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PETITIONER:

V. BHASKER RAO AND ORS.

Vs.

RESPONDENT:

STATE OF A.P. AND ORS.

DATE OF JUDGMENT23/03/1993

BENCH:

KULDIP SINGH (J)

BENCH:

KULDIP SINGH (J)

KASLIWAL, N.M. (J)

CITATION:

1993 AIR 2260 1993 SCR (2) 547

1993 SCC (3) 307 JT 1993 (4) 506

1993 SCALE (2)175

ACT:

Andhra Pradesh State Higher Judicial Service Rules 1, 2, 4

and 6. Andhra Pradesh State and Subordinate Service Rules,

Rule 10(a) (i)-Andhra Pradesh Higher Judicial Service-

District and Sessions Judges-Direct Recruits and Promotees-

Inter se seniority-Fixation of-On the basis of continuous

length of service.

HEADNOTE:

Recruitment to the Andhra Pradesh Higher Judicial Service is

governed by "The Andhra Pradesh State Higher Judicial

Service-Special Rules". Rule 1 constitutes the service.

Category 1 consists of District and Sessions Judges 1st

grade and Category 11 consists of District and Sessions

Judges, Second Grade. Appointment to Category 1 is from

Category 11. Appointment to Category 11 is from two sources

by transfer from amongst the Subordinate Judges and by

direct recruitment from the Bar.

The petitioner were direct recruits whereas respondents 4 to

16 were promoted from the Subordinate judiciary. The

respondents were Initially appointed on temporary basis in

the yew 1978/1979 but they were made substantive in the year

1983. The petitioners who were appointed substantively in

the year 1981 claimed seniority over the said respondents,

and riled the Writ Petition under Article 32 of the

Constitution of India for relief.

It was contended on their behalf that: (1) The Service

consists of only permanent posts, there is no provision

under the Special Rules for adding temporary posts to the

cadre, consequently the appointment of respondents 4 to 16

to the post of District and Sessions Judges, Second Grade on

temporary basis can at best be treated under Rule 10(a)(i)

of the Andhra Pradesh State and Subordinate Service Rules.

(2) The temporary service rendered by the respondents 4 to

16 being outside the cadre- cannot be counted towards

seniority. (3) Porviso to Rule 2 and Rule 6 of the Special

Rules have to be read together, and as such the permanent

vacancies having been made available for them in the year

1983 their service

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prior to that date cannot be counted towards seniority.

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The respondents constested the writ petition by contending

that the petitioners were appointed in the year 1981 and

since then till the year 1988, twelve seniority lists have

been published showing the petitioners below respondents 4

to 16, and at no point of time they challenged the seniority

lists in the Court. Even when the Writ Petition T.H.B.

Chalapathi & Ors. v. High Court of Andhra Pradesh & Ors.,

was pending in the High Court they did not intervene. The

petitioners were thus guilty of gross delay and latches and

as such are not entitled to get relief in the Writ Petition.

Dismissing the writ petition, this Court,

HELD: 1. (i) Rule 1 has to be interpreted to mean that

the service under the Special Rules consists of all the

posts-permanent and temporary-which have been designated as

District and Sessions Judge Second Grade. Even otherwise in

the absence of any prohibition under the Special Rules, the

State Government can always create temporary posts as addi-

tions to the cadre. [554 B]

(ii) Rule 10(a)(i) of the Andhra Pradesh State and

Subordinate Service Rules has no application to the Andhra

Pradesh Higher Judicial Service which is governed by the

Special Rules. Rule 10(a)(i) provides for emergency

appointments made on stop gap basis to meet a temporary

exigency. Apart from that the temporary appointments under

the said Rules are made without following the procedure

prescribed under the Rules governing the relevant Service.

