Holding

Seniority is determined by continuous length of service, including temporary posts, and the respondents are senior to the petitioners.

Summary

The petitioners, who were directly recruited as District and Sessions Judges (Second Grade) in 1981, claimed seniority over respondents 4‑16, who had been appointed temporarily in 1978/79 and made substantive in 1983 after promotion from the Subordinate judiciary. The dispute centered on the interpretation of the Andhra Pradesh State Higher Judicial Service‑Special Rules, specifically whether temporary posts formed part of the service and whether seniority should be calculated on the basis of continuous service, including temporary postings. The Court held that Rule 1 of the Special Rules includes both permanent and temporary posts in the service, and that Rule 6 fixes seniority by continuous length of service irrespective of the nature of the post. Consequently, the respondents’ service, even while temporary, counted towards seniority, giving them seniority over the petitioners. The petitioners’ delay in challenging seniority lists was noted but not decisive. The writ petition was dismissed.

Issues considered

Whether temporary appointments of District and Sessions Judges (Second Grade) fall within the service defined by the Andhra Pradesh Higher Judicial Service‑Special Rules.
Whether seniority under Rule 6 should be calculated based on continuous service including temporary posts.
Whether the proviso to Rule 2 (quota for direct recruits) affects the seniority determination under Rule 6.
Whether the petitioners’ delay and alleged laches bar relief under Article 32.

Subjects

senioritytemporary appointmenthigher judicial serviceservice rules interpretationAndhra Pradeshdirect recruitmentpromotionArticle 32writ petition

Judgment

V. BHASKER RAO AND ORS. A
v.
STATE OF A.P. AND ORS.

MARCH 23, 1993

[KULDIP SINGH AND N.M. KASLIWAL, JJ.) B

Andhra Pradesh Stare Higher Judicial Service Rules 1, 2, 4 and 6:
Andhra Pradesh Stare and Subordinate Service Rules, Rule JO(a)(i)-Andhra
Pradesh Higher Judicial Service-District and Sessions Judges-Direct
Recruits and Promorees-lnter se seniority-Fixation of-On the basis of con- C
tinuous length of service.

Recruitment to the Andhra Pradesh Higher Judicial Service is
governed by "The Andhra Pradesh State Higher Judicial Service-Special
Rules". Rule 1 constitutes the service. Category I consists of District and
Sessions Judges 1st grade and Category II consists of District and Ses- D
sions Judges, Second Grade. Appointment to Category I is from Category
II. Appointment to Category II is from two sources by transfer from
amongst the Subordinate Judges and by direct recruitment from the Bar.

The petitioner were direct recruits whereas respondents 4 to 16 were E
promoted from the Subordinate judiciary. The respondents were initially
appointed on temporary basis in the year 1978/1979 but they were made

- substantive in the year 1983. The petitioners who were appointed substan·
lively in the year 1981 claimed seniority over the said respondents, and
filed the Writ Petition under Article 32 of the Constitution or India for
relier. F
It was contended on their behalf that: (1) The Service consists of only
permanent posts, there is no provision under the Special Rules for adding
temporary posts to the cadre, consequently the appointment or respon-
dents 4 to 16 to the post or District and Sessions Judges, Second Grade G
on temporary basis can at best be treated under Rule 10(a)(i) or the
~ Andhr.l Pradesh State and Subordinate Service Rules. (2) The temporary
service rendered by the respondents 4 to 16 being outside the cadre- cannot
be counted towards seniority. (3) Porviso to Rule 2 and Rule 6 or the
Special Rules have to be read together, and as such the permanent vacan·
cies having been made available for them in the year 1983 their service H
547
548 SUPREME COURT REPORTS (1993) 2 S.C.R.

A prior to that date cannot be counted towards seniority.

The respondents constested the writ petition by contending that the
petitioners were appointed in the year 1981 and since then till the year
1988, twelve seniority lists have been published showing the petitioners
below respondents 4 to 16, and at no point of time they challenged the
B seniority lists in the Court. Even when the Writ Petition T.H.B. Chalapathi
& Ors. v. High Court of Andhra Pradesh & Ors., was pending in the High
Court they did uot intervene. The petitioners were thus guilty of .gross
delay and latches and as such are not entitled to get relief in the Writ
Petition.
c Dismissing the writ petition, this Court,

HELD: 1. (i) Rule 1 has to be interpreted to mean that the service _,r
,, .
under the Special Rules consists of all the posts-permanent and tem-
porary-which have been designated as District and Sessions Judge Second
D Grade. Even otherwise in the absence of any prohibition under the Special
Rules, the State Government can always create temporary posts as addi-
tions to the cadre. (554 BJ

