Sandeep Mehta, J
Civil Appeals @ SLP(Civil) Nos. 4036-4038 of 2024
Civil Appeals @ SLP(Civil) Nos. 4596-4597 of 2024
1. Heard.
2. Leave granted.
3. These appeals take exception to the final judgment and Reason: common order dated 21st September, 2023 rendered by the
High Court for the State of Telangana at Hyderabad ‘High Court’ whereby the Division Bench allowed the batch of writ petitions preferred by
the private respondents herein and quashed the Government Office Memorandum ‘G.O.M.’ No. 262, dated 17th June, 2006, issued by the
Government of Andhra Pradesh.
4. Facts in a nutshell relevant and essential for the disposal of these appeals are as under.
5. The appellants who hold the qualification of B. Tech (Bachelor of Technology) were selected and appointed as Work Inspectors in the Andra
Pradesh Scheduled Castes Cooperative Development Corporation ‘Corporation’ on 1st January, 1990 and were serving in the said department.
The Government of Andhra Pradesh issued G.O.M. No. 89, dated 9th February, 1990, sanctioning posts of Assistant Executive Engineers
‘AEEs’ for achieving Phase-II of the Andhra Pradesh Primary School Project [To achieve the first objective 84 primary school building with
improved designs were constructed in 11 selected project districts. In order to achieve phase-II of the project construction work needed to be
entrusted to the Panchayat Raj Engineering department and to have a separate class of engineer’s staff for undertaking construction of buildings
of primary schools and teachers’ centres], which was initiated in collaboration between the Government of Andhra Pradesh and the Government
of United Kingdom in the year 1983. The said project was time-bound and hence, directions were issued by the Government of Andhra Pradesh to the
Chief Engineer, to fill up the posts immediately from the list available with the Andra Pradesh Public Service Commission ‘APPSC’, and if the
list was not adequate then the Chief Engineer was permitted to recruit the candidates through the employment exchange.
6. Since the list available with the APPSC was inadequate to fill the posts required for the project, the Chief Engineer wrote to the State Government,
and in response thereof, G.O.M. No. 429, dated 6th March, 1990, was issued by the Panchayat Raj and Rural Development Department, Government
of Andhra Pradesh, directing that these vacancies may be filled up from the Work Inspector/Draughtsman/Tracers who were already serving in the
Panchayat Raj Department and possessed a graduation degree in Engineering i.e. B.E./B.Tech. It was further clarified that the nature of these
appointments would be temporary under Rule 10(a)(i) of the Andra Pradesh Subordinate Service Rules ‘Service rules’ pending amendment to
the Special Rules for Panchayat Raj Engineering Services. The said G.O.M. also contained a direction to frame a formula for the promotion of the
above-mentioned candidates, taking into account the strength of cadre and the retirement vacancies in the next two years as per the rules. A
Committee was also constituted to consider the proposal for temporary appointments and for filling up the remaining vacancies.
7. Thereafter, another G.O.M. No. 540, dated 30th August, 1990 was issued by the Panchayat Raj and Rural Development Department, whereby 386
posts of AEEs were sanctioned under the Cyclone Emergency Reconstruction Project ‘CERP’. The appellants herein and one individual who
were already serving as Work Inspectors were appointed as temporary AEEs on 5th December, 1992 against these vacancies. It is an undisputed fact
that the appellants herein and his peers were appointed against substantiate vacancies created for the project.
8. Subsequently, the Andhra Pradesh (Regulation of Appointments to Public Services and Rationalization of Staff Pattern and Pay Structure) Act,
1994 ‘Act of 1994’ came to be enacted on 15th January, 1994 to streamline the recruitment process. The same was made effective
retrospectively from 25th November, 1993.
9. Thereafter, the G.O.M. No. 391, dated 30th June, 1994, came to be issued by the Panchayat Raj and Rural Development
Department, creating 729 posts of AEEs for taking up the works related to rural water supply and sanitation ‘Jawahar Rojgar Yojana Scheme’.
Under the said G.O.M., employment assurance scheme and employment guarantee scheme were also created.
10. In July, 1994, the Technical Grade-I Inspectors filed Original Application No. 533 of 1994 before the Andhra Pradesh Administrative Tribunal,
‘APAT’ to consider their cases for appointment as AEEs against the project based vacancies. The APAT vide order dated 4th July, 1994
disposed of the O.A., wherein the State Government was directed to consider the case of Work Inspectors for appointment to the posts of AEE
before notifying the vacancies to employment exchange.
11. In compliance with the aforesaid direction passed by APAT, G.O.M. No. 1289, dated 10th August, 1994, came to be issued by the Panchayat Raj
and Rural Development Department in relation to the appointments under the ‘Jawahar Rojgar Yojana Scheme’, permitting the Chief Engineer
to fill up the vacancies of AEEs which had been created by way of G.O.M. No. 391, dated 30th June, 1994, from eligible Work
Inspector/Draughtsman/Tracers having the requisite degree qualification. The aforesaid G.O.M. No. 1289 contained a specific stipulation that the
candidates would be appointed temporarily subject to the condition that they should make an endeavour of selection through the APPSC, failing which,
they would be reverted back to their original cadre of Work Inspector/Draughtsman/Tracers.
12. AEEs appointed under Rule 10(a)(i) of the Service Rules from the category of Work Inspector/Draughtsman/Tracers and the candidates, who
were selected from the list tendered by the employment exchange between 2nd August, 1989 to 30th June, 1995, made several representations
requesting the State Government to regularize their services as most of them had completed more than five years in service.
13. In 1995, Notification No. 8 of 1995 came to be issued by the APPSC inviting applications from eligible candidates for appointment in various posts
including that of AEEs in the Panchayat Raj Department. The recruitment process for the aforesaid appointment was to be conducted under the Act
of 1994. The aspiring candidates appeared in the test conducted by the APPSC and as many as 627 posts were filled and the successful candidates
including the private respondents herein were appointed in the year 1997, upon due selection by APPSC.
