Allowed

T. Satya Kumar, v. The District Collector and Chairman

Telangana HC6 Jun 2014WP/7956/2004

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging a Tribunal order that fixed an applicant's seniority based on his actual joining date in 1988, rather than his ranking in the merit list. The Court held that since the applicant could not join initially due to lack of vacancy and was reappointed years later, the seniority rules did not support a backdate, and the Tribunal's order was set aside.

What did the court decide?

Impugned order of the Tribunal fixing seniority based on date of joining is set aside; the settled position regarding seniority from date of appointment is restored.

T. Satya Kumar, Vs The District Collector… — Pension and Retirement Benefits | Telangana HC (2014)

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THE HON'BLE SRI JUSTICE K.C. BHANU AND

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THE HON’BLE MRS JUSTICE ANIS

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WRIT PETITION No.7956 of 2004

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ORDER:- (per Hon’ble Sri Justice K.C. Bhanu)

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This Writ Petition is filed challenging the order dated 26-032004 in Original Application No.43212 of 1991 on the file of the Andhra Pradesh Administrative Tribunal, Hyderabad (for short, ‘the Tribunal’), whereunder and whereby the Tribunal directed the respondent authorities to fix the applicant’s seniority in the seniority list vis-à-vis the unofficial respondents, who were selected in the same selection process on the basis of their respective places in the ranking in the merit list and not on the basis of the dates of their joining service, and set aside the seniority list already notified and directed the official respondents to prepare a seniority list in the light of the findings recorded in the O.A.

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2. The third respondent herein is the applicant; the petitioners herein are respondents 11, 12 and 3; respondents 1 and 2 herein are respondents 1 and 2, and the other respondents herein are unofficial respondents, in Original Application.

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3. The prayer sought for in the O.A. was to fix the seniority of the applicant with effect from 30-04-1987 in pursuance of his appointment order viz., Memorandum No.DSC/5139/86, dated 3004-1987 and to give him all the benefits on the basis of his

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seniority so fixed.

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4. The factual matrix is not in dispute. In pursuance of a notification in December, 1985 for the recruitment to posts of Junior Assistant, the third respondent/applicant and the un-official respondents were selected in a regular selection process. In that selection process the third respondent herein/applicant was allotted to the office of the District Medical and Health Office, Karimnagar and the petitioners herein the other un-official respondents were allotted to the office of the District Treasury Officer, Karimnagar. Accordingly, they joined on 30-04-1987. When the third respondent herein/applicant went to join in the District Medical and Health Office, Karimnagar, they did not allow him to join on the ground that there are no vacancies. Thereafter the matter was referred to the District Selection Committee and the District Collector passed an order dated 15-07-1987 directing the third respondent/applicant to appear before the second respondent, who gave an appointment order to him as Junior Assistant on 23-02-1988 in Sub-Treasury Office at Koratla.

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5. From the facts narrated above it is not in dispute before this Court that the third respondent herein for the first time joined in duty on 24-02-1988 as Junior Assistant, whereas the petitioners and other unofficial respondents joined in service on 30-04-1987. It is not in dispute before this Court that the name of third respondent was in the selection list and when he was allotted to the office of the District Medical and Health Officer for joining, the said officer ought not to have refused to permit him to join on the ground of no vacancy. In such circumstances, the last man ought to have been reverted and would have been surrendered to the

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selection committee. Therefore, the third respondent herein did not challenge the action of the District Medical and Health Officer in refusing to permit him to join duty when he went to join the duty in terms of the appointment order given by the District Collector.

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6. Learned counsel for the petitioners contended that the third respondent herein joined as Junior Assistant in the year 1988 after the petitioners joined in duty in the year 1987 and on 19-07-1994 the final seniority list was also prepared, but that has not been challenged. Therefore, the Tribunal ought not to have granted such relief and prayed to allow the writ petition.