(ii) Rule Hl(a)(i) of the Andhra Pradesh State and Subordinate
Service Rules has no application to the Andhra Pradesh Higher Judicial
E Service which is governed by the Special Rules. Rule lO(a)(i) provides for ~'r
emergency appointments made on stop gap basis to meet a temporary
exigency. Apart from that the temporary appointments under the said
Rules are made without following the procedure prescribed under the
Rules governing the relevant Service. (554 C-D]
F
In the instant case, the appointments of respondents 4 to 16 were
made under Rule 2 of the Special Rules by the State Government in
consultation with the High Court. The Special Rules provide a complete
scheme for the appointment and seniority of the members of the Service.
(554 DJ
G
2. Temporary posts of District and Sessions Judges Second Grade
being part of the Service, the seniority has to be counted on the basis of length
of service including the service against the temporary posts. (554 Fl

3. Rule 6 of the Special Rules is in no way dependent on the proviso
H to Rule 2 of the Special Rules. Both are to be operative independently. In
V. BHASKER v. STATE OF AP. [KULDIP SINGH,J.] 549

the scheme of the rules, the seniority rule is not dependent on the quota A
Rule. Quota bas been provided for the direct recruits only against per·
manent posts. The seniority rule permits the counting of total period of
service from the date a person is on duty against a post in the category.
~554 G-H)
In the instant case, even though the petitioners were appointed B

-- substantively to the service earlier to respondents 4 to 16 but in view of
Rule 6 they cannot be declared senior on the basis of continuous length of
service. Resp«!ndents 4 to 16 have been rightly given seniority above the
petitioners. [555 A)

ORIGINAL JURISDICTION : Writ Petition (C) No. 1237 of 1988. C

·~··
(Under Article 32 of the Constitution of India).

P.P. Rao and Ms. K. Amreshwari, B. Rajeshwar Rao and Vimal Dave
for the Petitioners.
D
V.R. Reddy, Addi. Solicitor General, K. Madhava Reddy, G. Prab-
hakar, B. Kanta Rao, A. Ranganathan and A.V. Rangam for the Respon-
dents.

The Judgment of the Court was delivered by
E
KULDIP SINGH, J. The petitioners and respondents 4 to 16 are
District and Sessions Judges in the State of Andhra Pradesh. The

- petitioners are direct recruits. whereas the respondents were promoted
from the Subordinate judiciary. The respondents were initially appointed
on temporary basis in the year 1978/1979 but they were made substantive F
in the year 1983. The pe.titioners who were appointed substantively in the
year 1981 claim seniority over the respondents by way of this petition under
Article 32 of the Constitution of India.

The recruitment to the Andhra Pradesh Higher Judicial Service (the G
Service) is governed by the Rules called "TheAndhra Pradesh State Higher
Judicial Service - Special Rules"'(the Special Roles). Rules 1, 2, 4 and 6 of
the.. Special Rules which are relevant are as under:

"Rule 1. Constitution:- The service shall consist of the
following categories:- H
550 SUPREME COURT REPORTS [1993] 2 S.C.R.

A Category-I :- District and Sessions Judges - 1st Grade.

Category-II :- District and Sessions Judges, Second Grade
including Chairman, Andhra Pradesh Sales Tax Appellate
Tribunal, Chief Judge, City Civil Court, Additional Chief
Judge, City Civil Court, Chief Judge, Court of small
B Causes, Chief City Magistrate, Chairman, Tribunal for
Disciplinary Proceedings, Presiding Officers, Labour
Courts and Addi. District and Sessions Judges.

Rules 2. Appointment :- (a) Appointment to Category-I
c shall be made by promotion from Category-II and ap-
pointment to Category-II shall be made:-

(i) by transfer from among:-

(a) Sub-Judges in the Andhra State Judicial Service; or in
D ihe Hyderabad State Judicial Service; and

(ii) by direct recruitment from the Bar:

Provided that ~~-1/3% of the total number of permanent
posts shall be filed or reserved to be filled by direct
E recruitment.

Explanation:- In the determination of33-1/3% of the total
number of permanent posts, fractions exceeding one-half
shall be counted as one and other fractions shall be
disregarded.
F
(b) All promotions shall be made on grounds of merit and
ability, seniority being considered only when merit and
ability are approximately equal.

