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TMI Blog1970 (2) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... ined of Andhra area forming the State of Andhra Pradesh. According to Section 115 of the States Reorganisation Act several of the personnel holding post of the Munsif- Magistrate in the former Hyderabad State Judicial service were allotted to the existing Andhra State Judicial Service. Consequent on such allocation, the question of their integration in Andhra Pradesh State Judicial Service and the equation with their counterparts in the Andhra State Judicial Service, Viz., District Munsifs, arose. 4. Certain principles in respect of equation of posts and integration of services belonging to the various regions forming part of the State were settled at the Conference of the Chief Secretaries of all the reorganised States. These decisions included the decision in regard to the first promotion of the officers protected by Part X of the States Reorganisation Act. The decision was that the promotion at the first stage from the post which protected employees were occupying immediately before 1-11-1956 should be made in accordance with the rules governing the service of the protected employees. It is in this connection necessary to bear in mind the proviso to Section 115 of the State Reo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proval in respect of the provisional common gradation list of the District Munsifs and Munsif-Magistrates. 10. The provisional common graduation lists were communicated to all concerned District Munsifs and Munsif-Magistrates so that representation against the inter se seniority fixed by them might be made to the Government of India. The representations made by the aggrieved officers having been considered by the Government of Indian and the results conveyed to all concerned officers viz., District Munsifs and Munsif-Magistrates of both the regions, the final common gradation list was published in G.O. Ms. No. 501 dated 6-4-1966. 11. The respondents were among the candidates selected in 1955 by the Andhra Public Service Commission. They were acting continuously even prior to 1-11-1956 ass District Munsifs in the Andhra Area. Although they were in the approved list, their appointments were made proved list their appointments were made temporarily in the first instance. All of them were later declared to have been put on probation. The High Court wrote to the Home Secretary to the Government of Andhra Pradesh 5-2-1962 to assign ranks to the respondents in the common gradation list ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up a panel of six officers for promotion as Sub-Judges-cum-District-Magistrates "in the Telegangan region." Some names were proposed for consideration. The note further pointed out that the Munsif-Magistrates mentioned therein "are seniors in the integrated lists of last acting Sub Judge in the Andhra area. They are juniors to the last acting Sub-Judge in the Telengana area." It also appears format the minutes of one of the learned Judges that the Sub Judges' posts in the Telengana area were treated as selection posts. 17. On 2-11-1957 a further panel of officers fit for promotion as Sub Judges was prepared. The note pointed out that all the seven officers in the panel selected "from the Andhra area" in August last were posted as Sub Judges and therefore it had become necessary to draw up further list of officers. As none permanent vacancies in the posts of area alone during 1957s-58, the names of 15 officers all from the Andhra area were put up for consideration and were considered and a panel prepared from amongst them. 18. On 13-9-1958 as out of 10 officer selected in November 1957 six were already promoted as Sub Judges and four were awaiting postings and as more vacancie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... promoted by 1-11-1956 was first appointed in 1948 and further selections were made from among his juniors. So far 49 officers have been promoted ass Sub Judges after 1-1-1956 in addition to the promotion of reverted Sub-Judges (3 Andhra and 1 Telengana). Out of these 49 fresh promotions, 40 are Andhra and 9 Telengana Officers. In the list so far drawn up Telengana Officers appointed upto 1947-48 are included and Andhra Officers so far included were first appointed in 1956. All the Telengana Munsifs were appointed between 1941 and 1954 and are seniors to those Andhra Officers appointed as District Munsifs in 1956 from among whom the selection is now being made." 23. It is not clear as to what decision was taken by the High Court on the above said representation. 24. For the first time, however, on 24-6-1966 a combined list of officers belonging to both the regions came up for consideration and it is from this combined list selection seems to have been made and a panel prepared for the purpose of promotion from District Munsifs and Munsif-Magistrates to the posts of Sub-Judges. The panel, however was prepared on the basis of selection. 25. On 20-4-1967, the suitability for promoti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs to have been adopted which ignored the seniority list keeping in view the ratio alone. This allegation has not been squarely met. When attention to this omission was invited. the learned Government Pleader appearing for the High Court stated that such a ratio was infact followed. 29. It is in these circumstances that we have to consider whether the promotions so made by the High Court were valid and if found to be invalid what is the relief which can be granted to the petitioners It is not doubted that the High Court acted bona fide and in good faith. The question however, remains as to whether the manner in which the promotions were made was valid. 