Mobile View
Main Search Forums Advanced Search Disclaimer
Cites 10 docs - [View All]
Article 14 in The Constitution Of India 1949
The Administrative Tribunals Act, 1985
Article 309 in The Constitution Of India 1949
Toddy Tappers Co-Operative ... vs Proh. & Excise Superintendent And ... on 8 June, 1999
Section 2 in The Administrative Tribunals Act, 1985

User Queries
Andhra High Court
2) Proceedings ... vs Order:

**

1) Govt.Memo No.3557/CE.I.1/2000-1, Higher Education Department, dated 16-9- 2002.

2) Proceedings Rc.No.1655/Ser.II.3/2000 dated 20-2-2003 of the Director of Collegiate Education, A.P., Hyderabad.

3) Interim orders dated 7-3-2003 and 21-3-2003 of the A.P.A.T. in O.A.No.1264/2003 filed by Sri P.Beeraiah and others.

4) Order of the A.P. High Court dated 7-4-2003 in W.P.No.5172/2003 filed by Sri P.Beeraiah and others.

5) Interim orders dt.8-4-2003, 22-4-2003 and 30-4-2003 of the A.P.A.T. in O.A.No.2106/2003 filed by Sri Malleswara Rao and another. 6) Interim orders dt.23-4-2003 of A.P.A.T. in O.A.No.2154/2003 filed by Sri N.Krishna Reddy and 7 others.

7) Govt.Memo No.SP/1924/CE.I.1/2003-5, Higher Education, Department, dated 13-6- 2003.

8) Interim order dt.25-6-2003 in O.A.No.3820/2003 filed by Sri J.Sambaiah, Lecturer in Commerce and 2 others.

9) From the Director of Collegiate Education, A.P., Hyderabad, Lr.Rc.No.1655/Ser.II.3/2000, dated 9-7-2003.

10) Govt.Memo No.SP/1924/CE.I.1/2003-10, Dt.25-8-2003 11) Govt.Memo No.SP/1924/CE.I.1/2003-11, Dt.25-8-2003 12) Govt.Memo No.SP/1924/CE.I.1/2003-12, Dt.25-8-2003 13) Govt.Memo No.SP/1924/CE.I.1/2003-13, Dt.25-8-2003 14) Govt.Memo No.SP/1924/CE.I.1/2003-14, Dt.25-8-2003 15) Govt.Memo No.SP/1924/CE.I.1/2003-15, Dt.25-8-2003 16) Govt.Memo No.SP/1924/CE.I.1/2003-16, Dt.25-8-2003 17) Govt.Memo No.SP/1924/CE.I.1/2003-17, Dt.25-8-2003 18) Govt.Memo No.SP/1924/CE.I.1/2003-18, Dt.25-8-2003 19) Govt.Memo No.SP/1924/CE.I.1/2003-19, Dt.25-8-2003 20) Govt.Memo No.SP/1924/CE.I.1/2003-20, Dt.25-8-2003 21) Govt.Memo No.SP/1924/CE.I.1/2003-21, Dt.25-8-2003 22) Govt.Memo No.SP/1924/CE.I.1/2003-22, Dt.25-8-2003 23) Govt.Memo No.SP/1924/CE.I.1/2003-23, Dt.25-8-2003 24) Govt.Memo No.SP/1924/CE.I.1/2003-24, Dt.25-8-2003 25) From the D.C.E. Lr.Rc.No.686/Ser.II.3/2003, dt.1-10-2003. ***

ORDER:

The Government have issued instructions in the Govt.Memo No.3557/CE.I.1/2001-1, dt.16-9-2002 to the Director of Collegiate Education, A.P., Hyderabad to prepare a temporary seniority list of various categories of College Teachers as per the Rules 33 and 36 of the A.P. State and Subordinate Service Rules. Accordingly, the Director of Collegiate Education, A.P., Hyderabad in his proceedings No.1655/Ser.II.3.2000 dt.20-2-2003 has issued the provisional seniority list of the Lecturers of the Government Degree Colleges.

2. Challenging the provisional seniority list some of the Lecturers have approached the A.P.A.T. The A.P.A.T. in its order dt.17-3-2003 in O.A.No.1264/2003 filed by P.Beeraiah and 4 other Lecturers has ordered as follows :

"pending further order in the O.A. the applicants are directed to file a representation to the 1st respondent within one week from the date of receipt of the order and the 1st respondent is directed to consider the representation of the applicants with reference to their objections in respect of Progs.Memo No.3557/CE.I.1/2001, dt. 16-9-2002 of the Government and Progs.Rc.No.1655/Ser.II.3/2000, dt.20-2-2003 of the Director of Collegiate Education within four weeks thereafter. However, the pendency of this O.A. does not preclude the Government to proceed with finalisation of the seniority list".

3. The Tribunal in its order dt.21-3-2003 in O.A.No.1264/2003 filed by Sri P.Beeraiah and others extended the said relief until further orders. Aggrieved by the above orders, the applicants have approached the A.P. High Court with a prayer to quash the interim orders dt.7-3-2002 and 21-3-2003 of the A.P. A.T. The A.P. High Court in its orders dt.7-4-2003 in W.P.No.5172/2003 has directed as follows:-

"WPMP No.7576 and 7395 of 2003 are allowed. Learned Counsel for parties and newly added parties also, who have agreed to passing of an order modifying the order of the Tribunal, we do not refer to the detailed facts leading to filing of this Writ Petition. With the agreement of the learned Counsel for the parties, to direct that the representations of the applicants before the Tribunal, which have already been made shall be considered by the official respondents and an order shall be passed on those representations. Before passing an order on these representations, the official respondents shall not finalise the seniority list. The order of the Tribunal is accordingly modified. This order shall remain operative till the disposal of the O.A. The Writ Petition is accordingly disposed of".

4. Further, the Tribunal in its interim orders dt.23-4-2003 in O.A.No.2154/2003 filed by Sri N.Krishna Reddy and 7 others has ordered as follows :-

"pending further orders, the Respondents are directed to finalise the seniority list after considering the objections of the applicants".

5. The A.P.A.T. in orders dt.30-4-2003 in O.A.No.2106/2003 filed by Sri P.Malleswara Rao, Lecturer and another has ordered as follows:- "Pending further orders, the Official Respondents are directed to pass orders on the representations and thereafter finalise the seniority list".

6. In Govt.Memo No.SP/1924/CE.I.1/2003-5, Higher Education Deptt., dt.13-6- 2003, orders have been issued authorizing the Director of Collegiate Education, A.P. Hyderabad to dispose of the objections filed by the appellants as ordered by the A.P.A.T. and A.P. High Court and to communicate the final seniority list.

7. The said Government orders have been challenged by Sri J.Sambaiah and 2 other Lecturers in the A.P.A.T. by filing O.A.No.3820/2003. The A.P.A.T. in its order dt.25-6-2003 suspended the above Govt. Memo dt.13-6-2003. However, the Tribunal observed that the above orders do not preclude the Government from implementing the interim orders of the Tribunal in O.A.No.1264/2003 as modified by the A.P. High Court in W.P.No.5172/2003 dt.7-4-2003.

8. The matter has been examined in the light of various orders of A.P.A.T./A.P. High Court referred to above and the representations/objections filed by the applicants/petitioners and the same have been disposed of by rejecting their claims duly indicating the reasons therefor and communicated to the concerned though the Govt. Memo from 10th to 24th read above. Similarly, the other representations received from several other Lecturers have been examined and it is considered to include the names of certain Lecturers who are found eligible for such inclusion in the integrated seniority list as on 1-4-1976.

9. Accordingly, in pursuance of the orders of the A.P.A.T./A.P. High Court referred to above, and after taking into consideration the objections filed by all the affected parties, the Government hereby approve the Integrated Seniority list of Lecturers working in Government Degree Colleges with the common date of notional promotion/redesignation with effect from 1-4-1976 as shown in the Annexure to this Order subject to final outcome of the O.As./W.Ps. pending in the A.P.A.T. and A.P. High Court.

(BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH) G.SUDHIR

PRINCIPAL SECRETARY TO GOVERNMENT"

It may also be appropriate to have a look at the relevant portion of Annexure-I to G.O.Ms.No.1072, dated 26-11-1976 whereunder the Government accepted the 3 Man Committee recommendation and issued A.P. Revised Pay Scales 1976 orders, as hereunder :

Sl.

No.

Category

Pre-D.A.

Merged

Pay scale

Revised Pay

Scale of

1976

Conditions stipulated for eligibility for the scales in Column (5)

3

4.

5.

Assistant

Lecturers/

Lecturers

(Junior Scale)

Junior Lecturers working in Degree Colleges

250-15-400

300-25-600

200-15-320-20-500 with initial start at Rs.260/-

430-20-650-25-800

530-30-770-35-1050

430-20-650-25-800

500-20-700-25-900 (existing incumbents)

(a) Existing Lecturers (Gazetted)/Senior Lecturers, Heads of Department who are now in the D.A. merged scale of Rs.700-1200 will come on to this Revised Pay Scale 1976. Only those with M.Phil/M.Litt. be eligible to cross the assessment stage at Rs.12-00/- or after 5 years from 1-6-1976 whichever is earlier. Further increments upto Rs.1200/- Those without M.Phil./M.Litt. will stop at Rs.1200/- or after 5 years from 1-6-1976 whichever is earlier. Further increments upto Rs.1200/- will be allowed only after they acquire M.Phil/M.Litt Degree.

(b) Lecturers (Junior Scale) i.e., Assistant Lecturers with a Second Class Post- graduage Degree (securing not less than 50% of the aggregate) and with a total service of 5 years (whether continuous or not) will become Lecturers in the Revised Pay Scale. They should acquire M.Phil/M.Litt. qualification within 5 years 1-6-1976, failing which they cannot earn increments or they will stop at the Assessment stage at Rs.1200/- whichever is earlier in the Revised Pay Scale 1976 will be allowed only after they acquire the M.Phil/M.Litt Degree. (c) Lecturers (Junior Scale) i.e., Assistant Lecturers with a total whether continuous or not service of less than 5 years will continue in Stage D.A. merged scale of Rs.530-1050 till they complete a total service of 5 years and immediately thereafter come only to the Revised Pay Scale, 1976. They should acquire M.Phil./M.Litt. qualification within 5 years from the date of entry into the Revised Pay Scale, 1976, or 1-6-1976 whichever is later failing which they cannot earn increments or they will stop at the Assessment stage of Rs.1200/- whichever is earlier further increments upto Rs.1200/- in the Revised Pay Scale of 1976 will be allowed only after they acquire the M.Phil/M.Litt Degree. (d) For reckoning the service of 5 years referred to in (b) and (c) above only the period actually spent on duty and Earned leave if any shall be included. The period spent on study leave, medical leave, commuted leave, half pay leave, extra ordinary leave without allowances etc., shall be excluded in reckoning the 5 years period.

(e) Future recruits to lecturership through the Central Recruiting Agency (i.e., the College Service Commission) will draw the Revised Pay Scales 1976. If they do not hold a M.Phil./M.Litt. Degree they will be placed in the D.A. merged pay scale of Rs.530-1050.

(f) A lecturer in a college even though he may be having a M.Phil/M.Litt/Ph.D. Degree will be allowed to draw the increment after the stage of Rs.1200/- only after his work has been assessed and found satisfactory in a manner to be prescribed by the University to which the College is affiliated and approved by the State Government.

(a) Junior Lecturers in Degree College till they complete a total whether continuous or not of 5 years service will draw the State D.A. merged scale of Rs.530-1050. After they complete that the total whether continuous or not service of 5 years they will come on to the Revised Pay Scale 1976 of Rs.700- 1600. They should acquire the M.Phil./M.Litt. Degree within 5 years from the date of entering the Revised Pay Scales 1976 or 1-6-1976 whichever is later failing which they cannot earn any future increments or they will stop at the assessment stage at Rs.1200/- whichever is earlier. Further increments upto Rs.1200/- in the Revised Pay Scale 1976 will be allowed only after they acquire the M.Phil/M.Litt. Degree.

