,
dated: 8.7.1996 issued by the 2nd respondent and set aside the same as unjust and
without any basis and consequently direct the 2nd respondent to give 93rd place to
the 1st petitioner above G. Narasimhulu and 104th place to the 2nd petitioner above
A. Ravinder Reddy.



Counsel for the Petitioners: MR.M. RATNA REDDY




Counsel for the Respondents : G.P. FOR AGRICULTURE RR 1 and 2




Counsel for the Respondents No.3 to 13: None appeared.




The Court made the following:




JUDGMENT:

(per G. Bikshapathy J)

1. The Writ Petition is filed calling in question the Order passed by the Andhra

Pradesh Administrative Tribunal in O.A.NO. 5610 of 1997, dated: 15.4.2004.

2. Petitioners are the applicants before the tribunal. Having been unsuccessful

before the tribunal, the present Writ Petition has been filed by them.

3. Few facts are necessary to appreciate the matter in proper perspective.

Large-scale recruitment to the posts of Assistant Agricultural Officer took place

during the year 1975-76. The minimum requirement for the said post is B.Sc. (Agri.).

Petitioners and others were sponsored by the Employment Exchange to the 2nd

respondent Commissioner and Director of Agriculture for appointment by direct

recruitment. Petitioners belong to B.C.-D category. It is also appropriate to note that

the Agricultural officers fall in A.P. State and Subordinate Service Rules. The

appointment is by two channels one by direct recruitment and another by promotion

as well as the recruitment by transfer as laid down under rule 2 of Special Rules.

The appointing authority is the 2nd respondent. The rule of reservation as stipulated

under Rule 22 of A.P. State and Subordinate Service Rules also applies separately

to each of the class and category except Class-V and certain posts in Class-VI.

Consequently, selection process was undertaken by the Director of Agriculture-2nd

respondent, petitioners were selected. Accordingly, the 1st petitioner was appointed

as Asst. Agricultural Officer by proceedings dated: 11.12.1975, whereas the 2nd

applicant was appointed by proceedings dated: 28.4.1976. At the time of

appointment, the applicants were prosecuting M.Sc. (Agri.). Therefore, they

requested the 2nd respondent-appointing authority for extension of joining time till

they completed the course. Their request was considered by the 2nd respondent and

the proceedings were issued permitting him to report after completion of their course

with a certificate to the effect that they had completed M.Sc. (Agri.), so that they could

be appointed in the available vacancies at the relevant time.

4. It is the case of the petitioners that the appointing authority was competent to grant

time under F.R. 105. But, however, they will not be entitled for any leave or salary. On completion of P.G. course, the 1st applicant reported to duty on 27.12.1976 and

the 2nd applicant was reported to duty on 27.7.1977. According to the petitioner,

seniority among the persons appointed along with the petitioners has to be counted

on the basis of merit ranking prepared by the appointing authority and not the date of

joining the post as required under Rule 33 of A.P. State and Subordinate Service

Rules.

5. While so, the State Government issued G.O.Ms.No. 646, dated: 14.9.1979

excluding all temporary appointments made by the direct recruitment during the

year1975-76 from the purview of the Public Service Commission. In G.O.Ms.No.

647, dated: 14.9.1979 the State Government ordered that the services of all

temporary employees who were appointed by direct recruitment to any category of

post and were continued in service as on 9.8.1979 should be regularised without

subjecting them to any test either written or oral subject to the only condition that

their services should be regularised from the date next day of following the date on

which last regular appointment was made in the category in the unit covered or from

the date of temporary appointment, whichever is later.

6. It is admitted that regular appointment through the Public Service Commission

was made on 14.8.1976 and 15.8.1976 being holiday the authorities have

regularised the services of all the employees, who were appointed along with the

petitioners with effect from 16.8.1976. Thereafter, provisional seniority list was

prepared on 2.4.1998 in respect of the officers in Zone-VI prepared in pursuance of

the Presidential Order. The petitioners belong to Zone-VI. The 1st and 2nd

petitioners were shown at Sl.No. 556 and 561 with the date of regularisation as

1.9.1977 and 30.9.1977. Feeling aggrieved by the said seniority, they filed

representation to the 2nd respondent stating that Mr. Damodar occupied 12th position

as against the 8th position in the merit list, who was not senior in the list was

assigned Sl. No. 438 and the 1st petitioner ought to have assigned the seniority above Damoder. M. Krishna Banergee, who occupied 15th position as against the