30. The contention in that behalf was that the post of Sub Judges is a selection post and therefore the High Court was right in selecting persons found to be fit to hold that post. Reliance was placed on Rule 4(3) and (4) of the Special Rules for the Andhra Pradesh State Judicial Service. These Rules were issued in G.O.Ms. No. 2207 dated 4-12-1962. They have however, been given retrospective effect from 1-4-1958. According to the said Rule, the posts of Sub Judges shall be filed by promotion from District Munifs and all promotions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, however contended by Sri. P. Rama Chandra Reddy, the learned Government Pleader, that the Rules made in 1955 were made under Article 309 and not under Article 234 of the Constitution. These Rules according to him therefore were invalid. Secondly it was contended that even if those Rules are valid. the method of promotion from Munsifs to Sub Judges' posts is not laid down and therefore the High Court was quite competent to evolve a method to make such promotions and it is under that method that the promotions were made. 36. What is, however, ignored in advancing this argument is that undue the Rues of 1952 which are made under Article 234 after consultation with the High Court and the Public Service Commission, the appointments to the category of Sub Judges according to the Rules are to be made by promotion from Munsifs, The term 'promotion' and the term 'selection' are used in the Rules in distinctly two different senses. while the selection involves the consideration of merit and ability and not merely of seniority. Whereas promotion would ordinarily mean promotion and the basis of seniority unless of course the record of the officer is too bad to consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he terms 'appointments' postings and promotions of District Judges" 39. Article 234 accordingly to the marginal note relates to recruitment of persons other than District Judges to the judicial service. The body of the Article. however does not use the word 'recruitment' but uses the words 'appointment'. We are however clear that the word 'appoint' means initial appointment that is recruitment and not promotion from one lower cadre to another higher cadre. Under that Article the appointments are to be made by the Governor of the State. But such appointments shall be made by him in accordance with the Rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court. If the word 'appointment' is to be understood as including promotion also then such promotion according to that Article shall have to be made by the Governor. But admittedly promotions to the posts of Sub Judges were made by the High Court and not by the Governor. If the posts of Sub Judges were to be filled by recruitment and not by promotion then under that Article the recruiting authority would be the Governor, although the Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt and the Public Service Commission. 43. That such a construction is incorrect would be seen from Article 235 also. That Article relates to control over subordinate Courts. It declares that the control over the District Courts and Courts subordinate thereto including the posting and promotion etc, of the persons belonging to the Judicial service and holding any post inferior to the post of District Judge shall be vested in the High Court. It clearly mean that the of a Sub Judge vests in the High Court because the term 'control' includes the promotion also. It is because of this Article that Rule 2(14) states that such promotion shall be given by the High Court Otherwise such a provision in the Rules would be inconsistent if the promotions are included in Article 234 as is contended by the learned Advocate appearing for the Respondent. According to Article 234. we have already noticed that if promotions are included in the term appointment' appearing there in it would be the Governor who would be entitled to make promotions and not the High Court. It would not be possible to read into Rule 2(14) any delegation of such power by the Governor to the High Court. It is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of persons appointed to the such service and posts until provision in that behalf is made by or under an Act of the appropriate Legislature. 45. It is true that Article 309 is made subject to the other provisions of the Constitution and in so far as it is relevant for our purposes it is Article 234 which would govern Article 309. the result of which is that while the rules in regard to the recruitment of the persons other than District Judges to the Judicial service are to be made by the Governor in accordance with Article 234 in consultation with the Public Service Commission and the High Court control over subordinate courts including promotions vesting in the High Court would be exercised in accordance with the law regulating the conditions of such service and until such a law is made under Article 309 by the Rules made by the Governor regulations the conditions of such service. What must follow is that the promotions in subordinate judicial service as above can be made by the High Court in accordance with Rules made by the Governor under the proviso to Article 309. Such Rules, according to Article 309 need not be made by the Governor in consolation with the Public Service Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e with the said observation. The learned Judge did not give any reasons to reach that conclusion nor did he consider the several Articles of the Constitution to which we have made reference. Nor did not consider the Rules similar to the one to which we have made reference. 50. It is thus clear that the position of law in regard to the promotion from the post of District Munsif to the two regions until the special Rules for Andhra Pradesh State Judicial Service were made in 1962 with retrospective effect from 1958. According to Hyderabad Rules, such promotions were made in 1962 with retrospective effect from 1958. According to Hyderabad Rules, such promotions were to be made on the basis of seniority and in the Andhra region on the basis of merit-cum-ability. This method ought to have been followed in regard to the two regions according to the rules governing them. That was possible only when the provisional integrated seniority list which was prepared in 1957 was scrupulously followed. We do not experience any difficulty in following such a list. Keeping in view the common list promotions of Telangana personnel could have been made on the ground of seniority whereas the promotion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment both prior and subsequent such as the initial appointment. promotions etc., Equality of opportunity would include promotion to selection pots as well as to the promotion posts on the basis of seniority. Equality of opportunity in the matter of promotion would naturally mean that all employees holding treated. Once different employees belonging to two different regions are admitted into a single grade or unit of employment, it would not be admissible to provide different treatment between the two sections of opportunity for promotion as between officers holding different poses in the same grande would be an infringement of Article 16, as between officers holding posts in different of opportunity. In other words such equality of opportunity, must mean equality as between same class of employees and not equality as between same class of employees and not equality between members of separate independent classes. Such equality of opportunity stems from the recognition in the Constitution that all persons in the service similarly situated are entitled to an equal opportunity not only in the matter of appointment. but in promotion and other conditions of service. If the advancement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some members in the same cadre. The basis thus adopted is not approved by the Rules. and is not permissible under the Constitution. The High Court was bound to treat the Andhra Pradesh State as a whole and as one unit and make the promotions on the basis of the provisional and final lists which were prepared and in accordance with the rules governed the officers in matters relating to their promotions irrespective of the fact where and in what region the vacancy had arisen. 