(b) For reckoning the service of 5 years referred to in (a) above only the period actually spent on duty and Earned leave if any shall be included. The period spent on Study leave, Medical leave, commuted leave, half pay leave, extra-ordinary leave, leave without allowances etc., shall be excluded in reckoning the 5 years period.

(i)(a) The existing Tutors and Demonstrators with I or II Class Postgraduate Degree and who have secured marks amounting to 50% and above, on completion of a total of 10 years-whether continuous or not-of service in that category will be absorbed as Lecturers in the Revised Pay Scale of Rs.700-1600. They should acquire M.Phil/M.Litt qualification within 5 years from the date of entry into the Revised Pay Scales 1976, or 1-6-1976 whichever is later failing which they cannot earn increments or will stop at the Assessment stage at Rs.1200/- whichever is earlier. Further increments upto Rs.1200/- in the Revised Pay Scales, 1976 will be allowed only after they acquire the M.Phil/M.Litt Degree. (b) Even though they may be having a M.Phil/M.Litt/Ph.D. degree they will be allowed to draw the increment after the stage of Rs.1200/- only after their work has been assessed and found satisfactory in a manner to be prescribed by the University to which the College is affiliated and approved by the State Government.

(c) For reckoning the total of 10 years of service as Demonstrators/Tutors or 5 years as Junior Lecturers or Assistant Lecturers, one year of service as Demonstrator, Tutor will be treated as being equivalent to half year of service as Junior Lecturer or Assistant Lecturer.

(ii) The existing Tutors/Demonstrators, who either do not have a I or II Class Postgraduate Degree with 50% or more marks or have not put in a total of 10 years of service and for whom the D.A. merged pay scale of Rs.430-800 has already been granted shall be brought to the Revised Pay Scale, 1976, of Rs.500- 20-700-25-900.

(iii) For reckoning the service of 10 years referred to in (i) and (ii) above only the period actually spent on duty and earned leave if any, shall be included. The period spent on Study leave, Medical Leave, Commuted Leave, half- pay leave, extraordinary leave without allowances shall be excluded in reckoning 10 years period.

It may also be relevant to have a look at G.O.Ms.No.423, G.O.Ms.No.37 and G.O.Ms.No.28, which read as hereunder :

G.O.Ms.No.423:

GOVERNMENT OF ANDHRA PRADESH

ABSTRACT

Andhra Pradesh Educational Service - Class IV - Collegiate Section - Amendments to the Special Rules for Andhra Pradesh Educational Service - Issued. EDUCATION (M.1) DEPARTMENT

G.O.Ms.No.423 Dated : 10-4-1979

Read the following :

1. G.O.Ms.No.258, G.A. (Rules) Department, dt.9-2-1962.

2. G.O.Ms.No.1072, Education (W) Department, dt.26-11-1976.

3. G.O.Ms.No.729, Education (C) Department, dt.3-7-1978.

4. G.O.Ms.No.817, Education (C) Department, dt.7-8-1978.

5. From the DHE Lr.No.535/C3-3/79, dt.8-2-1979.

ORDER:

The following notification will be published in the Andhra Pradesh Gazette :

NOTIFICATION

In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Andhra Praesh hereby makes the following amendments to the Special Rules for the Andhra Pradesh Educational Services published with the General Administration (Rules) Department Notification No.97, dated the 22nd March, 1962.

AMENDMENTS

In the said rules :

i) In rule 2

a) In the Table against the entry category 2 of Class IV in col.(1)(a) for the existing words in column (3) against item (2) there of the following words shall be submitted, Namely :

"Recruitment by the transfer from among Junior Lecturers in the Andhra Pradesh Educational Subordinate Service"

b) Existing (3) in column 2, and the entry against the same in col.(3) thereof shall be omitted.

ii) For the existing Note (8) below the Table the following Note shall be substituted, namely :-

"8. In making appointments to the Service in Category 2 of Class IV posts for which qualifications in a particular subject or Language are prescribed and shall be regarded as constituting one unit and out of every 4 vacancies arising in such unit the second vacancy shall be filled by direct recruitment and the first, third and fourth vacancies shall be filled by recruitment by transfer from among Junior Lecturers in the Andhra Pradesh Educational Subordinate Service".

2) In the Table under rule 6,

For the words "Assistant Lecturers" in column (2) against the item 5 "Lecturers in Arts and Medical Colleges" the words "Junior Lecturers" shall be substituted.

3) xxxxx

(By order and in the name of the Governor of Andhra Pradesh)

B.PRATAP REDDY

Secretary to Government"

G.O.Ms.No.37 :

GOVERNMENT OF ANDHRA PRADESH

ABSTRACT

A.P.E.S. - Class IV - Collegiate Education - Amendment to the Special Rules for A.P.E.S. - Issued.

EDUCATION (H.E.1) DEPARTMENT

G.O.Ms.No.37 Dated: 5-2-1994 Read the following :

1. G.O.Ms.No.259, G.A. (Rules) Dept., dt.9-2-1962.

2. G.O.Ms.No.1072, Edn.(W) Dept., dt.26-11-1976.

3. G.O.Ms.No.719, Edn.(W) Dept., dt.3-7-1978.

4. G.O.Ms.No.817, Edn.(C) Dept., dt.7-8-78.

5. G.O.Ms.No.423, Edn.(M1) Dept., dt.19-4-79.

6. G.O.Ms.No.1174, Edn.(W) Dept., dt.5-10-81.

7. From the D.H.E. Lr.Rc.No.4500/C3-3/94, dated 16-3-85 & 31-7-86.

8. Govt.Lr.No.937/H.E.1/82-48, Edn., Dt.23-4-90.

9. From the Dy.Secy. A.P.P.S.C. Lr.No.1065/RR/4/90, dt.6-6-90.

10. The A.P.A.T. Judgment Dt.2-7-93, in R.C.No.1705/87 and Batch.

11. From the C.C.E. Hyderabad Lr.Rc.Sno.5519/G.C 1-3/93, dated 7-10-93. @@@@

ORDER:

The following notification will be published in the Andhra Pradesh Gazette :

NOTIFICATION

In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Andhra Pradesh, hereby makes the following amendment to the notification part issued in G.O.Ms.No.423, Education Department dated the 19th April, 1979 amending the Special Rules for the Andhra Pradesh Educational Service, issued in G.O.Ms.No.259, General Administration (Rules) Department, dated the 9th February, 1962.

AMENDMENT

To the said notification part, the following shall be added, namely:- "The amendment hereby made shall be deemed to have come into force with effect on and from the 1st April 1976".

(BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH) P.V. RAO

PRINCIPAL SECRETARY TO GOVERNMENT"

G.O.Ms.No.28:

GOVERNMENT OF ANDHRA PRADESH

ABSTRACT

APES - Reckoning the service rendered in the cadre of Junior Lecturers for Career Advancement Scheme - Orders - Issued.

-------------------------------------------------------------------------------- --

Education (U.E.II) Department

G.O.Ms.No.28 Dated : 22.01.1999 Read the following :-

1. G.O.Ms.No.1072, Education (W) Department, dt.26.11.1976.

2. G.O.Ms.No.423, Education (M1) Department, dt.19.04.1979.

3. G.O.Ms.No.1174, Education (W) Department, dt.05.10.1981.

4. G.O.Ms.No.13, Education (W) Department, dt.06-01-1982.

5. G.O.Ms.No.354, Administration (Services.A) Department, dt.11.06.1990.

6. Representation from Government College Gazetted Teachers Association, Andhra Pradesh, dt.25.09.1992.

7. From Commissioner of Collegiate Education, Hyderabad Lr.Rc.No.1522/UGC-2/91, dt.14.06.1993.

8. From A.P.A.T., Hyderabad Judgment on R.P.1705/87 and other petitions, dt.02.07.1993.

9. G.O.Ms.No.37, Education (H.E1) Department, Dt.05.02.1994.

10. Govt.Memo No.1905/HE.1/93-2, dt.23.02.1994

11. Govt.Memo No.334/HE.1/94-1, dt.10.05.1994

12. Govt. Memo No.1401/IE.1/94-3, dt.10.04.1995.

13. G.O.Rt.No.1432, Education (UE.I) Department, dt.25-09-1997. *****

ORDER:

In the reference sixth read above, the Government College Gazetted Teachers' Association, Andhra Pradesh have stated that the Lecturers drafted from Junior Lecturers Cadre through Recruitment by transfer in Government Colleges could not avail the benefit of redesignation on completion of 3 years of service as in the case of private colleges. Promotions in terms of G.O.Ms.No.1072, Education (W1) Department, dt.26.11.1976 were delayed for 5 years i.e., till 01.01.1981, when the first Batch of promotees were appointed to the posts of Lecturers. The loss on account of this delay must be condoned even for the subsequent Batches correspondingly till 01.01.1986. The cadre of Junior Lecturer is a substitute to Assistant Lecturer in Andhra Pradesh Educational Subordinate Services as amended vide G.O.Ms.No.423, Education (M1) Department, dt.19.04.1979. The previous service of another feeder cadre i.e., Assistant Lecturer is counted for Career Advancement Scheme vide G.O.Ms.No.169, Education (UE.I) Department, dt.07.07.1990 while that of Junior Lecturer is not included for reckoning is a fact which needs keen attention.

2. Further, the association has mentioned that the benefit provided to Junior Lecturers as per G.O.Ms.No.1072, Education (W1) Department, dt.26.11.1976, namely upgrading of Junior Lecturers working in Degree Colleges as Lecturers after completion of 3 years of service in Degree Colleges, accrued to the Junior Lecturers working in Private Degree Colleges and that the Junior Lecturers working in Government Degree Colleges were deprived of that benefit. The loss of that benefit they said will have a cumulative effect on them if no weightage is given to the service rendered in the cadre of Junior Lecturer for the purpose of Career Advancement Scheme.

3. In this connection, the Association has suggested a formula i.e., reduction of 3 years of services from the total service rendered as Junior Lecturer prior to promotions or by giving retrospective promotion for the purpose of Career Advancement Scheme.

4. In the terms and conditions seventh read above, the C.C.E., Hyderabad has suggested that to consider the formula i.e., reduction of 3 years of services from the total service rendered as Junior Lecturer prior to promotions as proposed by the G.C.G.T.A. provided the Association agree to the condition i.e., surrendering all monetary benefits extended to them in the cadre of Junior Lecturer between 1976 and 1986.

5. In the reference thirteenth read above, the Government have issued orders to count the notional service rendered by few Lecturers those who were upgraded from Junior Lecturers in Degree Colleges to that of Lecturers for the purpose of C.A.S.

6. In the circumstances explained above and taking into consideration of all the aspects, Government after careful examination, hereby issue the following orders for reckoning the service rendered in the cadre of Junior Lecturer to the C.A.S. which is in conformity with the A.P.A.T. Judgment dated 02.07.1993 in O.A.No.1705/87.

1. A total of 228 posts of Junior Lecturers be upgraded as Lecturers in terms of G.O.Ms.No.1072, Education (W1) Department, dt.26.11.1976. All the 228 Junior Lecturers who were promoted as Lecturers in the year 1981 be given 01.04.1976 as the date of their promotion.

2. In the year 1981 a total of 590 Junior Lecturers were promoted. After taking out 228 as at Sl.No.1 above, there will be a balance of 362 for whom the date of promotion be given from 01.04.1977.

3. 223 Junior Lecturers were promoted in the year 1982. Half of this No. i.e., 112 be given their date of promotion as 01.04.1978.

7. Further, it is ordered that all the promotions mentioned above shall be notional in nature and monetary benefit shall accrue from the date of issue of orders and notional promotion period shall be counted for Career Advancement Scheme.

This order issues with the concurrence of Fin. & Plg. (F.W.PC.1) Dept, vide their U.O.No.49111/272/PC.1/98, dt.24.12.1998.