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7. Learned counsel for the petitioners relied upon a decision reported in K. BALAKRISHNA RAO V. DY. COMMISSIONER, COMMERCIAL TAXES, DIV.1, VIJAYAWADA, A.P., AND OTHERS^[1] , wherein it is held in paragraph Nos.9 and 10 as follows:

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“9. The order passed in favour of the appellant in terms of Rule 23(a) of the Andhra Pradesh State and Subordinate Service Rules specifically leaves open the question of fixing his seniority at a later point of time. The argument on behalf of the appellant that Rule 27(1)(iii) of the Andhra Pradesh Ministerial Service Rules cannot be applied to the appellant cannot be accepted. Rule 16(1) of the Andhra Pradesh Ministerial Service Rules specifically provides for application of Rule 27. It is undisputed that the appellant, on his selection, was originally allotted to the Printing Department. He sought a re-allotment and after eight months, he was re-allotted to the Commercial Taxes Department. In other words, he opted to get allotted or transferred to the Commercial Taxes Department.

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10. We see no reason to confine the operation of Rule 27(1)(iii) of the Andhra Pradesh Ministerial Service Rules only to cases of transfer at the instance of the Heads of Department and as not applicable to a re-allotment on the basis of a request by a candidate selected by the Public Service Commission. In our view, the High Court was justified in holding that Rule 27 of the Andhra Pradesh Ministerial

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Service Rules applied in the case on hand and the appellant became the junior-most in his cadre in the Commercial Taxes Department on his being re-assigned to the Department on 25.7.1979. We are therefore not satisfied that any ground has been made out for interference with the decision of the High Court.”

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8. On the other hand, learned counsel for the third respondent contended that in view of the fact that it is not a case where there are lapses on the part of the third respondent in joining the duty and he was prevented from taking charge of the post for the simple reason that there was no vacancy, and that in view of the fact that in the selection list he stood first, his seniority has to be protected. For that he relied upon a decision reported in P. SRINIVAS V. M. RADHAKRISHNA MURTHY^[2] , wherein it is held as follows:

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“It can be also looked at from another angle. The appellant was granted extension upto 31.7.1987 to join. It was open to the Service Commission or Government at that stage to direct removal of his name from the list of selected candidates. Neither the Commission nor the Government thought it appropriate to do so. On the other hand, the Government extended the joining period and the appellant joined the post. In several periodical seniority lists thereafter the appellant's name was placed higher than respondent no.1. For more than a decade, respondent no.1 did not question that position. After a very long period it was not open to respondent no.1 to turn around and say that the extension of time to the appellant was not in accordance with law. It is undisputed that both the appellant and respondent no.1 were selected in the same selection and the appellant was more meritorious in terms of marks secured by him in the selection process and ranked above the 1st respondent and the inter se ranking and consequent inter se seniority cannot be disturbed and rights flowing from such ranking cannot be denied merely because there was some delay in joining-all the more so when such delay was only of 8 days and also on account of getting relieved from the Central Government, for reasons beyond his control, which only seems to have weighed with the State Government to accord extension of time also. The High Court seems to have lost sight of the fact that it was not a case where reasons were absent in the order of the Government extending the joining time. On the contrary, the

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order itself indicates the reasons why the appellant had sought for extension. The Government taking note of the factual position highlighted therein had granted extension. High Court has erroneously held that no reasons were indicated.”

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The above case has no application to the present case because that is a case where the Selection Committee therein granted time for joining, and in such circumstances the seniority has to be counted as per the ranking given by the Selection Authority. In the present facts of the case, no time was granted by selection committee.

