Summary
Temporary Assistant Executive Engineers appointed in the Andhra Pradesh Panchayat Raj Department in 1990-92, when no recruitment rules for the post existed, and continued without break until regularised in 2005, are entitled to count their officiating service for seniority over the 1997 batch of APPSC direct recruits. The State was not functus officio after G.O.M. No. 234 and needed no prior hearing of affected employees before revising it by G.O.M. No. 262.
Issues
- Whether the officiating service of Assistant Executive Engineers temporarily appointed between 1990 and 1992 counts towards seniority above the Assistant Executive Engineers regularly selected through the APPSC in 1997.
- Whether the appointees' case falls under Proposition (B) or under the corollary to Proposition (A) of para 47 of Direct Recruit Class II Engg. Officers' Association v. State of Maharashtra.
- Whether the State Government became functus officio after issuing G.O.M. No. 234 dated 27.06.2005 and could not revise it by G.O.M. No. 262 dated 17.06.2006.
- Whether the employees adversely affected by G.O.M. No. 262 had to be heard before it was issued.
Provisions considered
- Rule 10(a) and Rule 10(a)(i), Andhra Pradesh State and Subordinate Service RulesThe appointment order expressly made the temporary appointments under Rule 10(a)(i), which permits temporary appointment to a temporary post requiring special qualifications. The Court held that, as there was a vacuum in recruitment rules for the post in the Panchayat Raj Department, appointments made under this rule could not be called de hors the rules. (¶¶ 29, 34, 35)
- Article 245, Constitution of IndiaRelied on to hold that rule-making power within the domain of the State Government cannot be curtailed by the doctrine of functus officio, which normally applies only to judicial and quasi-judicial authorities. (¶ 42)
- Article 320(3), proviso, Constitution of IndiaNoted that G.O.M. No. 234 excluded the temporary appointments of 1990-1995 from the purview of the APPSC under this proviso; not separately construed. (¶ 29)
Held
- The appointees fall under Proposition (B) of para 47 of Direct Recruit Class II Engg. Officers' Association: no selection rules for the post were in force when they were appointed, the appointments, though labelled temporary, were neither for a fixed tenure nor stop-gap or ad hoc, and the appointees worked uninterruptedly on the same post until regularised. Their officiating service therefore counts for seniority. (¶¶ 32, 33, 40, 48)
- The temporary character of the appointments was judged from the governing orders. G.O.M. No. 540, under which the posts were created, contained no condition of selection through the APPSC or reversion, unlike the later G.O.M. No. 1289, and G.O.M. No. 391 showed the State's intent to retain and redeploy the project staff when the project units were abolished. (¶¶ 35, 36, 37)
- Once services are regularised, the ad hoc or stop-gap nature of the initial appointment does not survive; the regularisation by G.O.M. No. 234 was never challenged and had attained finality. Santosh Kumar v. State of A.P. and Amarendra Kumar Mohapatra v. State of Orissa were followed. (¶¶ 38, 39)
- The delay in regularisation was attributable to the Government's failure to amend the service rules to create a channel for absorption, and the appointees could not be disadvantaged for it. (¶¶ 29, 30)
- The doctrine of functus officio normally applies to judicial and quasi-judicial bodies and does not apply to the State's rule-making or policy-based administrative decisions. The High Court erred in holding that the State could not revisit G.O.M. No. 234 and issue G.O.M. No. 262. (¶¶ 41, 42, 43, 44)
- There is no general requirement that the State give a prior hearing to persons likely to be affected when it exercises rule-making power; requiring it would paralyse governance. The High Court's view that the 1997 recruits had to be heard before G.O.M. No. 262 was issued was unsustainable. (¶¶ 45, 46, 47)
- G.O.M. No. 262, placing the 1990-92 appointees above the 1997 batch of regularly appointed candidates in seniority, was valid. (¶ 48)
Result
Appeals allowed; the High Court's judgment dated 21.09.2023 quashing G.O.M. No. 262 set aside; no order as to costs. The connected appeal (delay condoned) disposed of in the same terms.