A.K. GOYAL

SECRETARY TO GOVERNMENT"

22. The Tribunal in the impugned order at para-19 had observed as hereunder : "As regards the contention on behalf of the applicants that giving seniority to the Junior Lecturers appointed by transfer as Lecturers with effect from 1.4.76 is contrary to the Judgment of the Tribunal in O.A.No.325/99 & Batch, it is to be noted that in the above OAs, the Tribunal had considered the validity of G.O.Ms.No.37, Education, dated 5.2.94, wherein a provision was made under the rules for appointment by transfer to Junior Lecturers as Lecturers with effect from 1.4.76 and G.O.Ms.No.28, Education, dated 22-1-99 wherein the Government ordered that 228 posts of Junior Lecturers be upgraded as Lecturers in terms of G.O.Ms.No.1072, Education, dated 26.11.1976 and all the 228 Junior Lecturers who were promoted as Lecturers in the year 1981 be given 1.4.76 as the date of their promotion. The Tribunal as far as the above two G.Os. are concerned held that when the Government provided promotion channel from A.P. Educational Subordinate Services to A.P. Educational Services by recruitment by transfer, there is nothing wrong in issuing G.O.Ms.No.28, Education, dated 22.1.99 and by virtue of the Judgment of the Tribunal in R.P.No.1705.87 dated 2.7.93, the Government have no option except to provide the promotion channel. The Tribunal also observed that when other categories of teachers were merged into one category of Lecturers by virtue of G.O.Ms.No.1072, Education, dated 26.11.1976, they have to necessarily give effect to such orders from 1.4.76. As G.O.Ms.No.28, dated 22.1.99 deals with subject relating to career advancement scheme and not seniority, the Tribunal held that Assistant Lecturers can have no grievance in regard to the above G.O. The view taken by the Tribunal in the earlier O.As. is that as two impugned G.Os. do not confer any benefit relating to seniority on the Junior Lecturers who were appointed by transfer as Lecturers, the Assistant Lecturers can have no grievance. Though the Tribunal took note of the Memo issued by the Commissioner of Collegiate Education in Rc.No.12/GC/II-5/97, dated 27.1.97 wherein it was clarified that Junior Lecturers promoted and posted by transfer as Lecturers with retrospective effect from 1.4.76 notionally pursuant to the Judgment of this Tribunal rendered in R.P.No.1705/87 & Batch dated 2.7.93 will not have any right to claim seniority over the then Assistant Lecturers/Tutors/Demonstrators who were working in Government College as on 31.3.76 and later re-designated as Lecturers in the time of scale of Rs.700-1600, the Tribunal did not record any finding that Junior Lecturers appointed by transfer as Lecturers are not eligible for seniority from 1.4.76. Though the applicants are relying on the above clarification issued by the Commissioner in his Rc.No.12/GC/II-5/97, dated 27.1.97, it is to be noted that subsequent to the above clarification, the Government which is a higher authority has issued the impugned seniority list in G.O.Ms.No.73, Education, dated 14.10.2003 giving seniority to the Junior Lecturers who were appointed by transfer as Lecturers with effect from 1.4.76. It is also to be noted that when the matter is subject matter of dispute before the Tribunal, it is to be examined whether there is anything irregular or illegal in the Junior Lecturers appointed by transfer as Lecturers being given seniority from 1.4.76, keeping in view the rules and background of the case and relying on the clarification issued by the Commissioner, the Tribunal cannot hold that Junior Lecturers appointed by transfer as Lecturers are not entitled for seniority with effect from 1.4.76. The Tribunal in O.A.No.325/99 & Batch did not give any specific finding regarding seniority to be given to the Junior Lecturers who were given notional date of appointment by transfer as Lecturers with effect from 1.4.76. The Tribunal only observed that G.O.Ms.No.37, Education, dated 5.2.94 and G.O.Ms.No.28, Education, dated 22.1.99 do not adversely affect the rights of any of the individuals. It is to be noted that no order giving seniority to Junior Lecturers who were appointed by transfer as Lecturers with effect from 1.4.76 was questioned in those O.As. and therefore, any observation of the Tribunal in those O.As. cannot be construed to have the effect of Junior Lecturers appointed as Lecturers with notional date of 1.4.76 not being eligible for seniority from that date. For the reasons stated above, it cannot be said that no Junior Lecturer who was given notional date of appointment as Lecturers with effect from 1.4.76 is entitled for seniority with effect from 1.4.76."

Submissions at length were made by the respective Counsel relating to the order made in O.A.No.325/99 & Batch which had attained finality. It is pertinent to note that the respective Counsel had explained several reasons, the commonness being that the same had not been questioned and the same had attained finality, the writ petitioners taking a stand that since the seniority was left unaffected the same had not been questioned and on the contrary inasmuch as conferment of certain benefits had been upheld the same principle may have to be extended, had been the stand taken by the unofficial respondents in these Writ Petitions- Junior Lecturers/promotees. In the backdrop of the rival submissions made in elaboration, it may be very relevant to have a look at the relevant portions of the order made in the Batch O.A.No.1507/99 and O.A.No.325/99 dated 9-2-2001 wherein the Tribunal had stated at paras 63 to 69 as hereunder : "Also G.O.Ms.No.1072, Education, dated 26-11-1976 was issued, providing an option to the employees to be governed by A.P. Educational Services w.e.f. 1-4- 1976 and a similar benefit was extended by issuing G.O.Ms.No.37, Education, dated 5-2-1994 giving retrospective effect w.e.f. 1-4-1976 for those who were promoted from the category of Junior Lecturers covered by A.P. Educational Subordinate Service Rules to that of Lecturers of A.P. Educational Services. Thus, this G.O.Ms.No.423, Education, dated 19-4-1979, provided a promotional channel to the Junior Lecturers working in Junior Colleges to the post of Lecturers in Degree Colleges by way of appointment by transfer. We are unable to appreciate the argument that there cannot be any appointment by transfer to a promotional post. When there was two different services governing two different posts and a promotional channel was proposed from one service to a different service, it is called appointment by transfer from one service to another service and thus, in G.O.Ms.No.423, Education, dated 19-4-1979 it was specially mentioned under the amendment that the following words shall be added : "Recruitment by transfer from among Junior Lecturers in A.P. Educational Subordinate Services".

Thus, when the Government proposed to provide a promotional channel from A.P. Educational Subordinate Service to A.P. Educational Service by recruitment by transfer, we do not see anything wrong in the issue of G.O.Ms.No.28, Education, dated 22-1-1999. Also by virtue of the Judgment of the Tribunal in R.P.No.1705/87, dated 2-7-1993, Government have no option except to provide this promotional channel and when other categories of teachers were merged into one category 'Lecturer' by virtue of G.O.Ms.No.1072, Education, dated 26-11-1976, they have to necessarily give effect to such orders from 1-4-1976. Government have specifically stated in G.O.Ms.No.281, Education, dated 28- 3-1980 that 182 posts of Junior Lecturers existing in Degree Colleges upgraded as Lecturers in the Revised Pay Scales of 1976 w.e.f. 1-4-1976 and also subject to the conditions stipulated in G.O.Ms.No.1072, education, dated 26-11-1976. Thus, it can be seen that as early as in the year 1980 itself, Government found it necessary to give retrospective effect from 1-4-1976 to the category of Junior Lecturers when the posts were upgraded. Because of this only, Government have issued orders in G.O.Ms.No.28, Education, dated 22-1-1999, upgrading 228 posts of Junior Lecturers in terms of G.O.Ms.No.1072, Education, dated 26-11- 1976 and therefore, 228 Junior Lecturers who were promoted as Lecturers in the year 1982 were given 1-4-1976 as the date of their promotion. Similarly, they ordered 362 posts to be given as their notional dates of promotion 1-4-1977 and 1-4-1978. This was done on the ground that the Junior Lecturers who were recruited by transfer and posted in Government Colleges could not avail this benefit of promotion in terms of G.O.Ms.No.1072, Education, dated 26-11-1976 as there was administrative delay till 11-1-1981 by which date only the first Batch of promotees were appointed to the post of Lecturers under G.O.Ms.No.1072, Education, dated 26-11-1976 was extended for the purpose of the benefit under career advancement scheme. It was mentioned in caption of the G.O. that this order of reckoning the services rendered in the cadre of Junior Lecturers is only for the purpose of career advancement scheme and that, in the last but one para, it was mentioned that the order of promotions mentioned in the G.O. shall be notional in nature and monetary benefit shall be given from the date of issue of this order and that, the notional promotion period shall be counted for the purpose of career advancement scheme. Had it been the intention of Government to provide for any other entitlement also in addition to the career advancement scheme, they would have explicitly mentioned it.

The Commissioner of Collegiate Education, in his Memo Rc.No.12/G.II/97 dated 27-1-1997 clarified that the Junior Lecturers promoted and posted by transfer as Lecturers with retrospective effect from 1-4-1976 notionally pursuant to the Judgment of this Tribunal rendered in R.P.No.1705/87 and Batch dated 2-7-1993, will not have any right to claim seniority over the then Assistant Lecturers/Tutors/Demonstrators who were working in Government Colleges as on 31-3-1976 and later redesignated Lecturers in time scale of Rs.700-1600. Thus, it is clear that the teachers working in Degree Colleges covered by A.P. Educational Services Rules, who were already working prior to 1-4-1976 are in no way affected in respect of their seniority by virtue of G.O.Ms.No.37, Education, dated 5-2-1997 and G.O.Ms.No.28, Education, dated 22-1-1999, G.O.Rt.No.1432, Education, dated 25-9-1997 was issued in favour of one Sri S.D.Subba Reddy and two others and they were assigned notional dates of promotion by virtue of the impugned G.O. w.e.f. 1-4-1976, 1-4-1976 and 11-11- 1976 respectively. It is seen from the caption of G.O.Rt.No.1432, Education, dated 25-9-1997 that it is only for appointment under career advancement scheme and in the last but one para it is mentioned that Government permitted the Commissioner of Collegiate Education for counting the notional service rendered by these Lecturers from the dates indicated against their names, and they were awarded senior scales respectively for the purpose of computation of services for appointment under career advancement scheme. Thus, it is clear that this G.O. was issued only for the purpose of career advancement scheme and it does not in any way confer any right of seniority in the cadre of Lecturers. It is also observed that this Tribunal while disposing of the VMAs.16 and 17 of 1997, filed by Lecturers of Degree Colleges, observed as follows:- "It is clear from the impugned G.O., that the promotions mentioned in G.O. shall be notional in nature and the monetary benefit shall accrue from the date of issue of orders and notional promotion period shall be counted for the career advancement scheme. The benefit conferred under this G.O. in our considered view, prima-facie does not in any manner alter the seniority of the beneficiaries vis--vis others. Further, at the instance of one individual viz., the applicant, the benefit conferred on several eligible Junior Lecturers under this impugned G.O. cannot be stopped admittedly, the applicant already got the benefit of career advancement scheme. In the circumstances, we do not see any valid reasons to suspend the operation of G.O.Ms.No.28, Education, dated 22- 1-1999 at the instance of the applicant as we are of the considered view that the benefit conferred under this G.O. to the eligible candidates will not effect the rights of the applicants, if any, in any manner. Accordingly, the orders dated 28-1-1999 passed by this Tribunal directing the respondents to maintain status-quo as obtaining on that date regarding G.O.Ms.No.28, Education, dated 22-1-1999, were hereby vacated and VMAs were disposed of." We do not see any reason to interfere with the impugned G.Os. in view of our foregoing discussions made in above paragraphs. We are in complete agreement with the reasons advanced at the stage of vacation of interim orders while VMAs. 16 and 17 in O.A.No.325/99. This, coupled with the orders of the Commissioner issued in his Memo Rc.No.12/G.II/97, dated 27-1-1997, makes it abundantly clear that the benefits extended to the category of Junior Lecturers by the Government by way of issuance of G.O.Ms.No.37, Education, dated 5-2-1994 and G.O.Ms.No.28, Education, dated 22-1-1999, do not adversely affect the rights of any of the individuals and hence the G.Os. are sustained. Accordingly, O.As.1507/2K, 325/99, 6299/97, 7824/97, 1449/94 and O.A.No.6342/97 are disposed of. All the M.As. stand disposed of in view of the disposal of the main O.As. No costs."

