http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

CASE NO.: Appeal (civil)  1617-1618 of 2008

PETITIONER: THE GOVERNMENT OF ANDHRA PRADESH\005APPELLANT

RESPONDENT: P. BHASKAR & ORS

DATE OF JUDGMENT: 27/02/2008

BENCH: CJI K.G. BALAKRISHNAN & D.K. JAIN

JUDGMENT: J  U  D  G  M  E  N  T

CIVIL APPEAL NOS.   1617-1618 OF 2008 (ARISING OUT OF SLP (C) NOS. 24667-24668 OF 2005) W  I  T  H CIVIL APPEAL NOS.    1619-1620 OF 2008 (ARISING OUT OF S.L.P. (C) NOS. 25382-25383 OF 2005) CIVIL APPEAL NOS.    1621-1622 OF 2008 (ARISING OUT OF S.L.P. (C) NOS. 26434-26435 OF 2005) CIVIL APPEAL NOS.    1623-1624 OF 2008 (ARISING OUT OF S.L.P. (C) NOS. 26436-26437 OF 2005)

K.G. BALAKRISHNAN, CJI.   :

1.      Leave granted.

2.      The Appeals arising out Special Leave Petition (C) Nos.  24667-24668 of 2005 are filed by the Government of  Andhra Pradesh and the other Appeals are filed by the  officers who were aggrieved by the decision of the Andhra  Pradesh High Court in Writ Petitions Nos. 10604/2004 and  10965/2005. The writ petitioners in W.P. No. 10604/2004  filed OA No. 6246 of 1998 before the Andhra Pradesh  Administrative Tribunal, Hyderabad (for short  "the  Tribunal")  contending that they should be declared as  seniors to the Deputy Collectors who were appointed on  9.12.1993, though they were appointed as Deputy  Collectors on 9.12.1994.

3.      The facts, in short, are as follows.

       The appointment to the post of Deputy Collectors is  governed by the Andhra Pradesh Civil Service (Executive  Branch) Rules, 1992,  framed under proviso to Article 309 of  the Constitution of India.  As per these Rules, 1/3rd of  substantive vacancies in the category of Deputy Collectors  have to be filled up by direct recruitment and 2/3rd of the  vacancies by promotion from the feeder cadre of Tehsildars.      Rule 22 of the Andhra Pradesh State and Subordinate  Service Rules (hereinafter referred to as "the Rules")  provides for reservation in favour of the Scheduled Castes,  the Scheduled Tribes and other categories.  Rule 22 (ii) (e) of  the Rules enables the Government that if in any recruitment

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

qualified candidates belonging to the Scheduled Castes or  the Scheduled Tribes are not available, limited recruitment  confined to such candidates could be resorted to.  As 2/3rd  of the vacancies of Deputy Collectors have to be filled up by  promotions, there was dearth of candidates in the category  of the Scheduled Tribes for being promoted to the post of  Deputy Collectors.  In 1991 the posts of Deputy Collector to  be filled up by promotion from the Scheduled Tribes  candidates accumulated to 12 and then on 15.11.1990, the  Head of Department sent a proposal to government to  consider filling up of 12 Scheduled Tribe candidates by  direct recruitment to fill up the 12 carry forward vacancies.   The Government accepted the proposal and issued GO Ms.  No. 264 dated 01.04.1991 and set apart 12 posts of Deputy  Collectors to be filled up by the Scheduled Tribes candidates  by "limited recruitment". Steps were taken to recruit the  eligible candidates through the Andhra Pradesh Public  Service Commission (for short "the Commission").

4.      Meanwhile, as part of the general recruitment, the  Commission had issued advertisement on 1.8.1990 inviting  applications with a view to undertake recruitment to  different categories of posts in Group 1 and 2(a) of the  Andhra Pradesh State Service, including the category of  Deputy Collector.  This selection consisted of both ’general  recruitment’ and ’limited recruitment’. The process of  selection consisted of preliminary examination and final  examination. A preliminary examination was held on  27.1.1991, but on 5.2.1991 the Government of Andhra  Pradesh revised the maximum age limit of the candidates.  In view of this relaxation of age granted to the candidates,  fresh applications were called for and for additional  applicants a preliminary examination was held on  14.4.1991. The Commission prescribed ’88’ marks as cut-off  marks and the main examination was held on 9.11.1991.   Some Original Applications were filed before the State  Administrative Tribunal challenging the selection process.  The Tribunal gave certain directions.  These OAs were  disposed of by the Tribunal on 4.6.1992 with the following  directions :-

