No Acts & Articles mentioned in this case
HIGH COURT OF ANDHRA PRADESH
* * * *
WRIT PETITION No. 3837 of 2020
Between:
M. J. Ratna Kanth Babu and 2 ors.
.....PETITIONERS
AND
The Government of Andhra Pradesh,
Rep.by its Principal Secretary,
Mines and Geology Department,
Secretariat, Velagapudi,
Amaravathi, Guntur District and 12 others
.....RESPONDENTS
DATE OF JUDGMENT PRONOUNCED: 02.09.2022
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments?
Yes/No
2. Whether the copies of judgment may be
marked to Law Reporters/Journals
Yes/No
3. Whether Your Lordships wish to see the
fair copy of the Judgment?
Yes/No
_______________________
RAVI NATH TILHARI, J
RNT, J
WP No. 3837 of 2020
2
* THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
+ WRIT PETITION No. 3837 of 2020
% 02.09.2022
# M. J. Ratna Kanth Babu and 2 ors.
….Petitioners
Versus
$ The Government of Andhra Pradesh,
Rep.by its Principal Secretary,
Mines and Geology Department,
Secretariat, Velagapudi,
Amaravathi, Guntur District and 12 others
…..Respondents
! Counsel for the Petitioners: Sri J. Sudheer
^ Counsel for the respondents: AGP for Services-II for R1 & R2
Sri M. R. Tagore, for R3 to R11
Sri V. Naga Praveen, for R12 & R13
< Gist :
> Head Note:
? Cases Referred:
1. (1979) 2 SCC 150
2. 1980 SCC (L&S) 432
3. (1990) 2 SCC 707
4. (2019) 19 SCC 740
5. (2016) 16 SCC 464
6. (2020) 5 SCC 689
7. (2019) 17 SCC 228
8. (2008) 1 SCC 747
9. (2002) 4 SCC 247
10. (2012) 2 SCC 542
11. (2011) 8 SCC 568
12. (2017) 15 SCC 133
13. (1994) 3 SCC 440
14. (1949) 2 KB 481
15. AIR 1966 SC 1987
16. (2021) 6 SCC 460
17. (2018) 6 SCC 162
18. (2022) 1 SCC 294
RNT, J
WP No. 3837 of 2020
3
THE HON’BLE SRI JUSTICE RAVI NATH TILHARI
WRIT PETITION No. 3837 of 2020
JUDGMENT:
Heard Sri J. Sudheer, learned counsel for the petitioners, Sri M. R. Tagore,
learned counsel for respondents Nos.3 to 11, Sri V. Naga Praveen, learned counsel
for respondents Nos.12 and 13, and learned AGP for Services – II, for respondents
Nos.1 and 2.
2. This writ petition has been filed for the following relief:
―...to issue Writ Order or Direction more particularly one in the nature of
Writ of Mandamus;
(a) Set aside the final seniority list vide Memo No.1376/E3/2013, dated
21.01.2020 in the cadre of Royalty Inspectors as bad, illegal, without
following principles of natural justice and unconstitutional;
(b) Declare the action of the respondents in not fixing and/or not maintaining
the ratio between direct recruitees and promotees in the cadre of Royalty
Inspectors, though it became a first level Gazetted Post and Entry Level
post with direct recruitment as one of the modes of the recruitment on par
with the ratio as was maintained for Assistant Geologist i.e., 3 : 7 between
direct recruitees and promotees when it was the first level Gazette with
direct recruitment as one of the modes of recruitment as bad, illegal,
irrational and unconstitutional;
(c) Redraw the seniority in the cadre of Royalty Inspectors by fixing the ratio
as mentioned in G.O.Ms.No.530 dated 04.10.2000;
(d) and pass such other order or orders as the Hon‘ble Court may deem fit and
proper in the circumstances of the case;‖
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3. The petitioners‟ case is that the Andhra Pradesh Mining Service Rules 1998,
(in short “the special rules”) were issued vide G.O.Ms.No.59, Industries and
Commerce (Mines-I), dated 10.03.1998. The A.P. Mining Service consisted of
various categories of posts in which the post of Assistant Geologist was shown as
Category – 11. As per the Special Rules, the post of Assistant Geologist could be
filled up by direct recruitment and also by appointment by transfer from Royalty
Inspectors under Rule 3 thereof.
4. The post of Royalty Inspectors was not part and parcel of A.P. Mining
Service Rules. This was included/shown in A.P. Mining Subordinate Service Rules.
Vide G.O.Ms.No.340, dated 10.12.2007, the post of Royalty Inspector was removed
from A.P. Mining Subordinate Service Rules and by G.O.Ms.No. 341, dated
10.12.2007, the same was included in A.P. Mining Service Rules as Category – 18.
Prior to 10.12.2007, the post of Royalty Inspectors was being filled up by promotion
from the post of Technical Assistants, and there was no direct recruitment to this
post. From 10.12.2007, when the post of Royalty Inspectors was incorporated in
A.P. Mining Service Rules, rule 3 of the special rules, provided that this post shall be
filled by appointment by transfer from Technical Assistant as also by direct
recruitment.
5. So far as the post of Assistant Geologist is concerned, which was in the A.P.
Mining Service Rules, Category -11, vide the same G.O.Ms.No. 341, dated
10.12.2007, the mode of direct recruitment for this post was deleted and the same
could now be filled up only by appointment by transfer from the Royalty Inspectors.
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6. Since 10.12.2007 the entry level gazetted post in A.P. Mining Services is
Royalty Inspectors and the Assistant Geologists became a post to be filled by
appointment by transfer from Royalty Inspectors. Before the aforesaid change vide
G.O.Ms.Nos.340 and 341, dated 10.12.2007, vide G.O.Ms.No.530, dated 04.10.2000
for the post of Assistant Geologist, a cycle of 10 was prescribed between promotees
and direct recruitees in the ratio of 7 : 3. There was no need to prescribe any ratio
for Royalty Inspectors as at that time there was only one source of recruitment for
Royalty Inspectors by promotion from Technical Assistants.
7. After G.O.Ms.Nos.340 and 341, dated 10.12.2007, the ratio of 7:3 in a cycle
of 10 between the promotees and direct recruitees on the post of Assistant
Geogolist, became redundant as now there was only one source of recruitment for
the post of Assistant Geologist i.e., by appointment by transfer / promotion from
Royalty Inspectors. But, from 10.12.2007 the post of Royalty Inspectors was to be
filled up by two sources one by direct recruitment and the other by promotion, and
as such fixation of ratio for this post between promotees and direct recruits became
relevant, however any ratio was not fixed.
8. Vide Notification No.50 of 2008, dated 31.12.2008, the Andhra Pradesh
Public Service Commission (APPSC) called for applications from eligible candidates to
fill up the posts of Royalty Inspectors by direct recruitment. In continuation,
supplementary notification was also issued on 14.03.2011, pursuant to which, the
petitioners applied and they were duly selected and after their due selection, the
APPSC sent the list of the selected candidates for the post of Royalty Inspectors, in
February, 2012 but the actual appointment and posting orders of the direct recruits
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were delayed which were issued through proceedings dated 30.10.2012 pursuant to
which they joined the services and since then they were working as Royalty
Inspectors through direct recruitment. However, in the meantime, i.e., in between
the petitioner‟s selection and appointment, the Technical Assistants were promoted
as Royalty Inspectors in August, 2012.
9. Tentative seniority lists dated 24.11.2017 and 24.09.2018 were published in
the category of Royalty Inspectors showing the promotes above the direct recruitees.
The petitioners submitted objections/representations separately, individually, in
September 2018 raising objections that placing promotee Royalty Inspectors enblock
above the direct recruitees of 2008 notification is incorrect and illegal, and on the
analogy of the ratio fixed for Assistant Geologists vide G.O.Ms.No.530, dated
04.10.2000 i.e., 7 : 3 between promotes and direct recruitees, the same ratio should
be followed for Royalty Inspectors as well, in as much as Royalty Inspector has
become the entry level gazetted post in A.P. Mining Services in place of Assistant
Geologists.
10. The tentative seniority lists dated 24.11.2017 and 24.09.2018 were not
finalized and one more tentative seniority list in the cadre of the Royalty Inspector
was issued, vide Memo No.1376/E3/2013, dated 02.12.2019 referring to earlier
tentative seniority list dated 24.09.2018. It was stated in the memo dated
02.12.2019 that the issue regarding Assistant Geologists‟ seniority is pending before
the A.P. Administrative Tribunal (in short „APAT‟), and that final decision will be taken
between the direct recruitees and promotees in the cadre of Royalty Inspectors only
after the finalization of the dispute in the cadre of Assistant Geologists by the APAT.
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11. Learned counsel for the petitioners submitted that the petitioners‟
representations against the tentative seniority lists pursuant to communication dated
24.09.2018 was not rejected but the seniority dispute between the direct recruitees
and promotees in the category of Royalty Inspector was in fact kept in abeyance,
observing that the final seniority list shall be prepared by taking into consideration of
quota and rota system as per G.O.Ms.No.530, Industries & Commerce (M -I)
Department, dated 04.10.2000, Rule 4(b) of A.P.State & Subordinate Service Rules
1996 and General Administration Department, vide Circular Memo dated 21.04.1999,
but the respondent No.2 subsequently, vide proceedings dated 21.01.2020, issued
the final seniority list confirming the tentative seniority list dated 02.12.2019,
showing the petitioners at Sl.No.45, 46 and 49 respectively below the names of the
promotees.
12. Learned counsel for the petitioners submitted that the very basis for
issuance of impugned final seniority list is that no objections were filed and therefore
tentative seniority list dated 02.12.2019 was finalized. But, the very basis is baseless
and contrary to record in as much as, firstly, any objection against the tentative
seniority list of 02.12.2019 were not called, and secondly, against the tentative
seniority list dated 24.11.2017 and 24.09.2018 the petitioners had already submitted
their objections and while taking note of those objections in the order/Memo dated
02.12.2019 it was clearly observed that the petitioners had filed representations
dated 28.09.2018, 29.09.2018 and 26.09.2018, and the decision will be taken on
seniority dispute between direct recruits vs. promotees in the category of Royalty
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Inspectors soon after receipt of final orders in O.A.Nos.596 of 2019 and 620 of 2019
filed by the Assistant Geologists.
