THE HON'BLE Sr.JUSTICE L.NARASIMHA REDDY AND HON'BLE Sr.JUSTICE S.V.BHATT WRIT PETITION Nos.5161 OF2013dated:20-09-2013 W.P.No.5161 of 2013 A.
Yagna Narayana.Petitioner Government of A.P., represented by its Principal Secretary, Home (Fire Services) Department, Secretariat,Hyderabad and others.Respondents Counsel for the petitioner: Sr.J.R.Mohan Rao Counsel for the respondents 1 and 2: G.P.for Services - I Counsel for respondents 3, 5 and 8 : Sr.V.
Ravichandran Counsel for respondent No.7 : Sr.M.
Surender Rao : : ?.Citations: THE HON'BLE Sr.JUSTICE L.NARASIMHA REDDY AND THE HON'BLE Sr.JUSTICE S.V.BHATT WRIT PETITION Nos.5161 AND7297OF2013COMMON JUDGMENT
: (Per Hon'ble Sr.Justice L.
Narasimha Reddy) Both these writ petitions are filed by the applicants in O.A.No.4283 of 2012 on the file of the Andhra Pradesh Administrative Tribunal, Hyderabad.
Hence, they are disposed of through a common order.
The petitioners were appointed as Station Fire Officers (SFOs.) in the year 1993, through the process of direct recruitment, along with number of otheRs.some of whom figured as respondents in these writ petitions.
The said post is covered by the Andhra Pradesh Fire Subordinate Service Rules (for short, 'the Rules') issued under G.O.Ms.No.568, Home (Prisons-A) Department, dated 24.11.1992.
According to Rule 12 thereof, an SFO, appointed through direct recruitment must pass (i) Accounts Test for Subordinate Officers Part-I (ii) Andhra Pradesh Fire Service Manual and (iii) A certificate couRs.of competence in wearing and instructions on Breathing Apparatus within the period of probation, which in turn described in Rule 9 of the Rules.
While the fiRs.and second tests were conducted from time to time, the Government did not conduct the third test for years together for one reason or the other.
The petitioners state that they cleared the fiRs.and second tests, though with some delay, and taking note of the fact that the third test was not conducted by the Government itself, a provisional seniority list for the post of SFO was prepared in the year 2003, virtually reflecting the order of merit in the selection list in respect of such of the persons, who have cleared the fiRs.and second tests prescribed under Rule 12 of the Rules.
In the revised provisional seniority list dated, 20.04.2007, also the same is said to have been reflected.
Thereafter, a final seniority list was published on 15.11.2007.
On the basis of the seniority reflected therein, the petitioners were promoted as Assistant District Fire OfficeRs.In the year 2009, representations were made by some of the SFOs., raising objection to the final seniority list.
Alleging that no steps are taken on the representations, the respondents 3 to 5 herein filed O.A.No.4926 of 2009 challenging the final seniority list, dated 15.11.2007.
It was mentioned that at one stage, the Tribunal passed interim order directing that the representations of the respondents 3 to 5 herein be considered, but the same was modified later.
It is not clear as to whether the O.A.was disposed of or not.
Notwithstanding the fact that the final seniority list was issued, as though the probation of all the SFOs., was declared, the Government issued G.O.Ms.No.454, dated 06.11.2009, exempting the entire batch of 59 SFOs., appointed in 1993 from undergoing the third test mentioned in Rule 12 of the Rules.
The petitioners claim to have undergone a Refresher CouRs.in the year 2006, which is almost equivalent to the third test.
However, acting upon the representations of various SFOs., the Director General of State Disaster Response and Fire Services, the 2nd respondent herein, issued proceedings in Memorandum, dated 22.05.2012, revising the seniority in the post of SFOs.
The procedure adopted by him was that such of the SFOs., who cleared the fiRs.and second tests within the period of probation, were placed at the top and those who did not clear the tests within the time were placed thereafter.
Feeling aggrieved by the said order, the petitioners filed O.A.No.4926 of 2009.
