Government of Andhra Pradesh Vs. P. Bhaskar & Ors  Insc 308 (27 February 2008)
K.G. Balakrishnan & D.K. Jain
J U D
G M E N T
CIVIL APPEAL NOS. 1617-1618 OF 2008 (ARISING OUT OF SLP (C) NOS.
24667-24668 OF 2005) W I T H CIVIL APPEAL NOS. 1619-1620 OF 2008 (ARISING OUT
OF S.L.P. (C) NOS. 25382-25383 OF 2005) CIVIL APPEAL NOS. 1621-1622 OF 2008
(ARISING OUT OF S.L.P. (C) NOS. 26434-26435 OF 2005) CIVIL APPEAL NOS.
1623-1624 OF 2008 (ARISING OUT OF S.L.P. (C) NOS. 26436-26437 OF 2005) K.G. BALAKRISHNAN,
Appeals arising out Special Leave Petition (C) Nos. 24667-24668 of 2005 are
filed by the Government of Andhra Pradesh and the other Appeals are filed by
the officers who were aggrieved by the decision of the Andhra Pradesh High
Court in Writ Petitions Nos. 10604/2004 and 10965/2005. The writ petitioners in
W.P. No. 10604/2004 filed OA No. 6246 of 1998 before the Andhra Pradesh
Administrative Tribunal, Hyderabad (for short "the Tribunal")
contending that they should be declared as seniors to the Deputy Collectors who
were appointed on 9.12.1993, though they were appointed as Deputy Collectors on
facts, in short, are as follows.
appointment to the post of Deputy Collectors is governed by the Andhra Pradesh
Civil Service (Executive Branch) Rules, 1992, framed under proviso to Article
309 of the Constitution of India. As per these Rules, 1/3rd of substantive
vacancies in the category of Deputy Collectors have to be filled up by direct
recruitment and 2/3rd of the vacancies by promotion from the feeder cadre of Tehsildars.
22 of the Andhra Pradesh State and Subordinate Service Rules
(hereinafter referred to as "the Rules") provides for reservation in favour
of the Scheduled Castes, the Scheduled Tribes and other categories. Rule 22
(ii) (e) of the Rules enables the Government that if in any recruitment
qualified candidates belonging to the Scheduled Castes or the Scheduled Tribes
are not available, limited recruitment confined to such candidates could be
resorted to. As 2/3rd of the vacancies of Deputy Collectors have to be filled
up by promotions, there was dearth of candidates in the category of the
Scheduled Tribes for being promoted to the post of Deputy Collectors. In 1991
the posts of Deputy Collector to be filled up by promotion from the Scheduled
Tribes candidates accumulated to 12 and then on 15.11.1990, the Head of
Department sent a proposal to government to consider filling up of 12 Scheduled
Tribe candidates by direct recruitment to fill up the 12 carry forward
Government accepted the proposal and issued GO Ms. No. 264 dated 01.04.1991 and
set apart 12 posts of Deputy Collectors to be filled up by the Scheduled Tribes
candidates by "limited recruitment". Steps were taken to recruit the
eligible candidates through the Andhra Pradesh Public Service Commission (for
short "the Commission").
Meanwhile, as part of the general recruitment, the Commission had issued
advertisement on 1.8.1990 inviting applications with a view to undertake
recruitment to different categories of posts in Group 1 and 2(a) of the Andhra
Pradesh State Service, including the category of Deputy Collector. This
selection consisted of both 'general recruitment' and 'limited recruitment'.
The process of selection consisted of preliminary examination and final
examination. A preliminary examination was held on 27.1.1991, but on 5.2.1991
the Government of Andhra Pradesh revised the maximum age limit of the
view of this relaxation of age granted to the candidates, fresh applications
were called for and for additional applicants a preliminary examination was
held on 14.4.1991. The Commission prescribed '88' marks as cut-off marks and
the main examination was held on 9.11.1991.
Original Applications were filed before the State Administrative Tribunal
challenging the selection process.
Tribunal gave certain directions. These OAs were disposed of by the Tribunal on
4.6.1992 with the following directions:-
"The selection for general recruitment pursuant to the advertisement No.
