REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 8200/2011 ARISING OUT OF  

SPECIAL LEAVE PETITION (C) NO. 598 OF 2009  

K. Balarama Raju   …Appellant Versus

CH. V. Subramanya Sarma & Ors. …Respondents

With  CIVIL APPEAL No._8201/2011

ARISING OUT OF  SPECIAL LEAVE PETITION (C) NO.  5318 OF 2009  

Mohd. Sanullah Ansari & Anr. …Appellants Versus

CH. V. Subramanya Sarma & Ors. …Respondents

With CIVIL APPEAL No._8202/2011

ARISING OUT OF  SPECIAL LEAVE PETITION (C) NO.  13379 OF 2009  

High Court of A.P. …Appellant Versus

CH. V. Subramanya Sarma & Ors. …Respondents

J U D G  E M E N T

H.L. Gokhale, J.

Leave granted.   

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2. These three appeals arise from the judgment and Order dated  

19.12.2008  passed  by  a  Division  Bench  of  the  Andhra  Pradesh  High  Court  

allowing Writ Petition No. 11920/2008 filed by Ch. V. Subramanya Sarma who is  

joined as respondent No. 1 in all these three matters. The  appellant  in  the  

first Appeal arising out of SLP No. 598/2009 and the two appellants in Appeals  

arising  out  of  SLP  No.  5318/2009  were  respondents  to  the  aforesaid  Writ  

Petition.  All the three appellants and the first respondent are employees of the  

Andhra Pradesh High Court, and the aforesaid Writ Petition No. 11920/2008 was  

concerning their seniority and promotion.  The said Writ Petition challenged the  

decision of the Andhra Pradesh High Court on its administrative side granting  

seniority to these three appellants over the first respondent.   The Writ Petition  

having been allowed, these three appellants have filed SLP Nos. 598/2009 and  

5318/2009.  The third SLP is filed by the Andhra Pradesh High Court.

3. All the aforesaid three appellants and the first respondent at  

the relevant time were working on the administrative side of the High Court at  

Hyderabad in categories (4) and (5) alongwith other employees of Division-II i.e.  

Assistants/Examiner & Typist/Copyists.  They were interested in their promotion  

to the immediately higher post of Computer Operators which is in Category 3 (b)  

of Division-II.

4. The service conditions of all these three appellants as well as  

the first respondent are governed under the Andhra Pradesh High Court Service  

Rules, 1975 framed by the Chief Justice of the High Court of Andhra Pradesh in  

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exercise  of  his  powers  conferred  under  Article  229  (1)  and  (2),  of  the  

Constitution  of  India.  The  High  Court  administration  issued  a  circular  dated  

24.10.2000  calling  for  particulars  from  the  members  of  the  High  Court  

establishment for filling up these posts of Computer operators in accordance with  

the above referred rules. As far as this promotion is concerned, it was to be  

effected on the basis of a written and an oral test which were to be conducted  

by the officials of the National Informatics Centre (NIC).   

5. It was the case of the first respondent that under Rules 7 (7)  

and 8 (4)  of  the aforesaid  rules  the  requisite  qualification  for  the  post  of  a  

Computer Operator was to possess a degree in Typewriting, capability in English  

in higher grade, and post-graduate diploma in computer programming or post  

graduate  diploma  in  computer  applications.   He  had  this  qualification  and  

therefore  he  applied  for  that  post,  and  when  the  test  was  conducted  on  

1.11.2000, he cleared that examination.  Nine other candidates also cleared the  

said test including the three appellants in SLP Nos. 598/2009 and 5318/2009.  

However,  they  did  not  posses  the  aforesaid  requisite  qualification  of  post  

graduate  diploma  in  computer  programming  or  post  graduate  diploma  in  

computer application.  The High Court Administration however issued an order  

dated 7.11.2000 permitting them alongwith two others to acquire the requisite  

prescribed qualification within one year failing which they were to be reverted.  

In  this  order  dated  7.11.2000  the  three  appellants  in  SLP  Nos.  598  and  

5318/2009 were shown at Serial Nos. 1, 2 and 3, whereas the first respondent  

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was shown at Serial No. 4.  The order issued by the Registrar (Administration)  

dated 7.11.2000 reads as follows:-

“PROCEEDINGS  OF  THE  HIGH  COURT  OF  ANDHRA  PRADESH ::

HYDERABAD

SUB-ESTABLISHMENT  –  HIGH  COURT  OF  A.P.  HYDERABAD  –   Promotion to Category 3 (b) of Division II i.e. Computer Operators- Orders – Issued.