a)      "The selection for general recruitment  pursuant to the advertisement No. 8/90 as  well as the supplemental advertisement shall  be confined to the vacancies meant for direct  recruitment for the various services which  were available on 01.05.1990 as contemplated  by G.O. Ms.No. 103 GAD dt. 03.02.67.   For  this purpose the State Government should  immediately arrive at the correct figure of  vacancies for each service (together with  reservations under Rule 22 of the General  Rules) and communicate the same to the  Commission.  The General Administration  Department under the Chief Secretary, will               co-ordinate and monitor the correct number of  vacancies meant for such direct recruitment.   For the selection for  these vacancies the result  of the main examination already held together  with the oral test or interview shall be basis.   The Commission has to take steps to call for  interview such number of candidates as are  required in terms of the advertisement,  keeping in view the vacancies and the ranking  of the candidate in the main examination.  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

This process should be completed  expeditiously preferably within a period of four  months.

b)      A separate main examination to be held  for selection of the candidates for the  vacancies to be filled by limited recruitment.   The number of vacancies available at the  relevant time including GOs of 1991 referred to  earlier together with the ranking of the SC and  ST candidates in the preliminary examination  may be used for calling them for the main  examination and for selection. The  Commission to fix a separate cut off mark on  the basis of the relevant criteria, namely,  number of vacancies, number of candidates  available and the requirements of the  notification.  This should also be done  expeditiously preferably within a period of six  months.

c)      The candidates belonging to SC and ST  who have come up in the general recruitment  in accordance with their quota in a selection  as per direction (a) need not be disturbed and  the remaining candidates belonging to SC and  STs to be considered for limited recruitment as  per direction (b).

d)      The State Government will forthwith take  steps for identifying the vacancies for general  direct recruitment for Group-I service arising  subsequent to the relevant date in 1990 as  contemplated by G.O.Ms.No. 103.  On the  vacancies being notified, the Commission will  proceed to issue the advertisement indicating  the year of which selection relates and the  approximate number of vacancies.  The  vacancies which are to be included in the  selection pursuant to this direction shall be  deleted from the selection to be held as per  direction (a).

e)      Any candidate who has secured less than  the cut off mark (i.e. 88) in the preliminary  examination but has appeared pursuant to  any interlocutory order of the Tribunal or  otherwise, will not be considered as eligible for  the main examination.

f)      To dispel grievances regarding valuation  in the second preliminary examination, it is  appropriate that the Commission publishes on  its notice-board and makes available for  inspection by any candidate, list of marks  obtained by candidates who are called for oral  test on the basis of the result in the main  examination as per direction (a).

g)      The Government and the Commission  take steps for regular direct recruitment as  contemplated by the statutory provisions  referred to earlier and G.O.Ms.No. 103."

5.      Main examination for Group I of general recruitment

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

was conducted on 9.11.1991 and after the directions given  by the Tribunal, a separate main examination was  conducted for the 12 ST posts drawing the candidates from  the two preliminary examinations.  Deputy Collector from  General recruitment I were appointed w.e.f. 9.12.1993.

6.      As regards limited recruitment undertaken earlier,  written test was held in May 1993 and selected candidates  were appointed on 9.12.1994. The appellants who were  appointed on 9.12.1994 filed O.A. No. 6246/1998 before the  Tribunal claiming that they were entitled to be placed above  the candidates selected and appointed as Deputy Collectors  on 9.12.1993.  The Tribunal rejected their claim of seniority  and held that they were not entitled to be placed above the  Deputy Collectors who were appointed on 9.12.1993.

7.      The Deputy Collectors who were appointed on  9.12.1994 challenged this decision by filing W.P. Nos.  10604/2004 and 10965/2005 claiming the very same relief.   The writ petitions were considered by a Division Bench of the  High Court and the Division Bench could not agree on the  question of seniority being assigned to the writ petitioner  therein and the matter was placed before another learned  Judge who agreed with one of the Judges of the Division  Bench.  The majority judgment of the High Court is to the  effect that 12 Deputy Collectors who were selected by limited  recruitment and appointed as such on 9.12.1994 were  entitled to get seniority over the officers who were appointed  as Deputy Collectors by general recruitment on 9.12.1993.    The majority judgment of the High Court of Andhra Pradesh  is challenged on various grounds.