14. Being aggrieved by the non-consideration of their representations for regularisation, the temporary AEEs (including the appellants herein), who had
been appointed between the years 1990-1995, filed Original Application No. 5730 of 1995 and batch matters before the APAT, seeking regularisation
of their services as they had been working on a temporary basis for several years. The APAT, vide order dated 19th February, 1996, disposed of
these O.A.s, directing the State Government to take a decision regarding the claim of regularisation of services of temporarily appointed AEEs within
a reasonable time. The APAT, further, directed that till such decision was taken, the services of the applicants therein shall not be terminated.
15. In compliance with the above direction, G.O.M. No. 997, dated 27th July, 1996, was issued by the State Government rejecting the prayer seeking
regularisation of the temporarily appointed AEEs with the observation that there was no provision in the extant service rules for recruitment to the post
of AEEs by promotion.
16. Aggrieved by the aforesaid G.O.M., the temporary AEEs, who were appointed between 1990-1995, again approached the APAT via various
Original Applications ‘O.A. No. 4991 of 1996, O.A. No. 5547 of 1996, O.A. No. 4427 of 1997 and batch matters’. Initially, a stay was granted
by the APAT vide order dated 10th August, 1996, suspending the operation of G.O.M. No. 997, dated 27th July, 1996, and a direction was issued to
the State Government, not to notify the vacancies occupied by the applicants therein for the purpose of selection/appointment.
17. In the meantime, and during the pendency of the aforesaid Original Applications ‘Id’, the Government issued another G.O.M. No. 234 dated
27th June, 2005, whereby the services of all temporary AEEs appointed between 1990-1995 and continuing in service on that date were regularised. It
was further clarified that the services of all the temporary AEEs, who were appointed between the years 1990-1995, shall be regularized below the
last regularly selected candidate of AEEs.
18. Pursuant to the issuance of the aforesaid G.O.M., the pending Original Applications filed before the APAT were dismissed as withdrawn vide
order dated 13th December, 2006, and liberty was granted to the applicants therein to work out their remedies, if they were still aggrieved after the
issuance of G.O.M. No. 234.
19. Though satisfied with the regularisation of their services, but aggrieved by the denial of seniority under the G.O.M. No. 234, AEEs appointed
between 1990-1992, including the appellants herein, made various representations to the State Government, claiming that they were appointed before
the promulgation of the Act of 1994, and thus they were required to be treated as a different class from those appointed between 1993-1995, which
was after the promulgation of Act of 1994. It was asserted that G.O.M. No. 234, had caused significant prejudice and injustice as the Engineers
appointed between 1990-1992 had been placed below the AEEs appointed during the year 1997 in the order of seniority, who had thereby lost nearly
10-15 years of continuous service. The State Government was requested to regularize the services of this category of AEEs appointed between 1990-
1992 from the date of joining the posts.
20. The State Government, after examining the representations and the prolonged service of the temporary AEEs appointed between the years 1990-
1992, modified G.O.M. No. 234, dated 27th June, 2005, and issued a revised G.O.M. No. 262, dated 17th June, 2006, which inter alia provided that: -
“5. Accordingly, in partial modification of the orders issued in the G.O. 1st read above, the Government hereby directs the Engineer-in-Chief, Panchayat Raj,
Hyderabad to regularize the services of the Assistant Executive Engineers who were appointed during the period 1990-92 below the last regular Assistant Executive
Engineer appointed through Andra Pradesh, Public Service Commission prior to the promulgation of Act, 2/94.â€
(emphasis supplied)
21. In effect, the above G.O.M. directed that the temporary AEEs appointed before promulgation of the Act of 1994 would retain their seniority from
the date of their initial induction on the posts.
22. Being aggrieved by the issuance of the revised G.O.M. No. 262, dated 17th June, 2006, the AEEs regularly appointed through the APPSC
Notification No. 8 of 1995, i.e., the private respondents herein, who had joined service in the year 1997 and also, the AEEs appointed on a temporary
basis between 1993-1995, filed Original Applications ‘O.A. No. 5818/2009, O.A. No. 10733/2009, O.A. No. 5933/2009, O.A. No. 6020 of 2009 and
batch matters’ before the APAT. In these batches of Original Application, the State Government filed an affidavit specifically asserting that the
appointments made between 1990-1992 were not de hors the service rules and there was no requirement of selection on these posts through the
APPSC as the same were exempted from the purview of the Commission (APPSC).
23. Vide a common order dated 3rd February, 2011, the APAT dismissed the Original Applications ‘O.A. No. 5018/2006, O.A. No. 5109/2006,
O.A. No. 5789/2006, O.A. No. 6394/2006, O.A. No. 6423/2007, O.A. No. 1892/2010 and O.A. No. 4056/2010’ preferred by the 1997 Batch
regularly appointed candidates (private respondents herein) and allowed the Original Applications ‘O.A. No. 5818/2009, O.A. No. 5933/2009, O.A.
No. 6020/2009, O.A. No. 6023/2009, O.A. No. 6038/2009, O.A. No. 10733/2009 and O.A. No. 10897/2009’ preferred by the temporary AEEs
selected between 1993-1995. The APAT, while upholding the validity of G.O.M. No. 262, dated 17th June, 2006, also held that the temporary AEEs
appointed between 1993-1995 were also entitled to a similar treatment as extended to those appointed between 1990-1992 and that the candidates
regularly appointed through APPSC in 1997 (private respondents herein) could not claim seniority over the candidates whose regularisation was done
in the year 2005.
24. The 1997 batch regularly appointed candidates (private respondents herein) assailed the common order dated 3rd February, 2011 passed by the
APAT by filing writ petitions ‘Writ Petition Nos. 3903, 3910, 3954, 4173, 4434, 4435, 4437, 4439, 4441 and 22422 of 2011’ before the High
Court. These writ petitions came to be allowed by the learned Division Bench vide final judgment and common order dated 21st September, 2023
which is subjected to challenge in these appeals by special leave.