[554 C-D]

In the instant case, the appointments of respondents 4 to 16

were made under Rule 2 of the Special Rules by the State

Government in consultation with the High Court. The Special

Rules provide a complete scheme for the appointment and

seniority of the members of the Service. [554 D]

2. Temporary posts of District and Sessions Judges Second

Grade being part of the Service, the seniority has to be

counted on the basis of length of service including the

service against the temporary posts. [554 F]

3. Rule 6 of the Special Rules is in no way dependent on

the proviso to Rule 2 of the Special Rules. Both are to be

operative independently. In

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the scheme of the rules, the seniority rule is not dependent

on the quota Rule. Quota has been provided for the direct

recruits only against permanent posts. The seniority rule

permits the counting of total period of service from the

date a person is on duty against a post in the category.

[554 G-H]

In the instant case, even though the petitioners were

appointed substantively to the service earlier to

respondents 4 to 16 but in view of Rule 6 they cannot be

declared senior on the basis of continuous length of

service. Respondents 4 to 16 have been rightly given

seniority above the petitioners. [555 A]

JUDGMENT:

ORIGINAL JURISDICTION: Writ Petition (C) No. 1237 of 1988.

(Under Article 32 of the Constitution of India).

P.P. Rao and Ms. K Amreshwari, B. Rajeshwar Rao and Vimal

Dave for the Petitioners.

V.R. Reddy, Addl. Solicitor General, K. Madhaya Reddy, G.

Prabhakar, B. Kanta Rao, A. Ranganathan and A.V. Rangam for

the Respondents.

The Judgment of the Court was delivered by

KULDIP SINGH, J. The petitioners and respondents 4 to 16 are

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District and Sessions Judges in the State of Andhra Pradesh.

The petitioners are direct recruits whereas the respondents

were promoted from the Subordinate judiciary. The

respondents were initially appointed on temporary basis in

the year 1978/1979 but they were made substantive in the

year 1983. The petitioners who were appointed substantively

in the year 1981 claim seniority over the respondents by way

of this petition under Article 32 of the Constitution of

India.

The recruitment to the Andhra Pradesh Higher Judicial

Service (the Service) is governed by the Rules called "The

Andhra Pradesh State Higher Judicial Service Special

Rules" (the Special Rules). Rules 1, 2, 4 and 6 of the

Special Rules which are relevant are as under:

"Rule 1. Constitution:- The service shall

consist of the following categories:-

550

Category-1 :- District and Sessions Judges

1st Grade.

Category-II :- District and Sessions Judges,

Second Grade including Chairman, Andhra

Pradesh Sales Tax Appellate Tribunal, Chief

Judge, City Civil Court, Additional Chief

Judge, City Civil Court, Chief Judge, Court of

small Causes, Chief City Magistrate, Chairman,

Tribunal for Disciplinary Proceedings,

Presiding Officers, Labour Courts and Addl.

District and Sessions Judges.

Rules 2. Appointment :- (a) Appointment to

Category-1 shall be made by promotion from

Category-II and appointment to Category-II

shall be made:-

(i) by transfer from among:-

(a) Sub-Judges in the Andhra State Judicial

Service; or in

the Hyderabad State Judicial Service; and

(ii) by direct recruitment from the Bar:

Provided that 33-1/3% of the total number of

permanent posts shall be filed or reserved to

be filled by direct recruitment.

Explanation:- In the determination of 33-1/3%

of the total number of permanent posts,

fractions exceeding one-half shall be counted

as one and other fractions shall be

disregarded.

(b) All promotions shall be made on grounds

of merit and ability, seniority being

considered only when merit and ability are

approximately equal.

Rule 4. Probation:- Every person appointed to

Category-II otherwise than by transfer, shall,

from the date on which he joins duty be on

probation for a total period of one year on

duty.

Rule 6. Seniority:- The seniority of a person

appointed to Category 1 or Category 2 shall be

determined with refer-

551

ence to the date from which he was

continuously on duty in that category."