READ:-  1.  G.O.MS.NO.  156 Law (LA & J  Courts.C)  Department,   Dated 18.10.2000

2.  High  Court’s  Circular  ROC  NO.  6017/2000/Estt.,   dated 24.10.2000         …

ORDER ROC NO. 6939/200/Estt. 2 dated 7.11.2000

The  Hon’ble  the  Chief  Justice  is  pleased  to  pass  the  following   order:-

The following members working in Category 4 and 5 of Division II   i.e Assistants/ Examiners and Typists/Copyists who have appeared   for the Written and Oral Test conducted by the N.I.C. officials on   1.11.2000 and who have qualified in the tests, are promoted and   appointed as Computer Operators on temporary basis.

______________________________________________________

S.No. Name Designation

Sarvasri 1. K. Balarama Raju

Assistant 2. Mohd. Sanaullah Ansari

Assistant 3. T. Tirumala Devi

Typist 4. Ch. V. Subrahmanya Sarma Typist 5. M.V.S. Navinchandra

Copyist 6. N. Chandrasekhar Rao

Copyist

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7. V. Satyanarayana Typist

8. L. Lakshmi Babu Typist

9. P. Nagarjuna Rao Assistant

10. L. Ramachandra Rao Assistant

The members shown at S.Nos.  1,  2 ,3,  9 and 10 shall   acquire  the  requisite  prescribed  qualifications  within  one  year  failing   which they shall be reverted.

The  above  said  appointments  are  made  purely  on   temporary  and  on  an  adhoc  basis  without  any  preferential  claim  to   future re-promotion or seniority and are liable to be reverted at any time   without any notice and without assigning any reason.”

 Sd/-  

Registrar   (Administration)

6. It so transpired that this period for passing of the examination  

was further extended by the High Court for all the five candidates at Sr. Nos. 1,  

2,  3,  9 & 10 above by one more year  by a  further  notification  of  Registrar  

(Administration)  dated  23.11.2001,  during  which  period  they  acquired  the  

necessary  qualification.   The respondent  No.  1 objected to the fact  that the  

candidates who did not possess the requisite qualifications at the outset were  

shown senior to him.  He submitted his representation for getting his correct  

seniority in the category of computer operators.  He made a representation on  

2.11.2001,  but that was rejected by the order  passed by the High Court  on  

15.11.2003. He then sought the review of that order by his application dated  

19.2.2004 but he did not receive any response.   

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7. Thereafter,  the  Registrar  (Administration)  prepared  the  

gradation/seniority  list  of  computer  operators  as on 1.7.2005 and invited the  

objections/representations on or before 10.11.2005 vide his notification dated  

23.9.2005.   The  respondent  No.  1  once  again  submitted  his  objection  on  

10.10.2005.   In  the  meanwhile,  the  Registrar  (Administration)  proceeded  to  

finalise the seniority of the computer operators for consideration for promotion to  

the next higher post namely that of Deputy Section Officer.  In the gradation list  

of 19 employees that was finalized, the two appellants of SLP No. 5318/2009  

were shown senior to respondent No. 1 herein.  Since we are concerned with  

these three persons, we reproduce the entries with respect to them.

“HIGH COURT OF ANDHRA PRADESH, HYDERABAD GRADATION (SENIORITY)   LIST IN THE CATEGORY 3(B) OF DIV. II i.e. COMPUTER OPERATORS AS ON  

01-07-2005

Sl. No. Name  Sarvasri:

Date of Birth Date  of  entrance into  Govt.  service/Date  of  Apptt.  To  the Category

Educational  Qualifications

1.  Mohd. Sanaullah Ansari   

14-07-1963   21-02-1990  *07-11-2000

B.SC,  LL.B,  Type  (E)  (H)  PGDCA

Department al Tests

Pay Rs. Status  of  the  Employee

Whether  qualified  for  the  next  promotion

Punishments  and detents

Remarks

Accounts  Translation

Rs. 5640   

Approved  Probationer

Qualified Nil Nil

Sl. No. Name  Sarvasri:

Date of Birth Date  of  entrance into  Govt.  service/Date  of  Apptt.  To  the Category

Educational  Qualifications

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2.  T. Tirumala Devi   

13-06-1966   12-07-1994  *07-11-2000

M.Com, BAL,  PGDCP,  Type  (E) (H)

