V. Bhasker Rao And Ors vs State Of A.P. And Ors

Supreme Court23 March 1993Kuldip Singh · N.M. Kasliwal

SCC(1993) 3 SCC 307
Neutral1993 INSC 109
AIRAIR 1993 SC 2260
SCR[1993] 2 SCR 547

Ratio decidendi

The rule this decision rests on

Under Rule 1 of the Andhra Pradesh State Higher Judicial Service Special Rules, the service consists of all posts—permanent and temporary—designated as District and Sessions Judges Second Grade; the service is not limited to permanent posts only, and the State Government may create temporary posts as additions to the cadre in the absence of any prohibition in the Special Rules. Rule 10(a)(i) of the Andhra Pradesh State and Subordinate Service Rules, which governs emergency appointments on a stop-gap basis to meet temporary exigencies, has no application to the Andhra Pradesh Higher Judicial Service, which is governed by a complete and self-contained scheme under the Special Rules; temporary appointments under the Special Rules made in consultation with the High Court pursuant to Rule 2 do not fall within the scope of Rule 10(a)(i). Under Rule 6 of the Special Rules, seniority is determined by reference to the continuous length of service rendered from the date a person is on duty in the relevant category, regardless of whether that service is rendered against a permanent or temporary post; temporary service against posts that form part of the service must be counted towards seniority. Rule 6 of the Special Rules is operative independently of the proviso to Rule 2 and is not dependent upon it; the seniority rule and the quota rule operate separately, with the quota limiting direct recruitment to permanent posts only, while the seniority rule permits the counting of total service from appointment to the category.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

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) 5471993 SCC (3) 307 JT 1993 (4) 5061993 SCALE (2)175

ACT:Andhra Pradesh State Higher Judicial Service Rules 1, 2, 4and 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 continuouslength of service.

HEADNOTE:Recruitment to the Andhra Pradesh Higher Judicial Service isgoverned by "The Andhra Pradesh State Higher JudicialService-Special Rules". Rule 1 constitutes the service.Category 1 consists of District and Sessions Judges 1stgrade and Category 11 consists of District and SessionsJudges, Second Grade. Appointment to Category 1 is fromCategory 11. Appointment to Category 11 is from two sourcesby transfer from amongst the Subordinate Judges and bydirect recruitment from the Bar.The petitioner were direct recruits whereas respondents 4 to16 were promoted from the Subordinate judiciary. Therespondents were Initially appointed on temporary basis inthe yew 1978/1979 but they were made substantive in the year1983. The petitioners who were appointed substantively inthe year 1981 claimed seniority over the said respondents,and riled the Writ Petition under Article 32 of theConstitution of India for relief.It was contended on their behalf that: (1) The Serviceconsists of only permanent posts, there is no provisionunder the Special Rules for adding temporary posts to thecadre, consequently the appointment of respondents 4 to 16to the post of District and Sessions Judges, Second Grade ontemporary 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 to16 being outside the cadre- cannot be counted towardsseniority. (3) Porviso to Rule 2 and Rule 6 of the SpecialRules have to be read together, and as such the permanentvacancies having been made available for them in the year1983 their service548prior to that date cannot be counted towards seniority.The respondents constested the writ petition by contendingthat the petitioners were appointed in the year 1981 andsince then till the year 1988, twelve seniority lists havebeen published showing the petitioners below respondents 4to 16, and at no point of time they challenged the senioritylists 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. Thepetitioners were thus guilty of gross delay and latches andas 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 thatthe service under the Special Rules consists of all theposts-permanent and temporary-which have been designated asDistrict and Sessions Judge Second Grade. Even otherwise inthe absence of any prohibition under the Special Rules, theState Government can always create temporary posts as addi-tions to the cadre. [554 B](ii) Rule 10(a)(i) of the Andhra Pradesh State andSubordinate Service Rules has no application to the AndhraPradesh Higher Judicial Service which is governed by theSpecial Rules. Rule 10(a)(i) provides for emergencyappointments made on stop gap basis to meet a temporaryexigency. Apart from that the temporary appointments underthe said Rules are made without following the procedureprescribed under the Rules governing the relevant Service.[554 C-D]In the instant case, the appointments of respondents 4 to 16were made under Rule 2 of the Special Rules by the StateGovernment in consultation with the High Court. The SpecialRules provide a complete scheme for the appointment andseniority of the members of the Service. [554 D]2. Temporary posts of District and Sessions Judges SecondGrade being part of the Service, the seniority has to becounted on the basis of length of service including theservice against the temporary posts. [554 F]3. Rule 6 of the Special Rules is in no way dependent onthe proviso to Rule 2 of the Special Rules. Both are to beoperative independently. In549the scheme of the rules, the seniority rule is not dependenton the quota Rule. Quota has been provided for the directrecruits only against permanent posts. The seniority rulepermits the counting of total period of service from thedate a person is on duty against a post in the category.[554 G-H]In the instant case, even though the petitioners wereappointed substantively to the service earlier torespondents 4 to 16 but in view of Rule 6 they cannot bedeclared senior on the basis of continuous length ofservice. Respondents 4 to 16 have been rightly givenseniority 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 VimalDave for the Petitioners.

