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J.Chandrashekhar Reddy Vs. D.Arora [1993] INSC 411 (7 October 1993)

SAWANT, P.B. SAWANT, P.B. ANAND, A.S. (J) VENKATACHALA N. (J) CITATION: 1994 AIR 526 1994 SCC (1) 229 JT 1993 (6) 485 1993 SCALE (4)3

ACT:

HEADNOTE:

ORDER

1. These two contempt petitions are filed by the Deputy Executive Engineers who were appointed to the said posts directly during the period December 31, 1982 to December 31, 1987. According to the petitioners in Contempt Petition No.

294 of 1992, the respondent-Government has committed a breach of the directions given by this Court in its decision dated February 24, 1988 in K. Siva Reddy v. State of A. P.I (hereinafter referred to as 'Siva Reddy case'). The contention is that as per the directions given in that decision, the State Government was required to regulate and adjust the appointments made in the vacancies of Deputy Executive Engineers from December 31, 1982 to December 31, 1987 according to the quota of recruitment prescribed in the 1965 Rules, viz., 37-1/2 per cent direct recruits and 62-1/2 per cent promotees and give them deemed dates of seniority worked out on the basis of the said quota, right from the inception when the 1965 Rules came into operation. However, this extreme contention was not advanced by Shri Chidambaram appearing for the petitioners in Contempt Petition No. 63 of 1993. According to him, the Government had committed a breach of the directions given in Siva Reddy case' since it had not adjusted the appointments and seniority of the direct recruits appointed between December 31, 1982 to December 31, 1987 by taking into consideration, the vacancies which were in existence as on December 31, 1982 as well. The Government had only taken into consideration the vacancies which arose between January 1, 1983 and December 31, 1987 for the purpose.

2. In order to appreciate the contentions, it is necessary to state briefly the factual context in which the direction in Siva Reddy case' came to be given. As is stated in the decision in that case itself, on June 27, 1967, Special Rules called Andhra Pradesh [Roads and Buildings] Engineering Service Rules were promulgated which were given retrospective effect from April 1, 1965. Rule 3(1) of the said rules prescribed the method of recruitment to the category of Assistant Engineers (now called Deputy Executive Engineers). The modes of appointment were (i) by direct recruitment; (ii) by promotion of Junior Engineers and (iii) by recruitment by transfer from other categories with which we are not concerned. Sub-rule (3)(a) of the said Rule 3 prescribes that 37-1/2 per cent of the vacancies in the Deputy Executive Engineer's posts will be filled up by direct recruitment and 62-1/2 per cent by promotion of Junior Engineers and by transfer from the other categories mentioned therein. It appears that notwithstanding the quota laid down by the said rule, it was not followed as far as direct recruits were concerned with the result that the direct recruits were under-recruited. The Court opined that there was no justification at all for the State 1 1988 Supp SCC 225: 1988 SCC (L&S) 663: (1988) 7 ATC 445:

(1988) 3 SCR 18 231 Government not to work out the quota of recruitment prescribed for direct recruits under the said rules. The Court, further held that at least from 1982, the dispute with regard to the under-recruitment of direct recruits had been systematically raised and the Administrative Tribunal had by the decision in the connected appeals which were heard along with Siva Reddy case, directed the State Government to work out the said quota rule properly. The Court further held that "reopening the question of inter se seniority on the basis of non-enforcement of the rules from the very beginning may create hardship and that would be difficult to mitigate but we see no justification as to why the benefit of the scheme under the rules should not be made available to direct recruits at least from 1982" (emphasis supplied). The Court then gave the direction in question of which the breach is alleged in the present petitions in the following words: (SCC p. 228, paras 5 & 6) "... We, therefore, direct that as on December 31, 1982 the State Government must ascertain the exact substantive vacancies in the category of Assistant Engineers in the service. On the basis that 37-1/2 % of such vacancies were to be filled up by direct recruitment, the position should be worked out. Promotees should be confined to 62-1/2 % of the substantive vacancies and in regard to 37-1/2 % of the vacancies the shortfall should be filled up by direct recruitment. General rules shall not be applied to the posts within the limits of 37-1/2 % of the substantive vacancies and even if promotees are placed in those posts, no seniority shall be counted.