Department al Tests

Pay Rs. Status  of  the  Employee

Whether  qualified  for  the  next  promotion

Punishments  and detents

Remarks

CPC,  Accounts  Translation

Rs. 5150   

Approved  Probationer

Qualified Nil Nil

Sl. No. Name  Sarvasri:

Date of Birth Date  of  entrance into  Govt.  service/Date  of  Apptt.  To  the Category

Educational  Qualifications

3.  Ch. V.Subrahmanya Sarma   

24-04-1961   20-12-1985  *07-11-2000

B.Com,  LLB.  Type (E) (H),  Type  (T)  (H)  PGDCA,  PGD  in Cyber Laws  &  Legal  Information  System

Department al Tests

Pay Rs. Status  of  the  Employee

Whether  qualified  for  the  next  promotion

Punishments  and detents

Remarks

CPC,  Accounts  Translation

Rs. 6950   

Approved  Probationer

Qualified Nil Nil

As  far  as  the  appellant  of  Appeal  No.  598/2009  K.  Balarama  Raju  is  

concerned he was at Sl. No. 1 in the earlier order dated 7.11.2000.  He was  

already promoted to the higher post in Category 1 of Division-II i.e. Translators  

& Deputy Section Officers by High Court order dated 11.3.2005 and therefore,  

his name did not figure in this seniority list of Computer Operators.

8. The  further  representation  of  the  respondent  No.  1  dated  

10.10.2005 was rejected by the High Court by its proceedings dated 16.11.2007.  

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He was however, subsequently promoted to the post of Deputy Section Officer  

under High Court order dated 10.12.2007, but was placed much junior to these  

appellants.  He therefore, challenged the proceeding of the High Court dated  

16.11.2007, communicating rejection of his  representation in response to the  

gradation list of computer operators as on 1.7.2005 by filing Writ Petition No.  

119/2008.

9. The first respondent contended before the High Court that he  

had the necessary qualification when the examination for the posts of computer  

operators  was  conducted,  whereas  the  appellants  of  SLP  Nos.  598  and  

5318/2009,  did  not have those qualifications  at  the outset,  but  acquired  the  

same within the subsequent period of two years which was permitted by the  

High Court.  He submitted that therefore, the High Court was wrong in giving the  

ranks in the gradation list, and he should have been shown senior to these three  

appellants.  As against that, the submission of the three appellants was that they  

had passed the preliminary examination conducted by the High Court alongwith  

the first respondent, and had obtained more marks than him.  It is therefore,  

that they were shown at S.Nos. 1, 2 and 3 above the first respondent in the  

order  dated  7.11.2000,  although  they  had  acquired  the  requisite  diplomas  

subsequent  to  the  preliminary  examination.   They  had  been  granted  the  

relaxation to obtain the qualification which was permissible.   The subsequent  

seniority list of the computer operation as on 1.7.2005 was based on this order  

dated 7.11.2000, and the decision of the High Court administration was correct.  

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10. The Division  Bench has taken the view that since the first  

respondent  had  those  qualifications  right  at  the  outset,  the  first  respondent  

ought to have been shown senior over the three appellants in SLP Nos. 538/2009  

and 5318/2009.  The High Court therefore allowed the Writ Petition filed by the  

first  respondent,  and set-aside  the  gradation  list  published  under  notification  

dated 23.9.2005.  It directed the Registrar (Administration) to refix the seniority  

of  the  computer  operators,  taking  the  date  of  their  acquiring  requisite  

qualifications  as  per  rules  7 (7)  and 8 (4)  of  the relevant  rules,  and accord  

consequential benefits arising therefrom.

11. The  three  appellants  are  aggrieved  by  this  judgment  and  

order, and have therefore, filed SLP Nos. 598/2009 and 5318/2009.  The High  

Court administration has also filed SLP No. 13379/2009.  SLP No. 598/2009 came  

up for  consideration  on  23.1.2009  when a  notice  was  directed  to  be  issued  

therein, and the impugned order was stayed until further orders.  The other two  

petitions have been directed to be tagged along with SLP No. 598/2009.  The  

respondents have filed their counter affidavits and the appellants have filed their  

rejoinder affidavits.

12. Mr.  V.  Sridhar  Reddy  and  Mr.  V.N.  Raghupathy,  learned  

Advocates have appeared in support of SLP NO. 598/2009, Mr. L.N. Rao, Senior  

Advocate  appeared  for  the  appellant  in  SLP  No.  5318/2009  and  Ms.  C.K.  

Sucharita,  Advocate  appeared  in  support  of  SLP  No.  13379/2009.   Mr.  