4th position occupied by the 2nd applicant have occupied Sl.No. 454 position and

therefore, the 2nd applicant should be shown above Krishna Banergee. Similar

objections were also received by the 2nd respondent. Objections of the applicants

and others were considered and the 2nd respondent issued final seniority in

proceedings dated: 7.6.1996. The 1st applicant accordingly was given Sl.No. 201

with date of joining as 3.8.1977, whereas his juniors G. Narasimhulu, G. Surender

Reddy and Damoder were given Sl.No. 93 to 95 with the date of regularisation as

16.8.1976. Similarly, the juniors to 2nd applicant namely A. Ravindar Reddy was

given Sl.No. 104 and whereas 2nd petitioner was assigned seniority at Sl. No.202

with date of regularisation as 3.8.1977. They claimed that their seniority should be

placed at Sl.No. 93 and 104 respectively for the purpose of promotion to next higher

post. Therefore, they filed O.A. No. 5610 of 1997 for fixation of appropriate seniority

duly challenging the proceedings of 2nd respondent dated: 7.6.1996 and 8.7.1996.

7. The official respondents filed counter and unofficial respondents did not file any

counter.

8. The learned tribunal after taking into consideration the factual position framed the

following issue:

"Whether the applicants are entitled for notional seniority from the dates of their first appointment and are entitled to 93 and 104 laces in the seniority list above Sri G.Narsimhulu and Sri A. Ravindar Reddy, the unofficial respondents No.3 and 4?

9 . The learned tribunal recorded a finding that though they were appointed along

with the unofficial respondents and after taking permission from the appointing

authority and after completing the M.Sc. Course, they have joined and therefore,

they are entitled to seniority on the basis of the merit ranking given by the appointing

authority. The learned tribunal also observed refusal to grant appropriate seniority was not proper and the official respondents estopped from contending that they are

not entitled for seniority as requested. Accordingly, O.A. was allowed and the

seniority list dated: 7.6.1996 and Memo dated: 8.7.1996 to the extent applicants are

concerned was set aside and the authorities were directed to fix the seniority by

taking into consideration the date of appointment notionally as on 11.12.1975 and

28.4.1976 and to place the 1st applicant at the 93rd place above G.Narsimhulu and

the 2nd applicant at the 104th place above A. Ravindar Reddy in the final seniority

list and for consequential consideration to promotion as Asst. Directors as per their

revised seniorities. Thereafter, the Government issued Memo dated: 9.6.1998 and

16.6.1998 accepting the decision of the tribunal and accordingly their names were

fixed in the final seniority list and the final seniority list was published on 16.6.1998

and unofficial respondents nor any other persons challenged the said seniority list.

10. Subsequently, the petitioners were promoted as Asst. Director of Agriculture. At

that point of time, the W.P.No. 27772 of 1998 and batch was filed before the High

Court by the persons, who were not the parties before the tribunal assailing the

Order of the tribunal on the sole premise that they were not heard before passing the

Order and therefore, the Order was liable to be set aside. Accepting the contention of

the petitioners, who were alleged to be effected, this Court passed an Order on

29.1.2003 in W.P.No. 27772 of 1998 and batch. The Order of the tribunal was set

aside and the matter was remanded to the tribunal for consideration afresh, after

hearing the parties. The tribunal was directed to dispose of the same within a period

of three months from the date of receipt of a copy of this Order. Thereafter, the matter

was again reconsidered by the tribunal. But, this time, the tribunal held that they are

not entitled for seniority from the date of regularisation on the basis of the original

appointment dated: 11.12.1975, 24.2.1976 and thus dismissed the O.A. by an Order

dated: 15.4.2004. Aggrieved by the said Order, the present Writ Petition has been

filed. This is how the matter came up before this Court for consideration.

11. The issue that arises for consideration is whether the Order passed by the

tribunal is sustainable in law?

12. As the facts have already been narrated, the petitioners along with the others

including the respondents were selected for the post of Agricultural Officers and they

belong to Group-D. It is also not in dispute that they were selected and in respect of

the 1st petitioner, appointment Order was issued on 11.12.1975 and appointment

Order in respect of the 2nd petitioner was issued on 28.4.1976. But, they did not join

the post and requested authorities to grant time till they complete M.Sc. (Agri.). That

was accepted by the authorities and in respect of the 1st petitioner, the 2nd

respondent issued proceedings on 6.10.1976 granting permission to the petitioner

and some other candidates, which reads thus:

"The candidates are informed that they should report to the office after completion of the course of M.Sc.(Ag.) , sufficiently in advance so as to consider their cases for appointment depending on the vacancies existing at that time."