The Counsel for the unofficial respondents specifically pointed out to the portions of the counter affidavit in O.A.No.1507/99 whereunder it was stated : "Further, it is submitted that Government have issued orders in G.O.Ms.No.1076, Edn. dated 17.11.77 to the effect that the Junior Lecturers working in Government Junior Colleges against the posts of Assistant Lecturers will continue to draw their own scale of pay as long as they continue in the said posts. An extension of UGC scale of pay to Junior Lecturers did not find place in the UGC Scheme. The UGC refused to grant Financial Assistance and the Govt. in their D.O. Lr.No.3303-C.2/77-3, Dt.5.5.79 ordered that the RPS 1976 should not be implemented in respect of Junior Lecturers working in composite degree college until further orders. Aggrieved by these orders a few Junior Lecturers working in Degree Colleges filed W.Ps. in High Court. The High Court in the Judgment dated 10-8-79 delivered by Hon'ble Justice Sri A.Gangadhara Rao allowed the Batch of W.Ps. and directed the Government to implement the orders issued in G.O.Ms.No.1072, Edn., Dt.26-11-76 as amended in G.O.Ms.No.719, Edn., Dt.3-7-70 in respect of the petitioners who are Junior Lecturers working in Government Degree Colleges. Keeping in view of the Judgment of High Court, Government in their orders M.S.No.1174, Edn. dt.5.10.81 issued orders to the effect that the orders issued in G.O.Ms.No.1072, Edn., dt.26.11.76 read with Govt.Order Ms.No.719 Edn. dt.3-7-70 and G.O.Ms.No.1076 Edn., dt.17.11.77 be implemented to all the Junior Lecturers (both Govt. and Private) working in Degree Colleges subject to the conditions laid down in the above Government orders. Consequently, the orders issued in Govt.D.O.Lr.No.3303/C.2/77, dt.5-1- 78 and G.O.Ms.No.79, Edn. dt.23.1.81 are with drawn and the orders issued in G.O.Ms.No.281, Edn. dt.28-3-80 are modified to the extent necessary."

It was also further stated that in the counter affidavit :

"As per the orders of the Supreme Court, the Junior Lecturers working in Government Degree Colleges and drawing U.G.C. scales of Rs.700-1600 in pursuance of the Judgment of A.P.A.T. in R.P.No.1772/81 were transferred to Government Junior Colleges with their existing scale of pay. Further the S.L.P. filed by the Government against the Judgment in R.P.No.1772/81 and Batch was dismissed by the Supreme Court.

Subsequently, certain Junior Lecturers have filed R.P.No.1705/87 in A.P.A.T. Hyderabad with a request to direct the respondents to treat their service as Junior Lecturers in Degree Colleges as continuous and declare them entitled to the scale of Rs.700-1600 from the date on which they complete 3 years of service as Junior Lecturer in Government Degree Colleges. The A.P.A.T. in its Judgment dt.2.7.93 in R.P.No.1705/87 and Batch observed that the Junior Lecturers working in Government Degree Colleges are not entitled for declaration or direction to grant them U.G.C. pay scales as a matter of right simply because they happened to work in Government Degree Colleges without completing complying with the requirements laid down in law and the instructions issued in G.O.Ms.No.1072, Edn., dt.26.11.76 or irrespective of their seniority in the category of Junior Lecturers and without being processed by the D.P.C. The A.P.A.T. has therefore directed to conduct the exercise contemplated in G.O.Ms.No.1072, Edn. dt.26.11.76 and the subsequent instructions on the subject within a period of 6 months by the date of receipt of the copy of the Judgment."

Rc.No.1377, dated 4-6-1979, the proceedings of the Director of Higher Education, Andhra Pradesh, Hyderabad also had been pointed out wherein clarification No.5 sought by the Director of Higher Education reads:

"Whether the Assistant Lecturers, Tutors and Demonstrators whose pay has been fixed in the revised pay scales of Rs.700-1600 is to be designated as Lecturer or not" and it was stated :

"The proposal of the director of Higher Education to authorize him to redesignate the posts both permanent and temporary to the extent of the eligible candidates who are working as or were posted in the posts of Assistant Lecturers, Tutors and Demonstrators, etc., and whose pay has been fixed in the Revised Scales of Pay of Rs.700 - 1600 is agreed to, subject to ratification by Government."

Certain submissions no doubt were made that in the light of what had been stated relating to Assistant Lecturers, Tutors and Demonstrators etc., i.e., ".... subject to ratification by Government .....". In the absence of a plea or any material being placed before the Court relating to the same, it may have to be taken that there are no valid appointments and such persons have no locus standi at all to question the final seniority list.

23. G.O.Ms.No.848, dated 19-10-1982 to which reference had been made by the Counsel for the unofficial respondents reads as hereunder :

GOVERNMENT OF ANDHR PRADESH

ABSTRACT

Andhra Pradesh Educational Subordinate Service - Posts of Assistant Lecturers/Tutors/Demonstrators in Government Colleges - Conversion into Lecturers of Andhra Pradesh Educational Service consequent on the implementation of Revised Pay Scales of 1976 of Rs.700-1600 and treating the incumbents as Gazetted - Orders - Issued.

-------------------------------------------------------------------------------- --

EDUCATION (M) DEPARTMENT

G.O.Ms.No.848, Edn. Dated : 10-10-1982

Read the following :

1. G.O.Ms.No.1072, Edn., dt.26-11-1976.

2. G.O.Ms.No.719, Edn., dt.3-7-1978.

3. Govt.Memo No.838-W2/79-1, dt.24-4-1979.

4. G.O.Ms.No.817, Edn., dt.7-8-1978.

5. From the Director of Higher Education letter Rc.No.23-UGC Cell-2/82 dt.8-4- 1932.

6. From the Secretary, A.P. Public Service Commission, Lr.No.2606-B1/4/82 dt.5- 8-1982.

ORDER:

The following notification will be published in the Andhra Pradesh Gazette :-

NOTIFICATION

All the posts of Tutors/Demonstrators/Assistant Lecturers existing as on 31-3-1976 in Government Colleges are upgraded as Lecturers in Andhra Pradesh Educational Service from 1-4-1976 and the teachers working against these posts and who were allowed the scale of Rs.700-1600 shall be treated as Gazetted with effect from their entry into the scale of Rs.700-1600.

2. The Director of Higher Education is requested to send necessary draft amendments for amending Andhra Pradesh Educational Subordinate Service and Andhra Pradesh Educational Service Rules, urgently.

(By order and in the name of the Governor of Andhra Pradesh) K.S.R. MURTHY

Secretary to Government

Reliance also was placed on para-3 of G.O.Ms.No.281, Educatin (W) Department, dated 28-3-1980, which reads as hereunder :

"The Government, after careful consideration, direct that the existing posts of 182 Junior Lecturers in Degree Colleges be upgraded as Lecturers in the Revised Scale of Pay of 700-1600 with effect from 1-4-1976 (i.e., the date of implementation of the Revised Pay Scales of 1976 ordered in G.O. first read above), subject to the condition that they should possess the qualification prescribed for the post by the Universities concerned prior to 1-4-1976 and also subject to the conditions prescribed in the G.O. first read above".

24. In W.P.No.4813/78 & Batch, the petitioners prayed for a writ of mandamus or direction to respondents to implement the orders of the State Government contained in G.O.Ms.No.1072, Education Department dated 26th November, 1976 relating to revision of pay scales in respect of Junior Lecturers working in Degree Colleges under private managements, and it was no doubt observed : "Having regard to all these decisions, I hold that the petitioners, who are Junior Lecturers working in Degree Colleges are entitled to the benefit of G.O.Ms.No.1072, Education Department, dated 26-11-1976 and the action of the respondents in not implementing the same amounts to violation of Article 14 of the Constitution of India."

The Writ Petitions were no doubt allowed and the respondents were directed to implement G.O.Ms.No.1072, Education Department, dated 26-11-1976 as amended by G.O.Ms.No.719, Education Department, dated 3-7-1978 in respect of the petitioners who were Junior Lecturers working in Degree Colleges.

25. G.O.Ms.No.1174, dated 5-10-1981 and also G.O.Ms.No.13, dated 6-1-1982 also had been pointed out which read as hereunder :

GOVERNMENT OF ANDHRA PRADESH

ABSTRACT

COLLEGES - Affiliated Degree and Post Graduate Colleges (Government and Private) Andhra Pradesh Revised Pay Scales, 1976 - Allowing the Scale of pay to Junior Lecturers working in Degree Colleges - Orders - Issued. -------------------------------------------------------------------------------- -----------

EDUCATION (W ) DEPARTMENT

G.O.Ms.No.1174 Dated : 5th October, 1981

1) G.O.Ms.No.1072, Education, dated 26-11-1976

2) G.O.Ms.No.1076, Education, dated 17-11-1977

3) Govt.D.O. Lr.No.3303-C2/77-3, Education, dt.5-1-1978. 4) G.O.Ms.No.719, Education, dt.3-7-1978

5) High Court Judgments dated 10-8-79 and 21-8-79.

6) G.O.Ms.No.281, Education, dt.28-3-1980.

7) G.O.Ms.No.79, Education, dt.28-1-1981.

8) High Court Judgment dt.22-1-1981.

***

ORDER:

Orders were issued in G.O. first read above, implementing the Revised Pay Scales, 1976 (known as University Grants Commission scale to the teachers working in Degree and Post-Graduate Colleges (Govt. and Private) including Junior Lecturers working in Degree Colleges subject to the conditions prescribed in Col.(6) of Annexure of the said G.O. and also other conditions. Subsequently in Government D.O. Lr. third read above, orders were issued not to implement Revised Pay Scales, 1976 in respect of Junior Lecturers working in Degree Colleges until further orders. The matter was further examined in consultation with Government of India. They have expressed their inability to extend financial assistance as they are outside the purview of University Grants Commission and are not eligible for University Grants Commission Scale. Aggrieved by these orders, some of the Junior Lecturers in Degree Colleges filed W.Ps. in High Court. The High Court in its Judgment dated 10-8-1979 delivered by Honourable Justice Amareswari and Judgment dated 21-8-1979 delivered by Honourable Justice A.Gangadhara Rao, allowed the Batch of W.Ps. and directed the Government to implement the orders in G.O.Ms.No.1072, Education, dated 26-11-1976 as amended by G.O.Ms.No.719, Education, dated 3-7-1978 in respect of the petitioners who are Junior Lecturers working in Degree Colleges. Upon this, the Government filed W.As. in the High Court before the Division Bench stating that the Junior Lecturers are not eligible for University Grants Commission as they are outside the purview of the University Grants Commission and are not eligible for any assistance from the Government of India. Meanwhile orders were issued by the Government in G.O. sixth read above in consultation with Government of India for the upgradation of 182, Junior Lecturers posts in the scale of pay of Rs.700-1600 with effect from 1-4-1976. Further orders were also issued in G.O. seventh read above, accepting in principle that the posts of Junior Lecturers in Degree Colleges should be upgraded into Lecturers posts and allowed the Revised Pay Scale of Rs.700-1600 etc. The details regarding number of posts to be upgraded, the mode of filling up of the posts to be upgraded and the mode of fixation in 3 Man Committee scale of Rs.700-1600 is separately under consideration.

While the matter stood at this stage, the W.As. filed by Government came up for hearing on 22-1-1981 before the Full Bench and they were dismissed. Keeping in view, the Judgments of High Court on the subject the matter was further considered by Government carefully in detail and it was decided that the orders issued in G.O.Ms.No.1072, Education, dated 26-11-1976 read with G.O.Ms.No.719, Education, dated 3-7-1978 and G.O.Ms.No.1075 Education, dated 17-11-1977 be implemented to all the Junior Lecturers (Both Government and Private) working in Degree Colleges subject to the conditions laid down in the said G.Os. Consequently the orders issued in Govt. D.O. Lr.No.3303-C-2/77, Education, dated 5-1-1978 and G.O.Ms.No.79, Education, dated 28-1-1981 are hereby withdrawn and the orders issued in G.O.Ms.No.281, Education, dated 28-3-1980 are modified to the extent necessary.

