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PETITIONER: K. SIVA REDDY & ORS. ETC.

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH & ORS.

DATE OF JUDGMENT24/02/1988

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH OZA, G.L. (J)

CITATION:  1988 AIR  860            1988 SCR  (3)  18  1988 SCC  Supl.  225     JT 1988 (1)   415  1988 SCALE  (1)387  CITATOR INFO :  F          1988 SC 862  (2)

ACT:      Andhra  Pradesh   (Roads  and   Buildings)  Engineering Service Rules, 1967-Rule 3-Appoinment of Assistant Engineers by direct  recruitment, promotion and transfer-Retrospective regularisation of  temporary service  of promotees-Inter  se seniority on the basis of regularisation-Validity of.

HEADNOTE: %      The  writ   petitioners  herein   challenge  the  order regularising the temporary service of promotees in the years 1972-73, 1973-74  and 1974-75  to  the  cadre  of  Assistant Engineers (Deputy  Executive Engineers).  They contend  that the retrospective  regularisation made by the Chief Engineer is  without   authority  and   in  gross  violation  of  the prescription of the Rules.      Two sets  of rules  are operating  side by  side in the State of  Andhra  Pradesh,  the  Andhra  Pradesh  State  and Subordinate Service  Rules, 1962,  the other, Andhra Pradesh (Roads  and   Buildings)  Engineering  Service  Rules,  1967 promulgated with retrospective effect from April l, 1965.      Rule 3(1) of the latter rules provide for the method of recruitment of  Assistant Engineers by direct recruitment or by promotion  or by  transfer from Supervisor or Draughtsman Special Grade  or Draughts-man Special Grade I of the Andhra Pradesh (R&B) Engineering Subordinate Service.      Sub-rule (3)(a)  of Rule  3 thereof  prescribes that of the substantive  vacancies of  Assistant Engineers,  37 1/2% shall be  filled up by direct recruitment, and the remaining 62 1/2%  by transfer  of Supervisors  and Draughtsman and by promotion of  Junior Engineers.  Notwithstanding this, there had been  under-recruitment of Assistant Engineers by direct recruitment and  the recruits  through the  other modes have come into  the cadre  far in excess of the limit provided by the rule and had been regularised.      It has  been contended that though five year qualifying service was 19 necessary  in   the  lower   service  for   entitlement   to

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consideration  for  promotion  as  Assistant  Engineer,  the period had  been reduced  to three  years to  enable  larger recruitment from  the alternate  sources to the prejudice of direct recruits.      Disposing of the writ petitions, this Court, ^      HELD: 1. There is no justification at all for the State Government not  to work out the provision viz. filling up by direct recruitment  371/2% of the substantive vacancies. The direct recruits  have been  agitating from  1982 over  their rights arising  out of this rule and the Tribunal has called upon the State to work out the said Rule properly. Reopening the question of inter-se seniority on the basis of the rules from the  beginning may  create hardship, but the benefit of the scheme  under the  Rules should  be  made  available  to direct recruits at least from 1982. [22D-F]      1.2 The  State  Government  must  ascertain  the  exact substantive vacancies in the category of Assistant Engineers in service.  On the basis that 371/2% of such vacancies were to be  filled up  by direct recruitment, the position should be worked  out. Promotees  should be  confined to 62 1/2% of the substantive  vacancies and  in regard  to 37 1/2% of the vacancies the  shortfall  should  be  filled  up  by  direct recruitment. Even  if promotees  are placed  in those  posts reserved for direct recruits, no seniority shall be counted. [22F-H]      1.3 Regularisation  made in respect of the promotees of the years  1972 to  1975 should  not  be  disturbed  as  the regularisation   has   been   subsequent   to   the   actual commencement of  continuous service in the post of Assistant Engineer. [23C]      [The State  Government has  been directed  to ascertain the number  of vacancies  upto 31.12.87  to be  filled up by direct  recruitment   and  to  take  steps  to  make  direct recruitment to  fill such posts, within four months and also to draw  the seniority  list by the end of September, 1988.] [22H; 23A-B]

