K. Manmadha Rao vs Government of Andhra Pradesh and Others

V.V.S. Rao, J.—The third respondent herein challenged the order dt.30.4.1994 issued by the second respondent herein promoting the petitioner herein as Deputy Executive Engineer (DEE) in A.P. Public Health Engineering Service. The third respondent also challenged the final seniority list dt.2.2.1994 of the Assistant Engineers (Public Health) in Zone-IV. The Administrative Tribunal by the impugned judgment dt.17.5.2000 allowed the original application. Hence, the petitioner is before this Court seeking judicial review of the impugned judgment in O.A.No.2341 of 1994 dt. 17.5.2000.

The petitioner appeared for limited recruitment selection examination for Scheduled Castes (SC) conducted by A.P. Public Service Commission in the year 1978 for the post of Assistant Engineer in Public Health Department. He was selected. The Service Commission by letter dt.2.9.1978 informed the second respondent on 20.9.1978 that the petitioner was allotted to Public Health Department. However, the petitioner was not immediately informed by the second respondent within a period of one month as per the Government instructions in G.O.Ms.No. 555 dt.27.3.1962. Be that as it may, the petitioner was asked to submit medical certificate which he did on 17.9.1979 and 10.12.1979. These medical certificates were not accepted and he was asked to resubmit the same. Therefore, he again sent a medical certificate on 11.2.1980. Accepting the same, the second respondent by letter dt.20.2.1980 appointed the petitioner as Assistant Engineer (at the relevant time designated as Supervisor) in a vacancy earmarked for Scheduled Caste in the communal roaster. He joined the service on 28.2.1980 and completed his probation whereupon he was regularised. He was Promoted as Deputy Executive Engineer on 30.4.1994.

The second respondent communicated the provisional seniority list of Assistant Engineer in Public Health Department Vide proceedings dt.22.3.1982 and called for objections from effected candidates, The petitioner was placed below all the Assistant Engineers whose services were regularised in accordance, with the Scheme contained in G.O.Ms.No. 647, General Administration Department, dt.14.9.1979. According to the petitioner, the preparation of seniority list by the second respondent is in contravention of the judgments of the Supreme Court in I.J. Divakar and Others Vs. Government of Andhra Pradesh and Another, . He, therefore, filed objections to the said Memo requesting to fix the seniority above Assistant Engineer whose services were regularized as per G.O.Ms.No. 647. His representation was rejected vide memo dt.30.1.1984 and by another proceedings dt.23.4.1986 the final seniority list was accordingly issued. The petitioner made yet another representation on 4.5.1991 to fix the seniority taking into, consideration the fact that there was delay on the part of the second respondent in communicating to the petitioner about his selection pursuant to the letter of the Service Commission dt.20.9.1978. The Government called for remarks from the Engineer-in-Chief and in due consideration thereof issued G.O.Ms.No. 1054 dt.16.7.1992.

In the said G.O. the Government of A.P., the first respondent herein, took into consideration the fact that the petitioner was selected in the limited recruitment conducted by Service Commission in 1978, he was allotted to the second respondent before the issuance of G.O.Ms.No. 647 dt.14.9.1979 and that there was delay in communicating to the petitioner enabling him to submit medical certificate, In G.O.Ms.No. 1054 dt.16.7.1992 the Government observed as under :

The matter has been examined in the light of the instructions issued in the D.O.Lr.No. 622/H/1/76 dt.20.9.1978 and the orders issued in G.O.Ms.No. 555 GAD dt. 27.3.1962. It was observed that according to the Andhra Pradesh Public Service Commission instructions the appointment orders have to be issued to the selected candidates immediately, in any case not later than one month from the date of receipt of the allotment order. In the present case there is a delay of more than 1/12 years in obtaining the certificate of physical fitness which does not seem to be reasonable. Had the petitioner been appointed before issue of G.O.Ms.No. 647 GAD dt.14.9.1979, the services of the temporary employees would have been regularized from a date subsequent to the date of Andhra Pradesh Public Service Commission candidate.

In view of the above, the Government communicated its decision to restore the seniority of the petitioner in Zone-IV and directed to issue notice to all the persons likely to be affected. Accordingly, notices were issued to all the affected parties and after considering objections, the second respondent issued proceedings No. E1(1)/ 9078-317-91 dt.2.2.1994 placing the petitioner at Serial No. 16 over and above the third respondent and five others. While doing so, the objections raised by the petitioner vide his representation dt.3.9.1992 and other representations by others were also considered by the Government, which decided to implement the orders issued in G.O.Ms.No. 1054 dt.16.7.1992. By another proceedings No. 2460/CB.1/92 dt.30.4.1994 the second respondent promoted the petitioner as DEE and posted him to Kurnool Municipality. The proceedings dt.30.4.1994 were challenged before the Tribunal by the third respondent in O.A.No. 2341 of 1994.

