1. Heard Sri P.V.Ramana, learned counsel for the writ petitioners; Sri Goda Siva, learned Senior Counsel appearing for Ms.Goda Ramalakshmi, learned counsel for respondents Nos.5, 6, 8 and 10; Sri B.Rajeshwar Reddy, learned Government Pleader for the State of Andhra Pradesh appearing for respondent No.1; Sri G.Mallikarjuna Rao, learned Standing Counsel for Andhra Pradesh Public Service Commission appearing for respondent No.2; Sri P.Sai Santosh, learned counsel appearing for Sri Thondava Yogesh, learned counsel for respondent Nos.22 to 28; Ms. P.Radhika, learned counsel appearing for Ms. M.Vidyavathi, learned counsel for respondent Nos.29 to 41 and perused the record.

2. The present writ petition is filed with the following prayer:

               “…to issue a Certiorari calling for the records relating to and in connection with the orders passed by the Hon’ble Tribunal in O.A.No.7327 of 2011 with V.M.A.No.1262 of 2012 dated 26-4-2016 and to quash the same as arbitrary, illegal and in violation of Articles 14,16 and 21 of the Constitution of India and Rule 33 of A.P. State and Subordinate Service Rules, and consequently declare that the orders issued by the Government in Memo No.2636/SU-II/A1/2012-11, dated 15-7-2015 showing the names of the unofficial respondents in the provisional seniority list duly granting seniority from 2002 though they were appointed in the year, 2005 are void ab initio and to pass such other order or orders as this Hon’ble High Court may deem fit and proper in the circumstances of the case..” Background of the case

3. The instant writ petition emanates from the protracted legal battle concerning inter-se seniority between two batches of Assistant Section Officers (ASOs) appointed pursuant to a single recruitment notification issued by the Andhra Pradesh Public Service Commission (APPSC). The genesis of the dispute lies in Advertisement No.10 of 1999, issued on 28.12.1999, by APPSC for recruitment of various posts under Group-II services, including 141 posts of ASOs in the Andhra Pradesh Secretariat Subordinate Service, out of which 22 posts were reserved for Schedule Caste (SC) candidates.

4. The Government initially withdrew the ASO posts, which decision was challenged before the Andhra Pradesh Administrative Tribunal (for short, “the Tribunal”) in O.A.No.7443 of 2000. The Tribunal, by its order dated 21.11.2001, directed the Government to fill the posts, leading to the selection and appointment of 113 candidates in the year 2002. The writ petitioners, who were initially appointed as Typist-cum-Assistants and later upgraded as ASOs, belong to the 2002 batch of direct recruits.

5. Subsequently, the Hon’ble Supreme Court of India, in E.V.Chinnaiah v. State of Andhra Pradesh and others (2003 (6) ALD 803), declared the categorization of Scheduled Castes into A, B, C and D groups, as unconstitutional, which necessitated the re-casting of the SC selections. Consequently, in May 2005, as second batch of SC candidates were appointed as ASOs who are now the unofficial respondents (respondent Nos.4 to 10) in the present writ petition.

6. When the 2005 batch sought seniority on par with the 2002 batch, the Government rejected their claim through Memo No.4630/SU.11/A2/2011 dated 02.08.2011, on the ground that selections were made in different spells, and as per Rule 33(a) of the A.P. State and Sub-ordinate Service Rules, 1966 (for short ‘1966 Rules’) seniority is determined by the date of the first appointment.

7. Aggrieved by the rejection, the 2005 batch candidates filed O.A.No.7327 of 2011 before the APAT. The tribunal, by its order dated 26.04.2016 allowed their O.A, holding that since the applicants were appointed against vacancies notified under the same notification No.10 of 1999 and the Government itself had placed their names approximately in the final seniority list issued in Memo No.2636/SU.11/A1-2012-11 dated 15.07.2015 they were entitled to seniority from the date of appointment of first round of candidates. The tribunal directed the respondents to consider the case for promotion based on the said seniority list.

8. It is this order of the APAT that is assailed in the present writ petition by the 2002 batch directed recruits who contend that granting seniority to the 2005 batch from 2002 is arbitrary, illegal, and in violation of Articles 14, 16 & 21 of the Constitution and Rule 33 of the 1966 Rules. The writ petitioners also challenge the Government Memo dated 15.07.2015, which shows the names of the unofficial respondents in the provisional seniority list granting them seniority from 2002, though they were appointed only in 2005, and seek quashing of the Tribunal’s order and declare the memo void-ab-initio.