JUDGMENT:      ORIGINAL JURISDICTION:  Writ Petition  Nos. 17165-86 of 1984 & 1240 1/85      (Under Article 32 of the Constitution of India)      K. Rajendra Choudhary and K. Shivraj Choudhary for the 20 Petitioners in W.P. No. 17165-86 of 1984.      M.K. Ramamurthy,  Subodh  Markandeya  and  Mrs.  Chitra Markandeya for the Petitioners in W.P. No. 12401 of 1985.      K.G. Bhagat,  T.V.S.N. Chari,  Y. Prabhakar Rao and Ms. Vrinda Grover for the Respondents.      The Judgment of the Court was delivered by      RANGANATH MISRA,  J. The  group of writ petitions under Article 32 of the Constitution is at the instance of several directly recruited  Assistant Engineers  now  designated  as Deputy Executive Engineers in the Engineering Service of the Roads and  Buildings division  of Andhra Pradesh Government. Writ Petition No. 12401 of 1985 is by 13 Assistant Engineers of the  same service  who were  also directly recruited. The challenge in  the batch  of writ  petitions is  mainly to an order of  the Chief  Engineer, respondent  No. 2 therein, by asking for  quashing of his order dated 8th of June, 1984 by which he  regularised temporary  service of promotees in the years 1972-73, 1973-74 and 1974-75 to the cadre of Assistant Engineers (Deputy  Executive Engineers).  According  to  the

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petitioners, the  retrospective regularisation  made by  the Chief Engineer  of the  promotees to  the posts of Assistant Engineers is  without authority and is in gross violation of the prescription  of  the  Rules.  They  have  asked  for  a direction to  the State  Government and  its authorities  in Writ Petition  No. 12401  of 1985  to consider  the claim of direct recruits  for promotion  as Executive  Engineers  and consequential reliefs.  In the  batch of  writ petitions  as also in  the other  writ application some promotee engineers have been  impleaded as  representatives  of  promotees  and transferees in the division.      There are  two sets  of rules operating side by side in the State of Andhra Pradesh which are relevant. The first is known as  the Andhra  Pradesh State and Subordinate Services Rules promulgated  with effect  from March 7, 1962 under the proviso to  Article 309.  These have  been  referred  to  as ’General Rules’  and for  convenience we  maintain the  same term in our judgment. On June 27, 1967, another set of rules known as  Andhra Pradesh  (Roads and  Buildings) Engineering Service Rules  with retrospective effect from April l, 1965, were promulgated.  These have  been referred  to as ’Special Rules’ by  the Administrative  Tribunal and  in our judgment those will  also be referred to that way. Under Rule 3(1) of the Special Rules the method of recruitment to the 21 category of  Assistant Engineers  has been  provided and the methods are:                (i) By direct recruitment; or                (ii) By promotion of Junior Engineers; or                (iii)  By   recruitment  by   transfer   from           Supervisor  or   Draughtsman  Special   Grade   or           Draughtsman Special  Grade I of the Andhra Pradesh           (R&B) Engineering Subordinate Service. Sub-rule (3)(a) of Rule 3 prescribes that of the substantive vacancies in  the category  of Assistant  Engineers, 37 1/2% shall  be  filled up by direct recruitment and the remaining 62 1/2  % by  transfer of Supervisors and Draughtsmen and by promotion of  Junior Engineers.  The main  complaint of  the direct  recruits   has  been   that   notwithstanding   this prescription in  the rules, there has been under-recruitment of  Assistant   Engineers  by  direct  recruitment  and  the recruits through  the other  two modes  have come  into  the cadre far  in excess  of the  limit provided by the rule and regularisation  of   such  recruitment   has  been  made  by exercising powers under Rule 23 of the General Rules. In the writ petition  it has  been pleaded  that though  five  year qualifying service  was necessary  in the  lower service for entitlement to  consideration  for  promotion  as  Assistant Engineer, the  period has  been reduced  to three  years  to enable larger  recruitment from the alternate sources to the prejudice of direct recruits. Reference has been made in the writ  petition   to  the  decision  of  the  Andhra  Pradesh Administrative Tribunal  and  it  has  been  contended  that inspite of  such decision  and in  the teeth  of the  rules, Government have  failed to  make direct recruitment and have prejudiced their  claim to  seniority. The  respondents have controverted these allegations.      By  a   separate  judgment  delivered  today,  we  have dismissed Civil  Appeal No.  1995 of  1977 which  was by two direct recruits  to the  post  of  Assistant  Engineer.  The conclusion has  been  on  the  basis  of  the  facts  stated therein.      A reference  to the  Tribunal’s decision  against which the two  connected appeals  have been  filed would show that the matter  was examined by a Full Bench of the Tribunal and