It was contended before the Tribunal that the first respondent has no power of review to restore the petitioner having rejected his claim in 1982 and 1986 and there are laches on the part of the petitioner. The Tribunal by the impugned judgment dated 17.5.2000 held that when the petitioner joined service on 28.2.1980 he cannot be given notional date of appointment on 2.9.1978 and that having rejected his representation on 30.1.1986, the Government erred in entertaining the application again after five years of delay and issuing orders in G.O.Rt.No. 1054 dated 16.7.1992. Accordingly, the O.A was allowed quashing the promotion order dated.30.4.1994 as well as the seniority list dated 2.2.1994.

Sri M. Ratna Reddy, learned Counsel for the petitioner submitted that the impugned judgment of the Tribunal runs counter to the express stipulations made by the Supreme Court in G.S. Venkat Reddy and others etc. etc. Vs. Government of Andhra Pradesh and others, , which laid down that the selectees in a limited recruitment for all purposes are "regular candidates" as envisaged in, G.O.Ms.No.647 dated 14.9.1979 and therefore 1978 limited recruitment candidates are ranking above the candidates regularized in G.O. Ms.No. 647, dated 14.9.1979. Therefore, the action of the first respondent in restoring the petitioner''s seniority with effect from 2.9.1978 and consequential promotion are in accordance with the judgment of the Supreme Court in Venkat Reddy''s case (supra). He would also submit that the Government considered the objections filed by the third respondent and others and by Memo dated 28.12.1993 approved the final seniority list and the same cannot be interdicted by the Tribunal. He would also submit that as there was delay on the part of the second respondent in communicating the selection by Service Commission, the Government exercised inherent power of review and gave notional date of appointment on 2.9.1978 which is in accordance with the Rules and Regulations. As per the provisions of Rule 22 of A.P. State and Subordinate Service Rules, 1962, limited recruitment candidates should be allotted their respective roaster points as otherwise the entire selection would be vitiated.

The learned Government Pleader for Services supports the case of the petitioner.

Sri N. Rammohan Rao, learned counsel for the third respondent would submit that the second respondent by letter dated 17.1.1979 directed the petitioner to submit physical fitness certificate and therefore the allegation that there was delay on the part of the second respondent in asking for medical certificate after delay of 1 1/2 years is erroneous. He placed reliance on averments made in paragraph 2 of the counter-affidavit filed by the respondents 1 and 2 herein. He would also submit that there was ban on direct recruitment from 1967 to 1973. The Government therefore issued G.O.Ms.Nos. 646 and 647 on 14.9.1979 ordering regularization of all the candidates who put in two years of service as on 1.1.1979 and who passed special qualifying test (SQT). Accordingly, all temporary employees were regularized from the date of initial appointment or the date of last regular appointment and the name of the petitioner was placed below the Assistant Engineer whose services were regularized in terms of G.O.Ms.No. 647. He also submits that in the absence of any material, the petitioner was discriminated vis-a-vis other limited recruitment selectees and it is not competent for the Government to issue G.O.Ms.No. 1054. In any event, he would submit that at the time of preparation of seniority list, the Government rejected the representations made by; the petitioner and therefore after a period of five years it is not permissible for the Government to issue orders revising the notional date of appointment to the petitioner. He placed reliance on the judgment of the Supreme Court in Rabindranath Bose and Others Vs. The Union of India (UOI) and Others, and a Division Bench decision of this Court in Narravula Kotam Raju Vs. Regional Deputy Director of Fisheries, Kakinada, EG District and others, , in support of his contention that the seniority list cannot be reopened after lapse of time.

The questions that would arise for consideration are whether the Government is competent to review the seniority list and whether the Government is competent to give notional date of appointment to the petitioner with effect from 20.9.1978 and thereby revising his date of regular appointment as 28.2.1980.