In respect of the 2nd petitioner, similar Orders were passed on 27.11.1976, which

reads thus:

"With reference to their applications cited it is informed that they should report to this Office after completion of their course sufficiently well in advance so as to consider their cases for appointment depending on the vacancies existing at that time. They shall also produce a certificate of having completed their M.Sc.(Ag.) course or discontinued as the case ma be"

13. Though the Government initially accepted the cases of the petitioners that they

are entitled for regularisation basing on the original appointment, but, however they

resiled when the matter was again remanded by this Court for fresh consideration.

Be that as it may, the petitioners were appointed initially and thereafter they sought

time for extension, which was granted by the appointing authority. The tribunal,

however, found that the petitioners were issued with the appointment Order earlier and after completion of M.Sc., the appointment Orders were again issued for the

second time and that will govern the situation and they would not have any claim in

respect of the 1st appointment and therefore, the 1st date of appointment cannot be

taken into consideration. But, in this regard, it has to be noted that only merit list was

prepared for the first time and there was no second time interview or selection at any

time. The 1st merit list was only acted upon, but the time was granted to the

petitioners to complete M.Sc. in view of the fact that they were also prosecuting

M.S c. Under those circumstances, the question that calls for consideration is

whether Rule 33 (a) and (b) of A.P. State and Subordinate Service Rules will apply?

Rule 33 (a) and (b) is relevant, which is extracted below:

"33. Seniority :--(a) The seniority of a person in a service, class, category or grade, shall unless he had 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:

Provided that the seniority of a probationer or approved probationer in a service, class or category from which he stood reverted on the 1st November, 1956 or prior to that date, shall be determined in the statewide gazetted posts and non-gazetted posts in the Departments of the Secretariat and the offices of the heads of departments with reference to the national date of continuous officiation with or without breaks in that service, class or category prior of the 1st November, 1956 to the date of re-appointment made thereafter, but it shall not disturb the inter- seniority which obtained in the Andhra Pradesh. (This proviso shall be in force till 31st October, 1996)

(b) The appointing authority may, at the time of passing an order appointing two or more persons simultaneously to a service, fix either for the purpose of satisfying the rule of reservation of appointments or for any other reason the order of preference among them; and where such order has been fixed, seniority shall be determined in accordance with it;

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

Xxxx xxxx xxxx"

14. It was the contention of the Government that Rule 33(b) would not apply as it is

not a selection by the Public Service Commission and the appointments were purely

temporary under Section 10(a)(1). The Rules comes into play only when regular

appointments are made. Since they are purely temporary and emergency

appointments, date of joining has to be taken into consideration. Though it is well

settled that the seniority is not a fundamental right, but when the merit list was

prepared in respect of the selections and the appointments were made taking into

consideration the reservation under Rule 22, the proper implementation has to be

done. It is true that they did not join in pursuance of the appointment for the reasons

already stated. But, if the time sought for was not granted then the petitioners could

have joined within the time granted. After the Order fo the Tribunal in O.A.NO. 5610

of 1997, dated: 13.4.1998 the Government had taken a decision to implement the

said Order in Memo dated: 9.6.1998. Paras 2 and 3 reads thus:

"2. After taking into consideration the Order of the Andhra Pradesh Administrative Tribunal and all other relevant aspects, Government hereby direct the Commissioner and Director of Agriculture to implement the A.P.A.T. Order in O.A.NO. 5610/97 and to give notional seniority to Sri P.Ajit Kumar, Agriculture Officer and Sri M. Ramesh, Agriculture Officer from the dates of their appointment i.e. 11.12.75 and 28.4.76 respectively ranking them at 93rd place above Sri G. Narsimhulu for the first individual i.e. Sri P.Ajit kumar, A.O. and at 104th place for the second individual i.e. Sri M. Ramesh above Sri A. Ravinder Reddy in the final seniority list and consider their cases for promotion as Assistant Director of Agriculture as per their revised seniorities.

