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CASE NO.: Appeal (civil)  628 of 2004

PETITIONER: P. Srinivas                                                      

RESPONDENT: M. Radhakrishna Murthy and Ors.                  

DATE OF JUDGMENT: 30/01/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT: J U D G M E N T (Arising out of SLP (Civil) No. 2733/2003)

ARIJIT PASAYAT, J.

       Leave granted.

                Appellant questions correctness of the judgment  rendered by a Division Bench of the Andhra Pradesh High  Court which by the impugned judgment held that respondent  no.1 was to be ranked senior to the appellant in the  seniority list. The view taken by the Andhra Pradesh  Administrative Tribunal at Hyderabad (for short ’the  Tribunal’) holding that the appellant was senior to  respondent no.1 was upset.

       Factual scenario which is also almost undisputed is as  follows :

       The Andhra Pradesh Service Commission (for short ’the  Commission’) issued an advertisement inviting application  from eligible candidates to be appointed to the post of Road  Transport Officer (for short ’the RTO’). Appellant and  Respondent no.1 and others responded to the advertisement.   On 13.5.1987 appointment order was issued to the appellant  and other selected candidates including respondent no.1  after they were successful in the selection process  conducted by the Commission. In the appointment order 60  days time was granted to the appellant as well as other  selected candidates to join the post i.e. the selected  candidate was to join the duty on or before 12.7.1987.  At  the relevant time, the appellant was employed with the  Central Secretariat as Section Officer. Therefore, he made a  request to the Government of Andhra Pradesh to extend the  time as per clause 3 for joining the duty in terms of  appointment order. On 25.6.1987, the Government vide its  memo dated 25.6.1987 extended the joining time and permitted  the appellant to join duty on or before 31.7.1987.  In  reality the appellant joined on 21.7.1987.  By Govt. memo  no.470 dated 10.10.1991 appellant’s services in the post of  RTO were regularized. Seniority lists were periodically  prepared and circulated on 28.3.1989, 13.5.1993 and

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27.5.1996 where the appellant was shown as senior to  respondent no.1. There was no challenge to the same by the  1st respondent, at any of the relevant points of time.  

       In 1997, both the appellant and respondent no.1 were  promoted as Deputy Transport Commissioner and in the  promoted post also, appellant was shown at Sl.No.14 as  against 1st respondent shown as Sl. No.17. In the  seniority list prepared on the basis of notional dates given  in G.O.M.S.No.153 dated 14.8.1997 was said to have been  approved and communicated by Transport Commissioner in his  proceedings dated  19.6.1995 also the appellant was shown as  senior to respondent no.1.  Respondent no.1 approached the  Tribunal only at this stage making a grievance that his  representation regarding fixation of seniority was not being  disposed of.  By order dated 17.5.2000 in OA No. 2369 of  2000 the Tribunal directed the concerned authorities to  dispose of the representation said to have been made for  relief. On 26.5.2000 a combined list of RTOs was published   as noticed above, where the appellant was shown as senior at  Sl.No.41 to respondent no.1 shown as Sl.No.44. Subsequently  on 31.5.2000 provisional seniority list of DTCs was  published as indicated above.  Respondent no.1 assailed the  seniority lists dated 26.5.2000 and 31.5.2000 before the  Tribunal in OA No. 3381 of 2000.  During pendency of the  matter before the Tribunal, the Government issued GOMs No.14  dated 29.1.2001 showing respondent no.1 as senior to the  appellant in the seniority list. In view of this memo,  respondent no.1 wanted disposal of his application before  the Tribunal as infructuous, but the Tribunal refused to  accept the prayer observing that there was challenge to the  correctness of the same in some connected matters.

       The stand of respondent no.1 before the Tribunal was  that since the appellant had joined the duties after the  prescribed period of 60 days indicated in the appointment  order, he had to be ranked junior to respondent no.1 who had  joined earlier. It was submitted that Government could not  have extended the joining report and it was the Commission  alone which is competent to do it. In any event, the effect  of G.O.Ms. 822 dated 18.9.1967 made the position clear that  if a person does not join within the stipulated time not  only there was power to withdraw his selection but even if  somebody had joined later, the fact that he did not join  within the stipulated period of 60 days disentitled him from  seniority. Tribunal did not accept this plea.  It also found  no substance in the plea that the date of joining would  govern seniority if the concerned employee had not joined  within the time stipulated in the appointment order.  It  took note of the fact that Government had permitted the  appellant to join by 31.1.1987, and in fact, he had joined  on 21.1.1987. Referring to Rule 33(b) of the Andhra Pradesh  State and Subordinate Service Rule 1962 (in short ’the  Rule’), it held that the appointing authority may at the  time of passing an order appointing two or more persons  simultaneously to a service, fix the order of preference  among them and when such order has been fixed, seniority is  to be determined in accordance with it. Appellant,  indisputably was placed on the basis of merit performance in  inter se ranking higher than the respondent no.1. Obviously,  he has to be treated necessarily as senior to the respondent  no.1.   