The State Government shall take steps to make recruitment of the shortfall in the direct recruitment vacancies within the limit of 37- 1/2 % of the total substantive vacancies up to December 31, 1987 within four months from today by following the normal method of recruitment for direct recruits. The seniority list in the cadre of Assistant Engineers shall be redrawn up, as directed by the Tribunal, by the end of September 1988, keeping the directions referred to above in view. There shall be a direction issued to the State of Andhra Pradesh to make recruitment to the category of Assistant Engineers by strict compliance with Special Rules henceforth.

In view of what we have stated above and following the principle indicated in the connected civil appeal which we have separately disposed of today, we are of the view that the regularisation made in respect of the promotees of the years 1972 to 1975 should not at this point of time be disturbed particularly when the regularisation has been subsequent to the actual commencement of continuous service in the post of Assistant Engineer. We would however, reiterate that the directions given in Writ Petition No.

12401 of 1985 is equally applicable to the petitioners in the group and the State Government is directed to give effect to the judgment with meticulous care."

3. Before we analyse this direction, it is necessary to clarify one point. The General Rules to which a reference is made in the aforesaid direction are Ed.: Desoola Ram v. State of A.P., 1988 Supp SCC 221: 1988 SCC (L&S) 659 232 the Andhra Pradesh State and Subordinate Service Rules promulgated with effect from March 7, 1962. So far as the present controversy is concerned, the bearing of the said rules is only to the effect that the seniority of those direct recruits who were to be appointed in the quota of 37- 1/2 per cent in the vacancies from December 31, 1982 till December 31, 1987 to make up the shortfall, was not to be governed by the length of continuous service as against the promotees as would be the case under the General Rules.

4. The direction given, thus states, firstly, that all appointments made prior to December 31, 1982 whether of promotees or of direct recruits, and their inter se seniority were not to be disturbed at all. This would be true also with respect to the promotees who were regularised in the posts in the years 1972-75. Secondly, the direction states that all substantive vacancies (and not posts) as on December 31, 1982 plus the vacancies between that date and December 31, 1987 were to be made available for adjustment of the appointments of the direct recruits. The substantive vacancies would, therefore, be both in the permanent as well as the temporary posts, if any. Thirdly, the appointments of the promotees/transferees which were made in the said vacancies disregarding the quota of 37-1/2 per cent meant for direct recruits, were to be displaced or brought down as the case may be, by the appointment of direct recruits in the said vacancies to the extent of 37-1/2 per cent of the said vacancies. The direct recruits so adjusted were also to be given seniority including the deemed dates of appointment over the promotees/transferees appointed in the vacancies in the said period in the quota of the direct recruits. Fourthly, the seniority list was then to be drawn up by showing in the list- (i) firstly, those direct recruits and promotees/transferees who were appointed in the vacancies up to but not inclusive of, December 31, 1982;

(ii) secondly, those appointed according to the direction given above in the vacancies as on December 31, 1982 plus the vacancies from that day to December 31, 1987, till the shortfall of the direct recruits in their quota was made up;

(iii) thirdly, those appointed after the shortfall of the direct recruits was made up, according to their quota in the vacancies between December 31, 1982 and December 31, 1987 and onwards;

Lastly, to the above extent, the direction given by the Tribunal to redraw the seniority list by the end of September 1988 was to stand modified.

5. Neither the learned counsel appearing for the promotees including the individual intervener nor Shri Chidambaram appearing for the petitioners in Contempt Petition No. 63 of 1993 has any objection to this interpretation. Their grievance, however, is that the State Government has not disclosed the actual number of vacancies which existed as on December 31, 1982. They, therefore, seek a positive direction to the State Government to make the adjustment of the direct recruits by taking into consideration, the actual 233 vacancies (and not posts) which existed as on December 31, 1982 plus the vacancies which arose from that date till December 31, 1987. Shri V.R. Reddy, learned Additional Solicitor General appearing for the State Government had no objection to taking into consideration the vacancies as stated above.

6. However, Shri H.S. Gururaja Rao, learned counsel appearing for the petitioners in Contempt Petition No. 294 of 1992 contended that the direction given in Siva Reddy case' requires that the direct recruits appointed and adjusted in the vacancies stated above, have to be given seniority according to the quota worked out from April 1, 1965 from which date the Special Rules came into operation.

For this proposition, the learned counsel relied upon an observation in the case of C. Radhakrishna Reddy v. State of A. P.2 in Writ Petition No. 369 of 1989 decided on November 10, 1989. That observation is italicised and is reproduced here along with the context in which it is made: (SCC p.