Factual Matrix

9. The APPSC issued Notification No.10 of 1999 dated 28.12.1999 inviting applications for recruitment to Group-II Services, including 141 posts of ASOs in the A.P. Secretariat, of which 22 posts were reserved for SC candidates. The recruitment process commenced pursuant to the said notification in the year 1999.

10. Upon completion of the selection process, the APPSC finalized the first round of selections in February, 2002 and recommended candidates for appointment as ASOs. The successful candidates, including the present petitioners, were appointed and joined service during the year 2002.

11. The recruitment process became the subject matter of multiple proceedings before the Tribunal as well as this Court concerning the assessment of vacancies, implementation of reservation policy and completion of the recruitment. In K. Ananda Reddy v. Andhra Pradesh Public Service Commission and others (2003 (6) ALD 803), this Court directed the Government to reassess the vacancy position as on the relevant date and complete the recruitment in accordance with the Presidential Order, 1975 and the applicable rules.

12. Subsequently, following the judgment of the Hon'ble Supreme Court in E.V.Chinnaiah (supra 1) declaring the categorisation of Scheduled Castes into Groups A, B, C and D to be unconstitutional, the selections pertaining to the SC vacancies notified under Notification No.10 of 1999 were recast. Pursuant to such recasting, a second round of appointments were made during the year 2005, whereby the respondents were appointed as ASOs against the vacancies arising from the recast selection process.

13. The respondents, who were appointed in 2005, instituted O.A.No.7327 of 2011 before the Tribunal challenging the Government Memo dated 02.08.2011 whereby their request for assignment of seniority on par with the 2002 direct recruits had been rejected.

14. During the pendency of the said Original Application, the Government issued Memo No.2636/SU-II/A1/2012-11 dated 15.07.2015 publishing a provisional seniority list placing the respondents at positions corresponding to their merit in the 1999 recruitment. Relying substantially upon the said provisional seniority list, the Tribunal, by order dated 26.04.2016, allowed the said O.A. holding that since the respondents had been appointed against vacancies notified under Notification No.10 of 1999, they were entitled to have their seniority determined on the basis of their merit position in the common selection, with consequential consideration for promotion. The Tribunal's order effectively granted the 2005 appointees seniority over several members of the 2002 batch.

15. Aggrieved by the aforesaid order of the Tribunal, the petitioners, who belong to the 2002 batch of ASOs, instituted the present writ petition. Their principal contention is that the Tribunal erred in directing assignment of seniority to the respondents from a date anterior to their actual appointment in service, notwithstanding that they entered service only in the year 2005. According to the petitioners, such retrospective conferment of seniority is contrary to Rule 33 of the 1996 Rules and the law laid down by the Hon'ble Supreme Court in M. Surender Reddy v. State of Andhra Pradesh ((2015) 8 SCC 410), which recognizes that seniority cannot ordinarily be granted from a date prior to actual appointment unless specifically authorised by the applicable statutory rules.

Submissions on behalf of the petitioners

16. Learned counsel for the petitioners has made the following submissions:

               i. That Rule 33(a) of 1996 Rules unequivocally provides that the seniority of a member of a service shall be determined with reference to the date of his first appointment to such service. Since the respondents entered service only in the year 2005, they cannot, in law, claim seniority from the year 2002. The Tribunal, by directing assignment of seniority from a date anterior to their actual appointment, acted in clear contravention of the statutory rules. Reliance was placed on the judgment of the Hon'ble Supreme Court in Suraj Prakash and Others v. State of Jammu & Kashmir and others ((2000) 4 SCC 268), wherein it was held that a direct recruit cannot claim seniority from a date when he was not borne on the cadre.

               ii. That the controversy regarding inter se seniority between the first-round appointees and the subsequent appointees under the same recruitment process stands concluded by the judgment of the Hon'ble Supreme Court in M. Surender Reddy (supra 3). The Apex Court categorically held that the inter se seniority of such appointees is required to be determined by the competent authority in accordance with the applicable service rules, having due regard to the merit ranking obtained by the candidates.

               iii. That the Tribunal failed to examine the issue in the light of the statutory rules and the binding dictum of the Hon’ble Supreme Court, and instead rested its conclusions solely on Government Memo No.2636/SU-II/A1/2012-11 dated 15.07.2015, which itself is contrary to law. Learned counsel further submitted that the subsequent clarification issued by the Hon'ble Supreme Court in C.P.(C)No.1700 of 2017, by order dated 14.07.2021, reinforces the principle that the Government Orders issued subsequently cannot be applied to selections initiated prior thereto.

