High Court quashed the Administrative Tribunal order fixing seniority for a Police Constable appointed from a waiting list, ruling that seniority must be determined by date of appointment under Rule 33(a), not by the unseen waiting list.
Impugned Order dated 15.05.2003 in O.A. No.8375 of 2002 passed by the Tribunal is set aside.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
THE HON’BLE SRI JUSTICE K.C. BHANU AND THE HON’BLE MRS JUSTICE ANIS
WRIT PETITION No.4135 OF 2004
ORDER:(per Hon’ble Sri Justice K.C.Bhanu)
This Writ Petition, under Article 226 of the Constitution of India, is filed to call for the records relating to the Order, dated 15.05.2003, in Original Application No.8375 of 2002 passed by the Andhra Pradesh Administrative Tribunal, Hyderabad (for short, ‘the Tribunal’), and quash the same.
2. Parties hereinafter are referred to as they are arrayed before the Tribunal.
3. Brief facts that are necessary for the disposal of the present writ petition may be stated as follows:
The applicant was selected by the 3rd respondent for being appointed as Police Constable and his name was kept in the standing/waiting list as per the procedure prescribed under the provisions of the Andhra Pradesh Police Manual Order No.85(1). Thereupon, Sate Level Recruitment Board was constituted and that Board cancelled the standing list of Police Constables. Aggrieved by the said action of cancelling the standing list, some of the candidates filed writ petitions and revision petitions before this Court and the erstwhile Tribunal. Thereafter, Government issued a memo permitting to fill up the vacancies of Police Constables from among the waiting list candidates. The applicant along with some others filed R.P.No.4296 of 1988 before the erstwhile Tribunal and the Tribunal directed the respondents therein to send the petitioners therein for training. Accordingly, the
applicant was appointed as Police Constable on 22.07.1989 and he was shown at Sl.No.674 in the seniority list of the year, 2001. Challenging the said seniority list, he filed the aforementioned Original Application. He also filed a representation in the year, 2002, to fix his seniority as per the waiting list of the year, 1984 and the same was pending.
4. The Tribunal, upon considering the material on record, allowed the Original Application. Challenging the same, the present writ petition is filed.
5. Learned Government Pleader for Services I contended that seniority was fixed with reference to Rule 33 (a) of the Andhra Pradesh State & Subordinate Services Rules, 1996 (for short, ‘the Rules’); that the applicant was kept in the waiting list, but not in the selected list; that the appointing authority issued the seniority list for the years 1996, 1997, 1999, 2000, 2001 and the same were communicated to all the parties; that applicant did not make any representation challenging the seniority lists except in the year, 2002 and therefore, the claim of the applicant is liable to be dismissed.
6. On the other hand, learned counsel for the respondent/applicant contended that as the name of the applicant was found in the merit list, his seniority has to be counted with reference to Rule 33 (b) of the Rules; that as the earlier seniority lists have not been communicated, the applicant did not make any representation and when the seniority list of the year, 2001 was communicated, he made a representation, therefore, he is entitled to be considered for seniority for the recruitment year, 1984; that the writ of certiorari cannot be issued as there is no grave error of
law or fact so as to call for interference by this Court and prayed to dismiss the writ petition.
7. Even according to the case of the applicant, he was not in the merit list. All the candidates found in merit list have been appointed and his name was kept in the standing list of selected candidates, which does not confer any right. Depending upon the vacancies arose after available vacancies are filled in, the candidates from the standing list/waiting list can be appointed. Admittedly, no vacancies arose after available vacancies are filled in. Therefore, the contention of the learned counsel for the respondent/applicant that Rule 33(b) of the Rules would apply cannot be accepted as it is not a merit list. List of selected candidates was prepared by the appointing authority.
8. Rule 33(b) of the Rules reads as follows:
“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.”
From the above Rule, it is clear that when two or more persons appointed simultaneously, the merit in the selection process shall
be taken into consideration for the purpose of determining the inter-se seniority.