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Narasimha, Senior Advocate has appeared for the first respondent in all the 3  

appeals to defend the judgment and order passed by the High Court.

13. The principle  submission of  the appellants  is  that the High  

Court had granted the time to acquire the necessary additional  qualifications.  

The  qualifications  were  not  considered  sacrosanct  by  the  High  Court  at  the  

outset.  The Chief Justice had the necessary power to grant the relaxation.  The  

appellants as well as the first respondent had appeared for the common written  

and the oral test which included the aspect of capability of computer operation.  

The  appellants  have  obtained  higher  marks  than  the  first  respondent,  and  

therefore, the High Court administration was right in placing them at a higher  

position in the gradation list.  The appellants and High Court administration are  

relying on Rule 23 of the above Service Rules.  This rule reads as follows:-

“Rule  23-  Relaxation  of  Rules  by  the  Chief  Justice:-   Nothing in these rules  shall be construed to limit or abridge the   power of the Chief Justice to deal with the case of any member   of the service or any other person to be appointed to the service   in such manner as may appear to him to be just or equitable; Provided that where any such rule is applicable to the case of any   person,  the  case  shall  not  be  dealt  with  in  any  manner,  less   favourable to him than that provided by that rule.”

14. As against that, the submission of the first respondent is that  

on the basis of the aforesaid rules 7 (7) and 8 (4) the candidates had to have the  

necessary  qualifications  and  special  qualifications  at  the  outset.  The  first  

respondent  had the necessary qualification,  and therefore,  he ought  to  have  

been shown at a higher seniority position than that of these three appellants,  

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which is what the High Court has done on the judicial side.  These rules read as  

follows:-

“Rule 7 - Qualifications

(7) FOR THE POSTS OF COMPUTER OPERATORS:

Must have passed Degree in Arts or Science or Commerce of a   University in India Established or incorporated by or under a Central   Act, Provincial act or a State Act or from any Institution recognized   by the University Grants Commission.

OR

Must  have  passed  Degree  in  B.C.A.  (Bachelor  of  Computer   Application) of a University in India Established in incorporated by or   under  a  Central  Act,  Provisional  Act  or  a  State  Act  or  from any   Institution recognized by the University Grants Commission.

NOTE:  If  the  Candidate  passed the  Degree  in  B.C.A,  he   need  not  pass  the  Special  Qualifications  as  prescribed  in   Schedule-I (Under Rule-8) of the A.P. High Court Service Rules,   1975.

[AMENDMENT-III: Above words shall be added as sub-rule 7   after sub-rule 6 in Rule 7 for the posts of Computer Operators as per   A.P. Gazette 412 Part I extraordinary dated 08.10.1999.]

Rule 8 – Special Qualifications

*(4)  FOR  COMPUTER  OPERATORS:  In  addition  to  the  Graduation,  a  Computer  Operator  must  have  passed  Typewriting   English  Higher  Grade  and  Post  Graduate  Diploma  in  Computer   Programming  or  Post  Graduate  Diploma  in  Computer  Application   (One  Year  Course)  which  is  recognized  by  the  Central  or  State   Government.

*[AMENDMENT-V: Above words shall be added as sub-rule 4 after   sub-rule 3 for the posts of Computer Operators vide A.P. Gazettee   No. 412 Par I Extraordinary dated 08.10.1999].”

15. The principle  submission of the first  respondent before the  

High Court was that the three appellants did not have the requisite qualifications  

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when the Registrar, Administration issued the circular dated 24.10.2000 calling  

for  the  names  with  particulars  for  the  posts  of  Computer  Operators  with  

qualifications as per the above rules 7 (7) and 8 (4).  This circular clearly stated  

that:- (i) The applicants had to be graduates; (ii) They had to have passed the  

typewriting (English) exam by the higher grade; and  (iii) they ought to posses  

Post Graduate Diploma in Computer Programming or Post Graduate Diploma in  

Computer  Application  which  is  recognised  by  Central  Government  or  State  

Government.   This circular dated 24.10.2000 stated as follows:-

“HIGH COURT OF ANDHRA PRADESH :: HYDERABAD

R.O.C.NO.6017/2000/Estt. Dated:   24.10.2000

CIRCULAR

The  members  of  the  High  Court  Establishment,  who  are   graduates  and  who  have  passed  Type  Writing  (English)  by  the   Higher  Grade  and  Post  Graduate  Diploma  in  Computer   Programming  OR  Post  Graduate  Diploma  in  Computer   Application (ONE YEAR COURSE),  which is recognized by the   Central Government or State Government are requested to furnish   the  said  information  to  the  Registrar  (Administration)  by   25.10.2000 along with true copies of the said certificates.

