In
The Supereme Court of India Civil Appellate Jurisdiction Civil Appeal
No.3030-3033 of 2007
I.
Appa Rao & Ors Vs Government of A.P. & Ors
ORDER
The
appellants were appointed as LDCs (Junior Assistants) on temporary basis
between 5.12.1973 to 14.12.1974 in the Commercial Tax Department in the
Srikakulam District of Visakhapatnam Division. According to them they were so
appointed in clear vacancies and that their names were sponsored by an
Employment Exchange. They, however, did not undergo any selection process and
according to them their temporary appointment was under Rule 10(a)(i) of the AP
State Subordinate Service Rules which provided for such temporary appointments
subject to the condition that the person on such temporary appointment shall
not be regarded as on regular employment nor be entitled for any future
appointment. The appellants subsequently appeared in the selections held in
October 1976 by the District Selection Committee Srikakulam. They were selected
and allotted by the Collector, Srikakulam to the Commercial Tax Department for
regular appointment as LDCs and thereafter the Deputy Commissioner, Commercial
Taxes, Visakhapatnam by an order dated 30.11.1976 appointed them temporarily as
LDCs. The service of appellants who were being continued as temporary LDCs,
were regularised with effect from 3.6.1975 as per proceeding dated 9.1.1980 of
the Deputy Commissioner, Commercial Taxes, Visakhapatnam.
2.
The Deputy Commissioner, Commercial Taxes, Visakhapatnam finalised the
integrated provisional seniority list of Junior Assistants in Zone-I as on
30.6.1994 vide notification dated 18.10.1994. According to the appellants the
persons who were junior to them namely the non-official respondents were placed
above them in the said list. They, therefore, approached the Andhra Pradesh
Administrative Tribunal in O.A.No.6834 of 1994 seeking the following reliefs :
(a) to quash the final integrated list dated 18.10.1994, (b) a direction to the
official respondents to prepare a fresh seniority list in accordance with the
regularisation order issued on 9.1.1980 or in the alternative to direct them to
determine their seniority from the date of their initial appointment. The said
application was allowed by the Tribunal by its order dated 20.4.1999. The
Tribunal was of the view that there was some infirmity in the preparation of
the merit list by the District Selection Committee, Srikakulam in regard to the
October 1976 selections. Therefore, it set aside the integrated seniority list
dated 18.10.1994 insofar as it related to Junior
Assistants/Typists/Stenographers selected in the District Selection Committee
selections of 1976 with a direction to the official respondentstoprepare the
senioritylist of Junior Assistants/Typists/Stenographers separately by
following the Rules of reservation without reference to the ranking
communicated by the Collector in its letter dated
3
24.12.1991 (the merit list of District Selection Committee Srikakulam for
October 1976 selections). The Tribunal further held that in the absence of any
relative merit amongst the candidates selected in District Selection Committee
selections of 1976, the length of temporary service, if any, put in by the
candidates should be the criterion for fixing inter se seniority amongst the
candidates belonging to a category (SCS/BCs/SCs/STs) and if the length of
service is same, age has to be taken as criterion. The Tribunal further held
that after preparing the seniority lists of Junior
Assistants/Typists/Steno-Typists separately a common integrated seniority list
should be prepared based on dates of regularisation.
3.
Some of the appellants also filed O.A.No.3955/1995 and O.A.No.5588/1995
challenging the proceedings dated 20.06.1995 of the Dy. Commissioner of
Commercial Taxes, Visakhapatnam, by which he finalised the provisional
seniority list of Senior Assistants in Commercial Tax Department-Zone I. The
Tribunal disposed of the said applications by order dated 15.12.1999 directing
the Dy.
Commissioner
of Commercial Taxes, Visakhapatnam to revise the said seniority list, based on
the seniority list to be prepared in the category of Junior Assistants/Typists/
Stenographers as per the directions issued by the Tribunal in O.A.No.6834/1994.
4.
The order of the Tribunal in O.A.No.6834/1994 was challenged by the
non-official respondents, in Civil Writ Petition Nos.1247 and 7848 of 2000. The
order of the Tribunal in O.A.No.3955/1995 and O.A.No.5588/1995 was challenged
in Civil Writ Petition Nos. and 7268 & 7269 of 2001. The said writ
petitions were 4 allowed by the Division Bench of the Andhra Pradesh High Court
by a common judgment dated 5.12.2001. The High Court was of the view that the
integrated seniority list prepared on the basis of the merit list prepared by
the District Selection Committee in 1976 did not call for any interference. The
High Court found that the seniority list dated 18.10.1994 had been prepared
keeping in view the guidelines/parameters communicated by the Commissioner of
Commercial Taxes (vide his circular dated 4.8.1994) which reads as under :
The
seniority of junior assitants should be according to the ranks assigned by the
Andhra Pradesh Public Service Commission/District Selection Committee or any
other appointment authority in respect of Junior Assistants including Typists,
Junior Stenos and other equivalent posts." It, therefore, set aside the
order of the Tribunal and consequently dismissed the Original Applications
filed by the appellants.