13. Learned counsel for the petitioners further submitted that it was clearly
mentioned in the memo dated 02.12.2019 that the seniority list shall be prepared by
taking into consideration of quota and rota system, as per G.O.Ms.No.530, Industries
& Commerce (M-1) Department, dated 04.10.2000, Rule 4 (b) of A.P. State and
Subordinate Service Rules, 1996 and General Administration Department, vide Memo
dated 21.04.1999, but the petitioners‟ objections filed against tentative seniority lists
dated 24.11.2017 and 24.09.2018 were not considered at all and that they did not
take into consideration Rule 4(b) of A.P. State and Subordinate Service Rules, 1996
nor took into consideration quota and rota system though it was specifically
mentioned to be taken into consideration in the memo dated 02.12.2019.
14. Learned counsel for the petitioners has placed reliance on Rule 4(b)(iii) of
the A.P. State and Subordinate Service Rules, 1996, to contend that where the
normal mode of recruitment to any service, class or category includes direct
recruitment, the direct recruitment shall be made only against the substantive
vacancies and the percentage earmarked for direct recruitment should not fall short
of 33-1/3% in respect of posts in State Service and 30% posts in subordinate
service. His submission is that not less than 30% posts are to be earmarked for
direct recruitment and they have to be filled up only by direct recruitment.
15. He submitted that the A.P. State and Subordinate Service Rules, 1996
being the general rules and applicable to all the services, whether gazette or non-
gazetted under the State Government shall apply to the State and Subordinate
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Services and to the holders of posts, whether temporary or permanent included in
any State or Subordinate Service except to the extent otherwise expressly provided
by or under any law for the time being in force, in respect of holders of any post,
appointed by contract or agreement subsisting between such holders and the State
Government.
16. Placing reliance on rule 4(b)(iv) of A.P. State and Subordinate Service
Rules, 1996 he further contended that if special rules specify more than one method
of appointment, a provision shall be made in the special rules indicating the cycle or
order in which vacancies shall be filled by such different methods of appointments.
His submission is that there being more than one method of appointment to the post
of Royalty Inspector, the provision shall be made in special rules indicating cycle or
order in which vacancies shall be filled by such different methods of appointment,
but as till date the special rules do not provide for the percentage for direct
recruitment nor for the cycle or order in which the vacancy shall be filled on the post
of Royalty Inspector by direct recruitment and by promotion/transfer from the post
of Technical Assistant, the same cycle as was applied to the post of Assistant
Geologist, prior to 2007, when it was the first entry level gazette post, should be
applied to the post of Royalty Inspector between promotees and direct recruits.
17. Sri M. R. Tagore, learned counsel for respondents No.3 to 11, submitted
that any rule has not been prescribed governing the service conditions of Royalty
Inspector on the specific subject of what percentage of posts should be filled by
direct recruitment and what percentage by promotion from the post of Technical
Assistants. Any ratio has also not been fixed.
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18. Sri M. R. Tagore further submitted that the seniority would be governed
by applying the provisions of rules 33 and 34 of the A.P. State and Subordinate
Services rules, 1996, according to which the seniority of a person in a service shall
be determined by the date of his first appointment to such service, class, category or
grade and accordingly he submitted that a person who enters in service on later date
cannot be treated as senior to those who were already adjusted in the category. He
submitted that as promotees to the post of Royalty Inspector were granted
promotion prior to the petitioners entry on the post of Royalty Inspector through
direct recruitment, the promotees would stand senior and are to be placed above the
petitioners.
19. Sri M. R. Tagore, further submitted that any direction contrary to the rules
to treat the petitioners senior could not be given in the absence of any rule on the
particular point. He further submitted that it is the function of the executive to lay
down the percentage of posts to be filled by direct recruitment as also to fix the
quota and rota to determine the placement in the seniority list between the direct
recruitees and promotess which function being in the nature of legislative function
cannot be exercised by the Court as the Courts are not the legislative sector. He
further submitted that any direction can also not be issued by the Court to the
respondents to frame rules on the aspect nor to frame rules in a particular manner,
as that would also fall within the legislative competence of legislature or the
executive while exercising legislative function or by issuing executive instructions,
and the Court cannot assume such function as the power of the Court is only to
interpret the law and not to legislate.
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20. Sri V. Naga Praveen, learned counsel for the respondents No.12 and 13,
submitted that the respondents were promoted in the month of August, 2008 and
consequently they stand senior to the petitioners and likely to be placed above the
petitioners. In this respect there is no illegality in the preparation of final seniority list
impugned in the writ petition.
21. Sri V. Naga Praveen, learned counsel also raised the same arguments as
advanced by Sri M. R. Tagore that the Court cannot legislate as in his submission in
the absence of any rule prescribing the quota and rota, any direction with respect to
the percentage between promotees and the direct recruits or to apply the same ratio
as was earlier fixed for the post of Assistant Geologist to the post of Royalty
Inspectors would amount to legislation and such direction cannot be issued.
22. Learned AGP for Services – II, appearing for respondents No.1 and 2,
while adopting the arguments advanced by the learned counsels for Respondents
Nos.3 to 13, placed reliance in the case of Distt.Registrar, Palghat v.
M.B.Koyakutty
1
and K. Dheenadhayalan v. State of Tamil Nadu
2
to contend
that where the rules are silent, the Government is entitled to make an order filling up
lacuna and cover the gap in the rules, but not the Courts. He has further placed
reliance in the case of Mallikarjuna Rao v. Sate of Andhra Pradesh
3
to further
contend that neither the court can fill the lacuna nor it can direct the executive to
frame rules or issue executive instructions, as such mandate would amount to
legislation which is the function of the State and cannot be usurped by the Court.
1
(1979) 2 SCC 150
2
1980 SCC (L&S) 432
3
(1990) 2 SCC 707
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WP No. 3837 of 2020
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The Court cannot even indirectly require the executive to exercise its rule making
power in any manner and cannot assume to itself a supervisory role over the rule
making power of the executive.
23. I have considered the submissions advanced by the learned counsels for
the parties and perused the material available on record.
24. The Andhra Pradesh State and Subordinate Service Rules, 1996 (for short
„Rules of 1996‟) and the A.P.Mining Service Rules, 1998 (for short „Rules of 1998‟)
are the relevant Service Rules.
25. Rule 1 (b) and (d) of the Rules, 1996 read as under:
―Rule 1(b) The gazetted and non-gazetted posts under the State Government shall be
constituted into various State and Subordinate Services and they shall be governed by
the State and Subordinate Service Rules (General Rules) and the Special Rules as
well as ad hoc rules issued by the Government.‖
―Rule 1(d) Relation to Special Rules: If any provisions in these rules are repugnant to
the provisions in the special rules applicable to any particular service in regard to any
specific matter, the latter shall, in respect of such service and such specific matter,
prevail over the provisions in these rules.‖
26. Rule-2 of the Rules, 1996, is the definition clause. It defines „General
Rules‟ and „Special Rules‟ in Rule 2 (17) and 2 (31) respectively, which are
reproduced as under:
“2. DEFINITIONS: In these rules, unless there is anything repugnant in the subject
or context;
―(17) General Rules: ―General Rules‖ means the Andhra Pradesh State and
Subordinate Service Rules.
―(31) Special Rules: ―Special Rules‖ means the rules applicable to each service or
class or category of a service, which include ad hoc rules applicable to temporary
posts in a service, or class or category, which are not covered by the special rules.
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Explanation: The words importing either gender in these or special rules shall be
taken to include those of the other gender if circumstances so require.‖
27. The A.P. State and Subordinate Service Rules, 1996 are therefore the
„General Rules‟ and the A. P. Mining Service Rules, 1998 are the „Special Rules‟,
which at many places would be referred as such.
28. Rule 4 of the Rules 1996/General Rules provides as under:
―4. METHOD OF APPOINTMENT:-
(a) Appointment to any service, class or category shall be by one or more of the
methods indicated below as may be specified in the Special Rules applicable to the
relevant post:-
1. Direct recruitment
2. Recruitment / Appointment by transfer
3. Promotion or
4. Contract / Agreement / Re-employment
(b) Direct Recruitment:- Where the normal method of recruitment to any service,
class or category includes direct recruitment, the proportion in which the special rules
may require vacancies to be filled by persons recruited direct shall be applicable to all
substantive vacancies and direct recruitment shall be made only against the
substantive vacancies.
Explanation: (i) For the purpose of this rule, notwithstanding anything contained in
these rules or special or adhoc rules, substantive vacancies shall mean all vacancies in
the permanent cadre and all vacancies in the posts which have been in existence for
more than 5 years.
(ii) The posts earmarked for direct recruitment in the Special Rules / Adhoc
Rules shall be filled by direct recruits strictly and not be any other method.
{(iii) The percentage earmarked for direct recruitment should not fall short of
33-1/3% in respect of posts in State Service and 30% in respect of posts in
Subordinate Service.}
{Subs.by G.O.Ms.No.142, G.A.(Ser.D) Dt.13-3-2008}
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(iv) If the special rules specify more than one method of appointment, a
provision shall be made in the special rules indicating the cycle or order in which
vacancies shall be filled by such different methods of appointments.
(c) Re-allotment of candidates selected by the Public Service Commission:- The
reallotment of candidates selected by the Andhra Pradesh Public Service Commission
for appointment, from one unit to another unit, either in the same service and district /
Zone or in any other service of district / Zone shall be made with the mutual consent
of the appointing authorities concerned and with the prior concurrence of the
Commission. The order of re-allotment shall be issued by the appointing authority to
whose unit the candidate was first allotted by the Commission.
