w w w . L a w y e r S e r v i c e s . i n



V. VIJAYA KUMAR, ASSISTANT ENGINEER, A.P.S.R.T.C., SPECIAL CONSTRUCTION DIVISION VIJAYAWADA VERSUS A.P.S.R.T.C.

    Writ Petition 4535 Of 1992

    Decided On, 23 January 1996

    At, High Court of Andhra Pradesh

    By, THE HONOURABLE MR. JUSTICE G. BIKSHAPATHY

    For the Appearing Parties: C.V. Ramulu, M. Ravindra Nath Reddy, M.V. Rama Reddy, P. Ganga Rami Reddy, Advocates.



Judgment Text

(1) THE Seniority and Promotions form part of major service litigation among the employees in the Government and corporate sectors. The topic appears to be perennial source of litigation leading to innumerable cases. Though the supreme Court and the High Courts had decided the issues on the question of inter se seniority between the direct recruits and promotees, yet the cases are many which are still in fluid state.


(2) AS common question of Law is involved in all these cases, they are being disposed of by this common order.


(3) THE matter relates to fixation of inter se seniority in the cadre of Asst. Engineers (Civil)in the A. P. S. R. T. C. They are drawn from the direct recruitment and promotion channels.


(4) THE facts in W. P. No. 4535/92 are that the petitioners in pursuance of an advertisement made by the 1st Respondent Corporation, dated: 13-7-1984 applied for appointment for the post of Junior Engineer, now redesignated as asst. Engineer. After written test, interviews were conducted in October, 1984 and all the petitioners were appointed as Asst. Engineers between March, 1985 to September, 1985 and they have been working since then. While Respondents no. 2 to 4 who were in-service candidates were appointed in 1985 and respondents No. 5 to 16 were appointed in 1986. All of them were appointed by promotion in accordance with the regulations. , A provisional seniority was prepared among the Asst. Engineers (Civil) and according to the petitioners, respondents No. 2 to 16 though they were appointed in 1986 are placed above the seniors. It is the grievance of the petitioners in this Writ Petition that the further promotion is likely to take place for the post of Dy. Executive Engineer and until and unless the seniority is finalised in the cadre of Asst. Engineer, the promotions to the next post cannot take place. Therefore, they seek direction that they should be placed above Respondents No. 2 to 16 and they should be considered for the post of Dy. Executive Engineer. It is their case that the provisional seniority has not been circulated to them and therefore they could not file any objections.


(5) AS per the A.P.S.R.T.C. Recruitment Regulations, 1966 as amended from time to time for Recruitment Regulations, in respect of the Junior engineer (Civil), the method of Recruitment is by two methods. The vacancy shall be filled up alternately, through promotion by selection and through direct recruitment by selection. If the candidates under promotion quota are not available to fill up the vacancy reserved for them, such vacancies arising in a year can be filled up by the candidates by direct recruitment.


(6) IN the counter the Corporation contended that the filling up of vacancy is done in accordance with the recruitment regulations at the ratio of 1:1. If the promotees are not available, the vacancies shall be filled up by appointing direct recruits. The provisional seniority was published on 18-5-1987 and objections were called for, petitioners 7 and 19 raised certain objections. In fact petitioners no. 7 and 19 filed objections, the representation of the Petitioner No. 7 was rejected and the petitioner No. 19 only represented regarding the date of birth. Therefore final seniority list was published on 9-2-1988 and hence the same cannot be challenged at this belated point of time.


(7) IN nut shell, it is the case of the Corporation that the seniority has been fixed strictly adhearing to quota of rota system of 1:1 against the vacancies arose in a particular year.


(8) A counter affidavit was also filed by me 4th respondent opposing the prayer of the petitioners.


