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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