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9. He further relied upon a decision reported in T. VENKAT REDDY, MEDAK V. GOVERNMENT OF A.P.^[3] , wherein it is held in paragraph No.28 as follows:

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“28. On a careful scrutiny of the facts of the above case, they are distinguishable on facts in the present case. The reason being that there are specific rules governing the seniority in relation to re-allotment in this regard. In the light of the clear language in Rules 4(c) and 37 of the Rules, these decisions may not be of any help to Respondents 4 and 5. Precedent would have to be applied in the context and these are not binding precedents on the point in controversy in the facts of the present case. Contextual application of a precedent always would be desirable. Suffice it to say that evidently this was not done by the Tribunal and following such a decision, the impugned order was made in OA No. 5206 of 2003, which had been impugned in Writ Petition No. 401 of 2004. In the light of the views expressed supra, this Court is of the considered opinion that in case of re-allotment, Rule 37 of the Rules alone would be applicable and hence the Writ Petitioner-4th respondent in the aforesaid O.A.No. 5206 of 2003 is bound to succeed. Even on facts also, if the dates of appointment are taken, the fixation of seniority cannot be found fault with.”

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10. The Government of Andhra Pradesh General Administration (Services.A) Department issued a Cir.Memo.No.16/Ser.A/93-39,

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dated 21-04-1999, wherein it is held in paragraph No.14 (d) as follows:

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“(d) the inter-se-seniority of direct recruits shall be as per the ranking assigned to them by the recruiting agency irrespect of their dates of joining provided they all joined within the times allowed for them to join as per Rule 11 of the Andhra Pradesh State and Subordinate Service Rules.”

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11. There are specific rules for fixing the seniority under Rule 33 of A.P. State and Subordinate Service Rules, which reads as follows:

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“33. SENIORITY: - (a) The seniority of a person in a service, class, category or grade shall, unless he has been reduced to a lower rank as a punishment, be determined by the date of his first appointment to such service, class, category or grade. Provided that the seniority of a probationer or approved probationer in a service, class or category from which he stood reverted on the 1s t November, 1956 or prior to that date, shall be determined in the state wide gazetted posts and the non-gazetted posts in the Departments of the Secretariat and the offices of the Heads of Departments with reference to the notional date of continuous officiation with or without breaks in that service, class or category prior to the 1^st November, 1956 to the date of re-appointment made thereafter, but it shall not disturb the inter-seniority which obtained in the Andhra State. (This proviso shall be in force till 31st October, 1996).

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(b) The appointing authority may, at the time of passing an order appointing two or more persons simultaneously to a service, fix either for the purpose of satisfying the rule of reservation of appointments or for any other reason the order of preference among them; and where such order has been fixed, seniority shall be determined in accordance with it. Provided further that the order of merit or order of preference indicated in a list of selected candidates prepared by the Public Service Commission or other selecting authority, shall not be disturbed inter-se with reference to the candidates position in such list or panel while determining the seniority in accordance with this rule and notional dates of commencement of probation to the extent necessary, shall be assigned to the persons concerned, with reference to the order of merit or order of preference assigned to them in the said list.

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(c) Whenever notional date of promotion is assigned, such date of notional promotion shall be taken into consideration for

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computing the qualifying length of service in the feeder category for promotion to the next higher category and that the notional service shall be counted for the purpose of declaration of probation also in the feeder category. (d) The transfer of a person from one class or category of a service to another class or category of the same service, carrying the same pay of scale of pay shall not be treated as first appointment to the latter class or category for purpose of seniority and the seniority of a person so transferred shall be determined with reference to the date of his regular appointment in the class or category from which he was transferred. Where any difficulty arises in applying this subrule, seniority shall be determined by the Government, if they are the appointing authority and in other cases, the authority next higher to the appointing authority shall determine the seniority.

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( e) Where a number of a service, class or category is reduced for a specific period, to a lower service, class or category or grade:-

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(i) in cases where the reduction does not operate to postpone future increment, the seniority of such member on repromotion shall, unless the terms of the order of punishment provides otherwise, be fixed in the higher service, class or category at which it would have been fixed but for his reduction;

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(ii) in cases where the reduction operates to postpone future increment, the seniority of such member on re-promotion shall, unless the terms of the order of punishment provide otherwise, be fixed by giving credit for the period of service earlier rendered by him in the higher service, class or category.