Provided that such re-allotment shall be strictly in conformity with the provisions of
the Presidential Order.‖
29. Thus, Rule-4 of the Rules, 1996 provides for the method of appointment
to any service, class or category. The method of appointment under clause (a) of
Rule-4, are direct recruitment, recruitment/appointment by transfer, promotion or,
contract/agreement/re-employment. Clause (b) of Rule -4 deals with direct
recruitment. It provides that where the normal method of recruitment to any service,
class or category includes direct recruitment, the proportion in which the special
rules may require vacancies to be filled by persons recruited direct shall be applicable
to all substantive vacancies and direct recruitment shall be made only against the
substantive vacancies. The Explanation (ii) to clause (b) of Rule-4 provides that the
posts earmarked for direct recruitment in the Special Rules/Ad hoc Rules shall be
filled by direct recruits strictly and not be any other method. Explanation (iii)
provides that the percentage earmarked for direct recruitment should not fall short of
33-1/3 % in respect of posts in the State Service and 30% in respect of posts in
Subordinate Service. Explanation (iv) provides that if the special rules specify more
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than one method of appointment, a provision shall be made in the special rules
indicating the cycle or order in which vacancies shall be filled by such different
methods of appointment.
30. From a conjoint reading of the aforesaid provision, it is evident that as per
Rule-4 of the Rules, 1996 where the normal mode of recruitment, includes direct
recruitment; (a) the percentage earmarked for direct recruitment should not fall
short of 33.1/3% in respect of State Service posts and 30% in respect of subordinate
service posts, (b) the posts earmarked for direct recruitment in the special rules/ad
hoc rules shall be filled by direct recruits strictly and not by any other method, and
(c) if the special rules specify more than one method of appointment, a provision
shall be made in the special rules indicating the cycle or order in which vacancies
shall be filled by such different methods of appointment.
31. Relevant rules of the A.P.Mining Services Rules 1998, Special Rules, Rules
2 and 3, to the extent relevant for the present case are reproduced as under:
―Rule 2. Constitution:- The Andhra Pradesh Mining Service shall consist of the
following categories of posts:
Category-11 : Assistant Geologist
Category-18 : Royalty Inspector
(Added by G.O.Ms.No.341, I and C (M.I)(I),
dt.10-12-2007)
Rule 3. Method of Appointment:- (a) The method of appointment to the
categories mentioned in Rule 2 shall be as specified in the Table below:-
Sl.
No.
(1)
Category
(2)
Method of Appointment
(3)
11. Assistant
Geologist
By appointment by
transfer from Royalty
Inspectors
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(Subs. By
G.O.Ms.No.341, I and
C (M.I)(I), dt.10-12-
2007)
18. Royalty Inspector By Direct Recruitment
(i) By direct recruitment
(ii) By appointment by
Transfer from Technical
Assistant Constitute
Class IV of A.P. Mining
Subordinate Service
Rules
(Added by
G.O.Ms.No.341, I and
C (M.I)(1), dt.10-12-
2007)‖
32. Rule 4 of A.P. Mining Service Rules 1998 provides for the appointing
authority in respect of the posts of different categories and rule 5 provides for the
qualification for such posts. Rule 6 provides for the age of a person eligible for
appointment by direct recruitment and rule 7 for reservation for appointment. Rule 8
provides for the probation period of two years within a continuous period of three
years and rule 9 provides for the departmental tests in zoology for person appointed
by direct recruitment to the category of Ore Dressing Officers. Rule 10 provides for
training and rule 11 relates to the transfers and postings.
33. The Rules 1998/Special Rules, therefore provides for direct recruitment, as
one of the method(s) of appointment to the post of Royalty Inspector. However,
these rules do not provide for any percentage to be earmarked for direct recruitment
as also by promotion.
34. At this stage the Court may refer few decisions on the aspect of the
applicability of the special Act with the General Act, in case of dispute.
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35. In State of U.P. v. Aman Mittal
4
the Hon‟ble Apex Court observed and
held in paragraph-33 as under:
―33. It cannot be disputed that the Act is a special Act vis-à-vis IPC.
In Macquarie Bank Ltd. v. Shilpi Cable Technologies Ltd. [Macquarie Bank
Ltd. v. Shilpi Cable Technologies Ltd., (2018) 2 SCC 674 : (2018) 2 SCC (Civ) 288] ,
this Court adopted a doctrine of harmonious construction to hold that there was clear
disharmony between the two parliamentary statutes which cannot be resolved by
harmonious interpretation. This Court held as under: (SCC pp. 711-14, paras 44 &
47)
―44. Similarly, in CTO v. Binani Cements Ltd. [CTO v. Binani Cements Ltd.,
(2014) 8 SCC 319] , the rule of construction of two parliamentary statutes being
harmoniously construed was laid down as follows: (SCC pp. 332-33, para 35)
‗35. Generally, the principle has found vast application in cases of there
being two statutes: general or specific with the latter treating the common
subject-matter more specifically or minutely than the former. Corpus Juris
Secundum, 82 CJS Statutes § 482 states that when construing a general and a
specific statute pertaining to the same topic, it is necessary to consider the
statutes as consistent with one another and such statutes therefore should be
harmonised, if possible, with the objective of giving effect to a consistent
legislative policy. On the other hand, where a general statute and a specific
statute relating to the same subject-matter cannot be reconciled, the special or
specific statute ordinarily will control. The provision more specifically
directed to the matter at issue prevails as an exception to or qualification of the
provision which is more general in nature, provided that the specific or special
statute clearly includes the matter in controversy (Edmond v. United
States [Edmond v. United States, 1997 SCC OnLine US SC 45 : 137 L Ed 2d
917 : 520 US 651 (1997)] , Warden v. Marrero [Warden v. Marrero, 1974
SCC OnLine US SC 136 : 41 L Ed 2d 383 : 417 US 653 (1974)] ).‘
***
4
(2019) 19 SCC 740
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47. Similarly, in R.S. Raghunath v. State of Karnataka [R.S.
Raghunath v. State of Karnataka, (1992) 1 SCC 335 : 1992 SCC (L&S) 286] , the
non obstante clause contained in Rule 3(2) of the Karnataka Civil Services
(General Recruitment) Rules, 1977 was held not to override the Karnataka
General Service (Motor Vehicles Branch) (Recruitment) Rules, 1976. It was held:
(SCC p. 348, para 13)
‗13. As already noted, there should be a clear inconsistency between the
two enactments before giving an overriding effect to the non obstante clause
but when the scope of the provisions of an earlier enactment is clear the same
cannot be cut down by resort to non obstante clause. In the instant case, we
have noticed that even the General Rules of which Rule 3(2) forms a part
provide for promotion by selection. As a matter of fact Rules 1(3)(a), 3(1) and
4 also provide for the enforceability of the Special Rules. The very Rule 3 of
the General Rules which provides for recruitment also provides for promotion
by selection and further lays down that the methods of recruitment shall be as
specified in the Special Rules, if any. In this background if we examine the
General Rules it becomes clear that the object of these Rules only is to provide
broadly for recruitment to services of all the departments and they are framed
generally to cover situations that are not covered by the Special Rules of any
particular department. In such a situation both the Rules including Rules
1(3)(a), 3(1) and 4 of the General Rules should be read together. If so read it
becomes plain that there is no inconsistency and that amendment by inserting
Rule 3(2) is only an amendment to the General Rules and it cannot be
interpreted as to supersede the Special Rules. The amendment also must be
read as being subject to Rules 1(3)(a), 3(1) and 4(2) of the General Rules
themselves. The amendment cannot be read as abrogating all other
Special Rules in respect of all departments. In a given case where there
are no Special Rules then naturally the General Rules would be
applicable. Just because there is a non obstante clause, in Rule 3(2) it cannot
be interpreted that the said amendment to the General Rules though later in
point of time would abrogate the special rule the scope of which is very clear
and which co-exists particularly when no patent conflict or inconsistency can
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be spelt out. As already noted, Rules 1(3)(a), 3(1) and 4 of the General
Rules themselves provide for promotion by selection and for
enforceability of the Special Rules in that regard. Therefore, there is no
patent conflict or inconsistency at all between the General and the Special
Rules. ‖
36. The Hon‟ble Apex Court has clearly held that when construing a general
and a specific statute pertaining to the same topic, it is necessary to consider the
statutes as consistent with one another and such statutes therefore should be
harmonized, if possible, with the objective of giving effect to a consistent legislative
policy and if they cannot be reconciled, the special or specific statute ordinarily will
control. The provision more specifically directed to the matter at issue prevails as an
exception to or qualification of the provision which is more general in nature,
provided that the specific or special statute cleary includes the matter in controversy.
37. From examination of the General Rules it becomes clear that the object of
these rules is to provide broadly for recruitment to services of all departments and
they are framed generally to cover situations that are not covered by the special
rules of any particular department. The General Rules themselves provide for the
posts being earmarked for direct recruitment by the special rules but with the rider
that such percentage shall not fall short of 33.1/3% in respect of State service post
and 30% in subordinate service posts.
38. In R. Venkata Ramudu v. State of A.P.
5
where A.P. State and
Subordinate Service Rules and the Special Rules were involved, the Hon‟ble Apex
Court held that in the event of conflict between the General Rules and any Special
5
(2016) 16 SCC 464
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Rules applicable to a particular service, the special rules prevail over the General
Rules.
39. It is apt to refer paragraphs-22 and 23 of R. Venkata Ramudu (supra)
as under:
―22. The erstwhile State of Andhra Pradesh initially made rules known as the
Andhra Pradesh State and Subordinate Rules, 1962 in exercise of the power conferred
by the proviso to Article 309. The said Rules contain various stipulations regarding
the various aspects of employment under the State, the details of which may not be
necessary for the present purpose. The said Rules were superseded by the General
Rules (the 1996 Rules referred to supra).‖
“23. Under Rule 1(d) of the General Rules, it is stipulated as follows:
―1. (d) Relation to Special Rules.—If any provision in these Rules are
repugnant to the provisions in the Special Rules applicable to any particular
service in regard to any specific matter, the latter shall, in respect of such service
and such specific matter, prevail over the provisions in these Rules.‖
In substance, providing that in the event of conflict between the General Rules and
any Special Rules applicable to any particular service, the Special Rules prevail over
the General Rules. The expression ―Special Rules‖ is defined under Rule 2(31) [ ―2.