Submissions on behalf of the appellants: -
25. Learned senior counsel appearing on behalf of the appellants advanced the following pertinent submissions assailing the impugned judgment: -
(a) That the appellants hold the qualification of Bachelor in Engineering. They were duly selected and appointed as Work Inspectors on 1st January,
1990 in the Andhra Pradesh Scheduled Castes Co-operative Development Corporation against a sanctioned post.
(b) That the State Government felt an imminent need for qualified engineers to carry out the Cyclone Emergency Reconstruction Project (CERP) in
the year 1990. The Panchayat Raj Department issued G.O.M. No. 540, dated 30th August, 1990, sanctioning another 386 posts of AEEs under the
CERP. At that point in time, no rules were in place for the appointment of Engineers in the Panchayat Raj Department. To meet the exigency, the
appellants and one other who were already serving as Works Inspectors in the Cooperative Department Corporation were appointed as temporary
AEEs under Rule 10(a)(i)(1) of Andhra Pradesh State and Subordinate Service Rules vide order dated 5th December, 1992. Their appointment was in
no manner de hors the rules or a backdoor appointment.
(c) That no challenge was ever laid by the private respondents to the G.O.M. No. 234 dated 27th June, 2005, vide which the services of the appellants
and other similarly situated candidates were regularized and thus, the same has attained finality. He urged that the services of the appellants and the
similarly situated candidates could not be regularized at an earlier point in time due to the need for amendment of the Andhra Pradesh Panchayati Raj
and Rural Development Act/Rules and for the creation of a channel for the absorption of the appellants and similarly placed persons. He urged that
the delay in amending the aforesaid rules cannot be attributed to the appellants and they cannot be put to a disadvantage for this reason by placing
them below the last regularly appointed employee selected after the promulgation of the Act of 1994.
(d) That the appellants and the other similarly situated candidates are of the 1990-1992 batch and have continued to discharge their functions
uninterruptedly for the last 31 years while securing periodic promotions. If the impugned order is not set aside, they would be placed below the
regularly recruited batch of 1997(private respondents herein) and thereby, they would lose 7 years of seniority. He further stated the appellants are
due to retire in January, 2026 and they will superannuate without receiving the promotion to which they are rightfully entitled.
(e) The learned counsel tried to draw a clear distinction between the G.O.M. No. 540, dated 30th August, 1990, vide which the sanctioned posts under
CERP were created and the appellants were appointed as AEEs, and the G.O.M. No. 1289, dated 1t0h August, 1994. He urged that G.O.M. No.
1289, which permitted the department to fill up the further project-based vacancies to the posts of AEEs, contained an express stipulation that the
candidates were being appointed temporarily, subject to the condition that they should seek selection by APPSC, failing which, they would be reverted
as Work Inspectors, whereas, no such condition existed in G.O.M. No. 540 dated 30th August, 1990.
(f) That though the terms of appointment would show that the appointment of the appellants and the similarly situated candidates was temporary,
however, it was neither limited by time, nor was it meant to be a stop-gap/ad hoc arrangement. He drew the Court’s attention to the G.O.M. No.
391, dated 30th June, 1994, which dealt with Jawahar Rozgar Yojana Scheme and urged that this G.O.M. contained a clause providing that as and
when the Cyclone Emergency Reconstruction Project/Circles/Divisions are abolished, the persons working in these Circles/Divisions/Sub-Divisions
shall be posted in newly sanctioned Circles and Divisions. The posts that were sanctioned for the CERP in the office of the Chief Engineer, CERP
would stand abolished w.e.f. 30th June, 1994, but the staff would continue to attend the residual work till the work is completed. He urged that there
was a clear intent on the part of the State Government while issuing this G.O.M. that the persons working in the Sub-divisions created under the
CERP would be posted to new Circles/Divisions/Sub-Divisions under the Panchayat Raj Department and thus, for all practical purposes, the services
of the appellants and his peers who were appointed as AEEs under the CERP were to be absorbed into the cadre of Panchayat Raj Department upon
the completion of the project.
(g) That the State Government had filed a counter affidavit in the writ petitions ‘Supra Note 16’ filed before the Division Bench by the regularly
appointed 1997 batch recruits(private respondents herein) challenging the G.O.M. No. 262, dated 17th June 2006, wherein a specific plea was taken
that the appointments to the post of AEEs made between 1990-92 were not de hors the service rules and at that point of time, there was no
requirement for these selections to be made through the APPSC as the same were exempted from the purview of the Commission (APPSC).
(h) That the Division Bench has passed the impugned order on an erroneous assumption that once the State Government issued G.O.M. No. 234
dated 27th June, 2005, it became ‘functus officio’ and could not have modified the same by re-examining the case of the temporary employees
appointed between 1990-1995 and supersede the same by issuance of the G.O.M. No. 262, dated 17th June, 2006. He submitted that the doctrine of
‘functus officio’ is not applicable to administrative decisions based on policy considerations and if such doctrine is made applicable to the rule-
making power of the Government, the administrative setup would be virtually crippled. In this regard, he placed reliance on Rule 25 of the Andhra
Pradesh State and Subordinate Service Rules, 1996, and the judgment of this Court inO rissa Administrative Tribunal Bar Association v. UOI
(2023) SCC OnLine SC 309.
(i) That the reasoning given by the Division Bench for quashing the G.O.M. No. 262, dated 17th June, 2006, vide which the benefit was given to the
temporary appointees (including the appellants herein) that the same was issued without hearing the affected persons i.e. the writ petitioners(private
respondents herein) is ex-facie misplaced. He urged that there is no requirement in law for issuance of notice to the set of employees likely to be
affected where the Government takes a policy decision of conferring the benefit of regularisation and fixing the date from which the seniority is to be
reckoned for a particular set of employees.