Sd/-

REGISTRAR  (ADMINISTRATION)”

16. Pursuant  to  this  circular,  the  applicants  were  called  for  a  

written test by another circular dated 31.10.2000.  This circular stated that the  

oral interview will  also be conducted at the same venue after the written test  

was over.  The circular contained the list of candidates who were called to give  

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that test, and it included the names of the three appellants as well as the first  

respondent.  The circular further informed the candidates as follows:-

“They  are  further  informed  that  they  have  to  produce  their   certificates regarding ‘Computer Course’ and proof regarding the   duration of the course attended by them, in original, and in proof   of passing of Typewriting English by the Higher Grade, before Sri   M.S.K. Prabhu, Deputy Registrar, by 11.00 A.M., without fail.  If   any candidate fails to produce the concerned certificates and proof,   it will be deemed that he/she has no requisite qualification to hold   the post.

The  staff  members  are  permitted  to  appear  for  the  Written   Examination  and interview subject  to  their  holding  the  requisite   qualification, as per rules.”

Thus,  it  was  very  clear  that  the  staff  members  were  permitted  to  

appear for the written examination and interview subject  to their  holding the  

requisite qualifications, as per the rules.

17. The  first  respondent  and  three  appellants  did  pass  that  

examination, but the three appellants did not have the requisite diploma.  That  

was  also  the  deficiency  with  two  other  employees  who  otherwise  got  good  

marks.  It appears that the High Court was in need of ten Computer Operators  

and, therefore, the Hon’ble Chief Justice was pleased to pass the order dated  

7.11.2000 which has been referred to earlier.  This order also clearly stated that  

the three appellants  and the two other  candidates  listed in  that order  dated  

7.11.2000  had  to  acquire  the  necessary  qualification  within  one  year  failing  

which they were to be reverted.  The last part of this order dated 7.11.2000 is  

relevant and reads as follows:-

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“The above said appointments are made purely on temporary   and on an adhoc basis without any preferential claim to future re- promotion or seniority and are liable to be reverted at any time   without any notice and without assignment any reason.”

The  first  respondent  pointed  out  that  the  three  appellants  did  not  

acquire the necessary qualifications within one year, and they sought extension  

of one more year during which period they obtained the necessary qualifications.  

It  was  submitted  that  the  seniority  of  the  respondent  no.1  will  have  to  be  

counted from the date when he joined as Computer Operator pursuant to the  

order  dated 7.11.2000.  The relaxation  in the order  dated 7.11.2000, clearly  

stated that as far as the three appellants are concerned, their appointments were  

purely temporary and without any preferential claim to the future re-promotion  

or seniority and they were liable to reverted.  They could claim their seniority  

only from the date when they obtained the qualification and could not have a  

seniority position higher than that of the respondent no.1.   

18. The  High  Court  Administration  had  justified  the  grant  of  

seniority to the three appellants on the footing that the Chief Justice had the  

power under the above referred rule 23 to deal with the case of any member of  

the Court Service or any other person to be appointed to the service in such  

manner as may appear to him to be just or equitable.  The High Court needed  

ten Computer  Operators,  and the three appellants  had otherwise  passed the  

examination and therefore, although they obtained the diploma certificates later  

than the first respondent, they were shown at higher position on the basis of the  

marks they had obtained in the test.  The three appellants were to be reverted  

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since they did not obtain the necessary qualification within the initial period of  

one year.  It was a matter of grace and because of the requirement of the High  

Court that the Chief Justice gave them further extension of one year as sought  

by them.  Such persons were liable to be reverted from the particular post and  

could not claim seniority over a person who is duly appointed with all necessary  

qualifications.

19. The three appellants had relied upon the judgments of the  

Andhra  Pradesh  High  Court  in  two  other  connected  matters  wherein  the  

selections based on the merit list submitted by the NIC reflected in the order  

dated  7.11.2000  had  come  to  be  challenged.   The  first  one  was  W.P.  No.  

22501/2000 wherein the challenge was to the policy decision to fix the cut off  

marks to 45% to consider the case of the qualified candidates for the post of  

Computer Operators.  In the second petition bearing W.P. No.2217/2001 it was  

contended that sufficient time had not been given for preparation, and that the  

ratio of 2:1 between the Assistants/Examiners and Typists/Copyists had not been  

maintained.  The Division Bench which heard those two petitions did not find any  

substance in those arguments and it was held that there was nothing wrong in  

keeping  appropriate  minimum marks,  and that  the  aforesaid  ratio  would  not  

apply to direct recruitment.