               iv. That the Government Memo dated 15.07.2015, whereby the names of the respondents were included in the provisional seniority list by assigning them seniority from the year 2002, is wholly illegal, arbitrary and void ab initio. It was argued that the said Memo was issued during the pendency of O.A.No.7327 of 2011 and was directly inconsistent with the earlier Government's Memo dated 02.08.2011, whereby the claim of the respondents for retrospective seniority had been expressly rejected. It was argued that having supported the earlier decision before the Tribunal, the Government could not have taken a contrary stand during the pendency of the proceedings. Consequently, the Tribunal committed a manifest error in placing reliance upon the said Memo for granting the relief claimed by the respondents.

               v. That the respondents entered service in May, 2005 but questioned their seniority only by filing O.A.No.7327 of 2011, after an unexplained delay of nearly six years. It is contended that such a stale claim ought not to have been entertained by the Tribunal, particularly when the settled seniority position had remained undisturbed for several years.

               vi. That pursuant to the impugned order, the present writ petition has remained pending for several years during which this Court passed successive orders directing maintenance of status quo vide order dated 28.11.2022. Learned counsel contended that the subsequent proceedings initiated by the respondents have further delayed the finalisation of seniority and promotional avenues of the petitioners, thereby causing serious prejudice to the members of the 2002 batch.

Submissions on behalf of the respondents

17. Learned counsel for the respondents has made the following submissions:

               i. That both the petitioners and the respondents participated in the same recruitment process initiated pursuant to Notification No.10 of 1999 issued by the APPSC. It was contended that the respondents were not selected under a fresh recruitment but were appointed in the second round of appointments in the year 2005 pursuant to the recasting of SC vacancies following the judgment of the Hon'ble Supreme Court in E.V.Chinnaiah (supra 1) declaring the categorisation of SC unconstitutional. Since the recruitment emanated from a common notification and the candidates formed part of a single select list prepared on the basis of common merit, their inter se seniority ought to be determined with reference to their merit ranking in the common selection list and not merely on the basis of the date of appointment.

               ii. That the Government, after examining the issue, issued Memo No.2636/SU-II/A1/2012-11 dated 15.07.2015 publishing a provisional seniority list wherein the respondents were assigned their respective positions in accordance with their merit in the common selection. Therefore, the Tribunal committed no error in directing the respondents to consider the cases of the respondents for promotion on the basis of the said seniority list.

               iii. Reliance is placed upon the judgment of this Court in W.P.No.20106 of 2004, dated 27.12.2004, wherein it was observed that in the event of any subsequent intake in the cadre pursuant to the same recruitment process, the question of inter se seniority between the first-round and second-round appointees shall be determined by the competent authority in accordance with the applicable rules, having regard to their merit ranking. It was submitted that the said judgment recognizes the relevance of the common merit list and supports the claim of the respondents for fixation of seniority based upon their position in the select list.

               iv. That the respondents cannot be deprived of their legitimate seniority merely because their appointments were delayed on account of prolonged litigation and the consequential recasting of the SC selection. The delay was entirely attributable to judicial proceedings and administrative action, over which the respondents had no control. Having participated in the same recruitment process and having secured their place in the common select list on merit, they ought not to be placed at a disadvantage solely because their appointments were made in the second round.

18. We have taken note of the respective submissions and the material placed on record.

Consideration by this Court

19. The principal controversy in the present case relates to the determination of inter se seniority between the petitioners, who entered service as ASOs in the year 2002, and the respondents, who were appointed pursuant to the recast selection in the year 2005. The issue is governed by the provisions of the 1996 Rules, which regulate seniority in the absence of any special provision to the contrary.

20. For proper appreciation of the controversy, it would be apposite to extract Rule 33(a) and Rule 33(b) of 1996 Rules, which read as follows:

               “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..

               (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..”

21. A plain reading of above Rule 33 of 1996 Rules makes it evident that the normal rule governing seniority is the date of first appointment to the service. Rule 33(b) of 1996 Rules carves out a limited exception where two or more persons are appointed simultaneously, in which event the appointing authority may determine their inter se seniority by fixing an order of preference at the time of appointment.

22. In the present case, it is an admitted position that the petitioners entered service in the year 2002, whereas the respondents entered service only in the year 2005 pursuant to the recast selection undertaken after the judgment of the Hon'ble Supreme Court in E.V.Chinnaiah’s case (supra 1) on the issue of SC categorisation. The respondents’ appointments were made nearly three years after those of the petitioners. Consequently, the requirement of simultaneous appointment, which alone attracts Rule 33(b), is conspicuously absent. The inter se seniority of the respondents, therefore, necessarily falls to be determined under Rule 33(a), namely, from the date of their first appointment in the year 2005.