(j) That neither was the State Government denuded of the power to amend the earlier G.O.M. nor was there any requirement of hearing the
candidates likely to be affected by the revised G.O.M. before its issuance thereof. He urged that the rule-making power of the State Government
cannot be curtailed by the principle of ‘Audi alteram partem’ because such a view would virtually bind the hands of the State Government, and
it would lose the right to exercise the rule-making power. In this regard, he placed reliance on Patel Engg. Ltd. v. Union of India (2012) 11 SCC
257.
(k) That the G.O.M. No. 262 was passed in consonance with the extant rules and the procedural requirements. The representations filed by the
appellants and his peers pursuant to the issuance of G.O.M. No. 234, dated 27th June, 2005, were objectively considered by the State Government,
and a well-considered equitable policy decision was taken to count the services of the candidates appointed between 1990-92 from the date of their
initial induction in service as temporary AEEs and as a sequel thereto, the appellants were assigned seniority from the said date.
(l) That the instant case falls under Proposition(B) enumerated by the Constitution Bench of this Court in the case ofD irect Recruit Class II Engg.
Officers’ Association v. State Of Maharashtra (1990) 2 SCC 715, which lays down that “If the initial appointment is not made by
following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in
accordance with the rules, the period of officiating service will be counted.†He urged that no rules were in force in the Panchayat Raj
Department when the appellants were appointed. They continued in his post till regularisation in 2005, and thus, the period of the temporary service
(i.e. from 1990 to 2005) of the appellants before the regularisation, has to be counted for determining their seniority.
He concluded his submissions by urging that the impugned judgment has disturbed the settled seniority of the cadre posts which has been in vogue for
the past two decades, and as a result, the appellants are placed below the private respondents who are more than seven years junior to them at the fag
end of their career and thus, deserves to be set aside.
26. Learned senior counsel representing the State Government has supported the submissions advanced by the learned counsel for the appellants.
On these grounds, learned counsel appearing for the appellants and the State implored the Court to allow the appeals, set aside the impugned judgment
passed by the Division Bench, and restore the judgment passed by the Tribunal (APAT).
Submissions on behalf of the private respondents:
27. E-converso, learned senior counsel representing the private respondents strenuously supported the impugned judgment. He advanced the following
submissions:-
(a) That the respondents were appointed as AEEs in 1997 after undergoing a regular selection process in pursuance of Notification No. 8 of 1995,
dated 8th December, 1995 issued by APPSC. On the other hand, the appellants and other similarly situated candidates were appointed as AEEs
purely on a temporary basis during 1990-1995, either on promotion, on recruitment by transfer or were sponsored by the employment exchange.
(b) That the appellants and other similarly situated employees were neither appointed with due adherence to any selection procedure nor was their
appointment made in accordance with any service rules. He urged that the appellants were not even borne in the cadre as on the date on which the
respondents were regularly selected as AEEs in the Panchayat Raj Department and thus, the respondents who were directly recruited through
APPSC are entitled to be placed above the appellants and other similarly situated temporary AEEs in the order of seniority.
(c) That the APPSC published Notification No. 4 of 1990 calling for applications from all persons aspiring to be appointed as AEEs on a regular basis.
Further, a second opportunity was given vide another Notification No. 8 of 1995 calling for applications for regular selection on the post of AEEs. He
thus urged that sufficient opportunities were given to the appellants and similarly situated persons to get appointed via the direct recruitment process
conducted by the APPSC, but they did not avail of the same.
(d) That vide G.O.M. No. 234, dated 27th June, 2005, a final decision was taken and the services of the appellants and other similarly situated
employees were regularized. However, they were rightly directed to be placed below the last regularly selected candidate appointed through APPSC.
He submitted that this G.O.M. was a final policy decision taken by the State Government, since it was issued after duly taking into consideration the
recommendations of the Cabinet Sub-Committee and the General Administration Department and also the fact that the appellants and other similarly
situated candidates had rendered more than 10 years of uninterrupted service and were working against the sanctioned posts.
(e) The learned senior counsel appearing for the private respondents fairly submitted that the decision to regularise the services of the appellants and
other similarly situated candidates was justified. He, however, urged that once a final decision had been taken and orders were passed with respect to
seniority vide G.O.M. No. 234, the State Government became functus officio and could not have re-examined and re-opened the issue of seniority on
the basis of representation made by the affected parties.
(f) That vide the revised G.O.M. No. 262, dated 17th June, 2006, one set of the employees who were appointed between 1990 and 1992(including the
appellants herein) were placed above the respondents in the seniority list. He urged that the revised G.O.M. was issued without affording an
opportunity of hearing to the respondents herein as no notice was given to them before taking a decision adversely affecting their seniority, which is in
utter violation of principles of natural justice and thus, the same was rightly struck down by the Division Bench.
(g) That the factors forming the basis for the issuance of the revised G.O.M. No. 262 were evidently within the knowledge of the State Government
at the time of issuing the earlier G.O.M. No. 234. However, no sufficient explanation has been offered by the State Government as to why these
critical considerations were overlooked during the formulation of the earlier G.O.M., thereby necessitating the subsequent revision.
(h) That the instant case falls under the corollary drawn to Proposition(A) enumerated by the Constitution Bench of this Court in the case o fDirect
Recruit Class II Engg. Officers’ Association(supra), which lays down that “where the initial appointment is only ad hoc and not
according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the
seniority.†He urged that the initial appointment of the appellants and the similarly situated persons to the post of AEEs was ad-hoc and not
according to the rules prevailing in the Panchayat Raj Department, and thus, the period of temporary service (i.e. from 1990 to 2005) rendered by the
appellants prior to their regularisation cannot be counted for determining the seniority.
He concluded his submissions by urging that granting seniority to the appellants over and above the respondents is totally unconstitutional and de hors
the rules, and, therefore, the High Court was wholly justified in quashing the revised G.O.M. No. 262. He urged that the view taken by the Division
Bench of the High Court is unassailable in the eyes of law and hence, the appeals merit rejection.