9. Rule 33 (a) of the Rules reads as follows:
“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 1st November, 1956 or prior to that date, shall be determined in the statewide gazetted posts and non-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 the inter-seniority which obtained in the Andhra State. (This proviso shall be in force till 31st October, 1996).
From the above Rule, it is clear that unless a person has been reduced to a lower rank as a punishment, his seniority shall be determined by the date of his first appointment to such service. This Rule clearly applies to the case of the petitioner. Therefore, his seniority has to be counted from the date of his initial appointment. He cannot contend that because his name was mentioned in the waiting list, he is entitled to be appointed and the seniority has to be counted from the date of putting his name in the waiting list. Relevant Rule has been completely overlooked by the Tribunal and the irrelevant considerations have been taken into consideration as if the petitioner/applicant’s name was shown in the merit list. It is factually incorrect because a specific stand has
been taken by the 3rd respondent (Petitioner No.3 herein) in the counter that the seniority lists of the years, 1996, 1997, 1999, 2000 and 2001 have been communicated to all the persons calling for objections if any with regard to fixation of seniority and they were also asked to submit a representation within a month, but the applicant did not submit any representation. This fact has not been denied or disputed by the applicant. Therefore, the finding of the Tribunal that the earlier seniority lists were not communicated to the applicant is incorrect and without any basis. After lapse of 13 years, the applicant approached the Tribunal without there being any justifiable reason or cause or explanation. Having accepted the earlier seniority lists, he cannot turn round and say that his seniority has to be fixed as per the waiting list prepared in the year, 2002. Therefore, the impugned order is illegal and is liable to be set aside.
10. Learned counsel for the respondent relied upon an unreported decision in Civil Appeal No.6308 of 1994, dated 12.09.1994 (Chairman, Puri Gramya Bank & Another Vs. Ananda Chandra Das & Others). The said decision has no application to the present facts of the case because that is a case where the seniority was fixed following the merit list among the selected candidates, if they join in different dates. He also relied upon another decision reported in Pilla Sitaram Patrudu and others
Vs. Union of Indi a[1] , wherein it is held thus-
“The inter se seniority as Asstt. Executive Engineer is required to be determined; he joined service in 1981 and, therefore, he did not have the requisite service. We find no force in the contention. Since he was selected by direct recruitment, he is entitled to be appointed according to rule. His appointment was delayed for no fault of him and he came to be appointed
in 1981, he is, therefore, entitled to the ranking given in the select list and appointment made accordingly. Under those circumstances, we do not find any illegality in the order.”
The above decision has no application to the facts of this case. That is a case where, the name of applicant therein was found in merit list. In the present case, name of the applicant was not found in merit list. His name was included in the waiting/standing list. But, in this case, admittedly the name of the petitioner was not found in the merit list.
11. Accordingly, the Writ Petition is allowed setting aside the impugned Order, dated 15.05.2003 in Original Application No.8375 of 2002 passed by the Tribunal. There shall be no order as to costs. Miscellaneous Petitions, if any, pending in this writ petition shall stand closed.
_______________________ JUSTICE K.C. BHANU
___________ JUSTICE ANIS
Date:10.09.2014 INL
[1] 1996 SLR 892
3 issues framed by the court
Whether the Tribunal correctly applied the seniority rules when the applicant was appointed from the waiting list rather than the merit list.
Whether the earlier seniority lists had been properly communicated to the applicant to warrant a representation.
Whether the Tribunal erred in relying on seniority rules applicable to merit list candidates for a waiting list appointee.
Colour shows how this judgement treated each authority
Chairman, Puri Gramya Bank & Another Vs. Ananda Chandra Das & Others, Civil Appeal No.6308 of 1994, dated 12.09.1994 (unreported)Distinguished¶24
Pilla Sitaram Patrudu and others Vs. Union of IndiaDistinguished¶25
Pilla Sitaram Patrudu and others Vs. Union of India, 1996 SLR 892
2 provisions across 2 enactments
Applicant
Respondents
K.C. Bhanu
Anis
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