This order issues with the concurrence of Finance and Planning (EE) Department vide their U.O.No.2073/DFS/M/81, dt.1-10-1981. (BY ORDER AND IN The NAME OF THE GOVERNOR OF ANDHRA PRADESH) M.GOPALAKRISHNAN

Secretary to Government

G.O.Ms.No.13:

GOVERNMENT OF ANDHRA PRADESH

ABSTRACT

Colleges - Affiliated Degree and Post-Graduate Colleges (Government and Private) - Andhra Pradesh Revised Pay Scales 1976 - Allowing the scale of pay to Junior Lecturers working in Degree Colleges - Amendment to G.O.Ms.No.1174, Education, dt.5-10-1981 - Issued.

-------------------------------------------------------------------------------- --

EDUCATION (W) DEPARTMENT

G.O.Ms.No.13, Education, Dated: 6th January, 1982 Read the following :

1. G.O.Ms.No.1174, Education, dated 5-10-1981

2. From the Director of Higher Education, Lr.RC.No.29/UGC-Cell-2/81, dated 16- 10-1981.

3. Govt.D.O.Lr.No.2121-W2/81-1, Education, dt.23-10-81.

4. From the Director of Higher Education, Lr.RC.No.29/UGC-Cell-2/81, dated 9-11- 1981.

***

ORDER:

In modification of the orders issued in G.O. first read above para 6 of the said G.O. be substituted by the following para :- Keeping in view, the Judgments of High Court on the subject, the matter was further considered by Government carefully in detail and it was decided that the orders issued in G.O.Ms.No.1072, Education, dated 26-11-1976 read with G.O.Ms.No.719, Education, dated 3-7-1978 and G.O.Ms.No.1076, Education, dated 17-11-1977 be implemented in respect of Junior Lecturers posts existing as on 26-11-1976 in Degree Colleges (both Government and Private) subject to the conditions laid down in the said G.Os. consequently the orders issued in Government D.O.Lr.No.3303/C277, Education, dated 5-1-1978 and G.O.Ms.No.79, Education, dated 28-1-1981 are hereby withdrawn and the orders issued in G.O.Ms.No.281, Education, dated 28-3-1980 are modified to the extent necessary.

2. This order issues with the concurrence of Finance and Planning (PRC) Department, vide their U.O.No.14/JES(P)/82, dated 5-1-1982. (BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH) D.M.De Rebello

Special Secretary to Government

In the proceedings of the Director of Higher Education, Rc.29/UGC.Cell-2/81, dated 19-9-1984 wherein the Government in Memorandum No.194/W2/82-11, Education, dated 18-8-1983, stated :

"After careful consideration of the matter, the Government direct that the period of service of 5 years required to be put in by the Junior Lecturers in Degree Colleges to get the scale of Rs.700-1600 be reduced to three years in respect of Junior Lecturers working in Private Degree Colleges and also in Government Degree Colleges (pending issue of further amendments to Andhra Pradesh Educational Service Rules) whose posts were upgraded to that of Lecturers in G.Os. 3rd and 4th read above. The benefit of the revised scale of Rs.700-1600 in the Revised pay scale 1976 will be notional from 1-4-1976 or from the date of option to Revised Pay Scales, 1976, as the case may be with monetary benefit from the date of issue of these orders".

The Government in Memo No.1028/UE-3/84-4, dated 11-7-1985, at paras 3 and 4 stated :

"The matter has been examined by Government and it has been decided that the monetary benefit can be allowed in the above cases from 1-4-1976 or from the date of option to Revised Pay Scales of 1976 and to credit the arrears on this account upto 18-8-1983 to Provident Fund account of the subscribers. If there is no provident fund account in operation a provident fund account shall be opened and the arrears shall be paid into the said Account.

Accordingly in partial modification of the Memo 12th cited, Government hereby order that the monetary benefit of the scale of Rs.700-1600 be allowed to the Junior Lecturers working in degree colleges both Government and Private and who have been promoted as Lecturers on completion of 3 years of service as Junior Lecturers with effect from 1-4-1976 or from the date of option to Revised Pay Scales of 1976 whichever is later. Government also order that the arrears due on this account upto 18-8-1983 be credited to the Provident Fund Account of the employees concerned. In case any employee does not have a Provident Fund Account at present, a Provident Fund Account should be opened and the arrears credited to that account. The monetary benefit shall however be admissible in cash from 18-8-1983".

G.O.Rt.No.1432, dated 25-9-1997 in relation to D.Subba Reddy and certain others had specified :

"In view of the above circumstance and taking into consideration of all the aspects, Government after careful examination hereby permit the Commissioner of Collegiate Education for counting of the notional service rendered by the following Lecturers from the dates indicated against their names on which they were awarded senior scale retrospective for the purpose of computation service for appointment under Career Advancement Scheme.

1. Sri S.D. Subba Reddy, Lecturer in English - 1-4-1976

2. Dr.Syed Abdul Quader Hussaini, Lec. in Arabic - 1-4-1976

3. Sri V.Ramakrishna Sastry, Lecturer in History (Retd.) - 11-11-1976. This order issues in the concurrence of Finance and Planning (FW.PO.1) Department vide U.O.No.37618/464/PC.1/96, dt.17-10-1996."

The proceedings Rc.No.1655/Ser.II-3/2000, dated 20-3-2003 reads :

PROCEEDINGS OF THE DIRECTOR OF COLLEGIATE EDUCATION

ANDHRA PRADESH : HYDERABAD

Present : Sri K.Ambarish, I.A.S.,

Rc.No.1655/Ser.II-3/2000 Dated 20-3-2003

Sub: APES - Integrated Provisional Seniority list of Lecturers working in Government Degree Colleges with the common date of Notional Promotion/Redesignation w.e.f. 1-4-1976 - Communicated - Reg. Ref:- 1) G.O.Ms.No.1072, Education, dt.26-11-1976.

2) G.O.Ms.No.423, Education, dt.19-4-1979.

3) Govt.Memo No.1905/HE.I-2/93, dt.23-2-1994.

4) Govt.Memo No.3557/CE.I-1/2001-1, Higher Education

Department, dated 16-9-2002.

***

Government in their Memo 4th read above, have issued orders to prepare inter-se seniority list of various categories of the college teachers as per Rule 33 and 36 of A.P. State and Subordinate Services Rules and communicate the same to the individuals for obtaining their objections, if any. Government in their orders Ms.No.1072, Education Department, dt.26-11-1976 have extended UGC pay scales of 1976 to the college teachers w.e.f. 1-4-1976. As per para 5(i) of the G.O. different categories existing among the teachers in Degree Colleges like Readers, Heads of the Department/Senior Lecturers, Lecturers (Senior Scale), Lecturers (Junior Scale)/Assistant Lecturers and Junior Lecturers working in Degree Colleges were merged into one category i.e., lecturer in the scale of Rs.700-1600 w.e.f. 1-4-1976. In pursuance of the above Government Orders, the Assistant Lecturers who have completed 3 years of service in the cadre, were designated as Lecturers in the scale of Rs.700-1600 w.e.f. 1-4-76.

The Tutors and Demonstrators who acquired 1st or 2nd class P.G. Degree with not less than 50% of the marks on completion of 5 years of service were designated as Lecturers in the scale of Rs.700-1600 w.e.f. 1-4-76. In terms of G.O.Ms.No.1072, Education Department, dated 26-11-1976, 228 posts of Junior Lecturers were upgraded as Lecturers. In pursuance of A.P.A.T. Judgment dt.2-7-1993 in O.A.No.1705/87, 228 Junior Lecturers who were promoted as Lecturers in the year 1981 were given retrospective promotion as Lecturers w.e.f. 1-4-76 on notional basis.

The above three (3) categories of teachers were designated/promoted Notionally as Lecturers w.e.f. 1-4-76. In terms of Rule 36 of A.P. State and Sub-ordinate Services Rules, in case the date of probation is the same, whoever is aged, shall be the senior. Further as per Rule 33(c) of A.P. State and Subordinate Service Rules, whenever notional date of promotion is assigned, such date of notional promotion shall be taken into consideration for computing the qualifying length of service in the feeder category for promotion to the next higher category and that the notional service shall be counted for the purpose of declaration of probation also in the feeder category. In pursuance of the above rule position, integrated provisional seniority list of the Assistant Lecturers designated as Lecturers w.e.f. 1-4-76. Tutors and Demonstrators absorbed as Lecturers w.e.f. 1-4-76 and the Junior Lecturers promoted as Lecturers retrospectively from 1-4-76 and are in service as on 1-2- 2003, is communicated herewith to the Lecturers concerned. THEY ARE REQUESTED TO SUBMIT THEIR OBJECTIONS IF ANY, WITHIN A PERIOD OF 15 DAYS FROM THE DATE OF RECEIPT OF THESE PROCEEDINGS FOR CONSIDERATION. The objections if any, received after the stipulated period will not be entertained and their seniority will be finalized based on the available records. They are also informed that if any name(s) of Lecturers are missing in this provisional seniority list or if any corrections are to be made in the dates mentioned in the list, the same may be brought to the notice of the DIRECTOR OF COLLEGIATE EDUCATION for taking further necessary action in the matter. The Principals of all Government Degree Colleges concerned are requested to communicate the provisional seniority list to the individuals concerned and obtain acknowledgement from them in token of having received the seniority list and preserve the same in their office records.

The receipt of these proceedings should be acknowledged by return of post. Sd/- K.AMBADISH

DIRECTOR OF COLLEGIATE EDUCATION

On the strength of the aforesaid Memos and also G.Os. referred to supra and the order made by the Tribunal in O.A.No.325/99 & Batch, elaborate submissions were advanced by all the Counsel on record.

26. There cannot be any doubt or controversy that applying the principle of comity, the orders of the Courts are to be in conformity and not to be conflicting. On a careful scrutiny of the Common Judgment in O.A.No.325/99 & Batch, dated 9-2-2001, specific observation was made to the effect that the seniority of the writ petitioners and similarly placed Lecturers would be unaffected. No doubt, evidently that was the reason why the writ petitioners had allowed the same to attain finality inasmuch as the question of seniority was left untouched and only directions in relation to certain benefits had been conferred. Much reliance was placed on certain findings and the observations made in R.P.No.1705/87 & Batch made by the Tribunal dated 2-7-1993 by the Counsel representing the writ petitioners. Paras 4, 7, 9, 12, 14, 16, 17 and 18 had been specifically referred to in this regard. At para-4, in R.P.No.1705/87 & Batch, it was stated :

"The point for consideration is whether the petitioners are entitled for a declaration that their pay should be fixed in the U.G.C. pay scale of Rs.700- 1600 introduced in G.O.Ms.No.1072, dated 26-11-1976 and the subsequent orders issued by the Government on the subject with effect from the date on which they have completed 3 years service in the category of Junior Lecturers ?"

The relevant portion of the para-7 in R.P.No.1705/87 & Batch is as hereunder : "Prior to the academic year 1969-70 the Degree Colleges were having one year duration of the pre-University and Degree Course of 3 years duration. The teaching staff pattern in the Degree Colleges was as follows : Lecturers ... Rs.400 - 800 Asst. Lecturers ... Rs.300 - 600 Tutors/Demonstrators ... Rs.250 - 400

The above teaching staff are governed by the A.P. Educational Service Rules. The Rules provide for promotion from the category of Tutors/Demonstrators to that of Asst. Lecturers and from the category of Assistant Lecturers to that of Lecturers. In that scheme there was no post of Junior Lecturer. Therefore, the nomenclature of post of Junior Lecturer was not figuring in the A.P. Educational Service Rules. From the academic year 1969-70 two years Intermediate course under the purview of Board of Intermediate Education was introduced in the place of pre-University Course in the Degree Colleges. There were also classes 11 and 12 in the Higher Secondary Schools and Multipurpose Schools and with the introduction of the Intermediate courses, the 11th and 12th classes were dispensed with in the said school sand Intermediate Course was introduced. So far as the introduction of the Intermediate Courses in the High Schools and Multi-purpose schools are concerned, the Board of Intermediate identified and designated those institutions as Junior Colleges. The Scale of Pay sanctioned to the posts Junior Lecturer thus created for the first time was Rs.200-500 and such of the Teachers who were earlier working in the secondary schools and Multi-purpose Schools teaching 11th and 12th classes and possessing Post graduate qualification were given a higher start of Rs.200 and such teachers wee designated as Junior Lecturers. As there were no rules by then to regulate the service conditions of Junior Lecturers, the Government issued adhoc rules in G.O.Ms.No.939, dated 19-9-1973 to regulate the appointment and other conditions of Junior Lecturers and the rules clearly say that the Junior Lecturers in Government Degree Colleges and Junior Lecturers in Junior Colleges shall constitute a separate class in the A.P. Education Subordinate Service. It is, therefore, evident that whether a Junior Lecturer was appointed in Junior College or Degree College they constitute a separate class in the A.P. Educational Subordinate Service and these Junior Lecturers are not at all governed with the A.P. Educational Service Rules. It is, therefore, evident that the Lecturers, Asst. Lecturers working in the Degree Colleges were governed by one set of service rules known as A.P. Educational Service Rules with distinct and separate pay scales and the Junior Lecturers working in Degree Colleges and Junior Colleges with separate nomenclature with a lesser scale of pay and they are governed by the adhoc rules issued for the first time in the year 1973 specifying that these Junior Lecturers constitute a separate class in the A.P. Educational Subordinate Service.....".