(31) Special Rules.—―Special Rules‖ mean the rules applicable to each service or
class or category of a service, which include ad hoc rules applicable to temporary
posts in a service, or class or category, which are not covered by the Special Rules.‖]
. It is not in dispute that the Andhra Pradesh Engineering Service Rules, 1967 are
special rules within the meaning of Rule 2(31) of the General Rules.‖
40. In the present case, the special rules may not be providing for the
percentage of posts of Royalty Inspector falling under direct recruitment and under
the promotion quota, but on this aspect, General Rules are clear. In the absence of
the special rules on a particular point or in the absence of any special rule contrary to
the general rules, the general rules on the point shall apply. The exclusion of the
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general rules and applicability of the special rules depends upon the question
whether the particular field is occupied by the special rules or not. If the field is not
occupied by the special rules and is occupied by the general rules, the general rules
are to be given effect to. The principle of exclusion of general rules applies to a field
covered by the special rules to the extent of inconsistency, in which case also, firstly,
the Court‟s endeavour would be to have a harmonious construction to make both the
provisions workable and only if the inconsistency is such that both cannot work
together it is the special rules that would apply to the exclusion of the general rules.
41. In view of the aforesaid, one thing is for certain that once there are no
special rules covering the field on the point of percentage to fill the post of Royalty
Inspectors from the method of appointment of direct recruitment, the applicability of
the Rules of 1996/General Rules, to that extent, cannot be excluded. So, the direct
recruitment on the post of Royalty Inspector has to be not less than 30%.
42. In the absence of Special Rules on the point of percentage, not
earmarking the number of post by direct recruitment, the only thing that can be said
is that for direct recruitment any percentage of posts in excess of 30% cannot be
earmarked by the respondents nor can be claimed by petitioners/ direct recruits.
43. Accordingly, in view of Rule-4(b)(iii)(iv) of A. P. State Subordinate Service
Rules, 1996, the number of posts of Royalty Inspectors ought to have been
earmarked under the quota of direct recruitment, which should not fall below
33.1/3% of the total posts in the State service and not below 30% in the subordinate
service.
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44. The posts of Royalty Inspectors falling under the quota of direct
recruitment cannot be filled by any other method of appointment in view of Rule-
4(b) Explanation (ii) of the Rules, 1996 which specifically provides that posts
earmarked for direct recruitment shall be filled by direct recruits strictly and not by
any other method of appointment.
45. The petitioners‟ objection in their representations as referred to in the
Memo dated 02.12.2009 inter alia is to revise the seniority list by placing direct
recruits joined in the year 2012 in the substantive vacancies occupied by the
promotes as per A.P.State and Subordinate Service Rules, 1996.
46. The Memo No.1376/E3/2013, dated 02.12.2019 is reproduced as under:
―GOVERNMENT OF ANDHRA PRADESH
DEPARTMENT OF MINES AND GEOLOGY :: IBRAHIMPATNAM
Memo No.1376/E3/2013 Dated: 02.12.2019
Sub: Establishment – Department of Mines and Geology,
Ibrahimpatnam – Tentative Inter-se-Seniority list in the
cadre of Royalty Inspectors – Communication – Regarding.
Ref: 1. This Office Memo No.1376/E3/2013, dated 24.09.2018
2. Representation dt.28.09.2018 from Sri M.J.Ratnakanth
Babu, RI.
3. Representation dt.29.09.2018 from Sri V.Venkata
Sivappa, RI.
4. Representation dt.26.09.2018 from Sri K.Raju, RI.
5. Representation dt.28.09.2018 from Smt.B.Kavita, RI.
6. Common representation dt.01.09.2019 from Sri
M.J.Ratnakanth Babu & others Royalty Inspectors.
7. Common representation dt.15.09.2019 from Sri J.Ravi
Varma & Sri M.Suresh Kumar, Royalty Inspectors.
******
Through the reference 1
st
cited, this office has communicated the inter-se-seniority
list in the cadre of Royalty Inspectors working in this Department with request to
submit their objections if any, within 7 days from the date of receipt of the memo.
The said memo was communicated to the Royalty Inspectors in the State through
Department email on 24.09.2018.
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Accordingly, through the reference 2
nd
to 6
th
cited, Sri M.N.Ratnakanth
Babu, Sri V.Venkata Sivappa, Sri K.Raju, Sri B.S.V.T.G.Sankar Rao and
Smt.B.Kavita, Royalty Inspectors have submitted their objections stating that
they have appointed as Royalty Inspectors in the year 2012 by direct
recruitment through the APPSC.
The common objection raised by the afore stated Royalty Inspectors is to
revise the seniority list by placing the Direct Recruits joined in the year 2012 in
the substantive vacancies occupied by the promotes as per A.P. State &
Subordinate Service Rules. Further, they have submitted that, as per the
G.O.Ms.No.530, Inds. & Com. (M-1) Department, dated 04.10.2000 provides for
provision of quota of vacancies to be filled by the Promotes vs Direct Recruits in 7:3
ratio.
Finally, requested that the quota and rota system mentioned in the above said G.O.
may be followed in preparation of seniority list and subsequent promotions keeping
in view of the General Administration Department vide Circular Memo
No.16/Ser.A/93-59, dt.21.04.1999.
In fact, the individuals shown at Sl.No.1 to 30 have been promoted to the post of
Royalty Inspectors in the year 2008 itself. Whereas, in respect of the individuals
shown at Sl.No.44 to 53, Ten (10) Royalty Inspectors were recruited directly through
APPSC Notification No.07/2011 and they have joined as Royalty Inspectors in the
Department in the month of October, 2012 onwards. In the meantime, rest of the
Individuals shown at Sl.No.31 to 43 who got promotion as Royalty Inspectors have
been joined in the month of August, 2012 onwards. Therefore, seniority list shall
be prepared by taking into consideration of quota and rota system as per
G.O.Ms.No.530, Industries & Commerce (M-I) Department, dt.04.10.2000, Rule
4(b) of A.P.State & Subordinate Service Rules, 199 and General Administration
Dept., vide Circular Memo No.16/Ser.A/93-59, dt.21.04.1999.
In similar cases, Smt.B.Vijaya Lakshmi and 4 other direct recruitees of
Asst.Geologists have filed appeal before the Government. Accordingly, as per the
directions of the Government vide Memo No.11123/Estt./A2/2017, Ind. & Comm.
Dept., dt.06.11.2018, the final seniority list in the cadre of Asst.Geologists has been
communicated vide Memo No.27665/E1/2015, date 21.03.2019 by taking into
consideration of quota and rota system as per the G.O.Ms.No.530, Inds.& Com.(M-I)
Department, dt.04.10.2000, Rule 4(b) of A.P.State & Subordinate Service Rules,
1996 and General Administration Dept., vide Circular Memo No.16/Ser.A/93-59,
dt.21.04.1999.
But, in similar cases some of the Asst. Geologists have filed O.A.No.596/2019,
dt.22.04.2019 against the direct recruitees of Asst. Geologists before the Hon‘ble
Andhra Pradesh Administrative Tribunal (APAT), Hyderabad against the final
seniority list communicated vide Memo dated 21.03.2019.
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The Hon‘ble APAT issued status-quo orders on 22.04.2019 in O.A.No.596/2019.
Subsequently, some of the effected Asst. Geologists have filed O.A.No.620/2019
before the Hon‘ble APAT, Hyderabad against the final seniority communicated vide
Memo dated 21.03.2019. The Hon‘ble APAT issued the status quo orders on
25.04.2019 in O.A.No.620/2019. In both the cases hearing was held on 10.06.2019
and no further orders received from the Hon‘ble APAT.
Keeping in view of the status-quo orders issued by the Hon‘ble APAT with regard
to final seniority list communicated in the cadre of Asst. Geologists, the present
seniority list in the cadre of Royalty Inspectors will be revised only after
receiving the final orders from Hon’ble APAT in respect of Asst. Geologists, if
necessary.
With regard to objections raised by Sri J.Ravi Varma & Sri M.Suresh Kumar,
Royalty Inspectors, the above two individuals have informed that while
communicating the seniority list communicated dt.15.05.2017 in the cadre of Royalty
Inspectors and as compared with the seniority list dt.07.01.2014 in the cadre of
Technical Assistants they have been placed at Sl.No.32 & 33 instead of Sl.No.28 &
30.
In this connection, it is to inform that as per the Judgment dt.25.11.2013 of
Hon‘ble High Court of A.P., in WP.No.13483/2013, the final seniority list in the
cadre of Technical Assistants has been communicated vide this office Memo
No.1376/E3/2013, dt. 07.01.2014. Further, this office vide Memo No.1376/E3/2013,
dated 15.05.2017 communicated the tentative seniority list in the cadre of Royalty
Inspectors by clubbing the Multi Zone-I & II Royalty Inspectors. Subsequently, this
office vide Memo No.1376/E3/2013, dated 28.05.2018 have communicated the final
seniority list in the cadre of Royalty Inspectors after examination of the objections.
At the time of communicating the inter-se-seniority list in the cadre of Royalty
Inspectors, Multi Zone-I & II have been clubbed as per the cadre strength. Therefore,
the seniority list communicated in the year 2018 in the cadre of Royalty Inspectors is
holds good.
In view of the above circumstances, the decision will be taken on seniority
dispute between Direct Recruitees Vs Promotees in the cadre of Royalty
Inspector soon after receipt of the final orders issued by the Hon’ble APAT in
O.A.No.596/2019 & O.A.No.620/2019 filed by Asst. Geologists only. Therefore,
the tentative seniority list in the cadre of Royalty Inspector is hereby communicated
for the panel year 2019-20.
The above seniority list communicated is subject to outcome of the
O.As/WPs/Representations if any.
Sd/-K.RAM GOPAL, I.A.S,
Encl: (As above) DIRECTOR OF MINES & GEOLOGY (FAC)
To:
All the Royalty Inspectors in the Department of Mines & Geology by
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WP No. 3837 of 2020
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Email through their controlling officers.
Copy to Personal Files of the individuals.