Consideration of the Rival Submissions -  

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20. To  appreciate  the  rival  submission,  we  may  refer  to  the  

relevant rules.  The Andhra Pradesh High Court Service Rules, 1975 contain in all   

29  Rules,  three  Schedules  and  one Annexure.   Rule  1  gives  the  short  title,   

commencement and extent of the rules.  Rule 2 gives the definitions.  Rule 3 is  

on the constitution of the service.  It states that the service shall consist of the  

divisions,  categories  and  sub-categories  of  officers,  as  mentioned  therein.  

Division I consists of the Gazetted Posts, Division II the Non-Gazetted Posts and  

Division  III  the  Miscellaneous  Posts.   Division  II  consists  of  5  categories.  

Category-1 is of Translators and Deputy Section Officers, Category-2 consists of  

Overseer, Category-3 consists of (a) Assistant Section Officer and (b) Computer  

Operators, Category-4 consists of (a) Assistants (b) Readers and Examiners (c)  

Telex Operator (d) Telephone Operator and Category-5 consists of (a) Typists  

and (b) Copyists.   

21. As noted earlier, the three appellants and the first respondent  

were concerned with their promotion from Categories-4 and 5 to Category-3 (b),  

viz. that of Computer Operators.  Subsequently, they all have been promoted to  

the posts of Deputy Section Officers which is in Category-1 of Division II.  We  

are, however, concerned with their seniority when they were selected for the  

posts of Computer Operators.  Their seniority as Computer Operators will be a  

relevant factor for deciding their subsequent seniority as Deputy Section Officers.

22. Rule  4  defines  the appointing  authority.   Rule  5 gives  the  

method of appointment to the service and states that the appointment to the  

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post and category mentioned in Column (1) of the table below the rule shall be  

made in the manner specified against them in Column (2) thereof.  As far as the  

Category-3  (a)  Assistant  Section  Officer  and  (b)  Computer  Operators  are  

concerned, it will be filled by either of the two methods:-

(i) By direct recruitment; or  

(ii) By promotion from categories 4 and 5 in the ratio of 2:1 in  

every cycle of three vacancies, the second vacancy shall be filled from Category  

5  by  a  person  qualified  under  rule  8.   If  there  is  no  qualified  and  suitable  

member, the turn will lapse and the vacancy shall be filled by next turn in the  

order or rotation.  No account shall be taken of any such lapsed turns in filling  

future vacancies.

23. It is not disputed that the present selections were by direct  

recruitment and that is why the test for selection was taken by NIC.  Sub-rule 2  

of Rule 5 states that the Chief Justice may determine the proportion of vacancies  

to  be  filled  by  each  method  where  appointment  to  any  category  or  post  is  

provided by more than one method and also specify the manner in which such  

appointment  shall  be  made  in  case  of  direct  recruitment.  Sub-rule  3  is  on  

seniority and it reads as follows:-

“(3) Seniority:- (a) The seniority of a member of the service in a   Category or post shall unless he has been reduced to a lower rank   as  a  punishment,  be  determined  by  the  date  of  his  first   appointment to the service, category or post, where any difficulty   or doubt arises in determining the seniority, is shall be determined   by the appointing authority.  If any portion of the service of such   person  does  not  count  towards  probation  under  Rule  16,  his   

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seniority shall be determined by the date of commencement of the   service, which counts towards probation.

(b) The appointing authority may at the time of passing an   order appointing two or more persons simultaneously to a Category   of the service fix the order of preference among them and where   such order  has been fixed,  the seniority  shall  be determined in   accordance therewith.

(c) Where  a  member  of  any  division  or  Category  is   reduced to a lower division or Category, he shall be placed at the   top  of  the  later,  unless  the  authority  ordering  such  reduction   otherwise directs.”

24. Rule 6 is on reservation of appointments, and Rule 7 gives the  

qualification.   Rule  7  (7)  gives  the  qualifications  for  the  posts  of  Computer  

Operators  which  rule  we  have  already  referred.  Rule  8  gives  the  special  

qualifications  and  that  Rule  8  (4)  gives  the  qualifications  for  the  Computer  

Operators which also we have already mentioned.

25. We are concerned with  the promotions  and they are dealt  

with in Rule 15 and the temporary appointments and promotions are dealt with  

in Rule 16.  These two Rules read as follows:-

“Rule-15. Promotions:-  (1) All promotions shall be made by   the appointing authority in accordance with Rule-5.