The third respondent herein is Diploma holder. He was appointed as Supervisor (now re-designated as Assistant Engineer) under Rule 10(a)(i) of the General Rules. His services were regularized in terms of G.O.Ms.No. 647 dated 14.9.1979 with effect from 9.5.1975. The petitioner was selected by A.P. Public Service Commission in the limited recruitment for SCs held in 1978 and was allotted to second respondent for appointment as Assistant Engineer in Zone-IV. He joined the service on 28.2,1980. In the provisional seniority list of Assistant Engineers of Zone-IV dated 22.3.1982 the petitioner was placed below all the Assistant Engineers, whose services were regularized in accordance with G.O.Ms. No. 647. At the relevant time the Government thought that those regularized engineers should be placed above the Service Commission appointees and therefore the objections of the petitioner were rejected by order dated 30.1.1986. Accordingly, final seniority list dated 23.4.1986 was issued placing the petitioner below the third respondent and others. However, this did not deter the petitioner and he made yet another representation to the Government on 4.5.1991 requesting for appropriate place in the seniority list having regard to the delay on the part of the second respondent in communicating the selection to him. The Government considered the request and vide G.O.Rt.No. 1054 dated 16.7.1992 communicated the decision to restore the seniority of the petitioner above the temporary employees, whose services were regularized as per orders in G.O.Ms.No. 647. This was done having regard to the delay that occurred in communicating to the petitioner about the selection by A.P.P.S.C. Indeed, by the time the Government passed orders there was a decision of the Supreme Court in Smt. M. Nirmala and Others Vs. State of Andhra Pradesh and Others, , to the effect that ''regularly appointed'' candidates should take place above the temporary employees who were regularized after conducting SOT. However, the question whether candidates who were selected pursuant to limited recruitment under Rule 22(e) of the General Rules could be treated as regularly recruited was in amorphous state,

In Venkat Reddy''s case (supra), the Supreme Court considered this question and in paragraph 13 of the reported case held that appointment of SC/ST candidates through limited recruitment envisaged by Rule 22(e) has to be treated as direct recruitment within the terms of the definition found in Rule 3(14) and inaccordance with G.O.Ms.No. 647 candidates appointed pursuant to limited recruitment should also be given the place above the candidates regularized as per G.O.Ms.No. 649. Regarding fixation of inter se seniority, the Supreme Court observed as under ;

The candidates who have entered service after passing the SQT shall rank immediately after the regularly appointed candidates who had entered service before the selection of the successful SQT candidates. Next to the SQT candidates will rank those who are governed by this Court''s directive in the last paragraph of I.J. Divakar and Others Vs. Government of Andhra Pradesh and Another, . Thereafter the seniority will be fixed between the candidates covered under G.O.Ms. No. 647, the upgraded supervisors and the SC/ST candidates recruited under the Rule 22(e) - limited recruitment scheme - in the light of this judgment.

Therefore, for all the purposes the petitioner should be treated as appointed pursuant to limited recruitment and being a regularly recruited candidate, there is no illegality in placing him above the third respondent and others who are admittedly regularized pursuant to Scheme envisaged by G.O.Ms.No. 647.

The next question is whether it is competent for the Government to reconsider the representation of the petitioner dated 4.5.1991 having rejected his objections at the time of preparation of seniority list of Assistant Engineers in Zone-IV. Rule 36 of the General Rules 1962 enables competent authority to revise in any manner any list of approved candidates for appointment or promotion to any category, class or service either suo motu or on application made by the affected person within a period of six months from the date of the order or promotion. As per proviso to Rule 36 the period of six months can be waived by the State Government. Rule 36 of the General Rules contains a non obstante clause and in our considered view the rule is intended to mitigate undue hardship meted out to persons like the petitioner herein, who for no fault of his could not join the post in 1978/1979. Apart from this, it is always open to the Government to rectify the mistakes and review its orders to prevent miscarriage of justice. In R.R. Verma and Others Vs. Union of India (UOI) and Others, , it was held:

We do not think that the principle that the power to review must be conferred by statute either specifically or by necessary implication is applicable to decisions purely of an administrative nature. To extend the principle to pure administrative decisions would indeed lead to untoward and startling results. Surely, any Government must be free to alter its policy or its decision in administrative matters, If they are to carry on their daily administration they cannot be hidebound by the rules and restrictions of judicial procedure though of course they are bound to obey all statutory requirements and also observe the principles of natural justice where rights of parties may be affected. Here again, we emphasise that if administrative decisions are reviewed, the decisions taken after review are subject to judicial review on all grounds on which an administrative decision may be questioned in a Court.

Therefore, we reject the submission of the learned counsel for the third respondent that there is no power of review to restore the seniority of the petitioner. Having regard to the judgments of the Supreme Court in Nirmala, and Venkat Reddy''s cases (supra), the action of the Government in restoring the seniority of the petitioner cannot be termed illegal or improper.