The relevant portion of para-9 in R.P.No.1705/87 & Batch is as hereunder :

"After the introduction of the scheme of Intermediate Education and the creation of the category of Junior Lecturers, the pay scales were revised with effect from 1.1.1974 and the following pay scales were given for the teaching staff :

Lecturers ... 700-1200

Asst. Lecturers ... 530-1050

Junior Lecturers ... 430-800

Tutors/Demonstrators ... 430-800

It can be seen from the Government memo dated 22.11.1978 that on the report of the Director of Higher Education, the Government permitted the Director to fill up the vacant posts of Asst.Lecturers/Lecturers existing in the Government colleges by posting Junior Lecturers purely on adhoc and temporary basis. By virtue of the aforesaid exemption granted by the Government, some of the Junior Lecturers were posted in the vacant posts in Degree colleges and while so posting, seniority in the category of Junior Lecturers was not taken into account as per averment made in para-7 of the counter. It is, therefore, urged by the learned G.P. that such of the Junior Lecturers who happened to be working in Degree Colleges by virtue of posting to the Degree Colleges irrespective of the seniority in the category of Junior Lecturers, they are not entitled for the revised pay scales 1976 applicable to the Lecturers and if that is done, the seniors in the category of Junior Lecturers working at the relevant point of time in Junior Colleges would suffer. This aspect is clearly stated in para-7 of the counter which is extracted below for convenient reference : "As there was no recruitment for the posts of Lecturers in Government Degree Colleges, with a view to see that instructions in the Colleges does not suffer, Government in their Memo No.3308/B2/78-2, Edn. (B) Department dated 22- 11-1978 (Annexure No.X at page No.58-59) have permitted the Director (Respondent No.2) to fill up the vacant posts of Lecturers, Assistant Lecturers/Tutors/Demonstrators existing in the Government Colleges by posting, Junior Lecturers in their own scale of pay purely on adhoc and temporary basis (stop gap arrangement) and without prejudice to their status as Junior Lecturers. As per the above orders of the Government the Junior Lecturers were posted in the post of Lecturers/Asst. Lecturers in Government Degree College in their own scale of pay to avoid dislocation of teaching work in Degree Colleges. While doing so the seniority or juniority of the Junior Lecturers was not taken into consideration and who ever was readily available has been transferred and posted to Government Degree Colleges. In Government sector each college is not a unit for appointment but the zone is the unit, of appointment. In private sector each college is a separate unit for appointment. As already mentioned in the foregoing paras, the Junior Lecturers working in Government Degree Colleges and in the Government Junior Colleges constitute single class in A.P.E.S.S. There is no distinction between the Junior Lecturers working in Government Junior College and in Government Junior College and in Government Degree Colleges. Since the Junior Lecturers have been posted to Government Degree Colleges against the posts of Asst. Lecturers in their own scales of pay without taking into consideration their seniority in the zone and subject. The above G.O.Ms.No.1072, Edn. dt.26-11-1976 (Annexure No.VI at page No.34-51) could not be implemented in respect of all the Junior Lecturers posted in Govt. Degree Colleges, as the seniors happen to be working in Govt. Junior Colleges in the State D.A. merged scale of pay and juniors are working in Govt. Degree Colleges. It will be discriminatory if the petitioners alone are allowed the U.G.C. scale of 1976 in reference to their seniors working in Govt. Junior Colleges".

In paras-12 and 14 it had been pointed out :

"It is evident from the above that the Government have been implementing their orders issued in G.O.Ms.No.1072 and in that process several Junior Lecturers were promoted as Lecturers and given the Revised Pay Scales of 1976. Such an exercise is essential in view of the rule position, particularly the Junior Lecturers in Degree Colleges as well as in Junior Colleges form part of one class in the Educational Subordinate Service and posts of Lecturers form part of A.P. Educational Service and the posts have to be filled up in accordance with the service rules and also in accordance with the provisions contained in the Presidential Order. If a Junior Lecturer who is governed by the A.P. Educational Subordinate Service Rules or the adhoc rules happens to be working in a Degree College irrespective of his seniority in the category of Junior Lecturers, he cannot claim as a matter of right that he is entitled to claim UGC scale simply because he is working in a Degree College at a relevant point of time. If the posts of Junior Lecturers in the Degree Colleges are separate entity and governed by separate service rules than the posts of Junior Lecturers in Junior Colleges, the contention of the petitioners is tenable. Here the Junior Lecturers, whether working in a Degree College or Junior College constitute one class and they are governed by separate set of rules. If a Junior Lecturer governed by the Educational Subordinate Service Rules or the adhoc rules is posted to Degree College, by virtue of his seniority, merit and ability, then the position will be different. According to the counter the position is otherwise. If a senior in the category of Junior Lecturer who is qualified to be appointed as Lecturer happens to be posted in a Degree College as per the administrative exigencies, such a junior cannot claim that he is entitled to get UGC Pay Scales simply because he is working in a Degree College. These aspects were taken note of in the earlier Judgment of the Tribunal also and it is for that reason the Tribunal held in the operative portion of the Judgment that till such time, the cases of the petitioners in those cases were placed before the D.P.C. as required in item 4(d) of Annexure-I of G.O.1072 their pay shall not be disturbed. That Judgment did not give any right to the Junior Lecturers working in Junior Colleges to continue only in Degree Colleges or to get the U.G.C. scale of pay of Rs.700-1600 without reference to the various aspects including qualification and other requirements as per G.O.Ms.No.1072.

.......

......

As already noticed that on the report of the Director of Higher Education, to man the vacant posts of Assistant Lecturers and Lecturers in the Government Degree Colleges, the Government accorded permission to post the Junior Lecturers in the vacant posts. Regarding the pay and allowances that could be paid to such Junior Lecturers the Government ordered in G.O.Ms.No.1076, dated 17-11-1977 issued orders by adding the following proviso under item 4 of Annexure-I to G.O.Ms.No.1072, dated 26-11-1976.

"Provided that the Junior Lecturers working in Govt. Degree Colleges agreement post of Asst.Lecturers shall continue to draw their own scales of pay as long as they continue in the said posts."

The stand taken by the Government in the counter and also during the course of arguments is to the effect that in order to avoid dislocation of the instructional work in the Degree Colleges, as many of the posts of Asst. Lecturers and Lecturers were vacant, the Junior Lecturers were allowed to be posted against the vacant posts of Asst. Lecturers/Lecturers in the Degree Colleges with clear instructions that such Junior Lecturers be continue to draw the pay attached to Junior Lecturer posts and not the pay attached to the post of Assistant Lecturer/Lecturer against which they were posted."

The relevant portion at para-16 is as hereunder :

"..... The same is evident as to what was stated at page 11 of the counter in the present Batch of cases as follows :

"The petitioners who happened to work in Degree colleges are not senior most persons among the Junior Lecturers, in their respective subjects in that zone. For promotion to the post of Lecturers in Degree Colleges the Departmental Promotion Committee has to consider the claims of the Senior most Junior Lecturers working in that zone either in Degree or Junior Colleges in their respective subjects. The claims of the Junior Lecturers working in Degree Colleges alone cannot be considered by the Departmental Promotion Committee, for the promotions to the post of Lecturers, leaving their seniors working in Government Junior Colleges when the entire category of Junior Lecturers in that subject in that zone constitute a single unit. This fact was not earlier brought to the notice of the Hon'ble Andhra Pradesh Administrative Tribunal."

The Government issued orders from time to time particularly the orders issued in G.O.Ms.No.1174, dated 5-10-1981 and G.O. 13 dated 6-1-1982 to the effect that the posts of Lecturers in Degree Colleges including the posts of Asst. Lecturers/Junior Lecturers upgraded as Lecturers posts in each zone with reference to the inter-se seniority of Junior Lecturers as a whole, in conformity with the Presidential Order. As the postings of Junior Lecturers in Degree Colleges were given in a routine manner as the authority used to transfer Junior Lecturers from Junior Colleges to Degree colleges and vice-versa, at a particular point of time there happened to be a junior in the category of Junior Lecturers happen to work in Degree colleges whereas a senior in the service in the same category happens to work in Junior College. If the cut of date of 1-4- 1976 prescribed in G.O.Ms.No.1072, dated 26-11-1976 was taken into account for implementing the UGC scales of pay and giving the UGC scales only to those Junior Lecturers working in Degree Colleges on that day or who happen to work in the Degree Colleges subsequent to that date, irrespective of the seniority in the category of Junior Lecturers, a junior in the category of Junior Lecturers has to be given the UGC scales and whereas a senior in the category of Junior Lecturer working in Junior College has to continue in the lower scale of pay. Such a situation is contrary to the rules and the Presidential Order. The Junior Lecturers working either in the Government Junior Colleges or Government Degree Colleges constitute a single class and governed by the adhoc service rules issued in G.O.Ms.No.939 whereas the teaching posts in Degree Colleges are governed by the A.P. Educational Service Rules......".

Further, at paras-17 and 18 it had been concluded by the Tribunal in the aforesaid Batch as hereunder :

"In view of the provisions contained in the Presidential Order and the Service Rules governing the recruitment/appointment, promotion, etc., of the Junior Lecturers/Assistant Lecturers, the exercise has to be completed as per the provisions contained in G.O. 1072. This is essential as the Junior Lecturers working in Government Colleges either Degree Colleges or Junior Colleges are separate class by themselves governed by separate set of rules and they constitute one class. As per the administrative exigencies some of the Junior Lecturers were transferred from Junior college to Degree college and vice-versa. While transferring Junior Lecturers from one college to another college seniority was not followed. Though generally the senior among the Junior Lecturers were posted in the Degree Colleges but that was not uniformly followed and there were occasions where some of the juniors in the category of Junior Lecturers were posted to Degree College while a senior in that category continues to work in the Junior College. Therefore, some of the Junior Lecturers, who by fortuitous circumstances, happen to work in Degree College cannot claim that they are entitled to get his pay in the U.G.C. scale and at the same time denying the same scale to a senior in the category who happen to work in a Junior College. Therefore, the exercise contemplated in para (d) against item 4 of Annexure-I of G.O. 1072 has to be done and thereafter only the UGC pay scales can be given to such of the Junior Lecturers who were considered fit by the D.P.C. for posting/appointment in the posts of Lecturers in Degree Colleges and fix the pay in the U.G.C. pay scales. Such an exercise is in accordance with the rules and there cannot be any discrimination. If this exercise is not done and all the Junior Lecturers who happen to be in Degree Colleges are given the UGC pay scales, irrespective of seniority in the category of Junior Lecturers, it amounts to discrimination.

For the reasons above we conclude that the petitioners as Junior Lecturers in Degree Colleges, are entitled for declaration or direction to grant them the UGC pay scales (Revised Pay Scale, 1976) as a matter of right, simply because they happen to work in Degree Colleges, without complying with requirements laid down in law and the instructions issued in G.O. 1072, or irrespective of the seniority in the category of Junior Lecturers and without being processed by the D.P.C. The respondents are directed to conduct the exercise contemplated in G.O. 1072 and the subsequent instructions on the subject as expeditiously as possible and in any event within a period of six months from the date of receipt of copy of this Judgment".