V.R. Reddy, Addl. Solicitor General, K. Madhaya Reddy, G.Prabhakar, B. Kanta Rao, A. Ranganathan and A.V. Rangam forthe Respondents.

The Judgment of the Court was delivered byKULDIP SINGH, J. The petitioners and respondents 4 to 16 areDistrict and Sessions Judges in the State of Andhra Pradesh.The petitioners are direct recruits whereas the respondentswere promoted from the Subordinate judiciary. Therespondents were initially appointed on temporary basis inthe year 1978/1979 but they were made substantive in theyear 1983. The petitioners who were appointed substantivelyin the year 1981 claim seniority over the respondents by wayof this petition under Article 32 of the Constitution ofIndia.

The recruitment to the Andhra Pradesh Higher JudicialService (the Service) is governed by the Rules called "TheAndhra Pradesh State Higher Judicial Service SpecialRules" (the Special Rules). Rules 1, 2, 4 and 6 of theSpecial Rules which are relevant are as under:

"Rule 1. Constitution:- The service shallconsist of the following categories:-

550Category-1 :- District and Sessions Judges1st Grade.

Category-II :- District and Sessions Judges,Second Grade including Chairman, AndhraPradesh Sales Tax Appellate Tribunal, ChiefJudge, City Civil Court, Additional ChiefJudge, City Civil Court, Chief Judge, Court ofsmall Causes, Chief City Magistrate, Chairman,Tribunal for Disciplinary Proceedings,Presiding Officers, Labour Courts and Addl.District and Sessions Judges.Rules 2. Appointment :- (a) Appointment toCategory-1 shall be made by promotion fromCategory-II and appointment to Category-IIshall be made:-

(i) by transfer from among:-

(a) Sub-Judges in the Andhra State JudicialService; or inthe Hyderabad State Judicial Service; and

(ii) by direct recruitment from the Bar:

Provided that 33-1/3% of the total number ofpermanent posts shall be filed or reserved tobe 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 countedas one and other fractions shall bedisregarded.

(b) All promotions shall be made on groundsof merit and ability, seniority beingconsidered only when merit and ability areapproximately equal.

Rule 4. Probation:- Every person appointed toCategory-II otherwise than by transfer, shall,from the date on which he joins duty be onprobation for a total period of one year onduty.

Rule 6. Seniority:- The seniority of a personappointed to Category 1 or Category 2 shall bedetermined with refer-

551ence to the date from which he wascontinuously on duty in that category."

We may briefly notice the scheme of the Special Rules. Rule1 constitutes the Service. Category-1 consists of Districtand Sessions Judges' 1st grade and Category-II consists ofDistrict and Sessions Judges Second grade. Rule 1 does notsay that Service shall consist of only permanent posts. Allthe posts designated as District and Sessions Judges Secondgrade under Category-II are part of the service under Rule

1. In other words, as and when a post of District andSessions Judge Second grade is created permanent ortemporary it becomes part of the Service under Rule 1 ofthe special Rules. Rule 2 provides the method ofappointment. Appointment to Category-1 is from Category-II.Appointment to Category II is from two sources. By transferfrom amongst the Subordinate Judges and by directrecruitment from the Bar. Proviso to Rule 2 states that 33-1/3% of the total number of permanent posts shall be filledor reserved to be filled by direct recruitment. All theposts of District and Sessions Judges Second grade are partof the Service but quota for the direct recruits is providedonly in the permanent posts. Rule 6 of the Rules providesfor the fixation of seniority. Under Rule 6 the seniorityof persons appointed to Category-1 or Category-II posts isfixed on the basis of continuous length of service in theirrespective posts.

On the plain reading of the Special Rules the salientfeatures 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 gradecreated from time to time are part of the Service. Thenatural corollary is that the Service consists of permanentas well as temporary posts.

2. The recruitment to Category-II of the service is bytransfer from amongst the Subordinate Judges and also bydirect recruits from the Bar.

3. 33-1/3% of the total number of permanent posts inCategory-II of the Service are to be filled by way of directrecruitment.

4. The seniority under Rule 6 is to be determined withreference to the date from which a person is continuously onduty. Whether the person552is continuously on duty against a temporary post orpermanent post is of no consequence. A person is entitledto the fixation of his seniority on the basis of continuouslength of service rendered either against permanent post ortemporary post.