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(f) Seniority of a retrenched and reappointed person: The seniority of a member of a service, who is re-appointed after having been retrenched, owing to reduction of staff as a measure of economy, shall be determined in accordance with the date of such reappointment. Provided that the inter-seseniority of such members absorbed in the same service, class or category shall be determined.

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(i) in any case in which re-appointment of such members was made in consultation with Public Service Commission or the other selecting authority, in accordance with the order of merit or the order of preference indicated by the said Public Service Commission or other selecting authority; and (ii) in any other case, in accordance with the total length of service, in the same equivalent or higher service, class or category put in by such member prior to retrenchment. (g) The seniority of an approved candidate, who takes up military service before joining his appointment to any service, class or category shall, on his appointment to such service, class or category, on his return from the said military service, be determined in accordance with the order of preference

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shown in the authoritative list of candidates approved for appointment to the service, class or category.”

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12. In this case though the third respondent went to join in the department to which he was allotted but for want of vacancy he was not permitted to join. Rule 11 of A.P. State and Subordinate Service Rules, 1996 reads as follows:

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“11. The limit for joining either on first selection or on promotion or on appointment by transfer:-

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(a) Direct recruitment: A candidate selected for appointment by direct recruitment either through the Andhra Pradesh Public Service Commission or through any other agency, shall be required by the appointing authority to join in the post for which he has been selected within (a period of 30 days) taking the date of dispatch (by registered post with acknowledgment due) of the appointment order as crucial date for reckoning the time limit. If he does not join the post within the stipulated (period of 30 days), the offer of appointment shall be treated as automatically cancelled and the name of the candidate shall be deemed to have been omitted from the list of approved candidates.

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(b) Time to join a post on appointment/temporary appointment under Rule 10 including appointments by transfer or by promotion otherwise than by direct recruitment; A person on appointment/temporary appointment on adhoc basis under Rule 10 including appointment by transfer or by promotion otherwise than by direct recruitment, shall be allowed a joining time of fifteen (15) days to join the post from the date of receipt of the order of appointment sent to the candidates by Registered Post with Acknowledgment due or by any other means. An employee who does not join the post within the stipulated time or evades to join the post by proceeding on leave, shall lose his promotion right/offer for the current panel year and the name of the candidate shall be placed before the next Departmental Promotion Committee for consideration in the next year panel subject to availability of vacancy. In case of non-selection posts, the name of the candidate who does not join within the stipulated time in the promotion posts shall be considered for promotion again after a period of one year from the date of offer of appointment subject to availability of vacancy.”

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From the above rule, a selected candidate has to join within 30

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days from the date of dispatch of the appointment order. Rule 37 of the Rules, 1996 reads follows:

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“37.Seniority of directly recruited candidates, re-allotted in consultation with A.P.P.S.C.:- The candidates re-allotted under sub-rule (c) of Rule 4 shall be assigned seniority below the last regular candidate in the concerned class or category in the unit to which such candidate is re-allotted.”

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Thereafter he was appointed as Junior Assistant in Sub-Treasury Office, Koratla afresh on 23-02-1988. Therefore, his seniority has not been calculated from the date on which the other persons joined in duty. The above provision has no application to the facts of the case, because the third respondent was selected by Public Service Commission. Further more, the seniority list prepared by the competent authority has not been under challenge. Therefore, the relief granted by the Tribunal is contrary to the relief sought for, in the O.A. These aspects have been completely overlooked by the Tribunal. By virtue of the impugned order of the Tribunal, the settled position was unsettled. Without there being any challenge to the said seniority list, it cannot be contended that the third respondent was not aware of the new seniority list prepared by the competent authority. Hence, the impugned order is liable to be set aside.

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13. Accordingly, the Writ Petition is allowed. No costs. Miscellaneous Petitions pending, if any, in this Writ Petition shall stand closed.

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______________________ JUSTICE K.C. BHANU

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_______________ JUSTICE ANIS

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June 06, 2014 PN

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THE HON'BLE SRI JUSTICE K.C. BHANU AND

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THE HON’BLE MRS JUSTICE ANIS