27. Written submissions made in this regard before the Tribunal by Sri Surender Rao also had been repeated and reiterated and the same had been produced before this Court. On a careful analysis and scrutiny of the orders made and the directions issued and the observations recorded in the prior judicial proceedings and the G.Os. issued from time to time and also the memos and the correspondence which had been produced by the respective parties before the Tribunal, this Court is called upon to decide the validity of the retrospectivity while finalizing the seniority list.

28. The merger or creation of common cadre of Lecturers by virtue of the merger is not in serious controversy. The fact that the writ petitioners and several other Assistant Lecturers etc., similarly placed specified to be drawing higher salary when compared to Junior Lecturers as shown even in G.O.Ms.No.1072 would be affected by retrospective promotions fixed by the final seniority list by virtue of G.O.Ms.No.73, also cannot be in serious dispute. The legal fiction and applicability thereof or power of Government to fix seniority in this regard may not save the Junior Lecturers/promotees so as to ward off the legal blow and to protect themselves of the retrospective promotions since it would amount to an arbitrary action and offending Article 14 of the Constitution of India and cannot stand the test of legal scrutiny. The stand taken by the State Government is that the Government being the final authority to decide this issue, had taken into consideration all the relevant aspects and had finalized the seniority list. Retrospective promotions are to be given on justifiable and intelligible reasons. A cadre placed on a higher footing of scale as reflected from G.O.Ms.No.1072 cannot be affected of the seniority in any way by this retrospective action. Executive fiat stands on a different footing when compared to a legislative measure. It is also pertinent to note that even if it is a legislative measure, the same should answer the test of Article 14 of the Constitution of India, lest the said action would be struck down. O.A.No.325/99 & Batch and orders made therein referred to supra are self-explanatory which had attained finality. It is pertinent to note that both the contesting parties intend to derive advantage out of this order and the consequences flowing therefrom. The Counsel for unofficial respondents placed strong reliance on PRAFULLA KUMAR DAS Vs. STATE OF ORISSA 7 wherein a Five Judge Bench while dealing with the concept of year of allotment as workable in relation to Orissa Administrative Service Class II (Appointment of Officers Validation) Act (8 of 1987), Section 3(2a) as inserted by Section 2 of Orissa Administrative Service Class II (Appointment of Officers Validation) Amendment Act of 1992 and Rule 4 of 1959 Rules, Integrated Service and merger resolution, observed at paras 28 and 29 as hereunder :

"We have outlined above our reasons for upholding the validity of the principle of year of allotment, principal among which is our disinclination to tamper with a settled practice, in view of the dicta contained in the decision of this Court in the Direct Recruit Engineering Officers' Association case (supra). The concept of year of allotment has also been shown to be a workable one, inasmuch as it was still open to the Government in the post 1973 merger scenario to recruit officers from a variety of sources, including, but not limited to, transfer from comparable services. When once the concept of year of allotment is deemed to be upheld, it matters not that the first name of O.S.A.S. would rank immediately below the last name of the erstwhile O.A.S. The material point of fact is that through the adoption of a legal fiction and by having recourse to his Constitutional function under Article 309 of Constitution, the Governor of the State of Orissa appointed certain officers in the year 1975, who were appointed against vacancies which were identified in the year 1973, prior to the entry into force of the Merger Resolution of December, 1973. That being the case, the legal fiction of year of allotment would operate in respect of the 1975 appointees as if they had been appointed in the year when the vacancies were initially identified; in other words, they would be deemed to have been appointed in the year 1973, prior to the merger of the O.A.S.II with the O.S.A.S., although their actual period of service was seen to commence only in 1975.

We are also constrained to point to the fact that by virtue of the merger resolution the principle of promotion contained in the 1959 Rules was upheld such that the promotees of a particular year would be accorded seniority above the direct recruits of that year. It is those members of the O.S.A.S. such as the present petitioners, who were unable to secure promotion when their cases came up before the O.S.A.S. in the years preceding the Merger Resolution (1970- 73), who seek seniority over the direct recruits by mere fact of their being members of the integrated service. In our considered opinion, such wholesale integration may not be regarded as the promotion of the whole of the O.S.A.S. This inference is supported by the various provisions contained in the Recruitment Rules of 1959, principally R.10(7) and R.11."

The validity of Section 2 of the Amendment Act of 1992 was the question in controversy in the said decision. The decisions in DIRECT RECRUIT CLASS II ENGINEERING OFFICER'S ASSOCIATION Vs. STATE OF MAHARASHTRA 8 and NITYANANDA KAR Vs. STATE OF ORISSA 9 and other decisions relevant to the point also had been discussed in the decision referred to supra. The wisdom of the Government in deciding to merge the categories into one category of Lecturers is not in serious controversy but the question which is seriously controverted is the retrospective promotions from 1-4-1976. A three Judge bench of the Apex Court in the decision referred (4) supra dealing with Article 16 of the Constitution of India, seniority and giving ante-date promotions retrospectively, held at para-2 as hereunder :

"The learned Counsel for the appellants invited our attention to the decision of this Court in State of Bihar Vs. Akhouri Sachindra Nath, JT (1991) 2 SC 279 : [1992(3) SLR 94 (SC)]. The question in that case was more or less similar to the question arising in the present appeal. In that case also the question was regarding the fixation of inter se seniority between direct recruits and promotees. In that case also the promotees were granted seniority from retrospective date. That was the bone of contention between the parties. This Court held interest backdrop of those facts that no person could be promoted with retrospective effect from a date when he was not borne on the cadre so as to adversely affect others. It held that promotees not borne on the cadre at the time when direct recruits came to be appointed cannot be given seniority in service over direct recruits. The ratio of that decision applies squarely in the present appeal also. In view of the same, the learned Counsel for the State also found it difficult to support the Judgment of the High Court."

Submissions at length were made by the Counsel representing the writ petitioners and reliance also was placed on the decisions referred (1), (2) and (3) supra.

29. Apart from this aspect of the matter, it is clear that for Junior Lecturers to be absorbed into the category of Lecturers, certain conditions are to be satisfied and the same is not automatic. Findings and the observations referred to supra both in R.P.No.1705/87 & Batch and also O.A.No.325/99 & Batch are clear and categorical and in fact the relevant G.Os. holding the field from time to time and the developments subsequent thereto also had been well traced and in view of the fact that the said findings and the observations already had been referred to supra, the same need not be repeated again. On a careful scrutiny of all the facts of the case and the findings recorded by a Five Judge Bench of the Apex Court in the decision referred (7) supra, the same is distinguishable on facts. Though the decisions referred (1) to (4) supra also are distinguishable on facts, the principles relating to the giving of the ante- dated promotions with retrospectivity had been well settled by the consistent pronouncements made by the Apex Court in this regard. Lengthy submissions made that in relation to the conferment of certain monetary benefits and Career Advancement Scheme etc., inasmuch as this principle had been accepted the same may have to be extended while finalizing the seniority list also with retrospectivity, cannot be accepted and the same have to be rejected for the reason that from the very reading of G.O.Ms.No.1072, to approve such promotions with retrospectivity would be affecting the promotional avenues of the writ petitioners and similarly placed persons who have been in fact drawing higher salary as reflected from the G.O. It is pertinent to note that fixing seniority is something different from having qualification and eligibility to be appointed as Principal. That stands on a different footing altogether and hence this Court is not inclined to express any opinion relating to the said aspect.

30. A futile attempt had been made by the learned Counsel representing the unofficial respondents to attack the very regulairity of the appointments of the Assistant Lecturers as Lecturers for want of particulars and want of ratification by the Government and also on the ground that all the affected parties are not impleaded as parties and on that ground also the writ petitioners are bound to fail. This Court is not inclined to accept with the said contentions for the reason that it is a case of the principle to be laid down in relation to fixing of seniority and G.O.Ms.No.73 is attacked on the ground that such fixation with retrospective effect is arbitrary and adequate representation is made in relation to that section to defend the case and to ventilate the grievances of Junior Lecturers/promotees. Hence in view of the fact that there is due representation it cannot be said that the writ petitioners are to be non-suited on the ground that all the affected parties had not been impleaded. Apart from this aspect of the matter, this Court is concerned with only the legality of the retrospective promotion given to the Junior Lecturers/promotees virtually affecting the Assistant Lecturers and others who had been better placed even on parity of scales as reflected from G.O.Ms.No.1072. Reliance was placed on the decision of the Division Bench in the decision referred (5) supra wherein it was held that to claim seniority the appointment should be made according to the statutory rules and the appointees get seniority from the date on which they were regularly appointed. In the light of the long journey of service which the writ petitioners had put in, at this length of time, this is a futile exercise which is being made by the unofficial respondents to defeat the claim of the writ petitioners and the similarly placed persons who had questioned the final seniority list on the ground of the same being an arbitrary action in giving the retrospective promotions. When G.O.Ms.No.73 and the action of the State Government in issuing thereof, the final seniority list, being not in conformity with Article 14 of the Constitution of India, this Court is satisfied that the Tribunal had not arrived at the correct conclusion especially in the light of the findings and the observations made in the prior O.A.No.325/99 & Batch.

31. In the light of the settled principles in reckoning the seniority laid down by the Apex Court in service jurisprudence, this Court is satisfied that G.O.Ms.No.73 and the fixation of seniority was not done in accordance with law and hence the final seniority list issued cannot stand to legal scrutiny. In the peculiar facts and circumstances, it is hereby directed that the State Government shall refix the seniority of the writ petitioners and similarly placed persons and also the unofficial respondents and similarly placed persons in the light of the views expressed supra by duly reconsidering the final seniority list already prepared within a period of three months from the date of receipt of the order. In the peculiar facts and circumstances, this direction would be a just and reasonable direction and also one to be granted on the ground of equity too.

The Writ Petitions are accordingly allowed to the extent indicated above. No order as to costs.

?1 1994(1) SLR 37(SC)

2 1992(3) SLR 94 (SC)

3 1994(5) SLR 608 (SC)

4 1995(7) SLR 713 (SC)

5 2002 Supp. (2) ALD 699 (DB)

6 AIR 2003 S.C. 4506

7 AIR 2003 S.C. 4506

8 AIR 1990 S.C. 1607

9 AIR 1991 S.C. 1134

*THE HON'BLE Mr. JUSTICE L.NARASIMHA REDDY

Writ Petition Nos. 209 of 2005 and 283 of 2005

18-02-2005

W.P.No.209 of 2005

M/s Dolphin Bar and Restaurant, IL-17 12-5-62,

Kandukur (V) and (M) Prakasam District,

rep. by its Licencee Mr.Chilaka Venkateswarlu

1 The Commissioner of Proh. & Excise Govt. of A.P. at Hyderabad. 2 The Proh. and Excise Superintendent Prakasam District at Ongole. 3 M/s Relax Bar and Restaurent, IL-17 D.No.12-5-63, Kandukur (V) & (M), Prakasam District, rep by its Licencee Mr.Narasaiah

Counsel for the Petitioner: MR.T.AMARNATH GOUD

Counsel for the Respondent Nos.1&2: GP FOR PROHIBITION & EXCISE

WRIT PETITION NO : 283 of 2005

M/s Sai Krishna Wines, rep by its Licensee, D.Gopala Krishna S/o.Kondaiah, R/o.Kandukur. ... PETITIONER

vs

1 Commissioner of Prohibition and Excise,

Govt. of AP Nampally, Hyderabad.

2 Prohibition and Excise Superintendent, Ongole, Prakasam District. 3 M/s Sai Lakshmi Wines, Kandukur rep by Prop.G.Venkateswarlu, S/o.Kondaiah, Kandukur, Prakasam District. ...RESPONDENTS

Counsel for the Petitioner: MR.P.BALAMUKUNDA RAO

Counsel for the Respondent Nos.1&2: GP FOR PROHIBITION & EXCISE

:COMMON JUDGMENT:

Certain common questions of fact and law are involved in these two writ petitions. Hence, they are disposed of through a common judgment.

