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PETITIONER: V.   BHASKER RAO AND ORS.

       Vs.

RESPONDENT: STATE OF A.P. AND ORS.

DATE OF JUDGMENT23/03/1993

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) KASLIWAL, N.M. (J)

CITATION:  1993 AIR 2260            1993 SCR  (2) 547  1993 SCC  (3) 307        JT 1993 (4)   506  1993 SCALE  (2)175

ACT: Andhra  Pradesh State Higher Judicial Service Rules 1, 2,  4 and  6. Andhra Pradesh State and Subordinate Service  Rules, Rule  10(a)  (i)-Andhra  Pradesh  Higher  Judicial  Service- District and Sessions Judges-Direct Recruits and  Promotees- Inter  se seniority-Fixation of-On the basis  of  continuous length of service.

HEADNOTE: Recruitment to the Andhra Pradesh Higher Judicial Service is governed  by  "The  Andhra  Pradesh  State  Higher  Judicial Service-Special  Rules".   Rule 1 constitutes  the  service. Category  1  consists of District and  Sessions  Judges  1st grade  and  Category 11 consists of  District  and  Sessions Judges,  Second  Grade.  Appointment to Category 1  is  from Category 11. Appointment to Category 11 is from two  sources by  transfer  from  amongst the Subordinate  Judges  and  by direct recruitment from the Bar. The petitioner were direct recruits whereas respondents 4 to 16  were  promoted  from  the  Subordinate  judiciary.   The respondents  were Initially appointed on temporary basis  in the yew 1978/1979 but they were made substantive in the year 1983.   The petitioners who were appointed substantively  in the  year 1981 claimed seniority over the said  respondents, and  riled  the  Writ  Petition  under  Article  32  of  the Constitution of India for relief. It  was  contended  on their behalf that:  (1)  The  Service consists  of  only permanent posts, there  is  no  provision under  the Special Rules for adding temporary posts  to  the cadre,  consequently the appointment of respondents 4 to  16 to the post of District and Sessions Judges, Second Grade on temporary  basis can at best be treated under Rule  10(a)(i) of  the Andhra Pradesh State and Subordinate Service  Rules. (2)  The temporary service rendered by the respondents 4  to 16  being  outside  the cadre-  cannot  be  counted  towards seniority.  (3) Porviso to Rule 2 and Rule 6 of the  Special Rules  have to be read together, and as such  the  permanent vacancies  having been made available for them in  the  year 1983 their service 548 prior to that date cannot be counted towards seniority.

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The  respondents constested the writ petition by  contending that  the  petitioners were appointed in the year  1981  and since  then till the year 1988, twelve seniority lists  have been  published showing the petitioners below respondents  4 to 16, and at no point of time they challenged the seniority lists  in  the Court.  Even when the  Writ  Petition  T.H.B. Chalapathi  & Ors. v. High Court of Andhra Pradesh  &  Ors., was  pending in the High Court they did not intervene.   The petitioners were thus guilty of gross delay and latches  and as such are not entitled to get relief in the Writ Petition. Dismissing the writ petition, this Court, HELD:     1.  (i) Rule 1 has to be interpreted to mean  that the  service  under the Special Rules consists  of  all  the posts-permanent and temporary-which have been designated  as District and Sessions Judge Second Grade.  Even otherwise in the absence of any prohibition under the Special Rules,  the State Government can always create temporary posts as  addi- tions to the cadre. [554 B] (ii) Rule   10(a)(i)  of  the  Andhra  Pradesh   State   and Subordinate  Service Rules has no application to the  Andhra Pradesh  Higher  Judicial Service which is governed  by  the Special   Rules.   Rule  10(a)(i)  provides  for   emergency appointments  made  on stop gap basis to  meet  a  temporary exigency.  Apart from that the temporary appointments  under the  said  Rules are made without  following  the  procedure prescribed  under the Rules governing the relevant  Service. [554 C-D] In the instant case, the appointments of respondents 4 to 16 were  made  under Rule 2 of the Special Rules by  the  State Government in consultation with the High Court.  The Special Rules  provide  a complete scheme for  the  appointment  and seniority of the members of the Service. [554 D] 2.   Temporary posts of District and Sessions Judges  Second Grade  being  part of the Service, the seniority has  to  be counted  on  the basis of length of  service  including  the service against the temporary posts. [554 F] 3.   Rule  6 of the Special Rules is in no way dependent  on the proviso to Rule 2 of the Special Rules.  Both are to  be operative independently.  In 549 the scheme of the rules, the seniority rule is not dependent on  the quota Rule.  Quota has been provided for the  direct recruits  only against permanent posts.  The seniority  rule permits  the  counting of total period of service  from  the date a person is on duty against a post in the category. [554 G-H] In  the  instant  case, even  though  the  petitioners  were appointed   substantively   to  the   service   earlier   to respondents  4  to 16 but in view of Rule 6 they  cannot  be declared  senior  on  the  basis  of  continuous  length  of service.   Respondents  4  to 16  have  been  rightly  given seniority above the petitioners. [555 A]