//ATTESTED//
Sd/- DEPUTY DIRECTOR (ADMN.)‖
47. From a reading of the Memo No.1376/E3/2013, dated 02.12.2019,
reproduced above, the following facts become evident:
1) With respect to the inter se seniority in the cadre of Royalty Inspectors, the
petitioners had filed objections/representations cited by reference Nos.2
nd
, 3
rd
& 4
th
and there were some other representations, pursuant to reference 1
st
cited i.e., the Office Memo No.1376/E3/2013, dated 24.09.2018, by which the
inter se seniority in the cadre of Royalty Inspectors was communicated
inviting the objections;
2) The common objection, raised against the inter se seniority list, was to revise
the seniority list by placing the direct recruits of the year 2012 in the
substantive vacancies occupied by promotees, as per A. P. State and
Subordinate Service Rules, 1996;
3) The Royalty Inspectors direct recruits claimed application of G.O.Ms.No.530
dated 04.10.2000, which provided for filling of post of Assistant Geologist by
promotees and by direct recruits in the ratio of 7:3 on 10 posts;
4) In view of O.A.No.596 of 2019 and O.A.No.620 of 2019 with respect to the
post of Assistant Geologists, before Andhra Pradesh Administrative Tribunal
and the orders of status quo, the Director of Mines and Geology, the 2
nd
respondent, clearly provided that the decision with respect to the seniority list
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26
in the cadre of Royalty Inspectors, will be taken only after receiving the final
orders from the Tribunal in respect of the Assistant Geologist; and
5) The seniority list shall be prepared by taking into consideration quota and rota
system as per Rule-4(b) of the A.P.State and Subordinate Service Rules, 1996,
G.O.Ms.No.530 dated 04.10.2000 and the Circular Memo No.16/Ser.A/93-59,
dated 21.04.1999.
48. From reading of the memo dated 02.12.2019 it is further evident that the
objection of the petitioners vide their representations, referred to therein, were not
considered and not decided against the tentative seniority list circulated vide Office
Memo dated 24.09.2018 in view of the facts and circumstances narrated therein.
49. Now the impugned order vide Memo No.1376/E3/2013, dated 21.01.2020
reads as under:
―GOVERNMENT OF ANDHRA PRADESH
DEPARTMENT OF MINES AND GEOLOGY:: IBRAHIMPATNAM
Memo No.1376/E3/2013 Dated: 21.01.2020
Sub: Establishment – Department of Mines and Geology,
Ibrahimpatanm – Final Inter-Se-Seniority List in the
cadre of Royalty Inspector – Communicated – Regarding.
Ref: This Office Memo No.1376/E3/2013, dated 02.12.2019
******
Through the reference cited, this office has communicated the tentative inter-se-
seniority list in the cadre of Royalty Inspectors working in this Department stating
that the decision will be taken on seniority dispute between Direct Recruitees Vs
Promotees in the cadre of Royalty Inspector soon after receipt of the final orders
issued by the Hon‘ble APAT in O.A.No.596/2019 & O.A.No.620/2019 filed by Asst.
Geologist only.
The said memo was communicated to the Royalty Inspectors in the State through
Department email on 03.12.2019.
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WP No. 3837 of 2020
27
In this regard, there are no other objections received from the Royalty
Inspectors of this Department till date.
In view of the above circumstances, the seniority list communicated vide
reference cited may be treated as final seniority list in the cadre of Royalty Inspector
and communicated herewith for the panel year 2019-20 subject to outcome of the
O.As/WPs/Representations if any.
Sd/- K.RAM GOPAL, I.A.S,
Encl: (As above) DIRECTOR OF MINES & GEOLOGY (FAC)
To
All the Royalty Inspectors in the Department of Mines & Geology by
Email through their controlling officers.
Copy to Personal Files of the individuals.
//ATTESTED//
Sd/- DEPUTY DIRECTOR (ADMN .)‖
50. A reading of the impugned memo dated 21.01.2020 makes it evident that
the Office Memo No.1376/E3/2013,dated 02.12.2019 has been referred therein, and
was communicated to the Royalty Inspectors in the State through department e-mail
on 03.12.2019 but it further states that in that regard there was no other objection
received from the Royalty Inspectors of the department, and in view of that
circumstance, the seniority list communicated as aforesaid was treated as final
seniority list in the cadre of Royalty Inspectors for the panel year 2019-20 subject to
outcome of O.As/W.Ps/Representations, if any.
51. The Court finds force in the submission of the learned counsel for the
petitioners that once vide Memo dated 02.12.2019 it was specifically provided that
the decision with respect to the dispute of seniority in the cadre of Royalty
Inspectors would be taken after receipt of the final orders from the Tribunal in
O.A.No.596 of 2019 and O.A.No.620 of 2019 filed by the Assistant Geologists only,
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WP No. 3837 of 2020
28
the 2
nd
respondent could not legally issue the impugned Memo dated 21.01.2020 as
there is nothing in the memo dated 21.01.2020 to show that the mentioned O.A(s)
were decided finally and that too without inviting any objections or without
intimating the petitioners/Royalty Inspectors that the decision would be taken,
notwithstanding the Memo dated 02.12.2019 or/and even during pendency of
O.A.Nos.596 & 620 of 2019. The Memo dated 02.12.2019 though communicated the
tentative seniority list for the panel year 2019-20, but in view of the detailed order as
passed, if the same was to be finalized, specific objections should have been invited
and opportunity should have been granted to the petitioners/Royalty Inspectors to
file objections, if the 2
nd
respondent was not taking the petitioners‟ pending
representation/objections as objection to the Memo dated 02.12.2019 termed as
tentative seniority list for panel year 2019-20.
52. It is thus evident from record that the petitioners had filed their
representations/objections through Office Memo dated 24.09.2018 in reference to 1
st
cited in Memo dated 02.12.2019, on the same subject, but their objections were
neither considered in Memo dated 02.12.2019 nor later on in the impugned Memo
dated 21.01.2020 which on the contrary was issued mentioning as if no objections
were filed by the Royalty Inspectors.
53. It is further evident that Even Rule-4 (b) of the A.P.State Subordinate
Service Rules 1996, was not taken into consideration, though in the Memo dated
02.12.2019 it was specifically mentioned that the seniority list shall be prepared by
taking into consideration Rule 4(b) of the Rules 1996, as also the quota and rota
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WP No. 3837 of 2020
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system, as per G.O.Ms.No.530 dated 04.10.2010 and the Circular memo dated
21.04.1999.
54. Learned counsel for the respondents 3 to 13 submitted that the seniority is
determined by rule 34 read with rule 33 of the Rules 1996, according to which the
seniority is to be determined by the date of first appointment to such service, class,
category or grade and as the respondents 3 to 13 were granted promotion earlier in
point of time than the entry of petitioners through direct recruitment, they would be
senior to the petitioners on the post of Royalty Inspector.
55. The rules 1998 Special Rules do not provide for the determination of
seniority, which is provided by Rules 33 and 34 of the A. P. State and Subordinate
Services Rules 1996. However, it is the unanimous argument of all the counsels for
the respondents that the seniority will be governed by rules 33 & 34 of the General
rules as the special rules do not provide for any rule for determination of seniority.
56. Rules 33 & 34 of the Rules 1996 are reproduced as under:
―33. Seniority:- (a) 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.
Provided that the seniority of a probationer or approved probationer in a
service, class or category from which he stood reverted on the 1 st November, 1956
or prior to that date, shall be determined in the statewide 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 with or without breaks in that
service, class or category prior to the 1st November, 1956 to the date of re-
appointment made thereafter, but it shall not disturb inter-seniority which obtained in
the Andhra State. (This proviso shall be in force till 31st October, 1996).
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(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 with it.
Provided further that the order of merit or order of preference indicated in a
list of selected candidates prepared by the Public Service Commission or other
selecting authority, shall not be disturbed inter-se with reference to the candidates
position in such list or panel while determining the seniority in accordance with this
rule and notional dates of commencement of probation to the extent necessary, shall
be assigned to the persons concerned, with reference to the order of merit or order of
preference assigned to them in the said list.
(c) Whenever notional date of promotion is assigned, such date of notional
promotion shall be taken into consideration for computing the qualifying length of
service in the feeder category for promotion to the next higher category and that the
notional service shall be counted for the purpose of declaration of probation also in
the feeder category.
(d) The transfer of a person from one class or category of a service to another
class or category of the same service, carrying the same pay of scale of pay shall not
be treated as first appointment to the latter class or category for purpose of seniority
and the seniority of a person so transferred shall be determined with reference to the
date of his regular appointment in the class or category from which he was
transferred. Where any difficulty arises in applying this sub-rule, seniority shall be
determined by the Government, if they are the appointing authority or in other cases,
the authority next higher to the appointing authority shall determine the seniority.
(e) Where a member of a service, class or category is reduced for a specific
period, to a lower service, class or category or grade:-
(i) in cases where the reduction does not operate to postpone future
increment, the seniority of such member on re-promotion shall, unless the terms of
the order of punishment provide otherwise, be fixed by giving credit for the period
of service earlier rendered by him in the higher service, class or category.
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(ii) in cases where the reduction operates to postpone future increment, the
seniority of such member on repromotion shall, unless the terms of the order of
punishment provide otherwise, be fixed by giving credit for the period of service
earlier rendered by him in the higher service, class or category.
(f) Seniority of a retrenched and reappointed person: The seniority of a
member of a service who is re-appointed after having been retrenched, owing to
reduction of staff as a measure of economy, shall be determined in accordance with
the date of such reappointment.
Provided that the inter-se-seniority of such members absorbed in the same
service, class or category shall be determined.
(i) In any case in which re-appointment of such members was mad in
consultation with Public Service Commission or the other selecting authority, in
accordance with the order of merit or the order of preference indicated by the said
Public Service Commission or other selecting authority; and
(ii) in any other case, in accordance with the total length of service, in the
same equivalent or higher service, class or category put in by such member prior
to retrenchment.
(g) The seniority of an approved candidate who takes up military service
before joining his appointment to any service, class or category shall, on his
appointment to such service, class or category, on his return from the said military
service, be determined in accordance with the order of preference shown in the
authoritative list of candidates approved for appointment to the service, class or
category.
Rule 34. Preparation of integrated or common Seniority List of persons
belonging to different units of appointment: Where as integrated or common
seniority list of a particular class, or category or grade in any service belonging to
different units of appointment has to be prepared for the purpose of promotion or
appointment by transfer to a class or category having different units of appointment
or for any other purpose, such an integrated or common seniority list shall be
prepared with reference to the provision of sub-rule (a) of rule 33, provided that the
seniority list of the persons inter-se belonging to the same units shall not be disturbed.