640, para 4: ATC p. 458, para 4) "In Siva Reddy case' this Court found that promotees had exceeded the quota and even got regularised in respect of the posts in excess of the limit. Taking into consideration the fact that regularisation had been done after the promotees had put in some years of service and disturbing regularisation would considerably affect the officers concerned, regularisation was not interfered with. This Court's intention obviously was not to take away the benefit of regularisation in respect of the officers belonging to the promotee group in excess of their quota but the Court did not intend to allow such regularised officers in excess of the quota to also have the benefit of such service for purposes of seniority. A reading of the judgment in Siva Reddy case' clearly indicates that this Court intended what the Government have laid down by way of guideline. We see no justification to interfere with the Government direction. A draft seniority list on the basis of such direction has already been drawn up and has been circulated. We are told that objections have been received and would be dealt with in usual course by the appropriate authorities.

This writ petition had been entertained in view of the allegation that the Government direction was on a misconception of what was indicated in the judgment and in case there was any such mistake the same should be rectified at the earliest. Now that we have found that the Government order is in accord with the Court direction, this writ petition must be dismissed and individual grievances, if any, against, the draft seniority list would, we hope, be considered on the basis of objections filed by the competent authority."

7. The promotees whose services were regularised and who are referred to in the aforesaid excerpt are obviously the promotees of the years 1972-73, 1973-74 and 1974-75 to which a reference has been made earlier in the said judgment. In the direction given in Siva Reddy case' also, a reference is 2 1990 Supp SCC 638: 1991 SCC (L&S) 454: (1991) 16 ATC 456:

1989 Supp (2) SCR 140 234 made to the said promotees as will be obvious from the said direction. There it is stated as follows: (SCC p. 228, para 6: ATC p. 448, para 6) "In view of what we have stated above and following the principle indicated in the connected civil appeal which we have separately disposed of today, we are of the view that the regularisation made in respect of the promotees of the years 1972 to 1975 should not at this point of time be disturbed particularly when the regularisation has been subsequent to the actual commencement of continuous service in the post of Assistant Engineer. We would, however.......

8. Therefore, the observations made in Radhakrishna Reddy v. State of A.p.2 [Writ Petition No. 369 of 1989 decided on November 10, 19891 and on which reliance is placed by the learned counsel are obviously inconsistent with the earlier portion of the very same decision as well as the decision in Siva Reddy case'. Further, these observations have been explained in the decision given in D. Hanmanth Rao v. State of A.p.3 [Writ Petition No. 1275 of 1989 and other petitions decided on April 25, 1990]. Those petitions were filed by the promotee-Engineers challenging the earlier decision on the point including the directions given in Siva Reddy case'. In the third last paragraph of the decision, the Court observed as follows: (SCC p. 527, para 5) "The promotee-Engineers should have been happy and thankful to their lot that their regularisation was not disturbed and even seniority prior to 1982 was not being affected. Oblivious of these benefits which they have retained though acquired out of turn, they have proceeded on the footing that their cause has been affected and justice to them has been denied by placing a group of them below the 1982 recruits (direct recruits)."

9. Any ambiguity on the point as to whether the seniority of those who were appointed prior to 1982 whether as direct recruits or promotees was to be disturbed or not, has been thus finally set at rest by the aforesaid observation.

10. We are, therefore, more than satisfied that neither the appointments nor the inter se seniority of those who were appointed in the vacancies prior to December 31, 1982 was to be disturbed at all while giving seniority to the direct recruits who were to be appointed as per the directions given in Siva Reddy case' in the vacancies existing on December 31, 1982 plus the vacancies occurring thereafter till December 31, 1987. There is nothing brought to our notice which the State Government has done so far to commit the breach of the direction given in Siva Reddy case' as interpreted by this Court earlier and by us as above. We have noted above the statement of the learned Additional Solicitor General that while appointing the direct recruits for adjusting them in their quota in the vacancies from December 31, 1982 to December 31, 1987, the State Government will take into consideration the vacancies that existed on December 31, 1982 as well.

3 1990 Supp SCC 524 235

11. Hence the contempt petitions are dismissed and rules granted therein are discharged. I.A. Nos. 1 to 4 of 1993 are disposed of accordingly.

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