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PETITIONER: M. NIRMALA & ORS.

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH & ORS.

DATE OF JUDGMENT08/08/1986

BENCH: DUTT, M.M. (J) BENCH: DUTT, M.M. (J) REDDY, O. CHINNAPPA (J)

CITATION:  1986 AIR 2102            1986 SCR  (3) 507  1986 SCC  (3) 647        JT 1986   140  1986 SCALE  (2)214  CITATOR INFO :  D          1992 SC 922  (16)

ACT:      Seniority computation  of-Temporary employees  who were exempted from  appearing at  any qualifying examinations and whose posts  were withdrawn  from the  purview of the Public Service Commission  by G.O.  MS 646  dated 14.9.1979-Whether their seniority should be computed from the respective dates of their appointments after April 1974 and above the Service Commission  candidates-Rule   33(a)  of   the   A.P.   State Subordinate General Services Rules.

HEADNOTE:      The petitioners  in  Writ  Petition  106  of  1980  are working in  Group IV  Services in various departments of the Government of  Andhra Pradesh.  Most of  them were appointed after 1974,  under the  General Rule 10(a)(i)(l) on a purely temporary basis  due to  the existence  of a  ban on  direct recruitment. After  the lifting of the ban partially special qualifying tests  were held  for regularising their services in 1974  and 1976.  As they  did not  put in  two  years  of qualifying service  as on  1.1.73 and  1.1.76  respectively, they could not take the said examinations. In 1976 there was another test  conducted by  the  Public  Service  Commission wherein about 82000 candidates appeared. The petitioners did not appear  in the  said test.  Among the several candidates who  were   appointed  sometimes   hl  1977  and  1978  were Respondents  18  to  108.  The  petitioners  were,  however, granted complete exemption from appearing at any examination by GOMS  646 dated 14.7.1979 and the posts held by them were withdrawn from the purview of the Public Service Commission. Earlier to  the said  Notification Government  issued a memo No. 1806/  Ser-B/78-2 Gad  dated 25.1.79  proposing  to  fix inter-se seniority  between the  Public  Service  Commission candidates who qualified in 1976 and the temporary employees including  the   petitioners  who  did  not  appear  at  the qualifying test.  Being aggrieved,  the  Service  Commission candidates including  respondents 18  to  108  in  the  Writ Petition,  filed   R.P.  No.   447/79   before   the   State Administrative Tribunal whose decision went in favour of the Service Commission  candidates. Hence  the Civil  Appeal No.

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2735/86 by the State of Andhra Pradesh. In both the 508 Writ Petitions  and the  appeal the  question related to the computation  of   seniority  of   the   Service   Commission candidates and  the temporary  employees whose services were regularised by  GOMS 647  dated 14.9.79 after exempting them from passing  the qualifying  examination etc.  by GOMS  646 dated 14.9.1979.      Dismissing the petition and the appeal, the Court, ^      HELD:  l.  The  petitioners  cannot  claim  that  their seniority should  be computed  from the  respective dates of their appointments  after April  1974. The  petitioners were not appointed  on a  regular basis,  but by  way of stop-gap arrangements to  be replaced by the appointment of qualified candidates. The  petitioners failed  to avail  themselves of the  opportunity   of  qualifying   themselves  for  regular appointments by  appearing at  the special  qualifying  test held in 1976, although they. were eligible for the test. The Government order being GOMS No. 647 dated September 14, 1979 does  not   support  their   claim  of  seniority  from  the respective dates  of their  appointments after  April  1974. Under the  said GOMS  No. 647, the services of the employees belonging to Group IV services would be regularised from the date of  last regular  appointment in  that category or from the date  of temporary  appointment, whichever  is later and subject to the decision of the Andhra Pradesh Administrative Tribunal. The  Andhra Pradesh  Administrative Tribunal  held that the  appointments  of  the  Public  Service  Commission candidates were  regular appointments.  The appointments  of the Public Service Commission candidates are, therefore, the last regular  appointments as  contemplated by GOMS No. 647. In  view   of  the  said  decision  of  the  Andhra  Pradesh administrative Tribunal and the directions contained in GOMS No. 647, the services of the petitioners will be regularised subsequent to  the respective  dates of  appointments of the respondents Nos.  18 to  108 or the other employees in Group IV services,  who were  appointed pursuant  to  their  being successful in the special qualifying test held by the Public Service  Commission   in  1976.  The  petitioners  have  not challenged the said GOMS No. 647; on the contrary, they have placed reliance  upon the  same and have also prayed for the implementation of the same. [512B-G]