(9) W. P. NO. 2091/94 filed by the petitioners challenging the proceedings dated: 8-11-1993 wherein a provisional seniority list of Asst. Engineer (Civil) was published. In the said notification, it is clearly stated that the final seniority list of Asst. Engineer (Civil) published on 9-2-1988 in respect of those who were appointed/promoted upto 1987. This is the subject matter in W. P. No. 4535/92. But, however a provisional seniority list of Asst. Engineer (Civil) who were appointed/promoted from 1987 was prepared and a final list was published on 8-11-1993. The said list contains 233 Asst. Engineer (Civil ). It is specifically mentioned that the final seniority list is subject to the result in Writ Petition. The said notification fixing the seniority has been challenged by the petitioners in w. P. The same ground has been urged in W. P. No. 4535 / 92 urged in the present writ Petition also.


(10) IN the count filed by the Corporation, it is stated that as far as the seniority between the petitioners and the Respondents is subject matter in w. P. No. 4535/92 and therefore even though final list of Assst. Engineer is finalised at the inter se seniority is subjudice in the aforesaid Writ Petition.


(11) IT is further stated that the seniority of persons appointed to post is to be reckoned from the date of regularisation of the services. The appointments issued to the petitioners clearly contained the stipulation in the appointment orders. The petitioners and the Respondents were initially appointed without any probationary rights in 1985-86 and their services were regularised in february, 1986 by orders issued in May, 1989. Therefore, the petitioners have been treated as juniors. In the reply affidavit it is sought to be stressed that the posts advertised in 1984 are regular post and therefore it is not open for the corporation to contend that they were appointed purely on temporary basis. It is also submitted by. the petitioner that in service candidates filed w. P. No. 2379/85 seeking direction to the corporation to promote them as Asst. Engineers. In the said case, the Corporation filed a counter clearly contending that the 23 posts notified in 1984 by direct recruitment cannot be filled by promotees and the said vacancies could be filled up without waiting for appointment by promotion by the internal candidates thereby it is submitted that the posts which the petitioners were holding are regular posts.


(12) W. P. NO. 2092/94 is filed challenging the proceedings of the 1st respondent dated: 28-12-1993 wherein the seniority of the 2nd Respondent was notionally fixed immediately after. Puranchandra Rao, the seniority list is published on 9-12-1988. The principal ground raised by the petitioners is that no notice has been issued to them before the 2nd respondent is accorded higher seniority. Even as per the impugned order, it is seen that the decision was taken by the Corporation on the application of the 2nd Respondent dated :28-10-1992. Thus, it has to be seen that inter se seniority among petitioners and the respondents continues to be in a totally fluid state from 1988 onwards.


(13) IT is the case of the learned counsel for the petitioners that the seniority of the petitioners has to be reckoned from the date of their appointment. Admittedly, the Respondents are appointed subsequent to the appointment of the petitioners and therefore reference to the regularisation of service is wholly immaterial. When once the appointments are made on regular basis in accordance with recruitment regulations, the petitioners are entitled to claim the seniority right from the date of their appointment. If the Corporation has not promoted the candidates, for various reasons, the petitioners cannot be victimised on that score. Even otherwise, the learned counsel submits that the corporation conducted tests for promotion of the internal candidates, but barring few candidates other in service employees refused to participate in the test on 30-6-1985 and only nine candidates appeared, out of them three were selected. Therefore, such of the candidates, who refused to appear for the test, and boycotted the same, even though they appeared next time and passed the same cannot get the higher seniority over the petitioners. He seeks the assistance of number of judgements of the Supreme Court on this aspect including the judgement of the Division Bench of this Court. He relies on the judgement of Supreme Court reported in Direct recruitment clause II Engineering Officers Association vs. State of Maharashtra1. The Supreme Court observed thus:"once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of the appointment and not according to the date of confirmation. Seniority cannot be determined on the sole test of confirmation, for confirmation is one of the inglorious uncertainties of govt. service depending neither on efficiency of the incumbent nor on the availability of the substantive vacancies. The principle of deciding inter se seniority has to confirm to the principle of equality spelt out by Article 14 and 16. The corollary of the above rule is that when the initial appointment is only ad hoc and not according to Rules and under as a stop gap arrangement, the officiation in such a post cannot be taken into account for considering the seniority"he also relied on the judgment of the Supreme Court in State of Bihar vs. Akhouri sachindranath, wherein the Supreme Court held that"it is well settled that no person can be promoted with retrospective effect from a date when he was not borne in the cadre so as to adversely affect the other. It is well settled by several decisions of this Court that amongst the members of the same grade seniority is reckoned from the date of their initial entry into the service. In other words, the seniority inter se among the asst. Engineers in Bihar Engineering Service Cl.II will be considered from the date of length of service rendered as Asst. Engineer"in Union of India vs. Prof. S. K. Sharma the Supreme Court said: "the seniority has to be reckoned from the date of regular appointment and not from the date he officiates" the same view was also expressed by the Supreme Court in Masood Akter khan vs State of Madhya Pradesh the learned counsel also relied on the Division Bench decision of this Court in P. Kumariah and others vs. A. Yegneshwarudu and others. The Division Bench held as follows:


