Andhra Pradesh High Court
Judges : S.ANANDA REDDY, S.R.NAYAK
Dharwada Madhava Rao - Appellant
Versus
District and Sessions Judge, E.G.District - Respondent
Decided On : 04-11-01
Constitution of India - Article 226 – Fixation of Seniority – District Judge filled up several posts in the cadre of LDC - Case has a chequered career in terms of litigative processes - Seeking a direction to the learned district Judge to refix their seniority by maintaining ratio as stipulated in rule of the Rules with effect from the date of passing of Group II examination and consequential benefits of promotion - Petition was disposed of by this Court directing the learned District Judge to consider the case of the petitioners on the basis of the earlier representations said to have been made by them after giving an opportunity of hearing if necessary and to fix their seniority in accordance with law - Court also alternatively observed that if the representations said to have been made by the petitioners are not available with the respondent-authorities the petitioners can make fresh representation - Representation submitted by the employee the employee has taken any objection to the Gradation List although promotions have been given to the persons working in other categories in APJMS for exceeding the requisite quota for promotions - Inasmuch as there has been no recruitment Public service Commission and since they have been allowed to continue in service rightly or wrongly all of them who have been promoted far exceeding their quota have been regularised and their probations even have been declared - It has been settled law that on account of his own laches the employee is not entitled to claim the same - If the seniority has to be fixed at this stage the employees who have already been regularised in their service and whose probations have already been declared will have to be dislodged from their respective positions in the Gradation List – Held, Court ought not to decide a writ petition under Article of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or atleast by some of them being before it as respondents in a representative capacity if their number is too large and therefore the Court ought not to have proceeded to hear and dispose of the writ petition without insisting upon the reserve pool teachers being made respondents to that writ petition, or at least some of them being made respondents in a representative capacity and had the petitioners refused to do so ought to have dismissed that petition for non-joinder of necessary parties - certiorari not only the tribunal or authority whose order is sought to be quashed but also the parties in whose favour the said order is issued are necessary parties - But it is in the discretion of the Court to add or implead proper parties for completely setting all the questions that may be involved in the controversy either suo motu or on the application of the party to the writ or application filed at the instance of such proper party - Illegal for any reason the only course open to the petitioner is to assail the validity of the said order in a writ petition praying for a writ of certiorari to quash the same - prayer nor pleading to quash either the order of the learned district Judge or the order of the High court - So long those orders made by the disciplinary authority and the High Court remain unassailed and have become final petitioners cannot be permitted to reagitate the same in an indirect way the present form – Court constrained to observe that the writ petition is totally misconceived and not maintainable – Petition is dismissed.
( 1 ) THE grievance of the petitioners, to put in a nut shell, is this: the District and Sessions Judge, East godavari District filled up several posts in the cadre of LDC during the period from 1-10-1979 to 9-3-1983 without maintaining 3:1 ratio stipulated in Rule 9 (2) of the a. P. Judicial Ministerial Service Rules (the rules, for brevity) and in the process many of them who ought to have been juniors to the petitioners in the cadre of LDC have become seniors to them.
( 2 ) THIS case has a chequered career in terms of litigative processes. We do not think it necessary to refer to the entire history of the case. Suffice it to state that the petitioners filed WP No. 5142 of 1989 in this Court seeking a direction to the learned district Judge to refix their seniority by maintaining 3:1 ratio as stipulated in rule 9 (2) of the Rules with effect from the date of passing of Group II examination on 18-1-1981 and consequential benefits of promotion etc. That writ petition was disposed of by this Court on 25-3-1996 directing the learned District Judge to consider the case of the petitioners on the basis of the earlier representations said to have been made by them after giving an opportunity of hearing, if necessary, and to fix their seniority in accordance with law. The Court also alternatively observed that if the representations said to have been made by the petitioners are not available with the respondent-authorities, the petitioners can make fresh representations. From the order of the learned District Judge dated 19-7-1996 produced at page 17 of the material papers, it is seen that after the dismissal of the above writ petition, the petitioners submitted representation through proper channel. It was received by the district Judge on 13-5-1996. Thereafter, the petitioners were directed to appear before the learned District Judge for personal hearing. Accordingly the petitioners appeared in person before the learned district Judge on 12-7-1996 and represented their case in person. The learned District judge after consideration of the representation of the petitioners and the submissions made by them at the time of oral hearing on 12-7-1996 came to the conclusion that the petitioners did not make out any case for granting the relief. In that view of the matter, the request of the petitioners was rejected. In the impugned order dated 19-7-1996, the learned District Judge has concluded thus:". . . . . . . . . THIS unit has been maintaining a gradation List being prepared time to time and is being circulated among the employees for information and inviting objections if any. Never before the representation submitted by the employee on 23-8-1995 the employee has taken any objection to the Gradation List although promotions have been given to the persons working in other categories in APJMS for exceeding the requisite quota for promotions. Inasmuch as there has been no recruitment from A. P. Public service Commission and since they have been allowed to continue in service rightly or wrongly all of them who have been promoted far exceeding their quota, have been regularised and their probations even have been declared. At this stage claiming seniority over those employees, who have already been regularised in service and whose probations have been declared, is seeking something to unsettle the settled position. It has been settled law that on account of his own laches, the employee is not entitled to claim the same. If the seniority has to be fixed at this stage, the employees who have already been regularised in their service and whose probations have already been declared will have to be dislodged from their respective positions in the Gradation List, which is being circulated for the last more than one decade. Therefore, on account of his own laches and due to the settled position of law, the employee is not entitled to claim seniority over others, some of whom are even working in Category III of APJMS".
( 3 ) THE p
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