Allowed

Pcy Ratnam, S/o. P. Yesupadam, v. K.V. Narasimha Murthy, S/o. K.S.Siva Rao

Telangana HC28 Jan 2010WP/3859/2004

Case brief

AI extract

What is this about?

The High Court allowed writ petitions seeking to quash an Administrative Tribunal order setting aside promotions. The Court held the Tribunal lacked jurisdiction as the Special Court was not under State Government control. It also ruled the applicant could not question regularizations of juniors promoted when he was not yet eligible.

What did the court decide?

The writ petitions were allowed; the impugned order dated 06.02.2004 passed by the Tribunal was set aside with no costs.

Pcy Ratnam, S/o. P. Yesupadam, Vs K.V. Narasimha Murthy, S/o… — Corruption | Telangana HC (2010)

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HON’BLE SRI JUSTICE A. GOPAL REDDY AND

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HON’BLE SRI JUSTICE NOUSHAD ALI

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+ W.P.Nos.3089, 3274, 3381 and 3859 of 2004

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% Dated 28.01.2010

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# A. Balaram Reddy & others

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….Petitioners

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Vs.

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$ K.V. Narasimha Murthy & others

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….Respondents

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! Counsel for petitioner : Sri S. Sriram Reddy

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^ Counsel for Respondent No.1 : Sri J. Prabhakar Counsel for Respondent No.4 : Sri V. Venkataramana Counsel for Respondent No.6 : Sri A. Rajasekhar Reddy Counsel for Respondent No.7 : Sri B. Adinarayana Rao Counsel for Respondent Nos. 2 and 3: GP for Services II

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<GIST:

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> HEAD NOTE:

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? Cases referred 1997(4) ALD 395 (D.B.) AIR 1990 Supreme Court 1607 (2003)8 Supreme Court Cases 1 (1998) 5 Supreme Court Cases 468 (2000) 10 Supreme Court Cases 383 (2009) 4 Supreme Court Cases 170 AIR 1984 Supreme Court 161 1970 SLR 351 AIR 1979 Supreme Court 193 AIR 1990 Supreme Court 1607 1972 Andhra Weekly Reporter 370

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HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE NOUSHAD ALI

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W.P.Nos.3089, 3274, 3381 and 3859 of 2004

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COMMON ORDER: (Per Hon’ble Sri Justice A. Gopal Reddy)

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All these petitions are filed under Article 226 of the Constitution of India seeking to quash the order dated 06.02.2004 passed by the Andhra Pradesh Administrative Tribunal, Hyderabad in O.A.No.926 of 1997, which was disposed of by the Tribunal along with O.A.No.1854 of 1998 filed by the 4^th respondent in O.A.No.926 of 1997.

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As all these petitions are filed against the very same order and since the parties in these petitions and the parties before the Tribunal are same, these petitions are heard together and are being disposed of by this common order.

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For the sake of convenience, the parties herein are referred to as they are arrayed before the Tribunal in O.A.No.926 of 1997.

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Applicant before the Tribunal in O.A.No.926 of 1997 (1^st respondent in all these writ petitions) challenged the proceedings in Dis.No.2169/96/SC dated 29.10.1996 passed by the Special Court under Andhra Pradesh Land Grabbing (Prohibition) Act, Hyderabad (hereinafter referred to as ‘the Special Court’), wherein

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the services of the writ petitioners were regularized in the post mentioned in the order therein and sought to promote him to the post of Assistant Section Officer from the date of passing the departmental examination or from the date of the impugned proceedings and for consequential benefits.

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Applicant in O.A.No.1854 of 1998 (4^th respondent in O.A.No.926 of 1997 and the 5^th respondent in W.P.Nos.3089 and 3274 of 2004) sought for a direction to consider his case for promotion to the post of Assistant Section Officer under Rule 15 read with Rule 4 of the Andhra Pradesh Land Grabbing (Prohibition) Special Court (Officers and Employees) Service Rules (hereinafter referred to as ‘the Service Rules’) as regular promotion instead of on temporary basis under Rule 16 of the Rules.

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The facts, in brief, which led to filing of the O.A.926 of 1997 before the Tribunal are as follows.