"if there are two sources of appointment for a particular post, the appointment can be made from either of the sources unless the rules provide otherwise, But if the rules governing the service conditions fix the quota amongst the two sources, it is needless to say that the quota rule prevails. If the quota rule itself or any other rule fixes the rotation also, the same governs the fixation of inter se seniority amongst the employees recruited from the two different sources. Where quota and rota have been fixed under a statutory rule, observance of quota and rota rules is mandatory. Merely because the promotees were originally appointed on temporary basis and continued to work in such posts for a long period, they are not entitled to claim seniority by the rule of length of continuing service, contrary to the provisions of rule of quota and rota which are required to be observed strictly, breaking down of the rule while filling the posts either by promotion or direct recruitment in the present case. Further the principle of legitimate expectation cannot be made applicable to the case of the Writ Petitioners. A promotee will have no right when his service conditions are governed by rules, to say that by virtue of his continuous service, he is entitled for being placed above the direct recruits. Further, the promotees are disentitled to contend that Recruitment Regulations and Service regulations will not apply to their case, for the reason that prior to their promotion either as A. M. E. S. or A. T. Ms, their earlier appointments and promotions were made purely on the basis of recruitment Regulations and service Regulations of the Corporation. The Writ Petitioners are not entitled to claim seniority over the direct recruits and contend that the seniority list, dt. 28-12-1989 is incorrect, illegal or arbitrary."



(14) ON the other hand, the learned counsel for the Respondents submit that the Writ Petitions are liable to be dismissed on the ground of laches. In K.R. Mudgal and Others vs. R. P. Singh and Others, wherein the Supreme Court dismissed the case of the petitioner on the ground of laches as the grievance was made after 18 years of the first draft seniority list. It is observed by the Supreme court as follows:"satisfactory service conditions postulate that there should be no sense of uncertainty amongst the Government servants created by the Writ petitions filed after several years, It is essential that any one who feels aggrieved by the seniority assigned to him should approach the court as early as possible as otherwise in addition to the creation of a sense of insecurity in the minds of the Government servants there would also be administrative complications and difficulties. "


(15) IT is not in dispute that the direct recruitment was resorted to by the corporation by publishing a notification in 1984 wherein 23 vacancies were notified for direct recruitment It is also not disputed that a regular selection committee was constituted and the appointments were made in accordance with the provisions of the recruitment regulations. It is also not the case of the corporation that the petitioners were appointed on ad hoc basis.


(16) IT is now well settled by the Supreme Court in a Catena of Judgments that when once the recruitment is held in accordance with the rules, the seniority of a person appointed to such post should be counted from the date of his initial appointment. It is also relevant to note that the method or recruitment as contemplated under the Recruitment Regulations, the recruitment has to be done alternately one from in service candidates and one from direct recruitment. In the event of non-availability of sufficient candidates, in a particular year from in service category, then the recruitment should take place by direct recruitment. Extracted below is the relevant regulations:


(17) IN view of the fact that a fresh provisional seniority list has been prepared, there is no necessity to go into the questioned laches. Hence, the contention relating to latches has to be rejected. 18. In the instant case, it is the case of the Corporation that the seniority has been fixed keeping in view the above Recruitment Regulations. However, the case of the petitioners is mat fixing of seniority alternately also was done incorrectly. Thus, the petitioners assert that the only way of solving the dispute is that they should be assigned seniority from the date of their appointment. He further submits that even if there is any administrative lapses, the Corporation conducted the test in 1985 and number of employees refused to participate in the Test. Therefore, the persons who were selected in the Test held on 30-6-1985 could have only been considered for proper placement, but the persons who took the Test in December, 1985 and appointed in February, 1986 and March, 1986 cannot be made seniors to the petitioners. In effect he submits that employees who resorted to indiscipline cannot be rewarded with better seniority ignoring the recruitment regulations.