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition No. 106 of 1980      Under Article 32 of the Constitution of India. with 509      Civil Appeal No. 2735 of 1986      Arising out  of Special Leave Petition (Civil) No. 2775 of 1980.      P.S. Potti,  K.R. Chaudhary,  Miss Malini  Poduval  and Miss R. George for the Petitioners.      M.K. Ramamurthy, T.V.S.N. Chari and Miss. V. Grover for the Respondents in W . P . No . 106 of 1980.      K. Ram  Kumar for  the Appellant  in C.A.  No. 2735  of 1986.      A. Subba  Rao for  the Respondents  in C.A. No. 2735 of 1986.      The Judgment of the Court was delivered by      DUTT, J.  The Writ  Petition  No.  106  of  1980  under Article 32  of the  Constitution of  India preferred  by the

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petitioners, Smt. M. Nirmala & 309 others, and the appeal by special leave filed by the State of Andhra Pradesh have been heard together as they involve the common question as to the seniority of  certain employees  of the Government of Andhra Pradesh in Group II and Group IV services. Group II services relate to  the posts of Junior Assistants in the Secretariat and Group  IV services relate to the posts of Lower Division Clerks, Lower  Division Assistants,  Lower Division  Typists and Steno-Typists.      The petitioners  are working  in Group  IV services  in various Departments  of the Government of Andhra Pradesh. On August 18,  1970 by  G.O. Ms.  No. 682,  the  Government  of Andhra Pradesh  put a  ban  on  direct  recruitment  of  all categories of  State and  subordinate services,  pending the recommendations of the Backward Classes Commission. In spite of the said order baning direct recruitments, the Government had to  appoint employees  in all  Departments  in  view  of exigencies of circumstances and in the public interest. Such appointments were made under the General Rule 10(a)(i)(1) on a purely  temporary basis.  Most  of  the  petitioners  were appointed after  April, 1974  as temporary  employees  under General Rule  10(a)(i)(1). Indeed,  General Rule  10(a)(iii) provides that  a person  appointed under  clause (i)  shall, whether or  not he  possesses the  qualifications prescribed for the service, class or category to which he is appointed, be replaced  as soon  as possible by a member of the service or an  approved candidate  qualified to  hold the post under the rules. In view of clause (iii) of 510 General Rule 10(a), the appointments of the petitioners were to be replaced as soon as possible by qualified and approved candidates.      In 1973,  the ban on recruitment through Public Service Commission was  partially lifted.  By G.O. Ms. No. 725 dated December 28, 1973, the Government of Andhra Pradesh directed the  Public   Service  Commission   to  conduct   a  special qualifying test  for recruitment in Group IV services with a view to  regularising the temporary appointments made during the ban  period. One  of the  conditions of  eligibility for appearing at  the said  qualifying test was, as fixed by the Public Service  Commission,  two  years  of  service  as  on 1.1.1973. As  the petitioners  were appointed  after  April, 1974, the question of their appearing at the said qualifying test did  not arise.  It appears  that those who appeared at the said  test were  all absorbed in the regular service. On the representation  of the  temporary employees who were not absorbed, the  Public Service  Commission conducted  another special qualifying  test as  directed by  the Government  by G.O. Ms.  No. 787  dated November  9, 1976.  The petitioners could not  avail themselves of the said test as they had not put in  two years  of service as on 1.1.1976 as fixed by the Public Service Commission.      The temporary  employees including  the petitioners who were appointed  on or after January 2, 1974, became eligible only in  1976 in  which year  a test for recruitment through Public Service  Commission was  conducted to  facilitate all temporary employees including the petitioners to compete for regular appointments.  About 82,000  candidates appeared  in the test  for Group  IV services.  The petitioners, however, did not  appear at the said qualifying test even though they were  eligible   for  the   same.  At  the  same  time,  the petitioners and others, who did not appear at the qualifying test in  1976, began  to put  pressure on the Government for their absorption.  The Government  was also  prevented  from replacing the  temporary employees including the petitioners