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The applicant in O.A.No.926 of 1997 (1^st respondent in all the writ petitions) was appointed as Assistant in the Special Court as per the proceedings in Dis.No.455/92 dated 10.06.1992, joined on 11.06.1992 and his services were regularized with effect from that date. He was declared as full member in the category of Assistant as per the Special Court’s proceedings in Dis.No.956/96 dated 30.04.1996. On his passing the Accounts Test for Subordinate Officers Part I and the Civil Judicial Test Parts I and II became eligible for promotion to the post of Assistant Section Officer in Category II as prescribed under the Service Rules. He stood qualified in the last requisite test i.e. the Civil Judicial Test Part-I, held on 10.06.1996, and thereby become eligible for promotion to the post of Assistant Section Officer from the date of passing the test i.e. 10.06.1996.

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The 3^rd respondent in O.A.No.926 of 1997 (petitioner in W.P.No.3381 of 2004) was initially appointed as Record Keeper in the Special Court vide proceedings in Dis.No.1533/Estt/20/91 dated 31.12.1991 and was shifted to the post of Assistant with effect from 09.02.1994 since both the posts carry the same scale of pay. His services as Record Keeper were not regularized because the proposals for amendment of service rules in respect of conversion of the post of Record Keeper to the post of Assistant were pending. However, during the pendency of the application, after due correspondence with the Government for amendment to the Service Rules regarding the post of Record Keeper, the Service Rules were amended through G.O.Ms.No.1239 Revenue (Act & Rules) Department dated 21.06.2005 ordering retention of the post of Record Keeper in Category-6(c) instead of the post of Record Assistant in Category-10. His services as Assistant were regularized with effect from 09.02.1994 vide Special Court’s proceedings in Dis.No.1358/95 dated 25.09.1995. He was also declared as approved probationer as per the Special Court’s proceedings in Dis.No.2179/96 dated 31.10.1996. He was temporarily promoted as Scrutiny Officer as per the Special Court’s proceedings in Dis.No.1570/95 dated 24.10.1995 under Rule 16 of the Service Rules and his services were regularized as such as per the proceedings in Dis.No.2169/96 dated 29.10.1996.

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The 4^th respondent in O.A.No.926 of 1997 (5^th respondent in W.P.Nos.3089 and 3274 of 2004 and the applicant in O.A.No.1854 of 1998) was initially appointed as Typist with effect from 18.04.1988 and his services were regularized as such with effect from 18.04.1988. He was converted as Assistant with effect from 26.10.1995 without prejudice to his seniority as per the proceedings of Special Court in Dis.No.1585/95/Estt/SC dated

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26.10.1995 and later he was promoted as Assistant Section Officer with effect from 28.08.1996.

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The 5^th respondent in O.A.No.926 of 1997 (petitioner in W.P.No.3089 of 2004) was initially appointed as Bailiff with effect from 18.03.1993 as per the Special Court’s proceedings in Dis.No.304/93/Estt/SC dated 18.03.1993 and he was temporarily promoted as Assistant with effect from 22.07.1994 vide proceedings in Dis.No.842/94 dated 22.07.1994 under Rule 16 of the Service Rules and his services were regularized and was declared full member in the category of Assistant with effect from 22.07.1994 as per the proceedings in Dis.No.956/96 dated 30.04.1996. He was promoted as Assistant Section Officer with effect from 24.10.1995 on temporary basis under Rule 16 of the Service Rules.

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The 6^th respondent (petitioner in W.P.No.3859 of 2004) was initially appointed as Assistant with effect from 08.02.1994 as per Special Court’s proceedings in Dis.No.176/94 dated 08.02.1994 and his services as such were regularized and he was declared as full member in category of Assistant as per Special Court’s proceedings in Dis.No.956/96 dated 30.04.1996. He was promoted temporarily as Assistant Section Officer as per Special Court’s proceedings in Dis.No.79/96 dated 16.01.1996 under Rule 16 of the Service Rules and his services were regularized in that category.

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Similarly, the 7^th respondent (petitioner in W.P.No.3274 of 2004) was initially appointed as Typist with effect from 23.07.1994 as per Special Court’s proceedings in Dis.No.850/94 dated 23.07.1994 and her services as Typist were regularized in Special Court’s proceedings in Dis.No.1358/95 dated 25.09.1995 and she was declared full member in the category of Typist as per Special

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Court’s proceedings in Dis.No.2179/96 dated 31.10.1996. She was temporarily promoted as Scrutiny Officer as per the Special Court’s proceedings in Dis.No.247/96 dated 12.02.1996 under Rule 16 of Service Rules and her services were regularized in this category.