They pleaded that once the third test prescribed under Rule 12 of the Rules was not cleared by any of the SFOs., appointed in the year 1993 and the Government granted a general exemption to all of them through G.O.Ms.No.454, dated 06.11.2009, there was absolutely no basis for the 2nd respondent in revising the seniority list.
Another contention was about the limitation prescribed under Rule 26 of the Andhra Pradesh State and Subordinate Services Rules, 1996 (for short, 'the Subordinate Rules').The respondents opposed the O.A.by filing counter affidavits.
The Tribunal dismissed the O.A.through a common order.
Hence, these writ petitions.
Sr.J.R.Manohar Rao and Sr.J.Sudheer, learned counsel for the petitioneRs.submit that not only the petitioneRs.but also the respondents 3 to 5 and various other SFOs., appointed in the year 1993 did not clear the third test prescribed under Rule 12 of the Rules on account of the fact that it was not conducted by the department at all.
They submit that in a way the petitioners have cleared the test by completing the refresher couRs.in the year 2006.
Learned counsel submit that Rule 12 of the Rules does not differentiate between the persons, who passed one or two tests within the stipulated time and those who passed them, thereafter.
They submit that Rule 26 of the Subordinate Rules permits the revision of a seniority list only when made within the period of 90 days from the date of its publication and in the instant case it was revised almost after two yeaRs.Learned Government Pleader for Services - I for respondents 1 and 2; Sr.M.
Surender Rao and Sr.V.
Ravichandran, learned counsel for the respondents 3 to 5 and other private respondents submit that the justification for not clearing the test within the stipulated time i.e., within the period of probation, existed only in respect of the third test and as long as there was no impediment for clearing the fiRs.two tests, the Rule 16(h) of the Subordinate Rules comes into play in respect of SFOs., who did not clear the fiRs.and second tests within the period of probation.
They contend that a patent illegality that crept into the final seniority list was noticed at a later point of time and the 2nd respondent was also convinced about it, and has taken the corrective steps.
They submit that the petitioners did not clear the fiRs.and second tests prescribed under Rule 12 of the Rules, within the period of probation and though they are not entitled for declaration of their probation at all, the respondents 1 and 2 have declared their probation by assigning the proper place in the seniority list.
A lapse on the part of the State, to conduct a test, which is prescribed under the Rules, has given rise to so much uncertainty, in the service, and violation of Rules in several respects.
If this is the attitude of the Government in respect of important and emergency services, like the Fire Service, it is not difficult to imagine the state of affairs in other services.
Adhocism has virtually become the order of the day and adherence to Rules, became exception.
Rules 9 and 12 of the Andhra Pradesh Fire Subordinate Service Rules read as under: Rule 9.
Probation:- Every person appointed by direct recruitment to any of the posts shall be on probation for a total period of two years on duty within a continuous period of three years and every person appointed by promotion/transfer shall be on probation for a total period of one year on duty within a continuous period of two years from the date on which one commences probation.
Rule 12 Tests:- Every person appointed by direct recruitment as Station Fire Officer shall pass the following tests within the period of probation:- (i) Accounts Test for Subordinate OfficeRs.Part-I.
(ii) Andhra Pradesh Fire Service Manual.
(iii) A certificate couRs.of competence in wearing and instructions on Breathing Apparatus.
A bare reading of the provisions discloses that an SFO can be confirmed in the service, only if he passes three tests within the period of probation.
Rule 16(h) of the Subordinate Rules deals with the situation where an employee fails to clear the tests within the period of probation.
Obviously, in view of the existence of large number of vacancies in the superior posts and to pave the way for promotion of the SFOs., a provisional seniority list was prepared for the latter category, in the year 2003 though one of the tests prescribed under Rule 12 was not conducted at all, and there existed a clear impediment in the way of confirmation of declaration of probation.
Added to that, another provisional seniority list was prepared in April 2007.
It was after the final seniority list was prepared in November, 2007 that the Government realised that there was a serious lapse in the entire process.
To avoid the consequence of such a lapse, G.O.Ms.No.454 was issued in the year 2009, exempting 59 SFOs., of the 1993 batch, from appearing in the third test prescribed in Rule 12.