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WP No. 3837 of 2020
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Explanation: The principle specified in this rule shall be applicable even
where a common integrated list is required to be prepared for categories in different
services classes or categories.‖
57. In view of Rule 33 (a) of the General Rules, the seniority of a person in a
service, class, category or grade shall be determined by the date of first appointment
to such service, class or grade. There cannot be any dispute on the submission of
the learned counsels for the respondents to that effect based on rule 33 of the Rules
1996.
58. In K. Meghachandra Singh v. Ningam Siro
6
the Hon‟ble Apex Court
held that the seniority should not be reckoned retrospectively unless it is so expressly
provided by the relevant Service Rules. The seniority cannot be given to an
employee who is yet to be born in the cadre and by doing so it may adversely affect
the employees who have been appointed validly in the meantime.
59. But, when it comes to the matter of promotion, the promotion can be
made only against the post under the promotion quota. The petitioners specific
objection was to place the direct recruits jointed in the year 2012 in the substantive
vacancies occupied by the promotes as per the Rules 1996. Consequently the 2
nd
respondent was required to consider this aspect of the matter, if the promotion was
made within the promotion quota posts or promotion was granted against the posts
which should have been earmarked as per rule 4(b)(iii) of the General Rules for
direct recruitment.
60. The promotees can have no right of promotion against the posts
earmarked for direct recruitment in the absence of any specific provision. They will
6
(2020) 5 SCC 689
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WP No. 3837 of 2020
33
have right to promotion against the posts falling under promotion quota and if the
promotions were made in excess of promotion quota affecting the quota for direct
recruitment, the same shall certainly adversely affect the seniority matter of Royalty
Inspector coming into cadre by direct recruitment. This will also have an impact on
the consideration of the date of entry / birth in the cadre of Royalty Inspectors by
direct recruitment or/and by promotion, under rule 33 (a) of the General Rules.
61. In the present case rule 4(b), explanation-(ii) of the General Rules clearly
provides that the posts earmarked for direct recruitment shall be filled by direct
recruitment strictly, and not by any other mode and as such any promotion made
contrary to rule 4(b) would not ennure to the benefit of such promotes for grant of
seniority over the direct recruits. Rule 33 (a) of the General Rules cannot be read
ignoring rule 4(b) of the same General rules.
62. In C. Yamini v. State of A.P.
7
the Hon‟ble Apex Court held that the
claim of seniority will depend upon several factors, nature of appointment, rules as
per which the appointments are made and when appointments are made, were such
appointments to the cadre posts or not, etc.
63. In Vinod Giri Goswami (supra), the promotions made in 2004 were in
clear violation of the rules. The High Court treated the ad hoc appointment of the
promotees, while granting them seniority, to be only procedural defect. The Hon‟ble
Apex Court held that it was not the procedural defect. There, the rule 24(4) of the
Service Rules 2005 provided that the promotee was entitled to count ad hoc service
provided he continuously worked till he was regularly promoted in a test within the
7
(2019) 17 SCC 228
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promote quota. The Hon‟ble Apex Court held that the High Court did not record any
finding on this very important prerequisite whether promotes appointed on ad hoc
posts in2004 continuously worked in a post within the promote quota. The Hon‟ble
Apex Court held that the promotes were not entitled to claim seniority from the date
of initial appointments as Deputy Collectors.
64. It is apt to refer paragraphs – 17 to 19 of Vinod Giri Goswami (supra)
as under:
―17. Essentially, two points require to be determined in these appeals. The first
relates to the right of the promotees to count the period of their ad hoc service for the
purpose of seniority. The second pertains to the correctness of the Office
Memorandum dated 21-10-2015. In Direct Recruit Class II Engg. Officers'
Assn. [Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra, (1990) 2
SCC 715 : 1990 SCC (L&S) 339] , this Court held that the seniority of a person has to
be counted from the date of his initial appointment if he was appointed in a post in
accordance with the Rules. The corollary is that where the initial appointment is
only ad hoc and not according to Rules and made as a stop-gap arrangement, the
officiation in such post cannot be taken into account for determining seniority. It was
further held that the period of officiation can be counted if the initial appointment is
not made by following the procedure laid down by the Rules but the appointees
continued in the post uninterruptedly till the regularisation of his service in
accordance with the Rules. This Court settled a controversy relating to the application
of the principles laid down in Direct Recruit Class II Engg. Officers' Assn. [Direct
Recruit Class II Engg. Officers' Assn. v. State of Maharashtra, (1990) 2 SCC 715 :
1990 SCC (L&S) 339] by a judgment in State of W.B. v. Aghore Nath Dey [State of
W.B. v. Aghore Nath Dey, (1993) 3 SCC 371 : 1993 SCC (L&S) 783] . It was held as
follows: (Aghore Nath Dey case [State of W.B. v. Aghore Nath Dey, (1993) 3 SCC
371 : 1993 SCC (L&S) 783] , SCC pp. 382-83, paras 22-25)
―22. There can be no doubt that these two conclusions have to be read
harmoniously, and conclusion (B) cannot cover cases which are expressly
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excluded by conclusion (A). We may, therefore, first refer to conclusion (A). It
is clear from conclusion (A) that to enable seniority to be counted from the
date of initial appointment and not according to the date of confirmation,
the incumbent of the post has to be initially appointed “according to rules”.
The corollary set out in conclusion (A), then is, that ‗where the initial
appointment is only ad hoc and not according to rules and made as a stopgap
arrangement, the officiation in such posts cannot be taken into account for
considering the seniority‘. Thus, the corollary in conclusion (A) expressly
excludes the category of cases where the initial appointment is only ad hoc and
not according to rules, being made only as a stopgap arrangement. The case of
the writ petitioners squarely falls within this corollary in conclusion (A), which
says that the officiation in such posts cannot be taken into account for counting
the seniority.
23. This being the obvious inference from conclusion (A), the question is
whether the present case can also fall within conclusion (B) which deals with
cases in which period of officiating service will be counted for seniority. We
have no doubt that conclusion (B) cannot include, within its ambit, those cases
which are expressly covered by the corollary in conclusion (A), since the two
conclusions cannot be read in conflict with each other.
24. The question, therefore, is of the category which would be covered by
conclusion (B) excluding therefrom the cases covered by the corollary in
conclusion (A).
25. In our opinion, the conclusion (B) was added to cover a different kind of
situation, wherein the appointments are otherwise regular, except for the
deficiency of certain procedural requirements laid down by the rules. This is
clear from the opening words of the conclusion (B), namely, ‗if the initial
appointment is not made by following the procedure laid down by the ―rules‖
and the latter expression ‗till the regularisation of his service in accordance with
the rules‘. We read conclusion (B), and it must be so read to reconcile with
conclusion (A), to cover the cases where the initial appointment is made against
an existing vacancy, not limited to a fixed period of time or purpose by the
appointment order itself, and is made subject to the deficiency in the procedural
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requirements prescribed by the rules for adjudging suitability of the appointee
for the post being cured at the time of regularisation, the appointee being
eligible and qualified in every manner for a regular appointment on the date of
initial appointment in such cases. Decision about the nature of the appointment,
for determining whether it falls in this category, has to be made on the basis of
the terms of the initial appointment itself and the provisions in the rules. In such
cases, the deficiency in the procedural requirements laid down by the rules has
to be cured at the first available opportunity, without any default of the
employee, and the appointee must continue in the post uninterruptedly till the
regularisation of his service, in accordance with the rules. In such cases, the
appointee is not to blame for the deficiency in the procedural requirements
under the rules at the time of his initial appointment, and the appointment not
being limited to a fixed period of time is intended to be a regular appointment,
subject to the remaining procedural requirements of the rules being fulfilled at
the earliest. In such cases also, if there be any delay in curing the defects on
account of any fault of the appointee, the appointee would not get the full
benefit of the earlier period on account of his default, the benefit being confined
only to the period for which he is not to blame. This category of cases is
different from those covered by the corollary in conclusion (A) which relates to
appointment only on ad hoc basis as a stopgap arrangement and not according
to rules. It is, therefore, not correct to say, that the present cases can fall within
the ambit of conclusion (B), even though they are squarely covered by the
corollary in conclusion (A).‖
―18. In the instant case, the promotees were appointed on ad hoc basis in the
year 2004. There is no dispute regarding their appointment on a regular basis in the
year 2007. According to the 1982 Rules and the 2005 Rules, appointment by
promotion to the post of Deputy Collector shall be as per the promotion for selection
in Consultation with the Uttar Pradesh Promotion by Selection in Consultation with
Public Service Commission (Procedure) Rules, 1970. Procedure for promotion is laid
down in the 1970 Rules which provide that the eligibility list or lists have to be
forwarded by the State Government to the Commission which conducts the selection.
The appointment of the promotees in the year 2004 is on ad hoc basis for a period of
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one year without following the procedure prescribed under the Uttaranchal Promotion
by Selection in Consultation with Public Service Commission (Procedure) Rules,
2003.‖
“19. As the promotions in 2004 were made in clear violation of the Rules,
the promotees are not entitled to claim seniority from the dates of initial
appointments as Deputy Collectors. The High Court committed an error in
treating the ad hoc appointments of the promotees to be only procedurally
defective to give them the benefit of the ad hoc service by applying the judgment
in Direct Recruit Class II Engg. Officers' Assn. [Direct Recruit Class II Engg.
Officers' Assn. v. State of Maharashtra, (1990) 2 SCC 715 : 1990 SCC (L&S) 339]
The High Court further went wrong in holding that the promotees were entitled for
the benefit of ad hoc service in view of proviso to sub-rule (4) of Rule 24 of the 2005
Rules. No doubt, according to the proviso to sub-rule (4) of Rule 24 a promotee is
entitled to count ad hoc service provided he continuously worked till he is regularly
promoted in a post within the promotee quota. No finding is recorded by the High
Court on this very important prerequisite whether promotees appointed on ad
hoc basis in 2004 continuously worked in a post within the promotee quota.‖
65. Though the present is not a case of any right of the promotes to count
their ad hoc service for the purpose of seniority but the principle of law, which has
clearly been laid down is that, to enable seniority to be counted from the date of
initial appointment the incumbent of the posts has to be initially appointed according
to the rules, and consequently the determination of the number of posts falling under
direct recruitment and promotion quota and that the promotions were made within
the promotion quota or in excess thereof became relevant in view of rule 4(b) of the
General Rules.