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Though the 4^th respondent, who is the applicant in O.A.No.1854 of 1998, was initially appointed as Typist with effect from 18.04.1988 and was converted as Assistant with effect from 26.10.1995 without prejudice to his seniority as per the proceedings of Special Court in Dis.No.1585/95/Estt/SC dated 26.10.1995 and was later promoted as Assistant Section Officer with effect from 28.08.1996, the said conversion has not been challenged in O.A.No.926 of 1997.

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The applicant in O.A.No.926 of 1997, on his becoming eligible for promotion to the post of Assistant Section Officer made a representation dated 03.09.1996 to the Registrar of the Special Court stating that the 4^th respondent, who was confirmed as Typist with effect from 18.04.1988, and was a Typist till he was converted as Assistant on 26.10.1995 on his own request and in the said conversion proceedings it was mentioned that his (4^th respondent) seniority as Typist would not be effected and the date of conversion of the 4^th respondent to the post of Assistant from the post of Typist i.e. 26.10.1995 is subsequent to the date of his (applicant) appointment as Assistant i.e. 11.06.1992. He also mentioned therein the second proviso under Category-II in table appended to G.O.Ms.No.385 Revenue (A&R) Department dated 03.08.1995 which provides that in every cycle of 4 vacancies the third vacancy shall be filed from the category 7 i.e., Typist from qualified candidates if available. It is alleged that the said proviso

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shows a discrimination between Assistant and Typist and that for Assistants and others the first proviso will apply and, therefore, claimed that if a Typist is converted as Assistant at request he looses all hold on the Typist post and his seniority has to be reckoned only from the date of his conversion as Assistant and claimed that in view of the discrimination shown in the above rule, he will be the senior to the 4^th respondent in the post of Assistant and he has a preferential claim over the 4^th respondent for promotion to the post of Assistant Section Officer. Applicant also claimed that the confirmation proceedings dated 30.04.1996 shows the name of 4^th respondent as Typist several places below his name and the confirmation will be according to strict seniority. In the said representation, he also contended that 7^th respondent was by then working as Scrutiny Officer and she is also far junior to him as he was appointed as Assistant on 11.06.1992 and she was appointed as Typist only on 23.07.1994 much later to him but for to his ill-luck she got promotion as Scrutiny Officer prior to him. Since he is now fully qualified to the post of Assistant Section Officer from 10.06.1996, on which date he stood qualified in the departmental tests, his case should be considered for promotion to the post of Assistant Section Officer. He also claimed that the promotions given to his juniors were purely under Rule 16 of the Service Rules, and since he, being a fully qualified senior, is available, the continuance of a junior in the promotion post is adverse to the interests of the senior. The said representation was rejected by the proceedings of the Special Court in Dis.No.2174/96/Estt/SC dated 29.10.1996. Challenging the said rejection, he filed O.A.No.926 of 1997 before the Tribunal with the relief mentioned above.

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The 1^st respondent which the Special Court through its Registrar filed a detailed counter affidavit before the Tribunal

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disclosing the service particulars of the applicant and the respondents 3 to 7 contending that once the applicant passed the requisite departmental tests held on 10.06.1996 he is entitled for promotion in the vacancy which arises from that date onwards but he cannot claim revocation of any promotion given earlier thereto. It is also stated that all the promotions were given prior to the applicant passing the examination and all of them are fully qualified to hold the promotional post and though they were promoted under Rule 16 of the Service Rules, since the applicant has not questioned the promotions earlier given to respondents 3, 5, 6 and 7 in the representation dated 03.09.1996 that he could not be promoted along with them as he was not qualified and as such he was qualified only on 10.06.1996, he cannot now question the promotions of the respondents 3 to 7 and the O.A. is liable to be dismissed.

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Respondents 5 and 6 filed separate counter affidavits contending that the Special Court has not been notified under the provisions of Administrative Tribunals Act as such this Tribunal has no jurisdiction to entertain the O.A. It is also stated therein that the Special Court constituted under the Andhra Pradesh Land Grabbing (Prohibition) Act (hereinafter referred to as ‘the Act’), represented by its Registrar has filed a writ petition against the Government in respect of service matters of employees working in Special Court as such the Tribunal has no jurisdiction to entertain the O.A.