Rule 4. Probation:- Every person appointed to Category-II
G
otherwise than by transfer, shall, from the date on which
he joins duty be on probation for a total period of one
year on duty.

Rule 6. Seniority:- The seniority of a person appointed to
H Category I or Category 2 shall be determined with refer-
V. BHASKER v. STATE OF A.P. [KULDIP SINGH, J.] 551

ence to the date from which he was continuously on duty A
in that category.'

We may briefly notice the scheme of the Special Rules. Rule 1
constitutes the Service. Category-I consists of District and Sessions Judges
1st grade and Category-II consists of District and Sessions Judges Second
grade. Rule 1 does not say that Service shall consist of only permanent B
posts. All the posts designated as District and Sessions Judges Second
grade under Category-II are part of the service under Rule 1. In other
words, as and when a post of District and Sessions Judge Second grade is
created - permanent or temporary - it becomes part of the Service under
Rule 1 of the special Rules. Rule 2 provides the method of appointment. C
Appointment to Category-I is from Category-II. Appointment to Category-
II is from two sources. By transfer from amongst the Subordinate Judges
and by direct recruitment from the Bar. Proviso to Rule 2 states that
33-1/3% of the total number of permanent posts shall be filled or reserved
to be filled by direct recruitment. All the posts of District and Sessions D
J udgcs Second grade arc part of the Ser;ice but quota for the direct
recruits is provided only in the permanent posts. Rule 6 of the Rules
provides for the fixation of seniority. Under Rule 6 the seniority of persons
appointed to Category-I or Category-II posts is fixed on the basis of
y continuous length of service in their respective posts.
E
On the plain reading of the Special Rules the salient features of the
Service can be culled out as under:

1. Rule l provides for the constitution of the Service. All the posts
of District and Sessions Judges Second grade created from time to time F
are part of the Service. The natural corollary is that the Service consists of
permanent as well as temporary posts.

2. The recruitment to Category-II of the service is by transfer from
amongst the Subordinate Judges and also by direct recruits from the Bar. G

·-{ · 3. 33-1/3% of the total number of permanent posts in Category-II of
the Service are to be filled by way of direct recruitment.

4. The seniority under Rule 6 is to be determined with reference to
the date from which a person is continuously on duty. Whether the person H
552 SUPREME COURT REPORTS (1993) 2 S.C.R.

A is continuously on duty against a temporary post or permanent post is of
no consequence. A person is entitled to the fixation of his seniority on the

post or temporary post.
.
basis of continuous length of service rendered either against permanent
.

The three petitioners were appointed as District and Sessions Judges
B
Second grade by direct recruitment on October 12, 1981. Petitioners 1 and
2 joined service on October 23, 1981 and ;:>etitioner 3 on October 30, 1981.
Respondents 4 to 16 were appointed District and Sessions Judges Second
grade by transfer from amm)gst the Subordinate Judges during the years
1978/79. It is not disputed that permanent vacancies in their quota became
c available in the year 1983. We, therefore, proceed on the basis that the
petitioners were appointed substantive members of the Service earlier to
respondents 4 to 16.

We may at this stage notice Ruic lO(a)(i) of the Andbra Pradesh
D State and Subordinate Service Rules (the State Rules). The State Rules are
general rules which are applicable to all the services in the State of Andhra
Pradesh. Needless to say that to the extent the Special Rules are applicable
to the Service the State Rules are excluded. Rule lO(a)(i) of the State Rules
is as under:
E y
'10. Temporary appointment. - (a)(i) Where it is necessary
in the public interest to fill emergently a vacancy in the

-
post borne on the cadre of a service, class or category and
if the filling of such vacancy in accordance with the rules
is likely to result in undue delay, the appointing authority
F may appoint a person temporarily otherwise than in ac-
cordance with the said rules."

Mr. P.P. Rao, learned counsel for the petitioners has raised the
following contentions for our consideration:
G
1. That the Service consists of only permanent posts under the
Special Rules. There is no provision under the Special Rules for adding
temporary posts to the cadre. The appointment of respondents to the posts
of District and Sessions Judges Second grade on temporary basis can at
H best be treated under rule lO(a)(i) of the State Rules.
V. BHASKER v. STATE OF AP. [KULDIP SINGH,!.] 553

2. The temporary service rendered by responden~- 4 to 16 - being A
outside the cadre - cannot be counted towards seniority.

3. Proviso to Rule 2 and Rule 6 of the Special Rules have to be read
together and doing so the permanent vacancies having been made available
for respondents 4 to 16 in the year 1983 their service prior to that date
B
cannot be counted towards seniority.

