Full Judgment Text
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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
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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
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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
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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-
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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
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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.
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