The three petitioners were appointed as District andSessions Judges Second grade by direct recruitment onOctober 12, 1981. Petitioners 1 and 2 joined service onOctober 23, 1981 and petitioner 3 on October 30, 1981.Respondents 4 to 16 were appointed District and SessionsJudges Second grade by transfer from amongst the SubordinateJudges during the years 1978/79. It is not disputed thatpermanent vacancies in their quota became available in theyear 1983. We, therefore, proceed on the basis that thepetitioners were appointed substantive members of theService earlier to respondents 4 to 16.

We may at this stage notice Rule 10(a)(i) of the AndhraPradesh State and Subordinate Service Rules (the StateRules). The State Rules are general rules which areapplicable to all the services in the State of AndhraPradesh. Needless to say that to the extent the SpecialRules are applicable to the Service the State Rules areexcluded. Rule 10(a)(i) of the State Rules is as under:

"10. Temporary appointment. (a)(i) Where itis necessary in the public interest to fillemergently a vacancy in the post borne on thecadre of a service, class or category and ifthe filling of such vacancy in accordance withthe rules is likely to result in undue delay,the appointing authority may appoint a persontemporarily otherwise than in accordance withthe said rules."

Mr. P.P. Rao, learned counsel for the petitioners has raisedthe following contentions for our consideration:

1. That the Service consists of only permanent posts underthe Special Rules. There is no provision under the SpecialRules for adding temporary posts to the cadre. Theappointment of respondents to the posts of District andSessions Judges Second grade on temporary basis can at bestbe treated under rule 10(a)(i) of the State Rules.

5532. The temporary service rendered by respondents.4 to 16being outside the cadre cannot be counted towardsseniority.

3. Proviso to Rule 2 and Rule 6 of the Special Rules haveto be read together and doing so the permanent vacancieshaving been made available for respondents 4 to 16 in theyear 1983 their service prior to that date cannot be countedtowards seniority.

Before dealing with Mr. Rao's contentions, we may notice twopreliminary contentions raised by Mr. K. Madava Reddy,learned counsel for the respondents.

Mr. Madava Reddy has invited our attention to the judgmentof a Division Bench of Andhra Pradesh High Court in T.H.B.Chalapathi and others v. High Court of Andhra Pradesh andothers, Writ Petition Nos. 1968/82, 52/83 and 12282/85decided on December 28, 1985. Those writ petitions werefiled before the Andhra Pradesh High Court by the directrecruits to Category-II of the Service claiming seniorityover the persons who were appointed to category-11 ontemporary basis earlier to them. Similar questions wereraised as are being raised by Mr. P.P. Rao before us. By awell-reasoned judgment the High Court rejected all thecontentions of the direct recruits and dismissed the writpetitions. It is not disputed that Special Leave PetitionNo.1035 of 1986 against the said judgment was dismissed bythis Court on January 30, 1988. Mr. Madava Reddy plausiblycontends that all the contentions which are being raised bythe petitioners in this Court, having been rejected by theHigh Court and special leave petition against the judgmentof the High Court having been dismissed by this Court thesame cannot be agitated once over again.

Mr. Madava Reddy then contended that the petitioners wereappointed in the years 1981 and since then till the year1988 twelve seniority lists have been published showing thepetitioners below respondents 4 to 16. At no point of timethey challenged the seniority lists in the Court. Even whenthe writ petitions filed by Chalapathi and others werepending they did not intervene before the High Court. Thepetitioners, according to Mr. Madava Reddy, are guilty ofgross delay and latches and as such are not entitled to getrelief by way of this petition under Article 32 of theConstitution of India.

554We see considerable force in both the contentions raised byMr. Madava Reddy. We are, however, of the view that itwould be in the larger interest of the Service to dispose ofthis petition on merits.

We see no force. in the contention of Mr. Rao that theService consists of only permanent posts under the SpecialRules. We have already interpreted Rule 1 to mean that theService under the Special Rules consists of all the postspermanent and temporary which have been designated asDistrict and Sessions Judges Second grade. Even otherwisein the absence of any prohibition under the Special Rulesthe State Government can always create temporary posts asadditions to the cadre. Rule 10(a)(i) of the State Ruleshas no application to the Service which is governed by theSpecial Rules. Rule 10(a)(i) provides for emergencyappointments made on stop gap basis to meet a temporaryexigency. Apart from that the temporary appointments underthe said Rules are made without following the procedureprescribed 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 StateGovernment in consultation with the High Court. We are ofthe view that the Special Rules provide a complete schemefor the appointment and seniority of the members of theService. Rule 10(a)(i) of the State Rules has noapplication to the Service Constituted under the SpecialRules. We, therefore, reject the contention raised by Mr.Rao.

Having taken the view that the Service under the SpecialRules consists of permanent as well as temporary posts thesecond contention of Mr. Rao looses its ground. Temporary,posts of District and Sessions Judges Second grade beingpart of the Service the seniority has to be counted on thebasis of length of service including the service against atemporary 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

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