ORDER
S.R. Nayak, J.
1. The grievance of
the petitioners, to put in a nut shell, is this: The District and Sessions Judge, East Godavari District filled up several posts in the cadre of LDC during the period from 1-10-1979 to 9-3-1983 without maintaining 3:1 ratio stipulated in Rule 9(2) of the A.P. Judicial Ministerial Service Rules (the Rules, for brevity) and in the process many of them who ought to have been juniors to the petitioners in the cadre of LDC have become seniors to them.
2. This case has a chequered career in terms of litigative processes. We do not
think it necessary to refer to the entire history of the case. Suffice it to state that the petitioners filed WP No.5142 of 1989 in this Court seeking a direction to the learned District Judge to refix their seniority by maintaining 3:1 ratio as stipulated in Rule 9(2) of the Rules with effect from the date of passing of Group II examination on
18-1-1981 and consequential benefits of promotion etc. That writ petition was disposed of by this Court on 25-3-1996 directing the learned District Judge to consider the case of the petitioners on the basis of the earlier representations said to have been made by them after giving an opportunity of hearing, if necessary, and to fix their seniority in accordance with law. The Court also alternatively observed that if the representations said to have been made by the petitioners are not available with the respondent-authorities, the petitioners can make fresh representations. From the order of the learned District Judge dated
19-7-1996 produced at page 17 of the material papers, it is seen that after the dismissal of the above writ petition, the petitioners submitted representation through proper channel. It was received by the District Judge on 13-5-1996. Thereafter, the petitioners were directed to appear before the learned District Judge for personal hearing. Accordingly the petitioners appeared in person before the learned District Judge on 12-7-1996 and represented their case in person. The learned District Judge after consideration of the representation of the petitioners and the submissions made by them at the time of oral hearing on 12-7-1996 came to the conclusion that the petitioners did not make out any case for granting the relief. In that view of the matter, the request of the petitioners was rejected. In the impugned order dated 19-7-1996, the learned District Judge has concluded thus:
“….. This unit has been maintaining a
Gradation List being prepared time to
time and is being circulated among the employees for information and inviting objections if any. Never before the representation submitted by the employee on 23-8-1995 the employee has taken any objection to the Gradation List although promotions have been given to the persons working in other categories in APJMS for exceeding the requisite quota for promotions. Inasmuch as there has been no recruitment from A.P. Public Service Commission and since they have been allowed to continue in service rightly or wrongly all of them who have been promoted far exceeding their quota, have been regularised and their probations even have been declared. At this stage claiming seniority over those employees, who have already been regularised in service and whose probations have been declared, is seeking something to unsettle the settled position. It has been settled law that on account of his own laches, the employee is not entitled to claim the same. If the seniority has to be fixed at this stage, the employees who have already been regularised in their service and whose probations have already been declared will have to be dislodged from their respective positions in the Gradation List, which is being circulated for the last more than one decade. Therefore, on account of his own laches and due to the settled position of law, the employee is not entitled to claim seniority over others, some of whom are even working in Category III of APJMS”.
3. The petitioners being aggrieved by the above order of the learned District Judge preferred revision before the High Court. The High Court also dismissed the revision filed by them by order dated 29-8-1998. The order of the High Court reads-
“After careful consideration of the revision petitions of 1) Sri K. Manmadha
Rao, L.D. Clerk, III Addl. District Court, Rajahmundry, and 2) D. Madhava Rao, LD Clerk, Sub-Court, Rajahmundry and (3) K. Suri Babu, LD Clerk, Sub-Court, Pithapuram, East Godavari District second read above together with the remarks and records of the District Judge, East Godavari at Rajahmundry, sent therewith, the High Court opines that the appellants have approached for redressal of grievances after a decade and they did not assail Gradation Lists, though communicated to them every year and hence the appeal/revision petitioners are liable to be rejected.
Accordingly, the revision petitions of
(1) Sri K. Manmadha Rao, L.D. Clerk,
(2) Sri D. Madhava Rao, L.D. Clerk and
(3) Sri K. Suri Babu, L.D. Clerk working in the unit of the District Judge, East Godavari at Rajahmundry are hereby rejected”.
4. The order made by the learned District Judge dated 19-7-1996 and the order made by the High Court dated 29-8-1998
have become final. When the matter stood thus, the present writ petition is filed by the petitioner seeking the following relief:
“For the reasons stated in the accompanying affidavit, the petitioners herein above prays that this Hon’ble Court may be pleased to issue an appropriate writ, order or direction more particularly one in the nature of writ of mandamus, by declaring that the petitioners 1 and 2 are entitled to appointment as LDC by recruitment by transfer in terms of the provision of ratio 3:1 on the date when their immediate employee in other cadres of feeder post was promoted as LDC after 3-7-1980 as shown in Annexure II in the unit of District and Sessions Court at Rajahmundry and consequently direct that the first respondent to revise and refix the seniority of the petitioners in
Gradation List of LDC for the purpose of conferring further promotion or notional basis to the petitioners in terms of their qualifications and suitability as and when their immediate junior in the cadre of LDC, UDC, and Head Clerk and Translator was actually promoted in due course from 3-7-1980 under administrative control of the 1st respondent in the interest of justice otherwise the petitioner will suffer irreparable loss and damage and pass such other further orders as this Hon’ble Court deems fit and proper”.