8/90 as well as the supplemental advertisement shall be confined to the
vacancies meant for direct recruitment for the various services which were
available on 01.05.1990 as contemplated by G.O. Ms.No. 103 GAD dt. 03.02.67.
For this purpose the State Government should immediately arrive at the correct
figure of vacancies for each service (together with reservations under Rule 22
of the General Rules) and communicate the same to the Commission. The General
Administration Department under the Chief Secretary, will co-ordinate and
monitor the correct number of vacancies meant for such direct recruitment.
the selection for these vacancies the result of the main examination already
held together with the oral test or interview shall be basis.
Commission has to take steps to call for interview such number of candidates as
are required in terms of the advertisement, keeping in view the vacancies and
the ranking of the candidate in the main examination.
process should be completed expeditiously preferably within a period of four
separate main examination to be held for selection of the candidates for the
vacancies to be filled by limited recruitment.
number of vacancies available at the relevant time including GOs of 1991
referred to earlier together with the ranking of the SC and ST candidates in
the preliminary examination may be used for calling them for the main
examination and for selection. The Commission to fix a separate cut off mark on
the basis of the relevant criteria, namely, number of vacancies, number of
candidates available and the requirements of the notification. This should also
be done expeditiously preferably within a period of six months.
candidates belonging to SC and ST who have come up in the general recruitment
in accordance with their quota in a selection as per direction (a) need not be
disturbed and the remaining candidates belonging to SC and STs to be considered
for limited recruitment as per direction (b).
State Government will forthwith take steps for identifying the vacancies for
general direct recruitment for Group-I service arising subsequent to the
relevant date in 1990 as contemplated by G.O.Ms.No. 103. On the vacancies being
notified, the Commission will proceed to issue the advertisement indicating the
year of which selection relates and the approximate number of vacancies. The
vacancies which are to be included in the selection pursuant to this direction
shall be deleted from the selection to be held as per direction (a).
candidate who has secured less than the cut off mark (i.e. 88) in the
preliminary examination but has appeared pursuant to any interlocutory order of
the Tribunal or otherwise, will not be considered as eligible for the main
dispel grievances regarding valuation in the second preliminary examination, it
is appropriate that the Commission publishes on its notice-board and makes
available for inspection by any candidate, list of marks obtained by candidates
who are called for oral test on the basis of the result in the main examination
as per direction (a).
Government and the Commission take steps for regular direct recruitment as
contemplated by the statutory provisions referred to earlier and G.O.Ms.No.
Main examination for Group I of general recruitment was conducted on 9.11.1991
and after the directions given by the Tribunal, a separate main examination was
conducted for the 12 ST posts drawing the candidates from the two preliminary
examinations. Deputy Collector from General recruitment I were appointed w.e.f.
regards limited recruitment undertaken earlier, written test was held in May
1993 and selected candidates were appointed on 9.12.1994. The appellants who
were appointed on 9.12.1994 filed O.A. No. 6246/1998 before the Tribunal
claiming that they were entitled to be placed above the candidates selected and
appointed as Deputy Collectors on 9.12.1993. The Tribunal rejected their claim
of seniority and held that they were not entitled to be placed above the Deputy
Collectors who were appointed on 9.12.1993.
Deputy Collectors who were appointed on 9.12.1994 challenged this decision by
filing W.P. Nos. 10604/2004 and 10965/2005 claiming the very same relief.
writ petitions were considered by a Division Bench of the High Court and the
Division Bench could not agree on the question of seniority being assigned to
the writ petitioner therein and the matter was placed before another learned
Judge who agreed with one of the Judges of the Division Bench. The majority
judgment of the High Court is to the effect that 12 Deputy Collectors who were
selected by limited recruitment and appointed as such on 9.12.1994 were
entitled to get seniority over the officers who were appointed as Deputy
Collectors by general recruitment on 9.12.1993.
majority judgment of the High Court of Andhra Pradesh is challenged on various
is submitted by the Counsel appearing for the State that the seniority of the
officers who are directly recruited to the service is determined as per Rule 33
of the Rules. The relevant portion of Rule 33 is as follows:
The 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. If any
portion of the service of such person does not count towards probation under
Rule 10 (a), (iv), 10(c), 16, 37(d), or 42(d) his seniority shall be determined
by the date of commencement of his service which counts towards probation.