8.      It is submitted by the Counsel appearing for the State  that the seniority of the officers who are directly recruited to  the service is determined as per Rule 33 of the Rules.  The  relevant portion of Rule 33 is as follows:          "Rule 33. Seniority:

(a) 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.  If  any portion of the service of such person does  not count towards probation under Rule 10 (a),  (iv), 10(c), 16, 37(d), or 42(d) his seniority shall  be determined by the date of commencement  of his service which counts towards probation.

This sub-rule shall be deemed to have  been in force on and from the 1st October,  1933 in the case of State Services and on and  from the 1st October, 1934 in the case of  subordinate services; but shall not affect the  seniority of any member of a service, which  may have been fixed expressly or by  implication before the 19th November, 1941 or  any orders as to seniority which may have  been passed by competent authority before the  19th November, 1941:

Provided that the seniority of a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

probationer or approved probationer in a  service, class, category or grade from which he  stood reverted on the 1st November, 1956 or  prior to that date, shall be determined in the  state-wide gazetted posts and the 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 arrived at by adding the  total length of officiation with or without  breaks in that service, class, category or grade  pror to the 1st November, 1956 to the date of  re-appointment made thereafter in accordance  with the provisions of sub-rule (c ) of Rule 8;  but it shall not disturb the inter-se-seniority  which obtained in the Andhra State.

                               (emphasis supplied)

(b)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 that for the purpose of  promotion to the next higher category of  gazetted posts, the inter-se-seniority of  persons recruited direct to the subordinate  services during the period commencing on the  1st November, 1956 and ending with 31st  December, 1973, separately in Andhra and  Telangana regions, shall be determined by the  ranking assigned by the Andhra Pradesh  Public Service Commission in the common  ranking list or by the competent authority as  the case may be, after following the rule of  reservation.

(c )            \005.. (d)             \005. (e)             \005. (f)             \005."

9.      Based on the above rule, it was contended that the  Deputy Collectors by limited recruitment were appointed  only on 9-12-1994 whereas Deputy Collectors who are  recruited by general selection were appointed to the service  on 9-12-1993.  Therefore, in any case, the officers who are  subsequently appointed cannot claim seniority over the  officers who have already been appointed previously.

10.     The Counsel for the respondents drew our attention to  Rule 22 (ii) (e]. of the Rules which says that the limited  recruitment confined to candidates belonging to Scheduled  Castes or, as the case may be, Scheduled Tribes shall be  made immediately after the general recruitment to select  and appoint qualified candidates when the reserved  candidates are not available in the general recruitment.   Rule 22 (ii) (e) reads as follows:

"If in any recruitment qualified

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

candidates belonging to the Scheduled Castes  or as the case may be the Scheduled Tribes are  not available for appointment to any or all the  vacancies reserved for the Scheduled Castes  or, as the cases may be, Scheduled Tribes, a  limited recruitment confined to candidates  belonging to the Scheduled Castes and/or as  the case may be Scheduled Tribes, shall be  made immediately after the general  recruitment to select and appoint qualified  candidates from among persons belonging to  these communities to fill such reserved  vacancies."

11.     It was pointed out that in the earlier recruitment,  sufficient Scheduled Tribe candidates were not available  and, therefore, the Government issued direction to fill up  the vacancies of Scheduled Tribe candidates and such  recruitment should have been made first and then the  general recruitment should have been made by the  Commission.

12.     In order to decide the above controversy raised by the  appellants and the respondents, it is to be noticed that, in  this case, the Commission issued an advertisement no.  8/90 for selection to the post of Deputy Collectors and  various other categories.  This advertisement was for  selecting the candidates for general recruitment as well as  for limited recruitment. The Commission conducted a  Combined Preliminary Examination on 27.1.1991. A cut off  mark of ’88’ was fixed for selecting candidates to appear for  the main examination.  The result of the Preliminary  examination was announced on 25.7.1991.  The main  examination was scheduled to be held on 9.11.1991.   Original applications were filed before the Administrative  Tribunal challenging the cut off mark that was fixed at ’88’.   The Tribunal held that the cut off mark of ’88’ was illegal. It  was directed that there should be a separate main  examination for the limited recruitment candidates and this  separate main examination was conducted only in May  1993.  By that time, the general recruitment candidates  were already selected and they were appointed on 9-12- 1993.  It may also be important to note that when  advertisement no. 8/90 was issued by the A.P. Public  Service Commission, the number of candidates to be  recruited by limited recruitment was not fixed and the  number of posts were identified only by the Government  Order dated 1.4.1991.  It is also to be noted that these 12  posts ought to have been filled up by promotion of ST  candidates.  As sufficient candidates were not available in  the feeder category to fill up the post of Deputy Collectors,  they were sought to be recruited by limited recruitment.  It  may also be noticed that a series of original petitions were  filed before the Administrative Tribunal and they had given  several directions as to how selection is to be conducted.   That is evident from the Order passed by the Tribunal on  4.6.1992.  This ultimately caused delay in the appointment  of Deputy Collectors who were recruited by limited  recruitment and they could join only on 9.12.1994.  There  may be delay on the part of the Commission in conducting  the selection of the limited recruitment.  Though they  initially intended to have the combined recruitment of  general as well as limited candidates, this did not happen  due to various reasons.         