Though the petitioners plead that they have completed a refresher couRs.in the year 2006, it is difficult to equate the same with the prescribed test.
The reason is that it is only when the Government calibrates a particular test, with another, that the benefit thereof can be claimed.
Such an event did not occur in this case.
It is important to note that the benefit under the G.O., was not restricted to a particular group, but was extended to all the officers of the 1993 batch.
If any person is aggrieved by the final seniority list of a category in a service, he has to raise objections or avail the remedies within the period of 90 days stipulated under Rule 26 of the Subordinate Rules.
Though the said period of 90 days cannot be equated to the limitation for filing a suit on the ground that there was no provision for extension thereof, the fact that valuable rights accrue to the concerned persons on the basis of the final seniority list, needs to be taken note of.
Having filed a revision about two years after the final seniority list was published, the respondents 3 to 5 approached the Tribunal.
The maximum that can be done.
Even if, the objection as to delay, raised by the petitioners is ignored the Tribunal could, at the best, have directed that the representations be considered.
That in turn, must, entail in issuance of notice to the affected parties and examination of matters with reference to the relevant Rules.
The record does not disclose that the Tribunal has expressed its view about the limitation prescribed under Rule 26 of the Subordinate Rules and the delay in raising of the objection.
It simply directed the 2nd respondent to consider the representation.
The 2nd respondent issued the revised seniority list, dated 22.05.2012, substantially changing the place of seniority adveRs.to the interests of the petitioneRs.Notices were not issued to the effected parties.
Assuming that the prohibition contained in Rule 26 of the Subordinate Rules does not get attracted in this case, or that the proceedings, dated 22.05.2012, do not suffer from vice of non-issuance of notice to the affected parties, still it is difficult to sustain it on merits.
The only basis for the 2nd respondent to revise the seniority list was that the petitioners did not clear the fiRs.and second tests prescribed under Rule 12, within the stipulated time, whereas the respondents 3 to 5 and certain others cleared the same within a period of two yeaRs.The distinction maintained by the 2nd respondent or the yardstick adopted by him in revising the final seniority list is totally untenable.
What becomes essential for a probationer is, the successful completion of the prescribed test within the stipulated time.
If there is delay in this regard, Rule 16(h) of the Subordinate Rules takes care of the situation.
Wherever multiple tests are prescribed, the compliance with the Rules can be only when all the tests are cleared.
There cannot be any partial declaration of probation to the extent the tests are cleared, and withholding of the remaining part.
As long as an SFO did not clear all the three tests, it does not make any difference if he has completed some of the tests within the period of two yeaRs.The disability suffered by all the 59 officers in the context of declaration of their probation was removed by the Government through G.O.Ms.No.454, dated 06.11.2009.
But for that G.O., none of the 59 officers can be treated as having complied with Rule 12.
The SFOs., who cleared the fiRs.two tests within the stipulated time, do in no way acquire superiority or precedence over those cleared them a bit later.
Things would have been different altogether, in case the petitioners or any others did not clear the fiRs.and second tests at all.
The Tribunal was impressed by the fact that there was no impediment for the petitioners to clear the fiRs.and second tests within the stipulated time and their failure would certainly affect their seniority.
This virtually, amounts to reading something into Rule 12 or adding something to the G.O.No.454, dated 6.11.2009.
The purport of Rule 26 of the State Subordinate Rules was not taken into account.
The mandate is that the ranking assigned by the Selection Committee would govern the seniority of the persons appointed through direct recruitment.
A serious error occurred in the proceedings, dated 22.05.2012, issued by the 2nd respondent, since it has topsy-turveyed the order of merit absolutely without any basis.
It suffers from other infirmities and illegalities mentioned in the preceding paragraphs.
The writ petitions are accordingly allowed and the proceedings, dated 22.05.2012, are set aside.
The miscellaneous petitions filed in these writ petitions shall stand disposed of.
There shall be no order as to costs.
NARASIMHA REDDY, J.
_________________ S.V.BHATT, J.