sub-rule shall be deemed to have been in force on and from the 1st October,
1933 in the case of State Services and on and from the 1st October, 1934 in the
case of subordinate services; but shall not affect the seniority of any member
of a service, which may have been fixed expressly or by implication before the
19th November, 1941 or any orders as to seniority which may have been passed by
competent authority before the 19th November, 1941:
that the seniority of a probationer or approved probationer in a service,
class, category or grade from which he stood reverted on the 1st November, 1956
or prior to that date, shall be determined in the state-wide gazetted posts and
the non-gazetted posts in the Departments of the Secretariat and the offices of
the Heads of Departments, with reference to the notional date of continuous officiation
arrived at by adding the total length of officiation with or without breaks in
that service, class, category or grade pror to the 1st November, 1956 to the
date of re-appointment made thereafter in accordance with the provisions of
sub-rule (c ) of Rule 8; but it shall not disturb the inter-se-seniority which
obtained in the Andhra State. (emphasis supplied) (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
that for the purpose of promotion to the next higher category of gazetted posts,
the inter-se-seniority of persons recruited direct to the subordinate services
during the period commencing on the 1st November, 1956 and ending with 31st
December, 1973, separately in Andhra and Telangana regions, shall be determined
by the ranking assigned by the Andhra Pradesh Public Service Commission in the
common ranking list or by the competent authority as the case may be, after
following the rule of reservation.
(c ) ..
Based on the above rule, it was contended that the Deputy Collectors by limited
recruitment were appointed only on 9-12-1994 whereas Deputy Collectors who are
recruited by general selection were appointed to the service on 9-12-1993. Therefore, in any case, the officers who are
subsequently appointed cannot claim seniority over the officers who have
already been appointed previously.
The Counsel for the respondents drew our attention to Rule 22 (ii) (e]. of the
Rules which says that the limited recruitment confined to candidates belonging
to Scheduled Castes or, as the case may be, Scheduled Tribes shall be made
immediately after the general recruitment to select and appoint qualified
candidates when the reserved candidates are not available in the general
22 (ii) (e) reads as follows:
in any recruitment qualified candidates belonging to the Scheduled Castes or as
the case may be the Scheduled Tribes are not available for appointment to any
or all the vacancies reserved for the Scheduled Castes or, as the cases may be,
Scheduled Tribes, a limited recruitment confined to candidates belonging to the
Scheduled Castes and/or as the case may be Scheduled Tribes, shall be made
immediately after the general recruitment to select and appoint qualified
candidates from among persons belonging to these communities to fill such
was pointed out that in the earlier recruitment, sufficient Scheduled Tribe
candidates were not available and, therefore, the Government issued direction
to fill up the vacancies of Scheduled Tribe candidates and such recruitment
should have been made first and then the general recruitment should have been
made by the Commission.
order to decide the above controversy raised by the appellants and the
respondents, it is to be noticed that, in this case, the Commission issued an
advertisement no. 8/90 for selection to the post of Deputy Collectors and
various other categories. This advertisement was for selecting the candidates
for general recruitment as well as for limited recruitment. The Commission
conducted a Combined Preliminary Examination on 27.1.1991. A cut off mark of
'88' was fixed for selecting candidates to appear for the main examination. The
result of the Preliminary examination was announced on 25.7.1991. The main examination
was scheduled to be held on 9.11.1991.
applications were filed before the Administrative Tribunal challenging the cut
off mark that was fixed at '88'.
Tribunal held that the cut off mark of '88' was illegal. It was directed that
there should be a separate main examination for the limited recruitment
candidates and this separate main examination was conducted only in May 1993.