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66. In R. K. Mobisana Singh v. KH. Temba Singh
8
, ad hoc promotes were
granted retrospective regularization. The Hon‟ble Apex Court held that although it
could confer other service benefits on the officer concerned, but the same cannot be
held to be of any assistance for reckoning seniority with retrospective effect. In
some of the cases, it was found that the procedure had not been followed, and
therefore, the question of their acquiring seniority over the direct recruits does not
arise.
67. Therefore, the following exrcise was legally required to be done by the 2
nd
respondent in the light of Rule 4 (b) of the Rules 1996, before finalizing the seniority
list.
1) Determination of number of posts for direct recruitment, out of total posts
of Royalty Inspectors, as per General Rule 4(b)(iii) which should not fall
short of 30%, as the special rules do not provide for any percentage over
and above 30%.
2) Determination of the posts falling under the promotion quota from the post
of technical assistants.
3) Determination, if respondents 3 to 13 over whom the petitioners claim
seniority, were granted promotion within the promotion quota posts or in
excess thereof, encroaching upon the posts earmarked for direct recruits.
4) The effect of above determination on the date of first appointment of
promotes to the post of Royalty Inspector.
8
(2008) 1 SCC 747
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68. The above, is not to say that the promotion granted to the respondents 3
to 13 was not as per law nor that it was contrary to law, but it is to say that it was a
relevant factor to be considered by the 2
nd
respondent and it was though clearly
mentioned in the memo dated 02.12.2019 that Rule 4 (b) shall be considered but it
was not considered in passing the impugned memo dated 21.01.2020.
69. Sri J. Sudheer, learned counsel for the petitioner, submitted that in the
absence of any rule in A. P. Mining Service Rules indicating the cycle and order, and
considering that initially the post of assistant geologist was the initial first level
gazette post (Mining Service) for which the method of recruitment was by promotion
from the post of royalty inspector as also direct recruitment, the same cycle as
prescribed i.e., 7:3 out of 10 posts should be made applicable to the post of royalty
inspector, which now become the first level gazette post (mining service) for which
also the same method of direct recruit and promotion are prescribed.
70. The Court is not convinced with the aforesaid submission of the learned
counsel for the petitioners.
71. Firstly, it is for the Rule making authority to consider to apply same cycle
or order for the post of Royalty Inspectors as was applicable to the posts of assistant
geologist earlier or to frame some other cycle or order. Pursuant to the General
Rules, the gap, with respect to the cycle or order of filling of vacancies is to be filled
by the rule making authority or by the executive. The Rules of 1996 also leave it i.e.,
providing for cycle or order to the special rules.
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72. In K. Meghachandra Singh (supra) the judgment in the case of All
India Judges’ Assn.(3) v. Union of India
9
was referred, in which in paragraph-
29 it was observed that “hardly if ever there has been a litigation amongst the
members of the service after their recruitment as per the quotas, the seniority is
fixed by the roster points and irrespective of the fact as to when a person is
recruited.” The Hon‟ble Apex Court clarified that it would refer to an incumbent
whose roster points have been fixed after their recruitment as per the prescribed
quotas, and that judgment in All India Judges’ Assn.(3) (supra) did not propose
to say that seniority by roster points be fixed, ignoring the date, when the person is
recruited. That judgment was not considering a situation where seniority is being
fixed even before the incumbent is borne in service.
73. It is apt to refer paras-44 & 45 of K. Meghachandra Singh (supra) as
under:
“44. It is now necessary to deal with Mr Patwalia's final contentions in reply,
placing reliance on All India Judges' Assn. (3) v. Union of India [All India Judges'
Assn. (3) v. Union of India, (2002) 4 SCC 247 : 2002 SCC (L&S) 508] . He
emphasises the following passage in para 29 of the judgment : (SCC p. 271)
―29. … Hardly if ever there has been a litigation amongst the members of the
service after their recruitment as per the quotas, the seniority is fixed by the roster
points and irrespective of the fact as to when a person is recruited.‖
45. The above would, however, refer to an incumbent whose roster points
have been fixed after their recruitment as per the prescribed quotas. The cited
judgment does not propose to say that seniority by roster points be fixed, ignoring the
date, when the person is recruited. The judgment obviously was not considering a
situation, where seniority is being fixed even before the incumbent is borne in
service. In any case, having regard to the specification made in the MPS Rules, 1965,
which squarely governs the litigants here, the ratio in All India Judges' Assn. (3) [All
India Judges' Assn. (3) v. Union of India, (2002) 4 SCC 247 : 2002 SCC (L&S) 508]
would be of no assistance, for the appellants.‖
74. Thus, the seniority by roster points is to be fixed when roster points have
been fixed after recruitment of the incumbent as per the prescribed quotas,
9
(2002) 4 SCC 247
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however, the date of recruitment cannot be ignored and seniority cannot be fixed
from a date even before the incumbent was born in service.
75. The Court now proceeds to consider the submission of the learned counsel
for respondents No.3 to 13 as also the learned AGP for Services-II that the gap in
the rules can be filled by the executive instructions to supplement the rule in
conformity with the provisions of the rules and the High Court in the exercise of its
power of judicial review under Article 226 of the Constitution of India, would not
issue directions to the executive or legislative to frame the rules or to frame rules in
a particular manner.
76. In Distt.Registrar, Palghat (supra) and K. Dheenadhayalan (supra)
upon which learned AGP-II placed reliance, it has been laid down by the Hon‟ble
Apex Court that if there exist any gap or void in the rules on a particular matter, not
otherwise, the administrative instructions can be issued to supplement the statutory
rules, which cannot supersede, supplant or superimpose on the statutory rules. In
Mallikarjun Rao (supra) it has been held that the Court cannot usurp the functions
of the executive or the legislature and even indirectly would not require the
executive or the legislature to exercise its rules making power or to exercise the
same in a particular manner.
77. Paras 12 and 13 of Mallikarjuna Rao (supra) upon which much
emphasis was laid by the learned AGP-II read as under:
―12. This Court relying on Narinder Chand Hem Raj v. Lt. Governor,
Administrator, Union Territory, Himachal Pradesh [(1971) 2 SCC 747: (1972) 1
SCR 940] and State of Himachal Pradesh v. A Parent of a Student of Medical
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College, Simla [(1985) 3 SCC 169] , held in Asif Hameed v. State of Jammu &
Kashmir [1989 Supp (2) SCC 364] as under: (SCC p. 374, para 19)
―When a State action is challenged, the function of the court is to examine the
action in accordance with law and to determine whether the legislature or the
executive has acted within the powers and functions assigned under the
constitution and if not, the court must strike down the action. While doing so the
court must remain within its self-imposed limits. The court sits in judgment on the
action of a coordinate branch of the government. While exercising power of
judicial review of administrative action, the court is not an appellate authority.
The Constitution does not permit the court to direct or advise the executive in
matters of policy or to sermonize qua any matter which under the Constitution lies
within the sphere of legislature or executive....‖
―13. The Special Rules have been framed under Article 309 of the Constitution of
India. The power under Article 309 of the Constitution of India to frame rules is the
legislative power. This power under the Constitution has to be exercised by the
President or the Governor of a State as the case may be. The High Courts or the
Administrative Tribunals cannot issue a mandate to the State Government to legislate
under Article 309 of the Constitution of India. The courts cannot usurp the functions
assigned to the executive under the Constitution and cannot even indirectly require
the executive to exercise its rule making power in any manner. The courts cannot
assume to itself a supervisory role over the rule making power of the executive under
Article 309 of the Constitution of India.‖
78. Generally, the function of the Court is to examine the action in accordance
with law and to determine whether the legislature or the executive has acted within
the powers and functions assigned under the Constitution and if it is not so, the
Court must strike down the action, and while doing so the Court would not be acting
as appellate authority and ordinarily would not direct in the matters of policy or of
matters which lies within the sphere of the legislature or the executive.
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79. It is also settled in law that the Court‟s function, primarily is to interpret the
law and not to legislate. It has been held by the Hon‟ble Apex Court in the case of
V. K. Naswa v. Home Secretary, Union of India
10
held that the Court can
neither legislate nor issue a direction to the legislature to enact the law in a
particular manner. The Court has a very limited role and in exercise of that, it is not
open to have judicial legislation. Neither the Court can legislate, nor has it any
competence to issue directions to the legislature to enact the law in a particular
manner.
80. At the same time there are judgments of the Hon‟ble Apex Court on the
other line as well.
81. In Delhi Jal Board v. National Campaign for Dignity and Rights of
Sewerage and Allied Workers
11
it was held by Hokn‟ble the Apex Court that while
dealing with the issue, in exceptional circumstances where there is inaction by the
executive, for whatever reason, the judiciary must step in, in exercise of its
constitutional obligations to provide a solution, till such time the legislature acts to
perform its role by enacting proper legislation to cover the field.
82. In Eera v. State (NCT of Delhi)
12
the Hon‟ble Apex Court held that if
the purpose of legislation is defeated, absurd result is arrived at. The Court need not
be miserly and should have the broad attitude to take recourse to in supplying a
word wherever necessary. It was further held that the Judge has to release himself
from the chains of strict linguistic interpretation and pave the path that serves the
10
(2012) 2 SCC 542
11
(2011) 8 SCC 568
12
(2017) 15 SCC 133
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44
soul of the legislative intention and in that event, he becomes a real creative
constructionist Judge.