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The Tribunal, by its impugned order, after taking into consideration all the rival contentions urged by the applicant as well as the respondents, observed that according to Rule 10 of Service Rules, a minimum service of not less than 3 years in the feeder category is required for the purpose of getting eligibility for promotion; that, according to Rule 15 which deals with promotion,

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one must complete probation in the feeder category; that, according to Rule 15 which deals with temporary appointments and promotions, every temporary appointment or temporary promotion has to be made in accordance with Rules 10 and 37 of the A.P. State and Subordinate Service Rules; that Rule 22 deals with the relaxation of the Service Rules governing the employees of the Special Court; that the Chairman of the Special Court may deal with any member of the Service to be appointed to the service in such a manner as may appear to him to be just or equitable; that the posts of Assistant Section Officer and Scrutiny Officer come under Category-2; that the post of Assistant falls under Category-6; that the post of Typist falls under Category-7; that the post of Record Assistant comes under Category-10 and, therefore, the post of Assistant Section Officer/Scrutiny Officer is to be filled up by promotion from categories 6 and 7 as per seniority; that Rule 4 of the Service Rules deals with the method of appointment according to which in every cycle of 4 vacancies, the 3^rd vacancy shall be filed from the Category-7 i.e., Typist and that the post of Assistant falls under Category-7 and that it is to be filed up by promotion from Categories 10 and 11; held that none of the respondents, except the 4^th respondent whose services were regularized through the impugned orders dated 29.10.1996, were promoted in accordance with the Rules. The Tribunal also observed that the promotion chances of the applicant have been adversely affected due to the irregular promotions accorded to respondents 3 and 5 and, hence, set aside the proceedings in Dis.No.2169/96/SC dated 29.10.1996 where the services of respondents 3, 5, 6 and 7 were regularized and also set aside the proceedings in Dis.No.2174/96/Estt/SC dated 29.10.1996 where the appeal of the applicant was rejected and also the conversion orders in respect of 4^th respondent and directed that the case of

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4^th respondent shall be considered for promotion as Assistant Section Officer/Scrutiny Officer from the category of Typist strictly in accordance with the Rules in the slot earmarked for Typist. Questioning the same, the present writ petitions are filed.

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Sri B.Adinarayana Rao, learned counsel for the 7^th respondent in the O.A. and the petitioner in W.P.No.3274 of 2004, contends that the post of Typist is a feeder category to the post of Assistant Section Officer and further contended that without challenging the promotion of the 7^th respondent, the applicant cannot challenge her regularization. It is further contended that since the respondents who were appointed under the Service Rules issued under G.O.Ms.No.385 Revenue (A&R) Department dated 03.08.1995, unless the service is notified under Section 15 of the Administrative Tribunals Act, 1985, the Tribunal cannot entertain the O.A and the applicant cannot have the locus standi to question the promotion of the 7^th respondent since she is from the feeder category of Typist and under the Service Rules the vacancy is mentioned under the Typist and she was initially appointed as a Typist. He further contended that the applicant acquired the eligibility criteria only on 10.06.1996 and by that date, the respondents 3 to 7 were already promoted to the post of Assistant Section Officer / Scrutiny Officer and, therefore, the entire order passed by the Tribunal is liable to be set aside. He placed reliance on K.MOHANLAL V. STATE OF A.P.^[1] and contended that the Court constituted under the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 being a Special Court subordinate to the High Court discharging the judicial functions, for appointment of its members the consent of the Chief Justice of the High Court is a must and no selection is made of a judicial member without consulting the Chief Justice of the High Court.

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Sri S.Sriram Reddy, learned counsel appearing on behalf of the 5^th respondent in the O.A. and the petitioner in W.P.No.3089 of 2004, while adopting the arguments of Sri B.Adinarayana Rao referred to above, contended that since the 5^th respondent who is promoted as Assistant Section Officer on 24.10.1995, the entire grievance of the applicant in making his representation which he has to exhaust much before filing the O.A. is ventilating the grievance against the 4^th respondent i.e. S.Padmanabha Rao who was promoted on 28.08.1996. He further contended that even if Rule 10 of the Service Rules prescribes that no person shall be eligible for appointment by transfer or promotion unless he has put in not less than three years of service in the category from which appointment by transfer or promotion is to be made, under Rule 22 the Chairman of the Special Court will have the power to relax the Rules and that once the probation of the 5^th respondent is declared it shall be deemed that relaxation was made in their favour. For the said proposition, he relied on DIRECT RECRUIT CLASS II ENGG. OFFICERS’ ASSOCN. V. STATE OF MAHARASHTR A^[2] . He further contended that the 5^th respondent was promoted as Assistant on 22.07.1994 and his probation was declared on 30.04.1996 with effect from 22.07.1994 and the Service Rules issued in G.O.Ms.No.385 dated 03.08.1995 came into force with retrospective effect from 25.02.1988. The 5^th respondent was promoted as Assistant Section Officer with effect from 24.10.1995 and by that date, as per the Service Rules, he was fully eligible to hold the said post having passed the departmental tests. Therefore, when the applicant was not eligible as on the date and when the petitioner was appointed he cannot question the appointment of the petitioner and his grievance if any is only against the 4^th respondent but cannot make any grievance against the respondents 3, 5, 6 and 7.

