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CASE NO.: Appeal (civil)  2299 of 2007

PETITIONER: K. Balakrishna Rao

RESPONDENT: The Deputy Commissioner,Commercial Taxes, Division No. 1,Vijayawada, Andhra Pradesh & Ors

DATE OF JUDGMENT: 01/05/2007

BENCH: C.K. THAKKER & P.K. BALASUBRAMANYAN

JUDGMENT: J U D G M E N T  CIVIL APPEAL NO 2299        OF 2007 (Arising out of SLP(C) No. 23759 of 2004)

P.K. BALASUBRAMANYAN, J.

                1.              Leave granted.

2.              The appellant was temporarily appointed as an  Upper Division Stenographer on 14.8.1976 on being  sponsored through Employment Exchange.  The appellant  thereafter participated in a direct recruitment process of  Upper Division Stenographers conducted by the Andhra  Pradesh Public Service Commission and was selected on  17.1.1979.  He was allotted to the Department of Printing  at Hyderabad.   On the request of the appellant, he was  re-allotted to the Commercial Taxes Department on  25.7.1979 for appointment as Upper Division  Stenographer.  He joined the Commercial Taxes  Department as Upper Division Stenographer.  On  21.2.1980, the Deputy Commissioner of Commercial  Taxes, Krishna Division, passed an order to the effect that  the services of the appellant, a temporary Upper Division  Stenographer in the office of the Deputy Commissioner  (C.T.), Vijayawada, who was selected and allotted to  Krishna Division for appointment as Upper Division  Stenographer by the Andhra Pradesh Public Service  Commission are regularized in the cadre of Upper Division  Stenographer with effect from 14.8.1976, the date of his  first or temporary appointment, under Rule 23(a) of the  Andhra Pradesh State and Subordinate Service Rules.  But, it was clarified that his seniority will be decided in  due course.   It was declared that the appellant had  completed his probation satisfactorily in the cadre of  Upper Division Stenographer on the afternoon of  19.8.1978.  The appellant was posted as Senior Assistant  (Upper Division Clerk), which was said to be an equivalent  post to Senior Stenographer (Upper Division  Stenographer).   

3.              A draft seniority list of Upper Division Clerks  was published and objections were invited.  The appellant  was shown at Serial No. 60.  Claiming that he was entitled  to be at Serial No. 39 in the light of the order passed  under Rule 23(a) of the State and Subordinate Service  Rules regularizing his service with effect from 14.8.1976,  he filed an objection and a representation.  Since his

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objection and subsequent representation did not yield  fruitful result, the appellant approached the Andhra  Pradesh Administrative Tribunal with a claim numbered  as R.P. No. 3055 of 1987.  Apparently, he did not implead  any of the other Upper Division Clerks who would have  been affected if his claim for being ranked at Serial No. 39  was accepted.  But the Administrative Tribunal without  regard to that fact allowed his application.  A petition for  reconsideration of the question, filed by two persons who  were affected, was rejected by the Tribunal.  This resulted  in the affected persons, approaching this Court by way of  a Petition for Special Leave to Appeal.  This Court by  judgment dated 29.8.1997 in Civil Appeal No. 5890 of  1997, set aside the orders of the Tribunal and remanded  the claim of the appellant to the Tribunal for being decided  afresh on merits after hearing the aggrieved parties who  were before this Court.  Thereafter, the Tribunal rejected  the claim of the appellant mainly on the basis that the  appellant had sought a transfer to the Commercial Taxes  Department from the Department to which he was  originally allotted on selection and had thereby become  junior most in the Department in terms of Rule 16 of the  Andhra Pradesh Ministerial Service Rules.  The Tribunal  also did not accept the contention of the appellant that his  seniority should be counted from 14.8.1976 in any event  and not from 5.8.1980.  Feeling aggrieved, the appellant  approached the High Court of Andhra Pradesh.  The High  Court accepted the claim of the appellant to the extent  that the appellant had to be treated as an Upper Division  Clerk with effect from 25.7.1979 as the re-allotment of the  appellant to the Commercial Taxes Department as  Probationer in the cadre of Upper Division Clerks was on  25.7.1979.  But, the High Court also took the view that  since the appellant had been re-allotted to the Commercial  Taxes Department at his request, in terms of Rule 16 of  the Andhra Pradesh Ministerial Service Rules, he had to  be placed as junior-most in the cadre in that Department  in terms of Rule 27(1)(iii) of the Rules.  Feeling aggrieved,  the appellant has come up to this Court.  

4.              Learned Senior Counsel for the appellant  contended that the High Court had wrongly interpreted  Rule 27(1) of the Rules.  When the appellant was posted  as Upper Division Clerk, he was entitled to count his  seniority as Upper Division Stenographer by virtue of  G.O.M.S. No. 635 dated 13.9.1979 by which proviso (iv) to  sub-Rule (1) of Rule 27 was substituted.  He also  contended that Rule 16 of the Andhra Pradesh Ministerial  Service Rules had no application in respect of allotment  made by the Public Service Commission and it applied  only to cases where after allotment by the Andhra Pradesh  Public Service Commission, transfers are effected by Unit  Officers in consultation with each other pursuant to the  request made by an employee for transfer from one  departmental unit to another departmental unit.  He also  submitted that even if Rule 16 is held to be applicable,  when he was re-allotted in the year 1979, he was the only  person holding that post in the cadre and hence his  seniority should be reckoned on that basis.  

5.              On behalf of the respondents, it is submitted  that the Tribunal and the High Court were justified in  holding that the appellant became the junior-most in the  cadre on 25.7.1979 on his re-allotment to the Commercial  Taxes Department at his request and that the order

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passed in terms of Rule 23(a) of the Andhra Pradesh State  and Subordinate Service Rules, reserving the fixing of his  seniority to a later date does not enable him to get out of  the effect of Rule 27(1)(iii) of the Andhra Pradesh  Ministerial Service Rules.  Rule 16(1) also made such a  transfer subject to Rule 27.  The decision in State of  Tamil Nadu & Anr. Vs. E. Paripoornam & Ors. [1992  Supp (1) S.C.C. 420] was relied on to contend that the  temporary service of the appellant prior to his regular  appointment could not be counted for seniority.  It was  submitted that there was no reason to interfere with the  decision of the High Court.   

6.              The High Court has assigned to the appellant  the date 25.7.1979 in the cadre of Upper Division Clerk.   In this appeal by the appellant, we do not see any reason  to interfere with that finding.  

7.              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.  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 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.

8.              In the light of this, we find no reason to interfere  with the decision of the High Court.  We affirm the same  and dismiss this appeal.