83. It is apt to refer para-64 of Eera (supra) as under:
―64. I have referred to the aforesaid authorities to highlight that legislative
intention and the purpose of the legislation regard being had to the fact that context
has to be appositely appreciated. It is the foremost duty of the Court while construing
a provision to ascertain the intention of the legislature, for it is an accepted principle
that the legislature expresses itself with use of correct words and in the absence of
any ambiguity or the resultant consequence does not lead to any absurdity, there is no
room to look for any other aid in the name of creativity. There is no quarrel over the
proposition that the method of purposive construction has been adopted keeping in
view the text and the context of the legislation, the mischief it intends to obliterate
and the fundamental intention of the legislature when it comes to social welfare
legislations. If the purpose is defeated, absurd result is arrived at. The Court need not
be miserly and should have the broad attitude to take recourse to in supplying a word
wherever necessary. Authorities referred to hereinabove encompass various
legislations wherein the legislature intended to cover various fields and address the
issues. While interpreting a social welfare or beneficent legislation one has to be
guided by the ―colour‖, ―content‖ and the ―context of statutes‖ and if it involves
human rights, the conceptions of Procrustean justice and Lilliputian hollowness
approach should be abandoned. The Judge has to release himself from the chains of
strict linguistic interpretation and pave the path that serves the soul of the legislative
intention and in that event, he becomes a real creative constructionist Judge.‖
84. In Eera (supra) on the point of importance of separation of powers
doctrine where the judiciary should not transgress from the field of law making into
the field of legislative law making, Hon‟ble R.F.Nariman,J in a separate but
concurrent judgment observed and held as under in paragraphs-117 and 118:
―117. All this leads to whether Judges do creatively interpret statutes and are
unjustifiably criticised as having in fact legislated, or whether in the guise of creative
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interpretation they actually step outside the ―Lakshman Rekha‖. As Justice Cardozo
has picturesquely put it : The Judge is not to innovate at pleasure. He is not a knight
errant roaming at will in pursuit of his own ideal of beauty or of goodness (see :
Cardozo, Nature of Judicial Process, p. 141). Opposed to this rather conservative
view is the view of Holmes, J. in a celebrated dissent, in Southern Pacific
Co. v. Jensen [Southern Pacific Co. v. Jensen, 1917 SCC OnLine US SC 117 : 61 L
Ed 1086 : 244 US 205 (1917)] : (SCC OnLine US SC para 24 : US p. 221)
―24. … I recognize without hesitation that Judges do and must legislate, but
they can do so only interstitially; they are confined from molar to molecular
motions.‖
(emphasis supplied)
118. The Supreme Court of India has echoed the aforesaid statement in at least
two judgments. In V.C. Rangadurai v. D. Gopalan [V.C. Rangadurai v. D. Gopalan,
(1979) 1 SCC 308 : (1979) 1 SCR 1054] , Krishna Iyer, J. when confronted with the
correct interpretation of Section 35(3) of the Advocates Act, 1961, held : (SCC pp.
312 & 313, paras 8 & 11 : SCR pp. 1059 & 1060)
―8. Speaking frankly, Section 35(3) has a mechanistic texture, a set of punitive
pigeon holes, but we may note that words grow in content with time and
circumstance, that phrases are flexible in semantics, that the printed text is a set
of vessels into which the court may pour appropriate judicial meaning. That
statute is sick which is allergic to change in sense which the times demand and the
text does not countermand. That court is superficial which stops with the
cognitive and declines the creative function of construction. So, we take the view
that ―quarrying‖ more meaning is permissible out of Section 35(3) and the appeal
provisions, in the brooding background of social justice sanctified by Article 38,
and of free legal aid enshrined by Article 39-A of the Constitution.
***
11. … Judicial ―Legisputation‖ to borrow a telling phrase of J. Cohen, is not
legislation but application of a given legislation to new or unforeseen needs and
situations broadly falling within the statutory provision. In that sense,
“interpretation is inescapably a kind of legislation” [Dickerson : The
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Interpretation and Application of Statutes, p. 238]. This is not legislation
stricto sensu but application, and is within the court's province.‖
(emphasis supplied)
85. In Eera (supra) the judgment in Directorate of Enforcement v.
Deepak Mahajan
13
was referred, which referred to the case of Seaford Court
Estates Ltd. V. Asher
14
in which Lord Denning observed that “when the defect
appears, a Judge cannot simply fold his hands and blame the draftsman. He must
set to work on the constructive task of finding the intention of Parliament and then
he must supplement the written word so as to give “force and life” to the intention of
the legislature. A Judge must not alter the material of which the Act is woven, but
he can and should iron out the creases”. The judgment in Chandra Mohan v. State of
U.P.
15
was also referred, in which it was held that the fundamental rule of
interpretation is that in construing the provisions of the Constitution or the Act of
Parliament, the Court “will have to find out the express intention from the words of
the Constitution or the Act, as the case may be and eschew the construction which
will lead to absurdity and give rise to practical inconvenience or make the provisions
of the existing law nugatory”.
86. In Eera (supra) the Hon‟ble Apex Court reaffirmed that it is permissible
for courts to have functional approaches and look into the legislative intention and
sometimes it may be even necessary to go behind the words and enactment and
take other factors into consideration to give effect to the legislative intention and to
the purpose and spirit of the enactment so that no absurdity or practical
13
(1994) 3 SCC 440
14
(1949) 2 KB 481
15
AIR 1966 SC 1987
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inconvenience may result and the legislative exercise and its scope and object may
not become futile.”
87. Recently, in State of Maharashtra v. Borse Bros. Engineers &
Contractors (P) Ltd.
16
the Hon‟ble Apex Court, pointing out the difference between
interpretation and judicial legislation, observed that it is a fine one observing further
that it has repeatedly been held that Judges do not merely interpret the law but also
create law. The golden rule in determining whether the judiciary has crossed the
„Lakshman Rekha‟ in the guise of interpreting a statute has really iron out the creases
or whether he has altered the material of which the Act is woven. In short, the
difference is the well known philosophical difference between „is‟ and „ought‟.
88. Consequently to submit that in no circumstance the Court can fill the
lacuna, is too broad a submission. Generally, it is not the function of the Courts to
legislate but while interpreting any law or in giving effect to a law, if the Court finds
some lacuna or gap for which there are no executive/administrative instructions to fill
the gap, the Courts would ordinarily not leave the matter, as it is, but would certainly
interpret the law in a manner to fulfill and advance the object of the legislation and
in doing so would be within its jurisdiction to issue necessary directions.
89. In the present case, the Court is neither legislating nor directing the State
to legislate or to legislate in a particular manner. The Court in the fact situation
considering the rules as they stand is only giving effect to those rules by issuing
directions to comply with the rules operating in the field on the subject of seniority
on the post of Royalty Inspector between direct recruits versus promotees, as per
16
(2021) 6 SCC 460
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48
the intention of the legislature clear from rule 4 of the General Rules, in exercise of
its constitutional obligation without encroaching upon the legislative field meant for
legislature or the executive.
90. In Bharati Reddy v. State of Karnataka
17
the Hon‟ble Apex Court held
that interfering in exercise of writ jurisdiction is limited to judicial review of the
decision-making process and not of the decision itself.
91. The decision making process required consideration of the petitioners‟
objection relating to seniority which have not been considered. Rule 4(b) has not
been considered. The decision making process therefore is faulty.
92. In R. K. Mobisana Singh (supra) the Hon‟ble Apex court held that
seniority although is not a fundamental right but a civil right. Such a right of the
direct recruits could not have been taken away without affording an opportunity of
hearing to them.
93. Seniority, though not a fundamental right, but is a civil right and such
right of the direct recruits/petitioners for consideration, could not have been settled,
without consideration of their objections and thereby depriving them the opportunity
of hearing.
94. In Mohd. Mustafa v. Union of India
18
the Hon‟ble Apex Court held that
the grounds on which administrative action is subject to judicial review are illegality,
irrationality and procedural impropriety. It was further held that the conditions
prompted by extraneous or irrelevant considerations are unreasonable and liable to
be set aside by Courts in exercise of its power under judicial review. The Hon‟ble
17
(2018) 6 SCC 162
18
(2022) 1 SCC 294
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Apex Court further held that if the discretionary power has been exercised in
disregard of relevant consideration, the Court will normally hold the action bad in
law. Relevant, germane and valid considerations cannot be ignored or overlooked by
an executive authority while taking a decision.
95. The matter requires a closure scrutiny afresh by the respondents, as the
function relating to determination of inter se seniority is that of the State at the initial
stage.
96. The competent authority/2
nd
respondent is therefore directed to determine
the inter se seniority of the parties in view of the settled principles as also keeping in
view the directions to follow, hereinafter.
97. For all the aforesaid reasons, the impugned final seniority list vide memo
No.1376/E3/2013, dated 21.01.2020 deserves to be quashed and is accordingly
quashed. The Writ Petition is allowed, with the following directions;
1) The 2
nd
respondent shall prepare the final seniority list of Royalty Inspectors;
a) after considering the petitioners‟ representations/objections dated
29.09.2018, 26.09.2018 and 28.09.2018 as mentioned in the Memo
dated 02.12.2019; and
b) taking into consideration Rule-4(b) of A.P.State Subordinate Service
Rules 1996, with respect to which the 2
nd
respondent, in the Office
Memo dated 02.12.2019 clearly mentioned that Rule 4(b) of the Rules
1996 shall be taken into consideration; and
i. determining the number of posts of Royalty Inspector falling not
below 30% for direct recruitment and accordingly determining
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WP No. 3837 of 2020
50
the number of posts falling in the promotion quota as well for
technical assistants, and
ii. determining whether the promotions made, from the posts of
Technical Assistant to Royalty Inspector, were within the
promotion quota posts or in excess thereof encroaching upon
the posts under quota of direct recruitment, in violation of Rule
4(b) (ii) (iii) of the Rules 1996 and its effect on the date of their
appointments on the post of Royalty Inspector under Rule 33 of
the General Rules 1996.
iii. confining the above exercise only with respect to the promotees
over which the petitioners claim seniority, i.e., the respondents 3
to 13 herein.
c) With due opportunity of hearing to the Royalty Inspectors likely to be
affected in such exercise.
2) It is open to the respondents 1 and 2 to frame rules or issue executive
instructions indicating the cycle or order in which vacancies shall be filled by
different methods of appointments pursuant to Rule 4 (b) (iv) of the Rules
1996.
3) The 2
nd
respondent shall complete entire exercise expeditiously and preferably
within a period of 6 months from the date of production of copy of this
judgment before the said respondent.
98. No order as to costs.
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WP No. 3837 of 2020
51
Pending miscellaneous petitions, if any, shall stand closed in
consequence.
_______________________
RAVI NATH TILHARI, J
Date: 02.09.2022
Dsr
Note:
LR copy to be marked
B/o
Dsr
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