28. We have given our thoughtful consideration to the submissions advanced at the bar and have gone through the impugned judgment along with the
material placed on record.
Discussion and Conclusion:
29. A few important facts which are not in dispute and require mention for the adjudication of the present appeals are noted below:-
(i) The appellants and his peers were holding the qualification of B.E/B. Tech and were regularly appointed in the year 1990 as Work Inspectors in the
Andhra Pradesh Schedules Castes Cooperative Development Corporation.
(ii) Vide G.O.M. No. 540, dated 30th August, 1990, the State Government sanctioned 386 posts of AEEs under the Cyclone Emergency
Reconstruction Project (CERP) of the Panchayat Raj Department with a purpose to carry out the project-based reconstruction of the infrastructure
including schools, etc., which had been destroyed in a cyclone. The appellants and one similarly placed candidate were transferred from the
Corporation and came to be appointed as Assistant Executive Engineers (AEEs) on a temporary basis in the said project vide order dated 5th
December, 1992. The relevant portion of the appointment order is extracted below: -
“1. In pursuance of the orders issued in G.O. 3rd, 4th, and 6th cited and basing on the recommendation of the Committee, the candidates annexed to this order who
were appointed as Work Inspector/Draughtsman, Tracer in S.C. Corporation, Tribal Welfare Department, weaker Section, Housing Scheme under Social Welfare
Department and Panchayati Raj Engineering Department and possessing graduate qualification in engineering are hereby appointed as Temporary Assistant
Executive Engineers in the zones mentioned against their names in the annexure I to IV in A.P.P.R.E.S. against the posts sanctioned under Cyclone reconstruction
Project (CERP) sanctioned in G.O. 1st cited 2nd cited under rule 10(a)(i)(1) of the General Rules for state and Sub Ordinate services in the scale of pay of Rs. 1,330-60-
1, 980-70-275/ with usual allowances as admissible under the rules from the actual date of joining and allotted to Chief Engineer (CERP) P.R. Hyderabad.
2. The appointment referred to in para (1) above is purely temporary and does not confer any right for regular appointment or otherwise liable to be terminated at any
time without prior notice or intimation and without assigning any reasons therefore, since the project is temporary.â€
Thus, it is clear that a specific reference was given while taking the decision for these temporary appointments, that the said appointments were being
made under Rule 10(a)(i) of the General Rules for State and Subordinate services i.e., Andhra Pradesh Subordinate Service Rules. In this background,
there is no dispute that the appellants were appointed as AEEs against the regularly sanctioned posts albeit on a temporary basis.
(iii) The private respondents were appointed as AEEs in 1997, after undergoing the regular selection process through APPSC in accordance with the
Act of 1994.
(iv) The appellants and similarly situated employees continued to serve as AEEs in the Panchayat Raj Department for almost 13 years before their
prayer for regularisation was favourably considered by the State Government vide G.O.M. No. 234, dated 27th June, 2005. However, this G.O.M
contained a stipulation that the services of all temporary AEEs (including the appellants herein) appointed between 1990-1995 would be placed below
the last regularly selected candidate of AEEs in terms of seniority. This G.O.M. further directed that all the temporary appointments made between
1990-1995 and continuing on that date, shall be excluded from the purview of APPSC under the proviso to clause 3 of Article 320 of the Constitution
of India. Aggrieved by the denial of seniority and being placed below the private respondents, the appellants and others filed various representations to
the State Government contending that the AEEs appointed during 1990-1992, i.e., before the promulgation of the Act of 1994, and those appointed
between 1993-1995, i.e., after the enactment of the Act, should not be treated at par. They asserted that these groups were in different legal classes
and could not be merged as directed in G.O.M. No. 234. Additionally, they claimed that significant injustice had been done to the AEEs appointed
between 1990-1992, who were made junior to AEEs appointed in 1997, thus losing nearly 10-15 years of continuous service. As a result, they would
retire without the chance of receiving even a single promotion during their entire service tenure.
(v) These representations were considered and accepted by the State Government, leading to partial modification of the earlier G.O.M No. 234 and
issuance of a revised G.O.M No. 262, dated 17th June, 2006, wherein the State Government introduced a classification amongst temporarily appointed
AEEs based on their dates of appointment with reference to the promulgation of Act of 1994. The classification divided the AEEs into two groups:
those appointed between 1990-1992 and those appointed between 1993-1995. The revised G.O.M. further stipulated that the temporary AEEs
appointed between 1990-1992 would be placed below the last regular AEE appointed through the APPSC, prior to the enactment of the Act of 1994.
(vi) The reason assigned by the State Government for this modification and sub-classification (i.e. one group of AEEs appointed between 1990-1992
and the other between 1993-1995), was that the temporary AEEs in the first group had put in 10 years of interrupted service including the services in
the feeder cadre of Work Inspector/Draftsmen/Tracer before their appointment as temporary AEEs. The significant delay in considering their prayer
for regularisation in the Panchayat Raj Department was attributable to the fact that the Government could not amend the service rules as per G.O.M.
No. 429, dated 6th March, 1990, to take up the regularisation of the temporary AEEs. Therefore, one of the crucial factors in the decision to issue the
revised G.O.M. No. 262 was the Government's inaction in amending the service rules, as required by G.O.M. No. 429.
(vii) The decision to regularize the services of the appellants and other similarly situated candidates, appointed as temporary AEEs between 1990 and
1995, taken by the State Government vide G.O.M. No. 234 dated 27th June 2005, remains unchallenged and has, therefore, attained finality.
30. Thus, the Court finds merit in the appellants’ contention that the delay in the regularisation of their service was attributable to the need for
amendments to the Andhra Pradesh Panchayati Raj and Rural Development Rules, which were necessary to create a channel for absorption into the
cadre.