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Sri V.Venkataramana, learned counsel appearing on behalf of the 3^rd respondent in the O.A. and the petitioner in W.P.No.3381 of 2004, submits that the 3^rd respondent was appointed as Record Keeper on 31.12.1991 and was shifted to the post of Assistant with effect from 09.02.1994 and his services as Assistant were regularized as per the proceedings dated 25.09.1995 and was declared approved probationer as per the proceedings dated 31.10.1996 and was temporary promoted as Scrutiny Officer as per the proceedings dated 24.10.1995 under Rule 16 of the Service Rules and his services as such were regularized as per the proceedings dated 29.10.1996 and contends that unless the service is notified under Section 15 of the Administrative Tribunals Act, 1985, the Tribunal does not have any jurisdiction to entertain the O.A itself and further contended that the observation of the Tribunal that the Service Rules do not exclude the jurisdiction of the Tribunal to adjudicate the service disputes of the Special Court, hence it had jurisdiction is incomprehensible.

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Sri A.Rajashekar Reddy, learned counsel appearing on behalf of the 6^th respondent and petitioner in W.P.No.3859 of 2004, submits that the petitioner was appointed as Assistant with effect from 08.02.1994 and his services as such were regularized as per the proceedings dated 30.04.1996 and he was promoted temporarily as Assistant Section Officer as per the proceedings dated 16.01.1996 under Rule 16 of the Service Rules and his services were regularized in that category and, by placing reliance o n S.P.BADRINATH VS. GOVT. OF A.P. AND OTHER S^[3] , contended that the respondent cannot claim seniority prior to his acquiring qualification and he can claim seniority only from the date of his acquiring qualification.

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Sri J.Prabhakar learned counsel for the applicant brought to

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the notice of this Court that the judgment of this Court in K.MOHANLAL (case 1 supra) was set aside by the Supreme Court in SUJATA V. MANOHA R^[4] and contended that, therefore, the principle laid down by this Court in K.MOHANLAL (case 1 supra) cannot be taken into consideration to oust the jurisdiction of the Tribunal from dealing with the O.As. of this nature. He further contended that when the applicant acquired a right to promotion on passing the departmental examination, he made a representation to the 1^st respondent and on rejection of his representation he filed the O.A. It is further contended that since Rule 10 of the Service Rules issued in G.O.Ms.No.385 dated 03.08.1995 prescribes that no person shall be eligible for appointment by transfer or promotion unless he has put in not less than three years of service in the category from which appointment by transfer or promotion is to be made, the Tribunal rightly set aside the said promotions. It is further contended that though Rule 22 of the Service Rules provides the Chairman of the Special Court the power to relax the Service Rules, there should be a specific order in that regard by the Chairman relaxing the Rules with respect to the employee who was given such benefit and mere promotion or regularization of the service does not amount to order of relaxation under Rule 22 of the Service Rules. For the said proposition, he placed reliance on M.MAZHARUDDIN ALI AND OTHERS VS. GOVT. OF A.P. AND OTHER S^[5] and UNION OF INDIA VS. DHARAM PAL AND OTHER S^[6] . He fairly conceded that the respondent is not eligible to be promoted unless he acquires the qualification by passing the Civil Judicial Test and for which he appeared on 10.06.1996. Even if the results are declared subsequently he is eligible to be promoted from the date when he appeared for the examination. Since the respondents were all promoted temporarily and his services were regularized on petitioner acquiring the qualification

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and eligibility he can always question their promotion and since the State Subordinate Rules are made applicable to the employees of the Special Court, notification under Section 15 of the Administrative Tribunals Act is not necessary and they will be deemed to be government servants and the Tribunal will have the jurisdiction and can entertain the O.A.

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In view of the rival submissions referred to above, the points that arise for consideration are –

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(1) Whether the Andhra Pradesh Administrative Tribunal will have jurisdiction to entertain the O.As. of this nature?

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(2) Whether the applicant can question the regularization of the respondents 3, 5, 6 and 7 who were promoted much prior to acquiring eligibility by the applicant without questioning their promotion?