3. The Commissioner and Director of Agriculture is requested to take necessary notion in the matter accordingly."

15. Thereafter, 2nd respondent issued Memo dated: 16.6.1998 consequent on the

Memo of Government dated: 9.6.98. The matter was discussed in the said Memo

and the following is the relevant extract:

"The seniority of the applicants was fixed as per their date of joining under Rule 33(a) of A.P. State and Subordinate Service Rules and also following the Roster. They cannot claim seniority as per their initial appointment, since they did not join duty at that time of final a place along with other Asst. Agricultural Officers originally appointed by this Office in 1975 and 1976.

However, the A.P. Administrative Tribunal, Hyderabad in their Order dated: 13.4.98 observed that the indication was that the candidates should report for duty after completion of the M.Sc. (A g) Course. A similar Memo was given to 2nd applicant on 27.11.76. It has been established beyond doubt that the respondents had permitted to join duty after completion of their M.Sc.(Ag) Course on the basis of their original selection following the reservations and into regular vacancies and they were subsequently regularised without subjecting them to any test or selection by the A.P. Public Service Commission. Therefore, the Official respondents are estopped from taking the contrary plea and the applicants are entitled for their seniority being counted from the date of their first appointment on the basis of ranking given by the Selection Committee after following the Rules of reservations and, the first applicant is entitled for his notional seniority from the date of his actual appointment and for placing at 93rd place above Sri G. Narasimhulu and the 2nd applicant, is entitled for a similar relief and for 104th place above Sri A. Ravinder Reddy and their names have to be considered for future promotions as Asst. Directors of Agriculture as per these new placements.

                     Government      were     addressed    in   this   Office   Lr.   No.
                     Estt.VII(1)/1084/97,    dt.14.5.98 for issue of necessary further

Orders in the matter. On that Government in their Memo (3) cited after taking into consideration the Orders of A.P. Administrative Tribunal and all other relevant aspects, directed this office to implement the Orders of A.P. Administrative Tribunal in O.A.NO. 5610/97 and to give notional seniority to Sri P. Ajit Kumar and Sri M.Ramesh, Agril. Officers from the dates of their appointment i.e. 11.12.75 and 28.4.76 respectively ranking them at 93rd place above Sri G. Narasimhulu for the first individual i.e. Sri P. Ajit Kumar, Agril. Officer and 104th place for the second individual i.e. Sri M. Ramesh above Sri A. Ravinder Reddy, in the final seniority list of Agricultural Officers and consider their cases for promotion as Asst. Directors of Agriculture as per their revised seniorities.

In view of the Orders dated: 13.4.98 of A.P. Administrative Tribunal, Hyderabad and in view of the directions issued by Government in the Memo (2) cited 1. Sri P. Ajit Kumar, Agril. Officer, is hereby assigned notional seniority above Sri G. Narasimhulu with Sl. No. 95 and date of regular appointment as 16.8.76 in the final seniority list of Agril. Officers communicated in this Office Memo No. Estt.VII(1)753/95, dt. 8.7.96, 2. Sri M. Ramesh, Agril. Officer is hereby assigned notional seniority above Sri A. Ravinder Reddy with Sl.No. 104 and date of regular appointment as 16.8.76 in the final seniority list of Agrl. Officers communicated in Memo No. Estt.VII(1)753/93, dated: 8.7.96. Accordingly, the revised seniority from Sl.No. 93 to Sl.No.204 of the final seniority list of Agrl. Officers in Zone-VI is herewith communicated to the Agril. Officers concerned through the Joint Directors of Agriculture of Ranga Reddy District, Hyderabad, Nalgonda, Sangareddy, Nizamabad and Mahabubnagar. They are requested to communicate a copy of the list to the Agtricultural Officers working in their Districts and obtain acknowledgments and retain with them. They should furnish a certificate to the effect that the revised seniority list in respect of the Agricultural Officer in the list has been communicated to the Agril. Officers who are in the list and working in their Districts."

Accordingly, they were fixed at Sl.No.93 and 105 in the final seniority list. These

proceedings became final.

1 6 . More over, unofficial respondents on earlier occasion, they did not file any

counter in O.A.NO. 5610 of 1997. Even in the present case after remand also they

did not file any counter. Thus, they did not make their stand clear at any point of time.