We may briefly notice the scheme of the Special Rules. Rule

1 constitutes the Service. Category-1 consists of District

and Sessions Judges' 1st grade and Category-II consists of

District and Sessions Judges Second grade. Rule 1 does not

say that Service shall consist of only permanent posts. All

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the posts designated as District and Sessions Judges Second

grade under Category-II are part of the service under Rule

1. In other words, as and when a post of District and

Sessions Judge Second grade is created permanent or

temporary it becomes part of the Service under Rule 1 of

the special Rules. Rule 2 provides the method of

appointment. Appointment to Category-1 is from Category-II.

Appointment to Category II is from two sources. By transfer

from amongst the Subordinate Judges and by direct

recruitment from the Bar. Proviso to Rule 2 states that 33-

1/3% of the total number of permanent posts shall be filled

or reserved to be filled by direct recruitment. All the

posts of District and Sessions Judges Second grade are part

of the Service but quota for the direct recruits is provided

only in the permanent posts. Rule 6 of the Rules provides

for the fixation of seniority. Under Rule 6 the seniority

of persons appointed to Category-1 or Category-II posts is

fixed on the basis of continuous length of service in their

respective posts.

On the plain reading of the Special Rules the salient

features of the Service can be culled out as under:

1. Rule 1 provides for the constitution of the Service.

All the posts of District and Sessions Judges Second grade

created from time to time are part of the Service. The

natural corollary is that the Service consists of permanent

as well as temporary posts.

2. The recruitment to Category-II of the service is by

transfer from amongst the Subordinate Judges and also by

direct recruits from the Bar.

3. 33-1/3% of the total number of permanent posts in

Category-II of the Service are to be filled by way of direct

recruitment.

4. The seniority under Rule 6 is to be determined with

reference to the date from which a person is continuously on

duty. Whether the person

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is continuously on duty against a temporary post or

permanent post is of no consequence. A person is entitled

to the fixation of his seniority on the basis of continuous

length of service rendered either against permanent post or

temporary post.

The three petitioners were appointed as District and

Sessions Judges Second grade by direct recruitment on

October 12, 1981. Petitioners 1 and 2 joined service on

October 23, 1981 and petitioner 3 on October 30, 1981.

Respondents 4 to 16 were appointed District and Sessions

Judges Second grade by transfer from amongst the Subordinate

Judges during the years 1978/79. It is not disputed that

permanent vacancies in their quota became available in the

year 1983. We, therefore, proceed on the basis that the

petitioners were appointed substantive members of the

Service earlier to respondents 4 to 16.

We may at this stage notice Rule 10(a)(i) of the Andhra

Pradesh State and Subordinate Service Rules (the State

Rules). The State Rules are general rules which are

applicable to all the services in the State of Andhra

Pradesh. Needless to say that to the extent the Special

Rules are applicable to the Service the State Rules are

excluded. Rule 10(a)(i) of the State Rules is as under:

"10. Temporary appointment. (a)(i) Where it

is necessary in the public interest to fill

emergently a vacancy in the post borne on the

cadre of a service, class or category and if

the filling of such vacancy in accordance with

the rules is likely to result in undue delay,

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the appointing authority may appoint a person

temporarily otherwise than in accordance with

the said rules."

Mr. P.P. Rao, learned counsel for the petitioners has raised

the following contentions for our consideration:

1. That the Service consists of only permanent posts under

the Special Rules. There is no provision under the Special

Rules for adding temporary posts to the cadre. The

appointment of respondents to the posts of District and

Sessions Judges Second grade on temporary basis can at best

be treated under rule 10(a)(i) of the State Rules.

553

2. The temporary service rendered by respondents.4 to 16

being outside the cadre cannot be counted towards

seniority.

3. Proviso to Rule 2 and Rule 6 of the Special Rules have

to be read together and doing so the permanent vacancies

having been made available for respondents 4 to 16 in the

year 1983 their service prior to that date cannot be counted

towards seniority.

Before dealing with Mr. Rao's contentions, we may notice two

preliminary contentions raised by Mr. K. Madava Reddy,

learned counsel for the respondents.