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POINT No.1: Section 15(1) of the Administrative Tribunals Act confers jurisdiction on the State Administrative Tribunals in relation to –

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(a) recruitment, and matters concerning recruitment, to any civil service of the State or to any civil post under the State;

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(b) all service matters concerning a person not being a person referred to in clause (c) of this sub-section or a member, person or civilian referred to in clause (b) of subsection (1) of Section 14 appointed to any civil service of the State or any civil post under the State and pertaining to the service of such person in connection with the affairs of the State or of any local or other authority under the control of the

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State Government or of any corporation (or society) owned or controlled by the State Government;

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(c) all service matters pertaining to service in connection with the affairs of the State concerning a person appointed to any service or post referred to in clause (b), being a person whose services have been placed by any such local or other authority or corporation (or society) or other body as is controlled or owned by the State Government, at the disposal of the State Government for such appointment.

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Under Section 15(2) of the Administrative Tribunals Act, the State Government may, by notification, apply with effect from such date as may be specified in the notification the provisions of subsection (3) to local or other authorities and corporations (or societies) controlled or owned by the State Government.

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The learned Government Pleader fairly submitted that no notification as such was issued conferring the jurisdiction on the Administrative Tribunals to deal with the matters concerning the services of the employees of the Special Court. Admittedly, the State Government did not exercise any control over the employees appointed under the above Rules by the Chairman and their entire control vests with the Chairman of the Special Court as per Section 10-A of the Andhra Pradesh Land Grabbing (Prohibition) Act.

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Section 15(1) of the Administrative Tribunals Act confers jurisdiction on the State Administrative Tribunal in relation to recruitment and matters concerning recruitment to 1) any civil service of the State or 2) any civil post under the State. Civil

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service of the State has not been defined anywhere.

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In State of Gujarat v. Raman Lal Keshav Lal^[7] , Justice O. Chinnappa Reddy, speaking for a Constitution Bench, was of the view that it is neither politic nor possible to lay down any definitive test to determine when a person may be said to hold a civil post under the Government. Several factors may indicate the relationship of master and servant. None may be conclusive. It has been further held that,

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“ On the other hand, no single factor may be considered absolutely essential. The presence of all or some of the factors, such as, the right to select for appointment, the right to appoint, the right to terminate the employment, the right to take other disciplinary action, the right to prescribe the conditions of service, the nature of the duties performed by the employees, the right to control the employee’s manner and method of the word, the right to issue directions and the right to determine and the source from which wage or salary are paid and a host of such circumstances, may have to be considered to determine the existence of the relationship of master and servant. In each case, it is a question of fact whether a person is a servant of the State or not.”

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After elaborately dealing with the various provisions of the Gujarat Panchayat Act, which provides appointments to posts in panchayat service by 1) direct recruitment, (ii) by promotion or (iii) by transfer of a member of the State Service to the Panchayat Service which service necessarily implies Panchayat Service, it was held, the provision which enables an appointment to be made to a post in the Panchayat Service by transfer of a member of the State Service necessarily implies that the Panchayat Service is also a service under the State. The very idea that there can be an allocation to the Panchayat Service from a State Service and a reallocation from the Panchayat Service to the State Service is only consistent with the Panchayat Service also being a service under the State. Therefore, this service falls under the

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definition “civil service of the State”. It was further held that if any particular cadre of officers in a local authority created by law, is required to be appointed by or under the authority of Government and are subject to Government control and satisfy other relevant tests, that cadre should be regarded as a branch of civil service of the State.

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Protection of Article 311 is available only to the persons who are members of the civil service or holding civil post. Employees of statutory bodies/Courts created under a Statute do not hold civil posts and are not governed by Part XIV of the Constitution, as already held by the Supreme Court in S.L. Agarwal v. G.M. Hindustan Steel Limite d^[8] .

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In Chief Justice, A.P. v. L.V.A. Dikshitul u^[9] , the Supreme Court considered the jurisdiction of the Administrative Tribunal constituted under Article 371-D of the Constitution of India to entertain the service matter of the employee of the High Court who was prematurely retired and observed as under:

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It is undisputed that compulsory retirement is a condition of service. The question, therefore, narrows down into the issue: Do the posts held by officers and servants of the High Court and members of the subordinate judiciary fall under any of the class or classes of posts mentioned in sub-clause (c) of Clause (3) of Article 371-D and the scope of expression ‘public post’ defined in para 6 thereof. Though the content of the first limb of each of the sub-clauses (a)(b)(c) varies, the rest of the language employed therein is identical. Each of the sub-clauses, in terms, relates to class or classes of (i) posts in any civil service of the State; or (ii) civil posts under the State; or (iii) posts under the control of any local authority within the State. It is manifest that the posts on the establishment of the High Court or held by the members of the judiciary are not “posts under the control of any local authority”. Neither the Chief Justice, nor the High Court can be called a “local