55. In Ramaswamy v. I.G. of Police Mysore, (1970)ILLJ649SC the facts were; under the provisions of the Hyderbad District Police Act some Sub Inspectors of Police were after the interview by the Board put on the eligibility list for the post of Circle Inspectors prepared before the States Reorganisation Act came into force. As a result of the reorganisation. some of the Sub-inspectors who were in the eligibility list were transferred to the State of Mysore and were promoted on ad hoc basis to the posts of Circle Inspectors because the permanent incumbents had either gone on leave or were on deputation. On their return, the ad hoc Circle Inspector were reverted to their substantive posts of Sub-Inspectors. It wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he reorganisation of State, but such promotions be ad hoc, and would have to be later on adjusted according to the provisional list. Once the provisional list however is made the State or the High Court as the case may be is bound to treat the whole State as one unit and must thereafter make promotions strictly in accordance with the provisional list. After the final list is prepared, the state or the High Court as the case may be would give effect to it and adjust the interim and provisional promotions made during the course of integration of services in accordance with the final list. 57. In Mervyn Continho v. Collector of Customs Bombay. (1967)ILLJ749SC and Roshan Lal. Union of India. (1968)ILLJ576SC it was held that recruits from both the sources once integrated into one no discrimination thereafter can be made in favour of the recruits from one sources against the recruits from the other source in the matter of promotion. Once the direct recruits from one source a in the matter of promotion. Once the direct recruits and promotes are absorbed in one cadre, they from one class and they cannot be discriminated for the purpose of further promotion to the Higher grade. The source ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns. 62. We have already noted the decision reported in (1970) ILLJ 649 SC where although promotions of juniors were earlier made when the question of reversion came in the High Court and the Supreme Court approved of the reversions strictly in accordance with the provisional list prepared under Part X of the States Reorganisation Act. When reversions can be made on this basis it is obvious that the adjustment of seniority list in accordance with the final common gradation list must have to be made. 63. (1967)ILLJ749SC permits such a direction whereby the seniority will be determined in the manner decided by the Court. 64. In State of Mysore v. Syed Mahmood. (1970)ILLJ370SC after finding that the promotion of all junior statistical assistants ranking below the seniors who were promoted without the cases of the seniors being considered were irregularly made, the Supreme Court held:- "In the circumstances the High Court issue a writ to the State Government compelling it to perform its duty and to consider whether having regard to their seniority and fitness they should have been promoted on the relevant dates when officers junior to them were promoted." It was further observed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delay has been condoned, the Court indicated its displeasure by making no order as to costs. No hard and fast rules, however can be laid down in this behalf. It is a matter which has to go into consideration as the remedy is discretionary. If the delay is properly explained or there are circumstances in which the question of delay would not assume importance, the delay would not be permitted to stand in the way of the exercise of the power under Article 226 and thereby affecting fairness and justice. It has been said in some cases that relief cannot be refused on the ground of delay where fundamental rights are concerned. it is in this background that we have to consider whether there has been delay, and if there has been delay, whether it has been properly explained. 69. The petitioners made representation to the High Court in 1954. The High Court thereafter started making promotions on the basis of the provisional and final lists from 1966 onwards. It was proper for the petitioners to have approached the High Court first and leave the decision of their grievances to the High Court. Although the High Court redressed one of their major grievance of not following the provisional l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which promotion can be earned Judges which promotion can be earned only on the basis of merit-cum-ability Whatever may be the place of a Sub Judge in the common seniority list, while effecting promotions all deserving cases have necessarily to be considered. In these circumstances, we do not think that we can give effect to the contention based on the ground of delay. 71. In a petition for certiorari where the order in this case the promotions ordered complained of is manifestly erroneous or without jurisdiction or affects fundamental rights, this Court would be loath to reject the petition simply on the ground of delay. This is so particularly when there are no means for the petitioners to really know as to on what basis promotions were made and as to why they were not promoted. In the context it should not be forgotten, that they are subordinates to the High Court in administrates to the High Court in administrative matters and usually they would not like to rush to the Court unless of curse they are in them to adopt this course. This is not a case where because of the delay third parties' interests have intervened or the a position where they would not have been placed if ..... X X X X Extracts X X X X X X X X Extracts X X X X
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