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

13.     Once the appointment had already taken place, under  normal circumstances, the seniority is to be fixed on the  basis of Rule 33(a) of the Rules.  The Deputy Collectors who  were recruited by general recruitment were appointed one  year prior to the appointment of the contesting respondents  herein.  They claimed seniority over the candidates who  were appointed one year prior to their appointment and filed  the OA before the Tribunal only in the year 1998, about 4  years after their joining the service.  Moreover, the fact that  all the officers who were given posting on 9.12.1993 as  Deputy Collectors were not impleaded in the Original  Application.  It was argued that the question of seniority  was agitated before the Tribunal and the Government was a  party and there was no finalization of the seniority till the  date of the filing of OA.  However, it is difficult to believe  that they were not aware that they were treated as juniors  to the officers who were already appointed and that the  seniority list was not maintained till that date.   

14.     The contention of the Counsel for the respondents that  Rule 22(ii)(e)  has application in a situation where general  recruitment is held and when sufficient number of reserved  category candidates were not available and then  Government orders for a limited recruitment, such limited  recruitment confining to reserved candidates shall be made  immediately after the general recruitment.  

15.     In the instant case, 12 vacancies of Deputy Collectors  were decided to be filled up by limited recruitment and the  posts were identified on 1.4.1991.  All the 12 posts were  ordered to be filled up by limited recruitment as there were  no sufficient candidates to fill up by promotion.  Rule  22(ii)(e) is applicable only when there is general recruitment  and when there were no reserved candidates, these posts  were to be filled up by a limited recruitment.  Such a limited  recruitment should be held immediately after the general  recruitment is made.  The rule 22(ii)(e) is intended to protect  the interests of the reserved candidates and if again a  general recruitment is made, there will be non-availability of  reserved candidates and even if they are recruited  subsequently, they would be much junior to the general  candidates and they would be ranked as very junior to all  the general candidates who had been appointed earlier.  But  as these 12 vacancies came to be converted from the  promotion vacancies, they had a different channel of limited  recruitment as the candidates were not available for  promotion.  But unfortunately such recruitment could not  be done by the Public Service Commission in time, thereby  their appointment could be made much after the general  recruitment.  As the facts disclose, there was only one  general recruitment and that was followed by the limited  recruitment of these 12 posts.

16.     The two learned Judges of the High Court were of the  view that Rule 22(ii)(e)  is to be applied and the candidates  recruited by limited recruitment have been appointed early  and as there was delay in their appointment for no fault of  theirs, they were entitled to get seniority over the candidates  who were already appointed on 9.12.1993.  This cannot be  justified in the facts and circumstances of the case.  It may  be due to the delay caused by the Public Service  Commission that there could not be timely appointment of  the candidates who were recruited by limited recruitment.   Various orders passed by the Tribunal also stood in the way  of having recruitment as scheduled by the Commission.  All

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

those orders had become final and they are binding on the  authorities.

17.     As the contesting respondents were appointed as  Deputy Collectors vide G.O.M. Order No. 1251 dated  9.12.1994 they are not entitled to be placed above the  Deputy Collectors who were appointed vide G.O.M. Order  No. 1265 dated 9.12.1993.  The Appeals arising out of       SLP (C) Nos. 24667-24668 of 2005 filed by the Government  of Andhra Pradesh are allowed.

18.     The Appeals arising out of SLP (C) No. 25382-25383 of  2005; SLP (C) No. 26434-26435 of 2005 and SLP (C) No.  26436-26437 of 2005 are accordingly disposed of in the  light of the Judgment in the appeal filed by the State.