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authority” within the meaning of class (iii). As regard (ii), it is conceded that persons holding posts on the staff of the High Court or in the subordinate judiciary do not hold their posts under the control of the State Government and as such, those class or classes of posts do not fall within the purview of phrase (ii), either. Whether the phrase “posts in the civil services of the State” commonly occurring in sub-clauses (a)(b) and (c) of Article 371-D (3) covers posts held by the High Court staff and persons belonging to the subordinate judiciary: this phrase is couched in general terms which are susceptible of more than one interpretation. The phrase “civil service of the State” remains more or less an amorphous expression as it has not been defined anywhere in the Constitution. Contrasted with it, the expression “judicial service of the State” and “District Judge” have been specifically defined in Article 236, and thus given a distinctive, definite meaning by the Constitution makers. “Construed loosely, in its widest general sense, this elastic phrase can be stretched to include the officers and servants of the High Court as well as members of the subordinate judiciary. Understood in its strict narrow sense, in harmony with the basic constitutional scheme embodied in Chapters V and VI, Part VI and centralized in Articles 229 and 235, thereof, the phrase will not take in High Court staff and the subordinate Judiciary. The inevitable result of such an extensive construction will be that the control vested in the Chief Justice over the staff of the High Court and in the High Court over the subordinate judiciary will become shorn of its substance, efficacy and exclusiveness; and after being processed through the conduit of the Administrative Tribunal, will pass on into the hands of the Executive Government, which, under Article 371-D(5), is the supreme authority, having full power to confirm, not to confirm, modify or annul the orders of the Tribunal. Such a construction will lead to internecine conflict and contradiction, rob Articles 229

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and 235 of their content, make a mockery of the Directive Principle in Article 50 and the fundamental concept of the independence of the judiciary.

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It is not disputed that prior to the Constitution of the Land Grabbing Court under the Land Grabbing (Prohibition) Act, 1982, all such jurisdiction which now the Land Grabbing Court is vested was with the subordinate judiciary which was under the control of the High Court. To have a speedier remedy, to prohibit the land grabbing in the State of Andhra Pradesh and to obtain a decision immediately into the decision of such land grabbing, as the civil Courts are burdened with so many cases, the Land Grabbing (Prohibition) Act, 1982 was enacted.

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The Government has framed Rules in G.O.Ms.No. 385, dated 03.08.1995, known as Special Court Service Rules. Under Section 10-A of the Land Grabbing (Prohibition )Act, the Chairman of the Special Court may appoint officers and other employees required to assist the Special Court in the discharge of its functions under this Act. Under Rule 4 of G.O., the appointing authority for all categories (both Gazetted and Non-Gazetted) shall be the Chairman of the Special Court or any subordinate to the Chairman duly authorized in this behalf of the Chairman. Rule 7 of the Special Court Service Rules prescribes that every person appointed to the post of Assistant Accouters Officer shall for the due and faithful performance of the duties attached thereto, furnish security within three months from the date of appointment to the satisfaction of the Chairman, Special Court. Under Rule 11, the appointing authority may, in his discretion, by order, terminate the probation of a probationer and discharge him from service after giving him a reasonable opportunity of showing cause against the action proposed to be taken in regard to him and also extend the probation. Under Rule 16, temporary appointments and promotions to the posts in the several categories in the service

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shall be made in accordance with the principles laid down respectively in Rules 10 and 37 of the Andhra Pradesh State and Subordinate Service Rules. Rule 17 deals with the punishment to various categories and Rule 19 provides appeal against the order imposing penalty. In case of gazetted officers, the Chairman and insofar as non-gazetted officers are concerned, the Chairman for minor penalties and Registrar for major penalties can inflict the punishment, whereas for the other categories, Assistant Registrar is the disciplinary authority.