5. In response to Rule Nisi, the respondents have filed counter-affidavit opposing the relief sought by the petitioners.
6. When we took up this writ petition for final hearing, at the threshold, we noticed certain serious flaws, which would make the writ petition not maintainable and, therefore, we called upon the learned Counsel appearing for the petitioners, to show how the writ petition as presented is maintainable. Accordingly, we heard the learned Counsel for the petitioners.
7. After hearing the learned Counsel for the petitioner for considerable time, we are of the considered opinion that this writ petition is liable to be dismissed in limine on preliminary grounds without going into the merits of the matter. Admittedly, the petitioners’ grievance relates to the period between 1-10-1979 to 9-3-1983 when the ratio prescribed under Rule 9(2) of the Rules was alleged to have been not followed by the learned District Judge in the matter of appointment to the cadre of LDC. It is not the case of the petitioners that they were not aware of the appointments made by the District Judge to the cadre of LDC in breach of the prescribed ratio 3:1. Although the petitioners claim that they made several representations, on 28-6-1982, 23-10-1982, 2-3-1983, 4-4-1984, 1-5-1985
and 10-7-1986 to the learned District Judge airing their grievances regarding the breach of the ratio in the matter of appointment to the cadre of LDC, the learned District Judge in his order dated 19-7-1996 has pointed out thus:
“….. He claims to have made several
representations to the Head of the Unit claiming seniority over the other employees, but no such representations are available in the office. For the first time, a written representation dated 23-8-1995 has been submitted by him to the Head of the Unit, requesting to fix his seniority. Earlier thereto, there has been no such written representations”.
8. The petitioners have not produced any proof to satisfy us that before 23-8-1995 they made representations as claimed by them in the affidavit. In other words, the petitioners slept over the matter for a long period of more than 12 years without assailing the action of the learned District Judge in making appointments to the cadre of LDC in the alleged breach of the statutory ratio of 3:1. Secondly, as could be seen from the order of the learned District Judge, provisional seniority lists were prepared periodically, the employees were called upon to file objections, if any, and at no stage, either the appointments made to the cadre of LDC in the alleged breach of the statutory ratio 3:1 or the seniority lists were assailed by the petitioners before the year 1995. It cannot be gainsaid that the petitioners, without seeking quashing of the seniority lists, cannot seek alteration of the ranks in the seniority list to their advantage. Further, the affected employees who are alleged to have been appointed to the post of LDCs during the period from 1-10-1979 to 9-10-1983 are not impleaded as party respondents to this writ petition. It is trite to state that they are vitally interested parties and in their absence, it is not permissible
in law to grant the relief to the petitioners, and if the Court were to grant the relief to the petitioners as sought for in the writ petition, it would vitally affect the interests of the persons who are appointed to the cadre of LDC prior to the appointment of the petitioners to that cadre.
9. The Supreme Court in Padam Singh Jhina v. Union of India, 1974(2) SLR 594, has held that officials likely to be affected should be impleaded and without impleading such employees, the seniority list cannot be quashed or altered.
10. In Prabodh Verma and others v. State of U.P., , the Apex Court ruled :
“28. ….. A High Court ought not to
decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or atleast by some of them being before it as respondents in a representative capacity if their number is too large, and, therefore, the Allahabad High Court ought not to have proceeded to hear and dispose of the writ petition without insisting upon the reserve pool teachers being made respondents to that writ petition, or at least some of them being made respondents in a representative capacity, and had the petitioners refused to do so, ought to have dismissed that petition for non-joinder of necessary parties”.
11. To the same effect is the judgment of the Apex Court in N. Raghavendra Rao v. Dy. Commissioner, and Udit Narain Singh v. Additional Member, Board of Revenue, . In Udit Narain Singh’s case supra, the Supreme Court held-
“…..in a writ of certiorari not only the
Tribunal or authority whose order is
sought to be quashed but also the parties in whose favour the said order is issued are necessary parties. But it is in the discretion of the Court to add or implead proper parties for completely setting all the questions that may be involved in the controversy either suo motu or on the application of the party to the writ or application filed at the instance of such proper party”.
12. Added to this, it is relevant to note that the order made by the learned District Judge on 19-7-1996 as well as the order made by the High Court in revision on 28-8-1998 remain unchallenged. In the course of hearing, when this was pointed out to the learned Counsel for the petitioner, the learned Counsel would maintain that this writ petition is, in fact, directed against the order of the High Court. This submission of the learned Counsel is not acceptable to us. If the order of the High Court dated 28-8-1998 in which the order of the learned District Judge dated 19-7-1996 merged is irregular and illegal for any reason, the only course open to the petitioner is to assail the validity of the said order in a writ petition praying for a writ of certiorari to quash the same. There is no prayer nor pleading to quash either the order of the learned District Judge or the order of the High Court. So long those orders made by the disciplinary authority and the High Court remain unassailed and have become final, the petitioners cannot be permitted to reagitate the same in an indirect way the present form. In that view of the matter, we are constrained to observe that the writ petition is totally misconceived and not maintainable.
13. In the result and for the foregoing reasons, we dismiss the writ petition without expressing any opinion on merits of the claim of the petitioners. There shall be no order as to costs.