5.The
said judgment of the High Court is under challenge. Learned counsel for
appellants submitted that where the initial appointment was only ad hoc as a
stop gap arrangement, and not according to any Rules, the officiation in such
post may not be taken into account for considering the seniority. But where the
initial appointment throughad hoc is made by following the Rules, and the
appointee continues in the post uninterruptedly till the regularisationof his
service in accordance with the Rules, the period of officiating service will be
counted. He submitted that the decision of the Tribunal was in consonance with
the said principle laid down by aConstitution Bench of this Court in Direct
Recruit Class II Engineering Officers' Association vs. State of Maharashtra and
others, 1990(2)SCC 5 715.
6.
The question that, therefore, arises for consideration is whether the High
Court was justified in interfering with the order of the Tribunal which had
directed that the seniority list should be prepared by taking into account the
length of temporary service requires interference.
7.We
are not concerned with the regularisation of ad hoc or stop gap appointments.
In this case the initial appointments were on temporary basis without
undergoing selection process between 1973 to 1974 under Rule 10(a)(i) of A.P.
State Sub-ordinate Service Rules. Such temporary appointees subsequently
underwent the selection process by the District Selection Committee in October
1976 and they were again appointed on temporary basis and later regularised
with effect from 3.6.1975.
The
seniority list has been finalised on 18.10.1984 keeping in view the ranks
assigned in the merit list prepared by the District Selection
Committee.Therefore the seniority list was in accordance with parameters
prescribed by the Commissioner of Commercial Taxes as also the settled
principle of law. The Tribunal thought it fit to interfere with the seniority
list not because in law it considered the temporary service should be reckoned
for the purposes of the seniority but because it found that merit list prepared
by District Selection Committee, Srikakulam regarding October 1976 selections
was not property done. It found that in the merit list prepared by the District
Selection Committee for Srikakulam District, all the selected candidates except
two have secured 65% marks and two candidates had secured 63% marks and the
merit list did not furnish any indication as to how the inter se merit of
various 6 candidates who had secured 65% was settled. Therefore, the Tribunal
was of the view that the length of temporary service of the candidates should
be considered as a criterion for fixing inter se seniority amongst candidates
belonging to a category (OC/BC/SC/ST) in the said merit list relating to
District Selection Committee selections in Srikakulam.
8.But
the alleged defect in the merit list that was pointed out and which found
acceptance by the Tribunal was only with reference to the merit list prepared
by the District Selection Committee, Srikakulam. No such defect was found in
the merit lists prepared by other District Selection Committees. The merit list
of October 1976 prepared by District Selection Committee, Srikakulam could not
have been interfered for two reasons. Firstly, all the candidates shown in the
merit list were not parties before the Tribunal. Secondly, the validity of
merit list prepared by the District Selection Committee, Srikakulam was not in
issue and therefore neither the State Government nor the concerned District
Collector had an opportunity to offer an explanation as to the manner of
preparation of the merit list. Though the 1976 merit list that was considered
by the Tribunal did not disclose the method adopted by the District Selection
Committee for placing the various candidates who had secured 65% marks in a
particular order of merit, it is possible that they had adopted some reasonable
or relevant criteria which would have been disclosed if an opportunity had been
granted to explain. Merit list prepared in 1976 could not obviously be condemned
in 1999 without any challengeand without an opportunity to the authoritywho
prepared it to explain the manner of its preparation. It will be unjust 7 to
ignore a merit list which was given effect for nearly a quarter cnetury without
any challenge as it will unsettle settled positions regarding seniority and
promotion. Be that as it may.
9.
In the first civil appeal we find that the respondents Nos. 5 to 9 (S.Venkata
Raju, MSVVK Patrdudu, GST Augustine, A. Sreeramulu and K.Rama Rao) are the
private respondents. Any alleged irregularity in the seniority list prepared by
the District Selection Committee for Srikakulam could not obviously be held
against the said respondents as they were not from Srikakulam District and
their names did not find a place in the merit list for Srikakulam. Therefore,
even if any test suggested by the Tribunal, for fixing inter se seniority, in
respect of Srikakulam candidates is assumed to be proper and correct, it cannot
operate against respondents who were not selected from Srikakulam.
10.Lastly,
we find that the High Court has taken note of the fact that G.O.No.711 dated
28.8.1996 which directed that the seniority of Junior Assistants selected in
the year 1976 should be fixed with reference to the date of their initial entry
into service, was quashed by the Tribunal and that decision had been upheld by
the High Court by judgment dated 5.12.2001 in Writ Petition No.28245/1998 (S.
Sabapathi
vs. Govt. of AP). Therefore, the said principle could not be the basis for the
purpose of finalising the seniority list. 11.For all these reasons, we do not
consider this case a fit one for interference with the order of the High Court.
These appeals are accordingly dismissed.
8
..............................J.
( R.V. RAVEENDRAN )
..............................J.
( DR. MUKUNDAKAM SHARMA ) NEW DELHI, JUNE 24,
2008.
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