31. Seen thus, the fundamental issue that boils down for consideration is: “Whether the period of officiating service of the
temporarily appointed AEEs between 1990-1992(including the appellants herein) should be taken into account for considering their seniority over and
above the 1997 batch of regularly appointed candidates through APPSC (private respondents herein)�
32. The Constitution Bench of this Court in the case of Direct Recruit Class II Engg. Officers' Association(supra) ,after considering all the earlier
decisions, summarized the legal position with regard to the determination of seniority in service in para 47 of the judgment. For the purposes of the
present controversy, paras (A) and (B) of para 47 are relevant and are extracted hereunder: -
“47. To sum up, we hold that:-
(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his
confirmation.
The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in
such post cannot be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the
regularisation of his service in accordance with the rules, the period of officiating service will be counted.â€
(emphasis supplied)
33. The appellants contend that their case falls under Proposition (B), while the private respondents argue that it aligns with the corollary to
Proposition (A). To resolve this dispute, two crucial aspects must be examined: (i) the prevailing rules in the Panchayat Raj Department, State of
Andhra Pradesh, and (ii) whether the appellants initial appointment was purely ad-hoc or a temporary stop-gap arrangement.
34. It is undisputed that at the time of the appointment of the appellants and other similarly placed candidates as AEEs between the years 1990-1992,
there was a vacuum in rules governing the appointment of AEEs in the Panchayat Raj Department. To address the project-based exigency, the
appellants and one other were appointed as temporary AEEs under Rule 10(a)(i)(1) of the General Rules for State and Subordinate Services, i.e.,
Andhra Pradesh State and Subordinate Service Rules. The relevant rule is extracted below:-
“10. TEMPORARY APPOINTMENT INCLUDING APPOINTMENTS BY DIRECT RECRUITMENT, RECRUITMENT/APPOINTMENT BY TRANSFER OR BY
PROMOTION:
(a) Where it is necessary in the public interest to fill emergently a vacancy in a 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 may appointing a person temporarily, otherwise than in accordance
with the said rules, either by direct recruitment or by promotion or by appointment by transfer, as may be specified as the method of appointment in respect of the
post, in the special rules.
…..
(i) Temporary posts requiring special qualifications. Notwithstanding anything contained in these rules or special rules, if and when, a temporary post is
created as an addition to the cadre of any service, class or category and the holder thereof is required by the State Government to possess such special
qualifications, knowledge or experience, any person who possesses such qualifications, knowledge or experience and who is considered to be the most
suitable person to discharge the duties, of such post may, irrespective of other considerations, be appointed temporarily to that post by the appointing
authority; but the person so appointed shall not, by reason only of such appointment, be regarded as a probationer in such-service, class or category
nor shall be acquire thereby any preferential right to future appointment to such service, class or category.â€
(ii)
35. Since there was a vacuum in the rules, it cannot be said that these appointments were de hors the rules. Further, this Court finds merit in the
distinction drawn by the counsel for the appellants between G.O.M. No. 540 dated 30th August, 1990 and the later G.O.M. No. 1289 dated 10th
August, 1994, both issued by the Panchayat Raj Department. A careful comparison of the two G.O.M’s highlight a significant difference in their
terms and conditions. G.O.M. No. 540, which created the sanctioned posts for AEEs under CERP, did not include any clause making the
appointments conditional upon selection by the APPSC. There was no provision for reversion to a lower position if the appointees were not selected
through a regular selection process conducted by the APPSC. On the other hand, G.O.M. No. 1289, issued on 1t0h August, 1994, explicitly provided
that the appointments were temporary and subjected the appointees to the rigor of selection through the APPSC or else face reversion. It stipulated
that the candidates who were not selected through APPSC, they would be reverted to the position of Work Inspectors. This clause made it clear that
the appointments under G.O.M. No. 1289 were temporary and contingent upon selection through the APPSC, a stipulation that was notably missing in
G.O.M. No. 540. The absence of such a condition in G.O.M. No. 540 indicates that the appointments under that order were not of a temporary or
conditional nature as those made under G.O.M. No. 1289.
36. Also, upon a perusal of G.O.M. No. 391, dated 30th June 1994, concerning the Jawahar Rozgar Yojana Scheme, it is apparent that the State
Government had a specific and unequivocal intent to retain the services of individuals posted under the CERP Circles/Divisions, since, this G.O.M
specifically directed that upon abolition of the CERP Circles/Divisions, the personnel temporarily appointed under the project(s) would be reassigned to
the newly sanctioned Circles and Divisions, underscoring the Government's intent to maintain employment and continuity of service. The relevant
extract from G.O.M. No. 391 is reproduced hereinbelow: -
“10. As and when the Cyclone Emergency Reconstruction Project Circles/ Divisions are abolished, the persons working in these circles/ Divisions shall be posted
to the new circles and divisions. The sub-divisions attending to cyclone Emergency Reconstruction Project Works shall stand abolished w.e.f. 30.6.1994 A.N. and the
persons working in these Sub-Divisions shall be posted to New Circles/ Divisions Sub-divisions now sanctioned.
11. The posts which were sanctioned for Cyclone Emergency Reconstruction Project works in the office of Chief Engineer (CERP) shall also stand abolished w.e.f.
30.6.94 A.N. but the staff in O/o Chief Engineer (RWS) sanctioned in this order will continue to attend to the residual work if any of the C.E.R.P. till the work is
completed.â€
37. Thus, this Court is of the view that, notwithstanding the designation of the appointments of the appellants and similarly situated candidates as being
temporary, such appointments were neither restricted by a fixed tenure nor conceived as a stop-gap or ad-hoc arrangement. While characterized as
temporary, these appointments were not intended to address a transient or interim requirement, rather, they were structured to ensure continuity and
stability within the workforce.