Mr. Madava Reddy has invited our attention to the judgment

of a Division Bench of Andhra Pradesh High Court in T.H.B.

Chalapathi and others v. High Court of Andhra Pradesh and

others, Writ Petition Nos. 1968/82, 52/83 and 12282/85

decided on December 28, 1985. Those writ petitions were

filed before the Andhra Pradesh High Court by the direct

recruits to Category-II of the Service claiming seniority

over the persons who were appointed to category-11 on

temporary basis earlier to them. Similar questions were

raised as are being raised by Mr. P.P. Rao before us. By a

well-reasoned judgment the High Court rejected all the

contentions of the direct recruits and dismissed the writ

petitions. It is not disputed that Special Leave Petition

No.1035 of 1986 against the said judgment was dismissed by

this Court on January 30, 1988. Mr. Madava Reddy plausibly

contends that all the contentions which are being raised by

the petitioners in this Court, having been rejected by the

High Court and special leave petition against the judgment

of the High Court having been dismissed by this Court the

same cannot be agitated once over again.

Mr. Madava Reddy then contended that the petitioners were

appointed in the years 1981 and since then till the year

1988 twelve seniority lists have been published showing the

petitioners below respondents 4 to 16. At no point of time

they challenged the seniority lists in the Court. Even when

the writ petitions filed by Chalapathi and others were

pending they did not intervene before the High Court. The

petitioners, according to Mr. Madava Reddy, are guilty of

gross delay and latches and as such are not entitled to get

relief by way of this petition under Article 32 of the

Constitution of India.

554

We see considerable force in both the contentions raised by

Mr. Madava Reddy. We are, however, of the view that it

would be in the larger interest of the Service to dispose of

this petition on merits.

We see no force. in the contention of Mr. Rao that the

Service consists of only permanent posts under the Special

Rules. We have already interpreted Rule 1 to mean that the

Service under the Special Rules consists of all the posts

permanent and temporary which have been designated as

District and Sessions Judges Second grade. Even otherwise

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in the absence of any prohibition under the Special Rules

the State Government can always create temporary posts as

additions to the cadre. Rule 10(a)(i) of the State Rules

has no application to the Service which is governed by the

Special Rules. Rule 10(a)(i) provides for emergency

appointments made on stop gap basis to meet a temporary

exigency. Apart from that the temporary appointments under

the said Rules are made without following the procedure

prescribed under the Rules governing the relevant service.

The appointments of respondents 4 to 16, on the other hand,

Were made under Rule 2 of the Special Rules by the State

Government in consultation with the High Court. We are of

the view that the Special Rules provide a complete scheme

for the appointment and seniority of the members of the

Service. Rule 10(a)(i) of the State Rules has no

application to the Service Constituted under the Special

Rules. We, therefore, reject the contention raised by Mr.

Rao.

Having taken the view that the Service under the Special

Rules consists of permanent as well as temporary posts the

second contention of Mr. Rao looses its ground. Temporary,

posts of District and Sessions Judges Second grade being

part of the Service the seniority has to be counted on the

basis of length of service including the service against a

temporary post.

The third contention of Mr. Rao is mentioned to be rejected

in view of Rule 6 of the Special Rules. Rule 6 of the

Special Rules is in no way dependent on proviso to Rule 2 of

the Special Rules. Both are to be operative independently.

In the scheme of the rules the seniority rule is not

dependent on the quota Rule. Quota has been provided for

the direct recruits only against permanent posts. The

seniority rule permits the counting of total period of

service from the date a person is on duty against a

555

post in the category. Even though, the petitioners were

appointed substantively to the service earlier to

respondents 4 to 16 but in view of Rule 6 they cannot be

declared senior on the basis of continuous length of service against temp

orary as well as permanent posts respondents

4 to 16 have been rightly given seniority above the

petitioners.

We, therefore, find no force in any of the contentions

raised by Mr. Rao.

The writ petition is consequently dismissed. No costs.

N.V.K. Petition dismissed.

556