23. The Hon'ble Supreme Court in Amit Singh v. Ravindra Nath Pandey ((2022) 20 SCC 559), while reiterating the view taken in Pawan Pratap Singh v. Reevan Singh ((2011) 3 SCC 267) has held as under:

               27. This Court in Pawan Pratap Singh case held that the effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be. This Court further held that the inter se seniority in a particular service has to be determined as per the service rules. It held that the date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. It further held that any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution of India. It further held that the seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It held that the seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.

               (Emphasis supplied)

24. Applying the aforesaid principle, the mere circumstance that both the petitioners and the respondents participated in the recruitment initiated under Notification No.10 of 1999 or that the respondents were appointed pursuant to a recast of the SC selection would not, by itself, entitle them to claim seniority from a date anterior to their entry into service. In the absence of any statutory provision expressly authorizing retrospective seniority, neither a common notification nor a common select list can override the mandate of Rule 33(a) of 1996 Rules.

25. Further, granting the respondents seniority from the year 2002 would necessarily place them above officers who had already entered service and had been discharging duties in the cadre for nearly three years. Such a course would amount to conferring notional seniority from a date when they were admittedly not borne on the cadre, a consequence consistently disapproved by the Hon'ble Supreme Court. The Tribunal appears to have been principally influenced by the fact that the respondents were selected pursuant to the same notification and that the Government had issued Memo dated 15.07.2015 reflecting their position in the provisional seniority list. However, the Tribunal overlooked that the appointments were not made simultaneously and that the Government Memo could not override the mandate of Rule 33 or the settled principles governing fixation of seniority.

26. The judgment of the Hon'ble Supreme Court in M. Surender Reddy’s case (supra 3), assumes considerable significance, as it arose out of the very same recruitment initiated under APPSC Notification No.10 of 1999. While dealing with the completion of the recruitment process pursuant to the said notification, the Hon'ble Supreme Court in the aforesaid case issued the following direction:

               “31. The inter se seniority between the persons appointed in the first round and the persons appointed afterwards in the same cadre, if any, shall be decided by the appropriate authority in accordance with the rules, depending on the merit ranking obtained by them.”

27. Subsequently, while disposing of Contempt Petition (C) No.1700 of 2017 by order dated 14.07.2021, the Hon'ble Supreme Court clarified the following:

               In our view, the order has to be understood in the light of the directions issued by this Court in paragraphs 28 to 31 of Surender Reddy and cannot be construed to mean that all the unfilled or remaining vacancies pertaining to the selection initiated before 2002 G.O. came into force must now be filled up in accordance with the principles emanating from said G.O.. The directions issued in Surender Reddy are quite clear. Consequently, there would be no occasion to recast any selection list or revise a list pertaining to the selection undertaken pursuant to advertisement issued before 2002 GO had come into force.

               (Emphasis supplied)

A careful reading of the aforesaid direction at Para 31 makes it abundantly clear that the Hon'ble Supreme Court did not itself determine the inter se seniority of the rival appointees. On the contrary, it consciously left the issue to be decided by the competent authority in accordance with the applicable statutory rules, while directing that due regard be had to the merit ranking obtained by the candidates. In the opinion of this Court, the expression ‘depending on the merit ranking obtained by them’ cannot be read in isolation so as to override the preceding mandate that the determination must be ‘in accordance with the rules’. Therefore, the statutory rules continue to govern the field.

28. As noticed hereinabove, Rule 33(a) of 1996 Rules, prescribes that seniority shall ordinarily be determined with reference to the date of first appointment to the service. Rule 33(b), which permits fixation of seniority on the basis of an order of preference, is attracted only where two or more persons are appointed simultaneously. Admittedly, the petitioners entered service in the year 2002, whereas the respondents were appointed only in the year 2005 pursuant to the recast selection. Their appointments were not simultaneous. Consequently, Rule 33(b) of 1996 Rules has no application.

29. It is equally well settled that the mere fact that both the petitioners and the respondents participated in the recruitment initiated under Notification No.10 of 1999, or that the respondents came to be appointed pursuant to the recasting of SC vacancies, does not, by itself, confer any right to claim retrospective seniority. In the absence of a statutory provision expressly authorizing such conferment, neither the common notification nor the common select list can override the mandate of Rule 33(a) of 1996 Rules. The Tribunal proceeded on the premise that since the respondents were eventually appointed against vacancies notified under the said notification and were reflected in the Government Memo dated 15.07.2015, they were entitled to seniority on par with the first-round appointees. In doing so, the Tribunal overlooked the distinction between selection and appointment and failed to appreciate that the issue of inter se seniority was required to be determined strictly in accordance with the applicable statutory rules, as directed by the Hon'ble Supreme Court in M. Surender Reddy’s case (supra 3).