Respondent no.1 questioned correctness of the  Tribunal’s judgment by filing writ petition before the

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Andhra Pradesh High Court.  It was contended that power of  extension was available only to the Commission and not the  State Government. Further the GO itself merely provided that  in case a person does not join within the stipulated time,  the effect was that his name is to be removed from the list  of selected candidates, except in cases where the Commission  considers that there are valid reasons for extending the  period.   

Relying on the prescription in GO.Ms. 822 GA (Services- A) Department dated 18.9.1967 the High Court accepted  respondent no.1’s stand and directed that he is to be  treated as senior.  It was held so since appellant did not  join within the period of 60 days and thereby he lost also  seniority to which he was entitled to on the basis of merit  ranking.

       Learned counsel for the appellant with reference to the  order of the Government of Andhra Pradesh pointed out that  the State Government itself, in his case had granted time  upto 31.1.1987 and, in fact, the appellant had joined  admittedly even before that date.  That being so, there was  no question of appellant losing his seniority fixed  initially based on merit ranking. In the present case the  name of the appellant was not removed from the list. He was  permitted to join by grant of further time and continued as  senior to respondent no.1 as shown in various seniority  lists, and there was no challenge to any of them, at the  appropriate point of time. Admittedly, the appellant joined  in the year 1987 and after more than a decade it was not  open to respondent no.1 to question the propriety of the  extension of time given by the State Government enabling the  appellant to join within the extended time. The 1st  respondent had no infeasible right to question the extension  of time granted by the State Government and at any rate to  question the same, at any time according to will and  pleasure. The long lapse of time and laches on his  part  disentitles the 1st respondent to claim any such relief at  the belated stage almost after a decade.  

       Per contra learned counsel for respondent no.1  submitted that the State Government had no authority to  extend joining time.  It was only the Commission which has  power to do so and the High Court rightly observed that the  extension given to the appellant was itself bad and,  therefore, the benefit of the Rules stipulated in terms of  seniority of the candidates who were selected during one  selection has to be reckoned in accordance with appointment  in the selection was not available to be given.   

We find that the GO.Ms. 822 dated 18.9.1967  issued by  the Government of Andhra Pradesh was dealing with the  question of fixing the time limit for the candidates  selected by the Commission to join when they were to be  appointed by direct recruitment. Taking the factual position  as prevailing then, it was indicated that the time limit to  be normally 60 days. It was further stipulated therein that  in case they did not join within stipulated time, their  names could be removed from list of selected candidates.  Service Commission was enabled to extend and give further  time for joining before deleting the name of the candidate  concerned from the select list for not joining in time. The  power of extending time given to the Commission under the  G.O. was not in relation to any statutory prescription, and  cannot be also said to be in derogation of the powers of the

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State Government as the ultimate repository of all Executive  power.  On the other hand, the Government itself provided  that the time could be extended if the Commission considered  it necessary. This was merely an enabling power conferred by  the Government only and the G.O. cannot be construed to be  self destructive of the power of the Government, in the  absence of any statutory rules as such, in this regard.  The  Commission appears to have been enabled to grant time to  effectively monitor the operation of the main list as well  as the waiting list (in order of merit) without any undue  lapse of time, in case the selected candidates did not join  within the indicated time period.  It was an executive  decision of the Government.  When the Government itself  extended the time, in case of the  petitioner, on the basis  of the reasonableness of the request it cannot be said that  in the absence of any order passed by the Commission  extending the time, the extension granted by the Government  was without authority in law.   

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 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.  

       In the above background, the inevitable conclusion is  that the appellant was to be placed higher in the seniority  list than respondent no.1 in terms of the inter se merit  ranking assigned by the Service Commission.  The Tribunal  was right in its view, while the High Court could not be  held to be so. We set aside the judgment of the High Court  and restore that of the Tribunal so far as the appellant is  concerned.  

The appeal is allowed but in the circumstances without  any order as to costs.                                

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