M VENKAT SWAMY Vs. GOVERNMENT OF ANDHRA PRADESH

JUDGEMENT

(1.) Petitioner is the appellant, whose Writ Petition No. 1726 of 1969 was dismissed by our learned brother Krishna Rao, J.

(2.) The petitioner was appointed as Excise Inspector in the erstwhile State of Hyderabad in the executive wing of the Excise Department. Respondent No. 3 was the member of the min1sterial wing in the Excise Department of the erstwhile State of Hyderabad. On 1st of January, 1959, the petitioner was the Excise Inspector, whereas the 3rd respondent was the Superintendent in the Excise Section of the Board of Revenue. On the same date, he was appointed as the Assistant Excise Superintendent. The petitioner's case is that the 3rd respondent could not have been appointed as the Assistant Excise Superintendent, either under the Hyderabad Rules or under the Andhra Rules. On the appointment of the 3rd respondent, the petitioner made representation that his appointment was illegal. On the 23rd of March, 1960, the petitioner was promoted as the Assistant Excise Superintendent, this being the first promotion under the Hyderabad Rules. On his promotion as the Assistant Excise Superintendent, the petitioner claimed seniority as against the 3rd respondent. On the 25th of January 1961, the Government issued G.O. Ms. No. 1008 promulgating the Andhra Pradesh Excise Service Rules. While promulgating these rules, retrospective effect has been given so as to make them enforceable from the 1st of January, 1959. On the 9th of August, 1962, the petitioner was promoted as the Superintendent of Excise, temporarily, under rule 10 of the Andhra Pradesh State and Subordinate Service Rules (herenafter referred to as the "general rules)." The 3rd respondent was promoted as Superintendent of Excise also under rule 10, on the 28th of June, 1963. He commenced the probation on the 1st July, 1963. The Government by G.O. Ms. No. 1604, dated 13th October, 1965, regularized the services of the petitioner and the 3rd respondent in the category of Assistant Excise Superintendents. The petitioner's services were regularized from the 23rd of March, 1960, whereas the services of the 3rd respondent were regularized from the 1st of January, 1959. The Government, by an order, dated a6th of October, 1965, placed the 3rd respondent on probation as an Assistant Excisei Superintendent from the 1st of January, 1959- By G.O. Ms. No. 359, dated 21st April, 1967, the services of the petitioner and the 3rd respondent were regularized in the cadre of Superintendents of Excise. Both were given the same date for starting of probation, i.e., the 28th of June, 1963. The petitioner all along was making respresentations against the action of the Government in placing the 3rd respondent senior to the petitioner. On the 24th of April, 1969, the petitioner's representations in regard to the seniority in both cadres of the Assistant Superintendent of Excise, and the Superintendent of Excise, were rejected by the Government. The petitioner then filed Writ Petition No. 1726 of 1969 in May, 1969. After the filing of the Writ petition, the Government issued G.O. Ms. No. 877, dated the 9th of September, 1969, declaring the completion of the probation of the petitioner, the 3rd respondent, and others. According to this Government Order the date on which the petitioner completed his probation has been given as 27th of June, 1964, whereas the date of promotion of the 3rd respondent has been given as the 1st of July, 1964.

(3.) It is on the aforesaid facts that the petitioner contended that, as the appointment of the 3rd respondent as Assistant Excise Superintendent on the 1st of January, 1959, was contrary to the rules then in force, and as that appointment was illegal, the Andhra Pradesh Excise Service Rules (hereinafter referred to the "Excise Rules") cannot and do not have the effect of validating an invalid appointment. It is also contended that in the cadre of Superintendents of Excise the petitioner was appointed on the 9th of August, 1962, and the 3rd respondent, on the 28th of June, 1963. While fixing a notional date for regularization of their services in the cadre of Superintendents, the Government should have taken into consideration the dates on which the petitioner and the 3rd respondent were actually promoted. The dates given by the Government are absolutely arbitrary and irrelevant. The reason given by the Government for giving a later date for purposes of commencement of promotion to the petitioner, is to perpetuate the seniority of the 3rd respondent in the cadre of Assistant Excise Superintendent. The contention of the petitioner is that the seniority in a lower cadre cannot be perpetually continued; in any event, such perpetuation violates Article 16 of the Constitution of India. Further, the petitioner contends that, by virtue of G.O. Ms.No. 877, dated 9th September, 1969, the date of completion of probation of the petitioner is earlier to the date of completion of probation of the 3rd respondent. That being the case, the petitioner should have been held to be senior in the cadre of Superintendents of Excise.