Before dealing with Mr. Ra o's contentions, we may notice two
preliminary contentions r.aised by Mr. K Madava Reddy, learned co•msel
for th.e respondents.
c
Mr. Madava Reddy has invited our attention to the judgment of a
Division Bench of Andhra Pradesh High Court in T.H.B. Chalapathi and
others v. High Coult of Andhra Pradesh and others, Writ Petition Nos.
1968/82, 52/83 and 12282/85 decided on December 28, 1985. Those writ
petitions were filed before the Andhra Pradesh High Court by the direct D
recruits to Category-II of the Service claiming seniority over the persons
who were appointed to category-II on temporaryflasis earlier to them.
Similar questions were raised as are being raised bj\;Mr. P.P. Rao before
us. By a well-reasoned judgment the High Court rejected all the conten-
tions of the direct recruits and dismissed the writ petitions. It is not E
disputed that Special Leave Petition No.1035 of 1986 against the said
judgment was dismissed by this Court on January 30, 1988. Mr. Madava
Reddy plausibly contends that all the contentions which are being raised
by the petitioners in this Court, ha\ing been rejected by the High Court
and special leave petition against the judgment of the High Court having
been dismissed by this Court the same cannot be agitated once over again.
F

Mr. Madava Reddy then contended that the petitioners were ap-
pointed in the years 1981 and since then till the year 1988 twelve seniority
lists have been published showing the petitioners below respondents 4 to
16. At no point of time they challenged the seniority lists in the Court. Even G
when the writ petitions filed by Chalapathi and ofhers were pending they
did not intervene before the High Court. The petitioners, according to Mr.
Madava Reddy, are guilty of gross delay and latches and as such are not
entitled to get relief by way of this petition under Article 32 of the
Constitution of India. H

•
554 SUPREME COURT REPORTS [1993] 2 S.C.R.

A · We see considerable force in both the contentions raised by Mr.
Madava Reddy. We are, however, of the view that it would be in the larger
interest of the Service to dispose of this petition on merits.

We see no force in the contention of Mr. Rao that the Service
B consists of only permanent posts under the Special Rules. We have already
interpreted Rule 1 to mean that the Service under the Special Rules
consists of all the posts - permanent and temporary - which have been
designated as District and Sessions Judges Second grade. Even otherwise
in the absence of any prohibition under the Special Rules the State Govern-
ment can always create temporary posts as additions to the cadre. Rule
C lO(a)(i) of the State Rules has no application to the Service which is
governed by the Special Rules. Rule lO(a)(i) provides for emergency
appointments made on stop gap basis to meet a temporary exigency. Apart
from that the temporary appointments under the said Rules are made
without following the procedure prescribed under the Rules governing the
D relevant service. The appointments of respondents 4 to 16, on the other
hand, were made under Rule 2 of the Special Rules by the State Govern-
ment in consultation with the High Court. We are of the view that the
Special Rules provide a complete scheme for the appointment and
seniority of the members of the Service. Rule lO(a)(i) of the State Rules
E has no application to the Service Constituted llnder the Special Rules. We,
therefore, reject the contention raised by Mr. Rao.

F
Having taken the view that the Service under the Special Rules
consists of permanent as well as temporary posts the ·second contention of
Mr. Rao looses its ground. Temporary. posts of \>istrict and Sessions
Judges Second grade being part of the Service the seniority has to be
counted on the basis of length of service including the service against a
temporary post.
--
The third contention of Mr. Rao is mentioned to be rejected in view
G of Rule 6 of the Special Rules. Rule 6 of the Spe<ial Rules is in no way
dependent on proviso to Rule 2 of the Special Rules. Both are to be
operative independently. In the scheme of the.rules the seniority rule is not
dependent on the quota Rule. Quota has been provided for the direct
recruits only against permanent posts. The seniority rule permits the count-
H ·ing of total period of service from the date a person is on duty against a
Ill.-

V. BHASKER v. STATE OF AP. [KULDIPSJNGH,J.] 555

post in the category. Even though_ the petitioners were appointed substan- A
tively to the service earlier to respondents 4 to 16 but in view of Rule 6
they cannot be declared senior on the basis of continuous length of service
- against temporary as well as permanent posts - respondents 4 to 16 have
been rightly given seniority above the petitioners.

-.f We, therefore, find no force in any of the contentions raised by Mr. Rao. B

The writ petition is consequently dismissed. No costs.

N.V.K. Petition dismissed.

y