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition (C) No. 1237 of 1988. (Under Article 32 of the Constitution of India). P.P.  Rao and Ms. K Amreshwari, B. Rajeshwar Rao  and  Vimal Dave for the Petitioners. V.R.  Reddy, Addl.  Solicitor General, K. Madhaya Reddy,  G. Prabhakar, B. Kanta Rao, A. Ranganathan and A.V. Rangam  for the Respondents. The Judgment of the Court was delivered by KULDIP SINGH, J. The petitioners and respondents 4 to 16 are

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District and Sessions Judges in the State of Andhra Pradesh. The petitioners are direct recruits whereas the  respondents were   promoted   from  the  Subordinate   judiciary.    The respondents  were initially appointed on temporary basis  in the  year  1978/1979 but they were made substantive  in  the year 1983.  The petitioners who were appointed substantively in the year 1981 claim seniority over the respondents by way of  this  petition under Article 32 of the  Constitution  of India. The  recruitment  to  the  Andhra  Pradesh  Higher  Judicial Service  (the Service) is governed by the Rules called  "The Andhra  Pradesh  State  Higher Judicial  Service   Special Rules"  (the  Special Rules).  Rules 1, 2, 4 and  6  of  the Special Rules which are relevant are as under:               "Rule  1.  Constitution:-  The  service  shall               consist of the following categories:-               550               Category-1  :- District and Sessions Judges               1st Grade.               Category-II  :- District and Sessions  Judges,               Second   Grade  including   Chairman,   Andhra               Pradesh  Sales Tax Appellate  Tribunal,  Chief               Judge,  City  Civil  Court,  Additional  Chief               Judge, City Civil Court, Chief Judge, Court of               small Causes, Chief City Magistrate, Chairman,               Tribunal    for   Disciplinary    Proceedings,               Presiding  Officers, Labour Courts  and  Addl.               District and Sessions Judges.               Rules  2.  Appointment :- (a)  Appointment  to               Category-1  shall  be made by  promotion  from               Category-II  and  appointment  to  Category-II               shall be made:-               (i)   by transfer from among:-               (a)   Sub-Judges in the Andhra State  Judicial               Service; or in               the Hyderabad State Judicial Service; and               (ii) by direct recruitment from the Bar:               Provided  that 33-1/3% of the total number  of               permanent posts shall be filed or reserved  to               be filled by direct recruitment.               Explanation:- In the determination of  33-1/3%               of  the  total  number  of  permanent   posts,               fractions exceeding one-half shall be  counted               as   one   and  other   fractions   shall   be               disregarded.               (b)   All promotions shall be made on  grounds               of   merit   and  ability,   seniority   being               considered  only  when merit and  ability  are               approximately equal.               Rule 4. Probation:- Every person appointed  to               Category-II otherwise than by transfer, shall,               from  the  date on which he joins duty  be  on               probation  for a total period of one  year  on               duty.               Rule 6. Seniority:- The seniority of a  person               appointed to Category 1 or Category 2 shall be               determined with refer-               551               ence   to   the  date  from   which   he   was               continuously on duty in that category." We may briefly notice the scheme of the Special Rules.  Rule 1 constitutes the Service.  Category-1 consists of  District and  Sessions Judges’ 1st grade and Category-II consists  of District and Sessions Judges Second grade.  Rule 1 does  not say that Service shall consist of only permanent posts.  All