More over, they have also not challenged the final seniority list dated: 7.6.1996 as revised in Memo dated: 16.6.98. Under those circumstances, we find that the

unofficial respondents cannot be said to be aggrieved in any manner, in asmuch as

they did not challenge the final seniority list. Even otherwise, they did not make any

submissions before the tribunal when the matter was remitted back nor any counter

was filed. It is also further to be noted that the Government issued G.O.Ms.No. 647

taking out the posts of agricultural officers from the purview of the Public Service

Commission which gave respite to all the persons, who were appointed on

temporary basis. When, once they are to be regularised, the date of appointment has

to be taken into consideration basing on the merit ranking obtained in the selection

conducted by the 2nd respondent for the purpose of seniority. Admittedly, the

petitioners obtained higher merit ranking and they belong to B.C-D category.

Therefore, the finding of the tribunal that the appointment given to them originally

that their seniority cannot be considered with reference to the 1st appointment Order

and that their services have to be regularised only from the date of the 2nd

appointment Order is not sustainable in asmuch as the second Order came to be

issued in consequence of time granted to the petitioners and it is not a second

selection. As we observe the petitioners and others were sponsored by the

Employment Exchange and one time selection was made duly observing the roster

and reservations under Rule 22. Further the earlier appointment was not cancelled.

It has been clearly accepted by the 2nd respondent in proceedings dated: 7.6.1996

as follows:

"Accordingly, provisional seniority list of Agril. Officers of Zone- VI consequent on the formation of Zones has been prepared and communicated to the concerned and called for their objections if any vide this office Memo No. Estt.VII(1) 753/93, dated: 2.4.94.

Certain Agril. Officers have filed some objections on their provisional seniority. In their objections they have stated that their names are not in order and requested that their names may be arranged according to the merit-cum-selection made at the time of their first appointment. Their objections are examined with relevant records.

It is observed that while appointing the candidates as Agril. Officers through the media of Employment Exchange on temporary basis the General Rule 22 (Rule of reservation) was followed. Subsequently, while regularising the services of temporary Agrl. Officers instead of following the Roster which followed at the time of temporary appointments the dates of joining of the Agrl. Officers were taken into consideration and again another (fresh) Roster was followed. Hence, there is a change in the seniority.

In order to rectify the change of their seniority, now the names of Agrl. Officers have been arranged as per their first appointment for counting their seniority as per Rule 33(a) and 33

(b) of A.P. State and Subordinate Service Rules, since they were exempted from the purview of A.P.P.S.C. and also taking into consideration of their Zonal allotments. Hence, there is a slight change in the regularisation Orders already issued to them.

Keeping in view of the above points and in partial modification of the Orders issued in this Office Procs. 3rd to 7th cited, the candidates now shown in the Annexure enclosed to this Order are appointed as Agrl. Officers on regular basis n Class-I, Category-1 of Andhra Pradesh Agrl. Subordinate Services with effect from the dates noted against their names each under column (6) of the Annexure."

However, the petitioners claimed seniority from the date of the appointment Orders

on the basis that there was only one selection and one merit list. Even reference to

Rule 11(a) is misconceived as 30 days limit was introduced with effect from 26.4.99.

Further, when the appointing authority extended the time for joining, Rule 11 cannot

be invoked as the petitioners joined post within the time stipulated. Under those

circumstances, we are unable to accept the finding of the tribunal that the seniority

has to be reckoned only from the date of joining the post, but not on the basis of

merit. The tribunal basically proceeded on the ground of no extension was granted,

but as extracted above the proceedings issued by the Director, they were

specifically permitted to pursue the course and immediately join after completion of

M.Sc.(Ag.). Under those circumstances, we are of the considered view that the

seniority has to be based on the basis of the merit ranking obtained by them and not

on the basis of the joining the post. Thus, we hold that the case of petitioners is governed by Rule 33 (b) and not 33(a) of the Rules. Consequently, they are entitled

for the fixation of the seniority on the basis of merit ranking assigned at the time of

selections.

17. Accordingly we set aside the Order of the tribunal and also the proceedings of

the 2nd respondent dated: 7.6.1996 and Memo dated: 8.7.1996 to the extent it relates

to fixation of the seniority of the petitioners. The petitioners are entitled to be fixed at

Sl.No. 93 and 104 as ordered by the tribunal in its earlier Order dated: 13.4.1998

and as implemented in the Memo of the Government dated: 6.9.1998 and the

proceedings of the 2nd respondent-Commissioner dated: 16.6.1998.

18. The Writ Petition is accordingly allowed. No costs.

____________________

G.BIKSHAPATHY, J

______________________