38. Further, it is an admitted fact that the services of the appellants and other similarly situated candidates employed between 1990-1995 were
regularised vide G.O.M. No. 234, dated 27th June, 2005, which was not challenged before any forum and has attained finality. It is trite that once the
services of employee(s) are regularised, the ad-hoc or stop-gap nature of the appointment does not survive. In this regard, we may gainfully refer to
Santosh Kumar v. State of A.P. (2003) 5 SCC 511, wherein, while dealing with a similar issue and the self-same service rules, this Court upheld the
regularisation of services of temporary employees with retrospective effect and granted them seniority from the date of initial appointment holding that
their case falls under Proposition(B) of Direct Recruit Class II Engg. Officers’ Association(supra). The relevant extract of the said judgment is
as follows:-
“10. …………. The respondent and others were appointed as Sub-Inspectors out of seniority looking to the outstanding merit and record prior to the direct
recruits like the appellant. Their services were admittedly regularised by relaxing the Service Rules in the exercise of power available under Rule 47 of the General
Rules. The appellant did not challenge the validity of Rule 47 and no mala fides were established against the authorities in exercise of powers of relaxation under the
said Rule. The Tribunal has recorded a finding that the Rule relating to the method of recruitment was not relaxed but only the conditions which had to be fulfilled for
the purpose of promotion to the category of Sub-Inspector were relaxed; this finding is not disturbed by the High Court; there was no relaxation as to the basic
qualification; the State Government regularised the services of the respondent and others with retrospective effect from the date they were temporarily appointed as
Sub-Inspectors (OSSIs). It is also not disputed that they continued in service uninterruptedly for about 12-13 years till their services were regularised with
retrospective effect. This being the factual position it could not be said that the corollary to para 47(A) of the aforementioned Constitution Bench judgment applies
to the facts of the present case. Once their services were regularised it cannot be contended that their initial appointment was only on ad hoc basis and not
according to the rules and made as a stopgap arrangement. On the other hand, para 47(B) supports the case of the respondent.â€
(emphasis supplied)
39. Similarly, this Court in Amarendra Kumar Mohapatra v. State of Orissa and Ors. (2014) 4 SCC 583, while dealing with a similar issue of grant
of seniority to ad-hoc employees upon regularisation with effect from the date they were appointed on an ad-hoc basis especially when the ad-hoc
appointment had continued without any interruption till their regularisation, answered it in the affirmative observing thus:-
“68. Appearing for the State of Orissa, Mr Nageswara Rao contended that grant of seniority to ad hoc Assistant Engineers regularised under the legislation
w.e.f. the date they were appointed on ad hoc basis was legally permissible especially when the ad hoc appointments had continued without any interruption till their
regularisation. ……….
The case at hand, according to the learned counsel, fell under Proposition B formulated in the said decision. Grant of seniority from the date of initial appointments
did not, therefore, suffer from any constitutional or other infirmity to warrant interference from this Court.
69. Mr Shishodia appearing for some of the parties, on the other hand, contended that seniority could be granted only from the date of regularisation under the
enactment and not earlier. The learned counsel for some of the interveners adopted that contention, including Ms Aishwarya appearing for some of the diploma-
holder Junior Engineers and urged that ad hoc service rendered by the Engineers appointed otherwise than in accordance with the rules could not count for the
purposes of seniority and that even if Section 3(1) of the Validation Act was held to be valid, Section 3(2) which gave retrospective seniority from the date they were
first appointed on ad hoc basis must go.
……..
71. There was some debate at the Bar whether the case at hand is covered by corollary to Proposition A or by Proposition B (supra). But having given our
consideration to the submissions at the Bar we are inclined to agree with Mr Rao's submission that the case at hand is more appropriately covered by Proposition
B extracted above. We say so because the initial appointment of ad hoc Assistant Engineers in the instant case was not made by following the procedure laid down by
the Rules. Even so, the appointees had continued in the posts uninterruptedly till the Validation Act regularised their service. There is, in the light of those two
significant aspects, no room for holding that grant of seniority and other benefits referred to in Section 3(3) of the impugned Act were legally impermissible or
violated any vested right of the in-service Assistant Engineers appointed from any other source.
72. Proposition A, in our opinion, deals with a situation where an incumbent is appointed to a post according to the rules but the question that arises for
determination is whether his seniority should be counted from the date of his appointment or from the date of his confirmation in the said service. The corollary
under Proposition A, in our opinion, deals with an entirely different situation, namely, where the appointment is ad hoc and made as a stop-gap arrangement in
which case officiation in such post cannot be taken into consideration for seniority. Be that as it may, as between Propositions A and B the case at hand falls more
accurately under Proposition B which permits grant of seniority w.e.f. the date the appointees first started officiating followed by the regularisation of their service
as in the case at hand.
……
78. Having said so, there is no reason why a similar direction regarding the writ petitioners degree-holder Junior Engineers who have been held by us to be entitled
to regularisation on account of their length of service should also not be given a similar benefit……….
(emphasis supplied)
40. Applying these precedents to the facts of the case at hand, we are of the firm view that the case of the appellants clearly falls under
Proposition(B) of the Direct Recruit Class II Engg. Officers’ Association(supra) as there were no selection rules in force in the Panchayat Raj
Department for appointment of AEEs at the time of appointment of the appellants as temporary AEEs which was in the year 1992. These
appointments though termed temporary, were not bound in a fixed tenure and were not stop-gap or ad-hoc in nature. The appellants worked
uninterruptedly on the same post till the regularisation of their service vide G.O.M No. 234 dated 27th June, 2005.
41. The Division Bench of the High Court gave imprimatur to the contention of the private respondents (the regularly appointed candidates of the 1997
batch), that the issuance of G.O.M. No. 234, dated 27th June 2005, rendered the State Government ‘functus officio’, thereby precluding it from
both revisiting or reopening the matter and issuing the revised G.O.M. No. 262, dated 17th June 2006. Consequently, the Division Bench allowed the
writ petitions filed by the private respondents herein and quashed the revised G.O.M., observing as follows in Para 29 of the impugned judgment:
“29………After taking a final decision, the State Government could not have re-examined the case of the contesting respondents, and that too, only for such of
those contesting respondents who were appointed during 1990-92, on the ground that they were appointed prior to the promulgation of Act 2 of 1994. When the
State Government has taken a final decision in G.O.Ms.No.234, it becomes functus officio and hence, it could not have touched the same by re-examining the case of
the contesting respondents and granted relief by issuing G.O.Ms. No.262 dt. 17-06-2006 contrary to the findings recorded in the earlier G.O.…….â€
42. It cannot be disputed that the rule-making power of the legislature cannot be curtailed or nullified by application of the concept of functus officio.