By that time, the general recruitment candidates were already selected and they
were appointed on 9-12- 1993. It may also be important to note that when
advertisement no. 8/90 was issued by the A.P. Public Service Commission, the
number of candidates to be recruited by limited recruitment was not fixed and
the number of posts were identified only by the Government Order dated
1.4.1991. It is also to be noted that these 12 posts ought to have been filled
up by promotion of ST candidates. As sufficient candidates were not available
in the feeder category to fill up the post of Deputy Collectors, they were
sought to be recruited by limited recruitment. It may also be noticed that a
series of original petitions were filed before the Administrative Tribunal and
they had given several directions as to how selection is to be conducted.
is evident from the Order passed by the Tribunal on 4.6.1992. This ultimately
caused delay in the appointment of Deputy Collectors who were recruited by
limited recruitment and they could join only on 9.12.1994. There may be delay
on the part of the Commission in conducting the selection of the limited
recruitment. Though they initially intended to have the combined recruitment of
general as well as limited candidates, this did not happen due to various
Once the appointment had already taken place, under normal circumstances, the
seniority is to be fixed on the basis of Rule 33(a) of the Rules. The Deputy
Collectors who were recruited by general recruitment were appointed one year
prior to the appointment of the contesting respondents herein. They claimed
seniority over the candidates who were appointed one year prior to their
appointment and filed the OA before the Tribunal only in the year 1998, about 4
years after their joining the service. Moreover, the fact that all the officers
who were given posting on 9.12.1993 as Deputy Collectors were not impleaded in
the Original Application. It was argued that the question of seniority was
agitated before the Tribunal and the Government was a party and there was no
finalization of the seniority till the date of the filing of OA. However, it is
difficult to believe that they were not aware that they were treated as juniors
to the officers who were already appointed and that the seniority list was not
maintained till that date.
The contention of the Counsel for the respondents that Rule 22(ii)(e) has
application in a situation where general recruitment is held and when
sufficient number of reserved category candidates were not available and then
Government orders for a limited recruitment, such limited recruitment confining
to reserved candidates shall be made immediately after the general recruitment.
the instant case, 12 vacancies of Deputy Collectors were decided to be filled
up by limited recruitment and the posts were identified on 1.4.1991. All the 12
posts were ordered to be filled up by limited recruitment as there were no
sufficient candidates to fill up by promotion. Rule 22(ii)(e) is applicable
only when there is general recruitment and when there were no reserved
candidates, these posts were to be filled up by a limited recruitment. Such a
limited recruitment should be held immediately after the general recruitment is
made. The rule 22(ii)(e) is intended to protect the interests of the reserved
candidates and if again a general recruitment is made, there will be non-availability
of reserved candidates and even if they are recruited subsequently, they would
be much junior to the general candidates and they would be ranked as very
junior to all the general candidates who had been appointed earlier. But as
these 12 vacancies came to be converted from the promotion vacancies, they had
a different channel of limited recruitment as the candidates were not available
for promotion. But unfortunately such recruitment could not be done by the
Public Service Commission in time, thereby their appointment could be made much
after the general recruitment. As the facts disclose, there was only one
general recruitment and that was followed by the limited recruitment of these
The two learned Judges of the High Court were of the view that Rule 22(ii)(e)
is to be applied and the candidates recruited by limited recruitment have been
appointed early and as there was delay in their appointment for no fault of
theirs, they were entitled to get seniority over the candidates who were
already appointed on 9.12.1993. This cannot be justified in the facts and
circumstances of the case. It may be due to the delay caused by the Public
Service Commission that there could not be timely appointment of the candidates
who were recruited by limited recruitment.
orders passed by the Tribunal also stood in the way of having recruitment as
scheduled by the Commission. All those orders had become final and they are
binding on the authorities.
the contesting respondents were appointed as Deputy Collectors vide G.O.M.
Order No. 1251 dated 9.12.1994 they are not entitled to be placed above the
Deputy Collectors who were appointed vide G.O.M. Order No. 1265 dated
9.12.1993. The Appeals arising out of SLP (C) Nos. 24667-24668 of 2005 filed by
the Government of Andhra Pradesh are allowed.
The Appeals arising out of SLP (C) No. 25382-25383 of 2005; SLP (C) No.
26434-26435 of 2005 and SLP (C) No. 26436-26437 of 2005 are accordingly
disposed of in the light of the Judgment in the appeal filed by the State.