¶73

From the above scheme of the Rules, it is evident that at no point of time, the Government intervened either in appointments or in taking disciplinary action. Government has no control over the staff either at the time of appointment or at the time of declaring the probation or taking disciplinary action on the employees. Further, there is no interchangeability of the employees appointed between the departments of Government and the staff of the Land Grabbing Court by way of promotion or transfer from the Government Department to the Land Grabbing Court or from the Land Grabbing Court to the Government Department. In view of the same, the civil services under the State require narrow consideration as constructed by the Supreme Court in Deekshitulu’s case (referred to supra). For the conclusion reached by us, the Tribunal will not have any jurisdiction to entertain O.A. in relation to the service matters of the employees of the said Court, unless a notification as contemplated under sub-section (2) of Section 15 has been issued by the State Government, conferring the jurisdiction on the A.P. Administrative Tribunal. It is impossible to conceive that the Tribunal will acquire jurisdiction on the premise that there is no provision for exclusion of the jurisdiction of the Tribunal relating to the adjudication of the service disputes of the Special Court in the

¶74

Special Court Service Rules. We accordingly hold that the Tribunal will not have any jurisdiction to entertain O.A. filed by the applicant for setting aside the promotion of Respondents 3,5,6 and 7.

¶75

POINT NO.2: Whether the applicant can question the regularization of respondents 3, 5, 6 and 7 who were promoted much prior to acquiring eligibility by the applicant without questioning their promotion?

¶76

Section 20 of the Administrative Tribunals Act envisages that the Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed all the remedies available to him under the Rules for redressal of the grievance and a final order has been made by the Government or other authority or officer other person competent to pass such order rejecting any appeal preferred or reduction made the applicant in connection with the grievances.

¶77

Admittedly, in the present case, the applicant made a representation on 03.09.1996 to take up his case for promotion as Assistant Section Officer with effect from the date on which he sat for the civil judicial test Part I admitting that he was not fully qualified at the time when Respondents 3,5, 6 and 7 were promoted, but he has not made any grievance against the promotion of Respondents 3,5,6 and 7 promoting them as Assistant Section Officer/Scrutiny Officer as such. When the respondents were promoted as Assistant Section Officers, the applicant is not eligible as he has not qualified for the said post nor he challenged their promotion at the relevant point of time, but only when their services were regularized in the promotion post, he made a representation seeking promotion on par with Respondent No.4.

¶78

The Supreme Court in The Direct Recruit Class-II Engineering Officers’ Association v. State of Maharashtr a^[10] ,

¶79

held that once an incumbent is appointed to a post, according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule 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 considering the seniority. It has been further held that where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule.

¶80

In the present case on hand, it is not in dispute that the Chairman will have power under Rule 22 to relax the Rules in case of any member of the service or any person to be appointed to the service in such a manner as may appear to him to be just or equitable. Since the petitioners were promoted as Assistant Section Officers, taking into account the exigencies of the service, it is deemed that the condition of three years of service from which the appointment by transfer or promotion is to be made, has been relaxed by the Chairman. Further, the applicant, who is not qualified as on the date of petitioners’ promotion, cannot question the promotion at the time of regularization.

¶81

In I. Subba Rao v. State of Andhra Pradesh, rep. by its Secretary, Industries Department^[11] , a learned Single Judge of this Court held that the promotion of juniors by transfer to higher category when seniors are not qualified to get promotion cannot be questioned on seniors getting themselves qualified and promoted and they cannot claim seniority over the promotees, who are stating that they are juniors to him. Further the petitioner in Writ Petition No. 3381 of 2004 who was appointed earlier as a Record Keeper which is equivalent to Assistant and put in three years of service, his promotion cannot be set aside. In view of the same,

¶82

the conclusions reached by us that the Tribunal committed error in setting aside the promotion is without jurisdiction and the same is liable to be set aside.

¶83

The writ petitions are accordingly allowed. The impugned order, dated 06.02.2004 passed by the Tribunal in O.A.No. 926 of 1997 and 1854 of 1998 is set aside. No costs.

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(A. GOPAL REDDY,J)

(NOUSHAD ALI,J)

28.01.2010

cvrk/ksld

[1] 1997 (4) ALD 395 (D.B.) [2] AIR 1990 SUPREME COURT 1607. [3] (2003) 8 Supreme Court Cases 1 [4] (1998) 5 SUPREME COURT CASES 468 [5] (2000) 10 SUPREME COURT CASES 383 [6] (2009) 4 SUPREME COURT CASES 170 [7] AIR 1984 Supreme Court 161 [8] 1970 SLR 351 [9] AIR 1979 Supreme Court 193 [10] AIR 1990 Supreme Court 1607 [11] 1972 Andhra Weekly Reporter 370

Pcy Ratnam, S/o. P. Yesupadam, v. K.V. Narasimha Murthy, S/o. K.S.Siva Rao

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Pcy Ratnam, S/o. P. Yesupadam, v. K.V. Narasimha Murthy, S/o. K.S.Siva Rao

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