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by the candidates who were successful in the said qualifying test. The successful candidates were appointed to additional posts in  Group II and Group IV services sometime in 1977 or 1978. The  temporary employees  made a representation to the Government that  their appointments  should  be  regularised without requiring  them to  appear at the special qualifying test. The  Government seems  to have yielded to the pressure brought to  bear upon  it by these temporary employees, as a result of which the appointments of successful candidates in the said  test could  not be  regularised. By Memo No. 1806/ Ser B/78-2  dated 25.1.1979  the Government  proposed to fix the inter se 511 seniority between  the Public Service Commission candidates, that is,  those who  passed in  the qualifying  test held in 1976 and  the temporary  employees who did not appear at the qualifying test.  Being aggrieved  by the said Memo, certain Public Service  Commission candidates  belonging to Group II services  filed  a  representation  petition  being  R.P.No. 145/79 before the Andhra Pradesh Administrative Tribunal. i; Subsequently, another representation petition being R.P. No. 447 of  1979 was  filed  by  certain  other  Public  Service Commission  candidates   belonging  to   Group  IV  services including the  respondents  Nos.  18  to  108  in  the  Writ Petition.      While the  said representation  petitions were  pending before  the  Andhra  Pradesh  Administrative  Tribunal,  the Government of  Andhra Pradesh  issued G.O.Ms.  No. 646 dated September 14, 1979 whereby the temporary employees including the  petitioners   were  exempted   from  appearing  at  any examination and  the posts  held by them were withdrawn from the purview  of the  Public Service  Commission. By  another order, being  G.O.Ms. No.  647 dated September 14, 1979, the Government  directed   regularisation   of   the   temporary employees including  the petitioners without subjecting them to any  test, written or oral. One of the conditions of such regularisation, as  contained in  clause (b)  of the G.O.Ms. No.  647,   is  that   "in  the  case  of  temporary  Junior Assistants, Typists and Steno-Typists in the Secretariat and L.D.Cs, Typists  and Steno-Typists  in the  offices  of  the Heads of  Departments, their  services should be regularised from the  date  subsequent  to  the  date  of  last  regular appointment in  that category  or from the date of temporary appointment whichever  is later  and subject to the decision of the  Andhra Pradesh  Administrative Tribunal before which representation petitions  in this  regard are  pending."  At this stage,  it may  be stated that R.P. No. 145 of 1979 and R.P. No.  447 of  1979 were  both decided by the Tribunal in favour of  the Public Service Commission candidates, holding that their  appointments were  regular and  their  seniority should be  computed from  the respective  dates  of  regular appointments under the General Rule 33(a) which, inter alia, provides that the seniority of a person in a service, class, category or  grade shall  be determined  by the  date of his first  appointment  to  such  service,  class,  category  or grade.    The State of Andhra Pradesh being aggrieved by the said order  of the  Tribunal passed in R.P. No. 145 of 1979, has preferred the instant appeal by special leave.      It is not in dispute that the Public Service Commission candidates including  the respondents  Nos. 18  to 108,  who belong to Group IV services, were appointed sometime in 1977 or 1978 pursuant to their 512 being successful  in the special qualifying test held by the Public Service  Commission in  1976. In view of General Rule

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33(a), the  seniority of  the respondents should be computed from the  respective dates  of their appointments as held by the Administrative Tribunal. The petitioners, however, claim that their  seniority should be computed from the respective dates of  their appointments  after April, 1974 so that they maybe placed  before the  respondents Nos.  18 to 108 in the seniority list.      In our view, the claim of the petitioners is untenable. The petitioners  were not  appointed on a regular basis, but by way  of stop-gap  arrangements  to  be  replaced  by  the appointment of  qualified candidates. The petitioners failed to  avail   themselves  of  the  opportunity  of  qualifying themselves for  regular appointments  by  appearing  at  the special qualifying  test held  in 1976,  although they  were eligible for  the test.  The Government  order being G.O.Ms. No. 647  dated September 14, 1979 on which much reliance has been placed  by Mr.  Patti,  learned  counsel  appearing  on behalf of  the petitioners,  does not support their claim of seniority from  the respective  dates of  their appointments after April,  1974.  Under  the  said  G.O.Ms.  No.647,  the services of  the employees  belonging to  Group IV  services would  be   regularised  from   the  date  of  last  regular appointment in  that category  or from the date of temporary appointments whichever  is later and subject to the decision of the  Andhra Pradesh  Administrative Tribunal.  The Andhra Pradesh Administrative  Tribunal, as  stated  already,  held that the  appointments  of  the  Public  Service  Commission candidates were  regular appointments.  The appointments  of the Public Service Commission candidates are, therefore, the last regular  appointments as  contemplated by  G.O.Ms.  No. 647. In  view of  the said  decision of  the Andhra  Pradesh Administrative Tribunal  and  the  directions  contained  in G.O.Ms. No.647,  the services  of the  petitioners  will  be regularised  subsequent   to   the   respective   dates   of appointments of  the respondents Nos. 18 to 108 or the other employees in  Group IV services, who were appointed pursuant to their  being successful  in the  special qualifying  test held  by   the  Public  Service  Compression  in  1976.  The petitioners have not challenged the said G.O.Ms. No. 647; on the contrary,  as stated  already, they have placed reliance upon the same and have also prayed for the implementation of the same.  The petitioners,  therefore, cannot  assail  the. findings of  the Andhra  Pradesh Administrative Tribunal and claim that  their seniority  should  be  computed  from  the respective dates of their appointments after April, 1974.      WE  have   also  considered   the   findings   of   the Administrative Tri- 513 bunal and we are of the view that the findings arrived at by it are  quite legal  and justified,  and no exception can be taken to the same.      For the  reasons aforesaid,  both the Writ Petition and the appeal  are dismissed.  However, in view of the peculiar facts and  circumstances of the case, there will be no order as to costs. S.R.                          Petition and appeal dismissed. 514