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the posts designated as District and Sessions Judges  Second grade  under Category-II are part of the service under  Rule 1.  In  other  words, as and when a  post  of  District  and Sessions  Judge  Second  grade is  created   permanent  or temporary  it becomes part of the Service under Rule 1  of the   special  Rules.   Rule  2  provides  the   method   of appointment.  Appointment to Category-1 is from Category-II. Appointment to Category II is from two sources.  By transfer from   amongst   the  Subordinate  Judges  and   by   direct recruitment from the Bar.  Proviso to Rule 2 states that 33- 1/3% of the total number of permanent posts shall be  filled or  reserved  to be filled by direct recruitment.   All  the posts of District and Sessions Judges Second grade are  part of the Service but quota for the direct recruits is provided only  in the permanent posts.  Rule 6 of the Rules  provides for  the fixation of seniority.  Under Rule 6 the  seniority of  persons appointed to Category-1 or Category-II posts  is fixed on the basis of continuous length of service in  their respective posts. On  the  plain  reading of the  Special  Rules  the  salient features of the Service can be culled out as under: 1.   Rule  1 provides for the constitution of  the  Service. All  the posts of District and Sessions Judges Second  grade created  from  time to time are part of  the  Service.   The natural corollary is that the Service consists of  permanent as well as temporary posts. 2.   The  recruitment  to Category-II of the service  is  by transfer  from  amongst the Subordinate Judges and  also  by direct recruits from the Bar. 3.   33-1/3%  of  the  total number of  permanent  posts  in Category-II of the Service are to be filled by way of direct recruitment. 4.   The  seniority  under Rule 6 is to be  determined  with reference to the date from which a person is continuously on duty.  Whether the person 552 is  continuously  on  duty  against  a  temporary  post   or permanent  post is of no consequence.  A person is  entitled to the fixation of his seniority on the basis of  continuous length of service rendered either against permanent post  or temporary post. The  three  petitioners  were  appointed  as  District   and Sessions  Judges  Second  grade  by  direct  recruitment  on October  12,  1981.  Petitioners 1 and 2 joined  service  on October  23,  1981  and petitioner 3 on  October  30,  1981. Respondents  4  to 16 were appointed District  and  Sessions Judges Second grade by transfer from amongst the Subordinate Judges  during the years 1978/79.  It is not  disputed  that permanent  vacancies in their quota became available in  the year  1983.   We, therefore, proceed on the basis  that  the petitioners  were  appointed  substantive  members  of   the Service earlier to respondents 4 to 16. We  may  at this stage notice Rule 10(a)(i)  of  the  Andhra Pradesh  State  and  Subordinate Service  Rules  (the  State Rules).   The  State  Rules  are  general  rules  which  are applicable  to  all  the services in  the  State  of  Andhra Pradesh.   Needless  to say that to the extent  the  Special Rules  are  applicable to the Service the  State  Rules  are excluded.  Rule 10(a)(i) of the State Rules is as  under:               "10.  Temporary appointment.  (a)(i) Where it               is  necessary in the public interest  to  fill               emergently a vacancy in the post borne on  the               cadre  of a service, class or category and  if               the filling of such vacancy in accordance with               the rules is likely to result in undue  delay,