30. It is also significant that the Government Memo dated 15.07.2015, whereby the names of the respondents were placed in the provisional seniority list by assigning them positions corresponding to the year 2002, came to be issued during the pendency of O.A.No.7327 of 2011 before the Tribunal. The principal issue under consideration in the said Original Application was whether the respondents were entitled to claim seniority on par with the 2002 batch notwithstanding their appointment in the year 2005. The issuance of the said Memo during the pendency of the proceedings could not, by itself, conclude the issue which was sub judice before the Tribunal.

31. It is also not in dispute that the Government had earlier, by Memo dated 02.08.2011, rejected the claim of the respondents for assignment of seniority from the year 2002 on the ground that the appointments had been made in different spells, namely, in the years 2002 and 2005, and that seniority was required to be determined in accordance with Rule 33(a) of the 1996 Rules. Subsequently, by Memo dated 15.07.2015, the Government adopted a different stand by publishing a provisional seniority list placing the respondents along with the 2002 batch.

32. Another infirmity in the order passed by the Tribunal is that it was rendered without impleading all the employees whose seniority rights were likely to be directly affected. The record indicates that the grant of retrospective seniority to the respondents would have a direct bearing on the inter se seniority of a large number of ASOs of the 2002 batch, comprising both direct recruits and promotees.

33. In A. Janardhana v. Union of India ((1983) 3 SCC 601), the Hon'ble Supreme Court observed that while impleadment of all affected persons may not be necessary where the validity of a statutory provision is under challenge, it assumes significance where the relief sought directly affects the service rights of identifiable employees. In the present case, the relief claimed by the respondents relates to the fixation of inter se seniority, the consequence of which would directly affect the existing seniority position of the 2002 batch of ASOs.

34. It is a settled principle that no order adversely affecting the civil or service rights of a person should ordinarily be passed without affording such person an opportunity of being heard. The rule of audi alteram partem, being one of the fundamental facets of natural justice, assumes particular significance in matters relating to seniority, where any alteration in the seniority list has cascading consequences on promotion and other service benefits. Therefore, the Tribunal ought to have ensured that the employees whose seniority was likely to be prejudicially affected were either impleaded or adequately represented before adjudicating the claim of the respondents. The failure to do so has resulted in an adjudication affecting the rights of persons who were not before the Tribunal.

35. It is pertinent to note that the prejudice likely to be caused to the petitioners, who entered service as ASOs in the initial round of appointments in 2002, was not considered by the Tribunal while adjudicating the claim of the respondents for retrospective seniority. Any revision of the inter se seniority between the parties has a direct bearing on the petitioners' service rights, including their promotional prospects and other consequential benefits. The impugned order, by directing extension of the benefit of the provisional seniority list to the respondents, had the effect of unsettling the existing seniority of the petitioners without an adjudication of their corresponding service rights. In our considered opinion, the petitioners, having admittedly entered service in the year 2002, are entitled to have their seniority determined strictly in accordance with the statutory rules and the claim of the respondents for assignment of seniority from a date anterior to their appointment cannot be sustained.

Conclusion

36. For the foregoing reasons, this Court is of the considered view that the order dated 26.04.2016 passed by the Andhra Pradesh Administrative Tribunal in O.A.No.7327 of 2011 cannot be sustained. The Tribunal failed to appreciate the mandate of Rule 33 of the Andhra Pradesh State and Subordinate Service Rules, 1996, and placed undue reliance upon the Government Memo dated 15.07.2015 without examining its conformity with the statutory rules.

37. Accordingly, the Writ Petition is allowed. The order dated 26.04.2016 passed by the Andhra Pradesh Administrative Tribunal in O.A. No.7327 of 2011 is hereby set aside. The competent authority shall determine afresh the inter se seniority of the petitioners and the respondents in accordance with Rule 33 of the Andhra Pradesh State and Subordinate Service Rules, 1996, the law laid down by the Hon'ble Supreme Court in M. Surender Reddy’s case (supra 3), and the observations made herein, after affording an opportunity to file objections to all affected parties, and pass appropriate orders in accordance with law, preferably, within a period of six (06) months from the date of receipt of a copy of this Order.

As a sequel, miscellaneous petitions, pending if any, stand closed. No costs.