In Pilla Sitaram Patrudu and others Vs. Union of India and others, , the facts are similar and the Supreme Court observed that when the appointment of a recruitee is delayed for no fault of his, such appointee is entitled to the ranking given in the select list and any Government Order to that effect cannot be held to be illegal. The relevant excerpt from the judgment is as follows :

...... Once he is found to be eligible according to the rules, then his seniority is required to be determined as per the procedure prescribed in the rules in vogue. It is further contended that the fifth respondent was not qualified since he had not completed 8 years of required service. The Tribunal has recorded a finding that two years'' period is relaxable in the case of the reserved candidates. The inter se seniority as Assistant Executive Engineer is required to be determined; he joined service in 1981, and, therefore, he did not have the requisite service. We find no force in the contention. Since he was selected by direct recruitment, he is entitled to be appointed according to rule. His appointment was delayed for no fault of his and he came to be appointed in 1981, he is, therefore, entitled to the ranking given in the select list and appointment made accordingly. Under these circumstances, we do not find any illegality in the order.

In view of the above, we must hold that the issuance of G.O.Ms.No. 1054 dated 16.7.1992 and the consequential seniority list dated 2.2.1994 do not suffer from any vice of illegality.

In Rabindra Nath''s case (supra) the Supreme Court considered the effect of laches and it was held that when the rights are affected, the Court while administering justice cannot deny the relief and should do justice in accordance with principles of equity, justice and good conscience. In Kotam Raju''s case (supra) a Division Bench of this Court observed that inter se seniority can not be reopened after long lapse of time. In the case on hand there was no fault on the part of the petitioner in joining the service immediately after selection. There was delay on the part of the second respondent in communicating to the petitioner. Further, when the petitioner''s objections were rejected at the time of preparation of seniority list, the law was amorphous and it was finally settled in Nirmala''s case (supra) which prompted the Government to issue G.O.Ms.No.1054. Therefore, on facts, the cases relied on by the learned counsel for the third respondent are distinguishable. Further, when the law is clear with reference to same set of rules and executive orders i.e. Rule 3(iv), Rule 22(e) of General Rules as well as G.O.Ms.No. 647 the High Court is bound to apply the principles and cannot ignore the same. The Tribunal committed an error in allowing the O.A. filed by the third respondent only on the ground that the Government ought not to have issued G.O.Ms.No. 1054 after lapse of five years. The reasoning is indeed contrary to the principles laid down by the Supreme Court in Rabindra Nath''s case (supra). The submission of the learned counsel for the third respondent is therefore devoid of merit and the same is rejected.

The learned Counsel for respondents made pointed reference to paragraph 2 of counter affidavit filed by respondents 1 and 2 in this Writ Petition, in support of his contention that the second respondent directed on 17.1.1979 itself to submit medical certificate and therefore G.O.Ms.No. 1054 suffers from an error. This is devoid of any merit. Firstly, the Tribunal did not allow the O.A. on this ground. Secondly, the Government Order on which reliance is placed by the petitioner and respondents 1 and 2 clearly shows that the second respondent communicated the selection of the petitioner only on 7.9.1979 and the two medical certificates submitted by him were rejected by the second respondent. Further, before the Tribunal the third respondent did not deny this fact''s but it was only contended that there was no power of review and there were laches on the part of the petitioner. It is therefore not open to the third respondent to raise this contention. In any event, when there is a Government Order and there is affidavit before us, which is not in accordance with the Government order, the Court should accept the documentary proof and reject the submission made in the affidavit for the same is not supported by any document. The entire case of the petitioner as well as respondents 1 and 2 has been that the second respondent for one reason or the other could issue posting orders only on 20.2.1980 and therefore, the Government is justified in issuing G.O.Ms.No. 1054 restoring his seniority over and above the candidates whose services were regularised as per G.O.Ms.No. 647. The impugned judgment of the Tribunal in our considered opinion suffers from grave error apparent on the face of the record and therefore it requires to be quashed by a Writ of Certiorari.

The learned Tribunal by the impugned order allowed the original application of the third respondent on the ground that the Government erred in entertaining the second application after five years in issuing G.O.Ms.No. 1054 dt. 16.7.1992. Various important issues raised have not been considered by the learned Tribunal. Therefore though we have quashed the order of the learned Tribunal we are of the considered opinion that the matter should be remitted back to the learned Tribunal for fresh consideration without being influenced by any of the observations and findings recorded hereinabove.

Accordingly, we allow the Writ Petition and remit the matter to the Andhra Pradesh Administrative Tribunal to consider the matter afresh giving opportunity to the contesting parties to place any fresh material. There shall be no order as to costs.