2. Petitioner in W.P.No.209 of 2005 is an IL-17 licensee and established a bar and restaurant in the premises bearing No.12-5-62, Kandukur village and Mandal, Prakasam District. The petitioner in W.P.No.283 of 2005, M/s.Sai Krishna Wines, is an IL-24 licensee, having its shop in the same village. M/s.Sai Laxmi Wines, the third respondent in that W.P., is another licensee in IL-24 and it had its shop in the premises bearing No.12-5-63, in the immediate neighbourhood of the petitioner in W.P.No.209 of 2005.

3. M/S.Sai Laxmi Wines intended to shift its shop from the premises bearing No.12-5-63 and selected the house of one Mr.M.Srinivasa Rao, Kovur Road, Kandukur. In the premises vacated by M/s.Sai Laxmi Wines, M/s.Relax Bar & Restaurant, third respondent in W.P.No.209 of 2005, intended to establish a bar and restaurant by obtaining an I.L-17 Licence. The Commissioner of Prohibition & Excise (hereinafter referred to as "the Commissioner"), first respondent in both the writ petitions, accorded permission to M/s.Relax Bar & Restaurant, through his proceedings dated 10.01.2005, for grant of IL-17 licence and enable it to establish a Bar in the immediate neighbourhood of the petitioner in W.P.No.209 of 2005. Complaining that the permission was accorded without proper verification and in contravention of the relevant provisions, W.P.No.209 of 2005 is filed.

4. The Commissioner has also accorded permission in favour of M/s. Sai Laxmi Wines, through his proceedings of the same date, i.e. 10.01.2005, for shifting I.L-24 shop. Alleging that the place, to which the shop is permitted to be shifted, is within 26 meters from his shop, and that it is contrary to Rule 35 of the A.P. Indian Liquor and Foreign Liquor Rules, 1970 (for short "the Rules), the petitioner in W.P.No.283 of 2005 assailed the action of the Commissioner.

5. The petitioners urge that shifting of existing I.L-17 or I.L-24 premises is governed by the Rules and that the grant of new licence or permission to shift the existing ones shall conform to such Rules. They plead that for better implementation of the same, the first respondent issued guidelines prescribing various factors, including the distances to be maintained between the shop, and the impugned orders, particularly, the one for shifting, violates the same.

6. The first respondent filed counter affidavits in both the writ petitions. It is stated that though the guidelines have been issued in circulars, from time to time, they do not have the effect of preventing the authorities from according permission wherever it is found feasible. According to them, Rule 35 does not place any restriction in the matter of according permission, and that the instructions do not override the rules. The contesting respondents did not file any counter affidavit, but the counsel representing them put forward their contentions.

7. Sri Balamukunda Rao and Sri T.Amarnath Goud, learned counsel for the petitioners, submit that the shifting of existing licensed shops is squarely covered by Rule 35 of the Rules, as well as the instructions issued by the first respondent. It is their case that on 3.04.2003, the first respondent issued policy guidelines, indicating the distances to be maintained whenever permissions are accorded for shifting existing I.L-17 bars, or I.L-24 shops, and that the same are binding even now. Placing reliance upon several judgments of Supreme Court and this Court, they contend that it is not open to the first respondent to ignore the said guidelines and to grant permissions indiscriminately. They also invoke the principle of estoppel. In relation to grant of IL-17 licence to M/s.Relax Wines, it is contended that it was granted on the same day on which the application was made.

8. Sri M.R.K.Chowdary, learned Senior Counsel appearing for the contesting respondents in both the writ petitions, submits that the only rule, which stipulates distances between various shops or establishments, is Rule 29, and there do not exist any restrictions as to distances in Rule 35. He contends that when an attempt was made to introduce restrictions, as to distances through administrative instructions, this Court interfered and held that it is impermissible. The learned Counsel states that even assuming that there exists any administrative instructions governing the matter they cannot override the statutory rules, nor can restrict the discretion of the concerned authority. To the same effect are the arguments of the learned Government Pleader for Prohibition & Excise.

9. The petitioners are the existing licensees of IL-17 and IL-24, respectively, and they are continuing their business in their licensed premises. M/s.Sai Laxmi Wines, which was functioning in the immediate neighbourhood of the petitioner in W.P.No.209 of 2005, an I.L-17 licensee, intended to shift to a place nearer to the shop of the petitioner in W.P.No.283 of 2005. In the premises so vacated, a bar and restaurant is sought to be established by M/s.Relax Bar & Restaurant. Through his separate proceedings, dated 10-1-2005, the first respondent accorded permission for shifting in favour of M/s.Sai Laxmi Wines, and granted licence in I.L-17 in favour of M/s. Relax Bar & Restaurant. These two steps are interrelated. Therefore, it needs to be seen as to whether the action of the first respondent conforms to the relevant provisions of law.

10. It needs to be kept in mind that the provisions of law are different in the matter of according permission to shift existing premises on the one hand and grant of licence for the first time on the other hand, are different. Rule 29 contains the restrictions on grant of licences. Rule 35 regulates the procedure for according permission for an existing licensee, to shift from one premises to another. Rule 35 by itself does not indicate any restrictions as to distances to be maintained between shops of different categories in the event of approval being accorded by the Commissioner. The rule reads as under: "Sale permitted at the licence premises only:- (1) The licensee shall sell the liquor only at the premises specified in the licence. (2) No change or alteration of the licensed premises shall be made nor the licensed premises shifted elsewhere without the prior approval of the Commissioner of Prohibition and Excise.

Provided that in the case of a licensed premises in respect of any IL-24 licence shifting from one location to another can be permitted only within the same revenue village or town or Excise Station limits only in the case of Municipal Corporation, by levying a fee of Rs.10,000/-."

11. The proviso has been subjected to frequent amendments. From a reading of the rule, it is evident that shifting is possible only with the prior approval of the Commissioner, and such approval can be granted on compliance with the conditions stipulated under the proviso.

12. To ensure uniformity and consistency in the matter of according such permissions, the first respondent framed guidelines in Circular dated 3.04.2003. It is issued exclusively, in the context of shifting of shops, as distinguished from granting licences. After referring to the representation of the A.P. Wine Dealers Association, the relevant portion of the circular reads as under: "In view of the above, the matter has been examined keeping in view the above instructions and representation of the Association and it is decided tokeep the distance restriction of 50 metres from IL-17(Bar) to IL-17 Bar, IL-17 (Bar) to IL-24 (Retail) shop and IL-24 (Retail) to IL-24 (Retail) shops to maintain uniformity through out the State. However, this distance restriction will not be applicable to the following.

i) existing IL-17 Bars and the IL-24 shops irrespective of any distance. ii) IL-24 shops and IL-17 bars in the Municipal Corporation and their belt areas.

iii) IL-24 shops going to be established after the notification. These instructions are issued in supercession of the instructions issued vide reference 1 to 3 cited and these instructions will not apply for the cases of shifting/establishment of IL-24 shops/IL-17 bars already issued from the office of the Commissioner of Proh. & Excise, A.P., Hyderabad, so far. Therefore, all the Proh.& Excise Superintendents in the State are directed to take necessary action in the matter for all the cases to be processed in future."

13. The distance between IL-24 shop of the petitioner in W.P.No.283 of 2005 and the proposed location where M/s. Sai Laxmi Wines proposed to establish its shop is less than 50 meters. The respondents 1 and 2 did not dispute that the distance is only 26 meters. Therefore, the grant of permission by the first respondent in favour of M/s.Sai Laxmi Wines to shift its shop to a place less than 50 meters from that of the petitioner is clearly violative of the circular dated 3.04.2003.

14. Learned Senior Counsel points out that the circular runs contrary to the statutory rules, and in that view of the matter, it is inoperative in law. He places reliance upon the judgment of this Court in Kanakadurga Wines, IL-24, Vemulavada Village, Karimnagar District V. Government of Andhra Pradesh1. According to him, the Commissioner, through his administrative instructions cannot provide for an aspect, which had eschewed expressly or by necessary implication, under the Rules.

15. The subject matter in that case was the one under the Rule 29 of the Rules. The fact that Rule 29 contained a provision imposing restrictions as to distances and was deleted thereafter was taken into account. Placing reliance upon the judgment of this Court in Superintendent of Excise V. Beesanna Goud2 and a judgment referred by a Division Bench in Toddy Tappers Co-operative Society, Kored V. Superintendent of Excise and others3, the learned Single Judge held that when the legislature, in its wisdom omitted the restriction as to distance contained in sub-rule (5) of Rule 29, it was not competent for the Commissioner, to indirectly insert such a restriction. The ratio laid down in the said judgment does not apply to the facts of this case. The reason is that the present case is governed by Rule 35, and this Rule never contained any provision as to distance, to be maintained between different categories of shops. In exercise of his power under Section 4 of A.P. Excise Act, 1968 (for short "the Act"), as a chief controlling authority, the first respondent issued the administrative instructions, to guide the discretion. The instructions are neither ultra vires the Rules nor supplant the Rule as such. At the most, it provided for guidance for implementation of the rules in an objective and transparent manner. The circular does nothing more than filling in the "yawning gaps" in the rules, which was held to be permissible by a Division Bench in Toddy Tappers Co-operative Society, Kored V. Superintendent of Excise and others (3rd supra).

16. The contention that the circular is only in the nature of instructions and it cannot override the rules, or that it is not so mandatory as to nullify any order passed in contravention of the same; cannot be accepted. In this regard, it needs to be observed that whenever the administrative head of a department of a Government frames regulations or guidelines for implementation of the statutory provisions or policy of the Government, they are meant to be followed scrupulously. Time and again Supreme Court held that even administrative instructions are required to be followed meticulously. Reference in this regard can be made to the judgment of the Supreme Court in B.S.Minhas V. Indian Statistical Institute4, Union of India V. K.P.Joseph5, and State of U.P. V. Chandra Mohan Nigam6. Elaboration of the principle or addition of some more case law would only add to the length of the judgment. Therefore, the order dated 10.01.2005 passed by the first respondent, according permission to M/s.Sai Laxmi Wines, is contrary to the Memo dated 3.04.2003, and thereby is liable to be set aside.

17. Now it remains to be seen as to whether the permission accorded by the first respondent to M/s.Relax Bar & Restaurant, respondent No.3 in W.P.No.209 of 2005, is in accordance with law. In fact, this permission becomes infructuous, once the permission accorded to M/s Sai Laxmi Wines, to shift its shop is set aside.

18. On 10.01.2005, the first respondent passed three orders in relation to shifting of IL-24 shop by M/s.Sai Laxmi Wines, as well as granting of permission to issue licence in IL-17, in favour of M/s.Relax Bar & Restaurant. In one letter, he called for a report from the Excise Superintendent, on a combined representation made by the proprietors/owners of the IL-24 licensee and IL-17 applicant. Even before any report is received, permission was accorded for shifting of IL-24 licence from Door No.12-5-63, O.V. Road, Kandukur, to the premises owned by M.Srinivasa Rao at Kovur road of the same village. Much before the shop was shifted from Door No.12-5-63, the Commissioner accorded permission for grant of licence in favour of M/s.Relax Bar & Restaurant, for establishing a bar and restaurant, in the same premises, namely 12-5-63, Kandukur. There was, virtually, no occasion for the authorities to verify the suitability or otherwise of the said premises. Mere according permission to the existing IL-24 licensee to shift does not result in the premises becoming vacant. In the context of granting of licence in IL-17, the licensing authorities are under obligation to verify the nature of premises, with reference to the specifications under the rule, parking area, etc. When an IL- 24 licence was very much functioning as on 10.01.2004, grant of permission to establish a bar and restaurant, in the same premises, cannot be said to be the result of a proper exercise of power. Hence, the permission accorded in favour of M/s.Relax Bar & Restaurant is also liable to be set aside.

19. For the foregoing reasons, both the writ petitions are allowed, and the permissions accorded in favour of the respondent No.3, in each of the writ petitions, are set aside. This, however, does not preclude the respondents 1 and 2, in both the writ petitions, to consider the applications and pass orders afresh, in accordance with law. There shall be no order as to costs.

?1 2004 (4) ALD 653

2 1981 (2) APLJ 347

3 1982 (2) ALT (NRC) 110

4 AIR 1984 SUPREME COURT 363

5 AIR 1973 SUPREME COURT 303

6 AIR 1977 SUPREME COURT 2411