(18) WHILE perennial litigation was going on between the petitioners and respondents with regard to the fixation an inter se seniority, the Corporation issued Notification No. CE1. 145 (312)/93-PO-II dated: 13-12-1994 narrating the sequence of events leading to W. P. No. 4535/92,2091/94 and 2092/94. It appears that apart from pending litigation some of the Asst. Engineers have also give representations for proper fixation of seniority inter se among the direct recruites and in-service candidates. Therefore, the Corporation reviewed the matter and decided to prepare a fresh provisional seniority list in respect of petitioners and Respondents who were figuring between Sl. No. 28 to 71 in the final seniority list dated: 9-8-88. The relevant para is extracted below:


"the entire issue has been reviewed for re-casting the seniority based on the method of recruitment. i.e,. alternately placing promoted and direct recruit us. Based on the above, a revised provisional seniority list restricting from Sl. No. 23 to Sl. No. 71 of the Final Seniority List published vide notification number 1st cited (seniority list dated: 9-2-1988) is for circulation for eliciting objections. If any of them have representation to make regarding their seniority, ranking etc., they may submit their representations within 15 days from the date of issue of this notification. e. 28-12-1994. Due to review of the issues involved and modifications indicated in the instant (revised) provisional seniority list, the Notification issued vide reference third cited (seniority list dated: 8-11-93) is deemed to have been cancelled"the Circular created a temporary quietus to the litigating employees.


(19) IT is also submitted by the learned Counsel for the petitioners and respondents that in pursuance of the provisional seniority list the concerned employees have filed their objections and no final seniority list has been published. However, the learned counsel for the petitioner submits that again in the provisional seniority list the principle as settled by the Supreme Court with regard to the fixation of the seniority has not been followed and therefore he insisted that this Court should settle the principle even at the stage of provisional seniority list. I am not inclined to accept the contention of the learned counsel, in as much as an opportunity was given to the petitioners and the Respondents to make their respective representations and the same shall be considered by the corporation in accordance with law k

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eeping in view the principles settled by the supreme Court and also the Division Bench of this Court referred to in the preceding paragraphs. (20) THE apprehension that the Corporation is likely to commit the very same mistake it had been committing from 1988 cannot be accepted in as much as the corporation being a legal entity is expected to function within the frame work of the regulations framed by the Corporation. Suffice to say that the Supreme court on more than one occasion held that the seniority of an employee has to be reckoned from the date of his regular appointment. In order to clear the apprehension of the learned counsel for the petitioner, the case lands quoted by him has been reproduced, so that the Corporation may not lose the sight of those decisions while dealing with the matter while issuing the final seniority list. (21) UNDER these circumstances, the Writ Petition No. 4535/92 and Writ petition No. 2091/94 are disposed of. There shall be a direction to the respondent Corporation to issue seniority list after considering the objections filed by the petitioners and other concerned employees. The Corporation shall also keep in view the judgments of the Supreme Court and this Court while deciding the matter. The final seniority list inter se petitioners and unofficial respondents falling between Sl. No. 28 and 71 of seniority list dated: 9-2-88 shall be published within a period of two months from the date of the receipt of this order. (22) WRIT Petition No. 2092/94: In as much as the petitioner are not given the opportunity before fixing the seniority of the 2nd respondent, the Writ Petition is liable to be allowed. However, in view of the fact that a fresh revised provisional seniority list has now been prepared, the grievance of the petitioners may also be considered while finalising the seniority of the 2nd respondent. (23) THE Writ Petitions are ordered accordingly No costs.
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