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the Tribunal  did point  out that  the direct  recruits were placed at  a disadvantageous position and the seniority rule should not be allowed to over-ride the recruit- 22 ment rules.  The Tribunal found that the Full Bench decision had not  been annulled  by the State Government or set aside by this  Court and  was, therefore,  binding on the State of Andhra Pradesh.  In the  impugned  decision,  the  Tribunal, therefore, held:                " ...  I would  not like  to issue directions           straightaway to  prepare the seniority list on the           basis of  the decision  rendered in the Full Bench           decision but  while allowing the revision petition           direct the  Government to  prepare  the  seniority           keeping in  mind the  principle laid  down in  the           Full  Bench  decision.  The  petitioners  if  feel           aggrieved  against  the  decision  are  given  the           liberty to approach this Tribunal for redressal of           their grievance". The scheme contained in the sub-rule, as indicated above, is that 37  1/2 % of the substantive vacancies are to be filled up by  direct recruitment.  There is no justification at all for the  State Government  not to work out this provision of the rule. The direct recruits have been agitating over their rights arising  out of  this rule and Government have turned their deaf  ear. At  least from  1982 the  dispute has  been systematically raised  and by  the  impugned  decisions  the Tribunal has called upon the State to work out the said rule properly.      Reopening the  question of  inter se  seniority on  the basis  of   non-enforcement  of  the  rules  from  the  very beginning may create hardship and that would be difficult to mitigate but  we see  no justification as to why the benefit of the  scheme under  the rules should not be made available to direct  recruits at  least  from  1982.  When  the  State Government by  rules duly  framed prescribed  the method  of recruitment and  put the  scheme into  operation it  had the obligation to comply with it. The explanation offered by the State Government  for non-compliance  of the requirements of the rules  does not at all impress us. We, therefore, direct that as  on 31.12.1982,  the State Government must ascertain the exact substantive vacancies in the category of Assistant Engineers in  the service. On the basis that 37 1/2% of such vacancies were  to be  filled up  by direct recruitment, the position should  be worked out. Promotees should be confined to   62 1/2%  o f the substantive vacancies and in regard to 37 1/2%  of the  vacancies the shortfall should be filled up by direct recruitment. General Rules shall not be applied to the posts  within the  limits of  37 1/2% of the substantive vacancies and  even if  promotees are placed in those posts, no seniority  shall be  counted. The  State Government shall take steps  to make  recruitment of  the  shortfall  in  the direct recruitment vacancies within the 23 limit of  37 1/2%  of the  total substantive vacancies up to 31.12.1987 within  four months  from today  by following the normal  method  of  recruitment  for  direct  recruits.  The seniority list  in the cadre of Assistant Engineers shall be redrawn up,  as directed  by the  Tribunal, by  the  end  of September, 1988, keeping the directions referred to above in view. There  shall be  a direction  issued to  the State  of Andhra Pradesh  to  make  recruitment  to  the  category  of Assistant Engineers  by strict  compliance of  Special Rules hence forth.      In view  of what we have stated above and following the

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principle indicated  in the  connected Civil Appeal which we have seperately  disposed of  today, we are of the view that the regularisation  made in  respect of the promotees of the years 1972  to 1975  should not  at this  point of  time  be disturbed particularly  when  the  regularisation  has  been subsequent to  the actual commencement of continuous service in the  post  of  Assistant  Engineer.  We  would,  however, reiterate that  the directions  given in  Writ Petition  No. 12401 of  1985 is  equally applicable  to the petitioners in the group  and the  State Government  is  directed  to  give effect to the judgment with meticulous care.      There would  be no other direction in the batch of writ petitions nor would there be any direction for costs therein but Writ Petition No. 12401 of 1985 is allowed to the extent indicated  above.   Hearing  fees  therein  is  assessed  at Rs.3,000 to be paid by the State of Andhra Pradesh. G.N.                             Petitions disposed of. 24