(2) All  categories  in Division-I  and Categories  1 to  3 of   Division-II  shall  be  selection  categories  and  promotion  there  to   shall  be  made  on  grounds  of  merit  and  ability,  seniority  being   considered only where merit and ability are approximately equal.

Provided  that  “the  claims  of  any  member  of  the  Scheduled   Castes  or  the  Scheduled  Tribes  shall  be  considered  for  such   promotion on the basis of seniority, subject to fitness”.

Rule-16. Temporary Appointments and Promotions:-

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(1) Where it is necessary to fill a vacancy in any division,   category, sub-category, or post in the service and there would be   undue delay or administrative inconvenience in appointing a person   who  is  qualified  for  or  entitled  to  such  appointment  or  a  duly   qualified  person  is  not  available,  the  appointing  authority  may   appoint any other suitable person temporarily until an appointment   is made in accordance with these rules.

(2) (a) A person appointed under sub-rule (1) shall be replaced   as soon as possible by a member of the service, who is entitled to   promotion, under these rules or the case may be, by a candidate   qualified to hold the post under the rules.  

(b) A  person  appointed  under  sub-rule  (1)  shall  not  be   regarded as a probationer in such division, category or post or be   entitled  by reason only of  such appointment  to  any preferential   claim to future appointment, to such division, category or post.

If  such  a  person  is  subsequently  appointed  to  the  division,   category  or  post  in  accordance  with  these  rules,  he  shall   commence his probation in such division, category or post from the   date of such subsequent appointment or from such earlier date as   the appointing authority may determine.”

26. From the narration of facts and reference to the rules above,  

it is clear that as far as the first respondent is concerned he had the necessary  

qualifications when he appeared for the examination of Computer Operators.  His  

appoint is pursuant to the order dated 7.11.2000 with immediate effect and his  

probation will start immediately thereafter under Rule 10 (1) on probation which  

reads as follows:

“Rule  10.  Probation-(1)  Every  person  appointed to the Service otherwise than by promotion, or by   transfer shall be on probation for a total period of two years   on duty within a continuous period of three years.”

27. As far the three appellants are concerned, their appointments  

were purely temporary and on adhoc basis, and they were liable to be reverted if  

they were not to acquire the necessary qualification within one year.  The order  

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dated  7.11.2000  further  stated  that  their  appointments  are  without  any  

preferential claim to future re-promotion or seniority.  These three appellants did  

not obtain the necessary qualification within the period of one year.  On their  

request they were given a further extension of time of one year by subsequent  

order dated 22.11.2001 issued by the Chief Justice.  This order reads as follows:-

“PROCEEDINGS OF THE HIGH COURT OF A.P. :: HYDERABAD.

Sub:-  ESTABLISHMENT – HIGH COURT OF A.P., HYDERBAD  –  S/Sri  K.  Balarama  Raju,  Mohd.  Sanaullah  Ansari,  T.   Tirumala Devi, P. Nagarjuna Rao and L. Ramachandra Rao,   Computer  Operators,  High  Court  A.P.,  Hyderabad  –   Extension of time for passing of the requisite qualifications –   Granted – Orders – Issued.

Ref.: Applications submitted by  S/Sri. 1. K. Balarama Raju, dt. 27.10.2001 2. Modh. Sanaullah Ansari, dt. 27.10.2001 3. T. Tirumala Devi, dt. 5.11.2001 4. P. Nagarjuna Rao, dt. 27.10.2001 5. L. Ramachandra Rao, dt. 5.11.2001.

ORDER R.O.C. No.7595/2001 – Estt.2. dt. 22-11-2001.

The Hon’ble Chief Justice is pleased to pass the following   order:

In the circumstances stated by Sarvasri K. Balarama Raju,   Mohd. Sanaullah Ansari, T. Tirumala Devi, P. Nagarjuna Rao and L.   Ramachandra  Rao,  Computer  Operators,  High  Court  of  A.P.,   Hyderabad,  in  their  applications  read  above,  they  are  granted   extension of time for a further period of one year from 7-11-2001   to enable them to acquire the requisite qualifications.