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             the appointing authority may appoint a  person               temporarily otherwise than in accordance  with               the said rules." Mr. P.P. Rao, learned counsel for the petitioners has raised the following contentions for our consideration: 1.   That the Service consists of only permanent posts under the Special Rules.  There is no provision under the  Special Rules  for  adding  temporary  posts  to  the  cadre.    The appointment  of  respondents to the posts  of  District  and Sessions Judges Second grade on temporary basis can at  best be treated under rule 10(a)(i) of the State Rules. 553 2.   The temporary service rendered by respondents.4 to 16 being  outside  the  cadre   cannot  be  counted   towards seniority. 3.   Proviso to Rule 2 and Rule 6 of the Special Rules  have to  be  read together and doing so the  permanent  vacancies having  been made available for respondents 4 to 16  in  the year 1983 their service prior to that date cannot be counted towards seniority. Before dealing with Mr. Rao’s contentions, we may notice two preliminary  contentions  raised  by Mr.  K.  Madava  Reddy, learned counsel for the respondents. Mr.  Madava Reddy has invited our attention to the  judgment of  a Division Bench of Andhra Pradesh High Court in  T.H.B. Chalapathi  and others v. High Court of Andhra  Pradesh  and others,  Writ  Petition  Nos. 1968/82,  52/83  and  12282/85 decided  on  December 28, 1985.  Those writ  petitions  were filed  before  the Andhra Pradesh High Court by  the  direct recruits  to Category-II of the Service  claiming  seniority over  the  persons  who were  appointed  to  category-11  on temporary  basis  earlier to them.  Similar  questions  were raised  as are being raised by Mr. P.P. Rao before us. By  a well-reasoned  judgment  the  High Court  rejected  all  the contentions  of the direct recruits and dismissed  the  writ petitions.   It is not disputed that Special Leave  Petition No.1035  of 1986 against the said judgment was dismissed  by this Court on January 30, 1988.  Mr. Madava Reddy  plausibly contends that all the contentions which are being raised  by the  petitioners in this Court, having been rejected by  the High  Court and special leave petition against the  judgment of  the High Court having been dismissed by this  Court  the same cannot be agitated once over again. Mr.  Madava Reddy then contended that the  petitioners  were appointed  in  the years 1981 and since then till  the  year 1988 twelve seniority lists have been published showing  the petitioners  below respondents 4 to 16. At no point of  time they challenged the seniority lists in the Court.  Even when the  writ  petitions  filed by Chalapathi  and  others  were pending  they did not intervene before the High Court.   The petitioners,  according to Mr. Madava Reddy, are  guilty  of gross delay and latches and as such are not entitled to  get relief  by  way  of this petition under Article  32  of  the Constitution of India. 554 We see considerable force in both the contentions raised  by Mr.  Madava  Reddy.  We are, however, of the  view  that  it would be in the larger interest of the Service to dispose of this petition on merits. We  see  no  force. in the contention of Mr.  Rao  that  the Service  consists of only permanent posts under the  Special Rules.  We have already interpreted Rule 1 to mean that  the Service under the Special Rules consists of all the posts permanent  and  temporary  which have  been  designated  as District  and Sessions Judges Second grade.  Even  otherwise

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in  the absence of any prohibition under the  Special  Rules the  State Government can always create temporary  posts  as additions  to the cadre.  Rule 10(a)(i) of the  State  Rules has  no application to the Service which is governed by  the Special   Rules.   Rule  10(a)(i)  provides  for   emergency appointments  made  on stop gap basis to  meet  a  temporary exigency.  Apart from that the temporary appointments  under the  said  Rules are made without  following  the  procedure prescribed  under the Rules governing the relevant  service. The appointments of respondents 4 to 16, on the other  hand, Were  made  under Rule 2 of the Special Rules by  the  State Government  in consultation with the High Court.  We are  of the  view that the Special Rules provide a  complete  scheme for  the  appointment and seniority of the  members  of  the Service.    Rule  10(a)(i)  of  the  State  Rules   has   no application  to  the Service Constituted under  the  Special Rules.   We, therefore, reject the contention raised by  Mr. Rao. Having  taken  the view that the Service under  the  Special Rules  consists of permanent as well as temporary posts  the second contention of Mr. Rao looses its ground.   Temporary, posts  of  District and Sessions Judges Second  grade  being part  of the Service the seniority has to be counted on  the basis  of length of service including the service against  a temporary post. The third contention of Mr. Rao is mentioned to be  rejected in  view  of  Rule 6 of the Special Rules.  Rule  6  of  the Special Rules is in no way dependent on proviso to Rule 2 of the Special Rules.  Both are to be operative  independently. In  the  scheme  of  the rules the  seniority  rule  is  not dependent  on the quota Rule.  Quota has been  provided  for the  direct  recruits  only against  permanent  posts.   The seniority  rule  permits  the counting of  total  period  of service from the date a person is on duty against a 555 post  in  the category.  Even though, the  petitioners  were appointed   substantively   to  the   service   earlier   to respondents  4  to 16 but in view of Rule 6 they  cannot  be declared senior on the basis of continuous length of service  against temp orary as well as permanent posts  respondents 4  to  16  have  been  rightly  given  seniority  above  the petitioners. We,  therefore,  find  no force in any  of  the  contentions raised by Mr. Rao. The writ petition is consequently dismissed.  No costs. N.V.K.                Petition dismissed. 556