The principle of functus officio normally applies to a judicial forum or a quasi-judicial authority and would have no application to the rule-making
authority which is within the domain of the State Government by virtue of Article 245 of the Constitution of India.
43. This Court in the case of Orrisa Administrative Tribunal Bar Associations (supra), while dealing with the application of the doctrine of
‘functus officio’ to the sphere of the administrative decision-making by the State and its impact on the policy decisions, observed that “if the
doctrine of ‘functus officio’ were to be applied to the sphere of administrative decision-making/rule-making power of the State, the executive
power would be virtually crippled and the State would find itself paralyzed, unable to change or reverse any policy or policy-based decision and its
functioning would be brought to a grinding halt. The relevant extract from the said judgment is as follows:
“113. Turning to the present case, the appellants' argument that the Union Government was rendered functus officio after establishing the OAT does not stand
scrutiny. The decision to establish the OAT was administrative and based on policy considerations. If the doctrine of functus officio were to be applied to the sphere
of administrative decision-making by the state, its executive power would be crippled. The state would find itself unable to change or reverse any policy or policy-
based decision and its functioning would grind to a halt. All policies would attain finality and any change would be close to impossible to effectuate.
114. This would impact not only major policy decisions but also minor ones. For example, a minor policy decision such as a bus route would not be amenable to any
modification once it was notified. Once determined, the bus route would stay the same regardless of the demand for, say, an additional stop at a popular destination.
Major policy decisions such as those concerning subsidies, corporate governance, housing, education, and social welfare would be frozen if the doctrine of functus
officio were to be applied to administrative decisions.
This is not conceivable because it would defeat the purpose of having a government and the foundation of governance. By their very nature, policies are subject to
change depending on the circumstances prevailing in society at any given time. The doctrine of functus officio cannot ordinarily be applied in cases where the
government is formulating and implementing a policy.â€
(emphasis supplied)
44. Therefore, we are unable to concur with the reasoning assigned by the High Court that the State Government became functus officio after
issuance of G.O.M. No. 234 dated 27th June, 2005 and could not have issued the revised G.O.M. No. 262 dated 17th June, 2006. The view so taken
by the Division Bench is untenable and ultra vires the Constitution of India.
45. Further, it is a well-settled principle of law that while administrative actions and statutory rules that impact citizens’ rights are subject to judicial
review, the notion that the State must provide a prior hearing to affected individuals during the exercise of its rule-making power is fundamentally
flawed. In this regard, we are benefitted by the judgment of the Constitution Bench of this Court in the case of Union of India v. Tulsiram Patel
(1985) 3 SCC 398, wherein it was held that:
“101..……….So far as the audi alteram partem rule is concerned, both in England and in India, it is well established that where a right to a prior notice and an
opportunity to be heard before an order is passed would obstruct the taking of prompt action, such a right can be excluded. This right can also be excluded where
the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provisions warrant its exclusion; nor can the audi alteram
partem rule be invoked if importing it would have the effect of paralysing the administrative process or where the need for promptitude or the urgency of taking
action so demands, as pointed out in Maneka Gandhi case [(1978) 1 SCC 248 : (1978) 2 SCR 621, 676] at p.
681. If legislation and the necessities of a situation can exclude the principles of natural justice including the audi alteram partem rule, a fortiori so can a provision of
the Constitution, for a constitutional provision has a far greater and all-pervading sanctity than a statutory provision……..â€
(emphasis supplied)
46. In Patel Engg. Ltd.(supra), this Court held as follows:
“38. …….that there is no inviolable rule that a personal hearing of the affected party must precede every decision of the State..……â€
47. We are also of the considered view that the reasoning assigned by the High Court, in the impugned judgment that the private respondents herein,
as affected parties, were required to be heard before the issuance of the revised G.O.M. No. 262 dated 17th June 2006, is unsustainable and contrary
to the established legal principles. Such an interpretation by the Division Bench has far-reaching and potentially disastrous implications. If the State
Government is compelled to afford an opportunity of hearing to every individual or entity likely to be affected by its administrative decision-making, it
would effectively paralyze governance by imposing an undue procedural roadblock. This would place the State in a position where its rule-making
authority would be severely constricted, defeating the very purpose of efficient policy implementation and undermining its ability to discharge its
administrative duties.
48. In the wake of the discussion made above, we answer the issue in the affirmative and hold that the period of officiating service (i.e. period
between 1990 to 2005) of the appellants and the batch of the AEEs appointed between 1990-1992 has to be counted as regular service for
determining the seniority, entitling him/them to be placed above the 1997 batch of regularly appointed candidates(private respondents herein) in the
seniority list. The State Government was fully justified in issuing the revised G.O.M. No. 262 dated 17th June, 2006, which is unassailable in the eyes
of law.
49. Consequently, we are of the view that the impugned judgment dated 21st September, 2023, is unsustainable in the eyes of the law and thus, the
same is quashed and set aside.
50. The appeals are allowed accordingly. No order as to costs.
51. Pending application(s), if any, shall also stand disposed of.
CIVIL APPEAL NO(S). OF 2025
(Arising out of SLP(Civil) No(s). _________ of 2025) (Diary No. 27613/2024)
52. Delay condoned.
53. Leave granted.
54. In terms of the judgment passed in Civil Appeals arising out of SLP(Civil) No(s). 4036-4038 of 2024 and connected matters, these appeals are
disposed of accordingly.
55. Pending application(s), if any, shall also stand disposed of.