REGISTRAR (ADMINISTRATION)”

28. The  three  appellants  did  not  have  the  diploma  certificates  

when they  appeared  for  the  examination,  yet  in  view of  their  marks  in  the  

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examination they were appointed as computer operators since the High Court did  

not get adequate number of qualified persons. They were therefore appointed  

under Rule 16 (1) on purely temporary basis and were liable to be reverted, if  

they did not get the qualification in the time provided.  Rule 16 (2) (b) states  

that such a person who is appointed under Rule 16 (1) shall not be regarded as  

a probationer by reason of any such appointment to any preferential claim to  

future appointment to such division, category or post.  Second part of Rule 16  

(2) (b) states if such a person is subsequently appointed to the division, category  

or post in accordance with these rules, he shall commence his probation from  

the  date  of  his  subsequent  appointment  or  from  such  earlier  date  as  the  

appointing authority may determine.  The power of the Chief Justice under Rule  

23 states that if relaxation under the rule is made applicable to the case of any  

person, the case shall not be dealt with in any manner, less favourable to the  

candidate than that provided by that rule.  However, this rule cannot be read to  

mean that while  granting  the benefit  under  this  rule,  the beneficiary  can be  

placed at an advantage as against the one who is otherwise qualified and does  

not  need the relaxation.  The first  respondent  had the necessary qualification  

when  he  appeared  for  the  examination,  and  on  his  appointment  by  direct  

recruitment under the order dated 7.11.2000, his probation will start immediately  

thereafter under Rule 10 (1).  The probation of the three appellants will  start  

only after they obtain their qualification.  The power of relaxation exercised by  

the Chief Justice in their case can only get them into the service since adequate  

number of computers operators were not available and their appointments will  

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get regularized when they get their qualification.  The selection was done after a  

test and on the basis of merit.  Possessing the necessary diploma certificate was  

a part of the qualification and merit.  The passing of the examination required  

minimum  45  marks.   Obviously  those  who  had  the  qualification  and  who  

obtained 45 marks and above will  have to be placed at the top of the list in  

seniority.  Those who did not have the qualification at that time but obtained it  

later on, even if  they had obtained higher marks in the test will  have to be  

placed  at  a  position  lower  than  these  candidates  having  qualification,  and  

necessary  marks.  As  far  as  the  first  respondent  is  concerned,  his  probation  

having started earlier he will complete the same earlier to the appellants no.1, 2  

and 3 and will have to be reckoned senior to them.  The governing rules will   

have to be read and applied meaningfully in this manner so that no prejudice will  

be  done  to  a  candidate  who  otherwise  had  the  qualifications  and  who  is  

appointed after passing the test.   It  is  settled law that one should have the  

qualifications on the date when the applications are invited.  Any such relaxation  

to  permit  unqualified  candidates  cannot  be  to  the  prejudice  of  the  qualified  

candidates.  They can be taken into the service but cannot steal a march over  

the qualified and the selected candidates.  

29. The three appellants had contended that the petition filed by  

the first respondent suffered on account of latches and delay in moving the High  

Court.  We have already pointed out that when the order dated 7.11.2000 was  

issued, the first respondent represented on 2.11.2001, but the representation  

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was rejected on 15.11.2003.  He moved for a review on 19.2.2004, but the same  

was  not  responded.   When  the  seniority  of  the  Computer  Operators  was  

published by notification dated 23.9.2005 and objections were invited, the first  

respondent  submitted  his  objection  on 10.10.2005.   That  representation  was  

rejected  by  the  High  Court’s  Proceeding  dated  6.11.2007  and  the  first  

respondent  was  placed  junior  to  the  three  appellants.   He  challenged  that  

communication  by  his  W.P.  No.11920/2008.    Thus,  there  was  no  delay  or  

latches on the part of the first respondent in moving the High Court.   

30. In  the  circumstances,  we  do  not  find  any  error  in  the  

judgment and order of the High Court which accepted the legitimate seniority of  

the first respondent above the three appellants. The High Court has allowed the  

Writ  Petition  No.  11920/2008  filed  by  the  first  respondent,  set  aside  the  

gradation list of computer operators as on 1.7.2005 and further directed the High  

Court  administration  to  refix  their  seniority  and  to  grant  the  consequential  

benefits.  We approve this judgment and order dated 19.12.2008 passed by the  

Andhra  Pradesh  High  Court,  although  also  for  the  reasons  given  in  this  

judgment.   These three  appeals  are,  therefore,  dismissed.   The interim stay  

granted by this court will stand vacated.  The High Court administration will now  

proceed to take steps as directed in the said judgment and order in accordance  

with the law laid down herein. In the facts of the case, there will be no order as  

to costs.

…………..……………………..J.  

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(  J.M. Panchal )

…………………………………..J.  ( H.L. Gokhale  )

New Delhi

Dated:  September 26, 2011

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