B.V.Usha Rani vs The State Of Andhra Pradesh
2023 Latest Caselaw 551 AP

 HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

                  WRIT PETITION No. 18875 of 2021

ORDER:

This writ petition is filed to declare the action of the 1st

respondent in issuing Memo dated 29.09.2020 directing the 2nd

respondent to consider the deputation period of the 3rd respondent for

reckoning the notional seniority and to fix the seniority from one unit of

appointment to another unit of appointment in the State Cadre of Junior

Analyst as per Rule 35(b) of the A.P. State Subordinate Service Rules,

1996, as illegal and arbitrary.

2. Heard Ms. Kavitha Gottipati, learned counsel for the petitioner,

learned Government Pleader for Services-IV appearing for respondent

Nos.1 and 2, and Sri N. Joy, learned counsel for the 3rd respondent.

3. Briefly, the case of the petitioner is that she was appointed as

Pharmacist in the year 1995 and had been working till January, 2019 in

Prakasam District. Subsequently, she was appointed by transfer from the

local cadre post i.e., Pharmacist, Grade-II of Health, Medical and

Family Welfare Department to the State Cadre post as Junior Analyst at

Drugs Control Administration Department on 08.02.2019. She

completed two years of service in the cadre of Junior Analyst as on

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12.02.2021 and her services were regularised and probation period was

also declared. She passed E.O. Departmental Test and as such, she is

eligible for further promotion as Drugs Inspector.

i) The petitioner, Smt. M. Aruna, Sri K. Suresh Kumar and Smt. K.

Hemalatha, who were selected as Pharmacists, Grade-II, which is a

District Cadre Post, in different units of Director of Public Health and

Family Welfare, made a representation dated 24.04.2018 to the

Government with a request to consider their cases for appointment by

transfer to the post of Junior Analyst in the Drugs Control

Administration (under 20% quota) duly relaxing Rule 3 Category I of

the A.P. Drugs Control Administration Service Special Rules issued

under G.O.Ms.No.411, HM & FW (L2) Department, dated 11.08.1994.

At that juncture, all of them filed O.A.No.1393 of 2018 before the A.P.

Administrative Tribunal questioning the action of the respondents in not

disposing of their representation dated 24.04.2018 as illegal and

arbitrary. On 05.09.2018, the Tribunal passed an interim order directing

the respondents to dispose of the representation dated 24.04.2018 within

a period of eight weeks.

ii) The 1st respondent issued Memo dated 05.02.2019 whereby the

2nd respondent was directed to consider the request made by the

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individuals and they shall take last rank in the category of Junior

Analyst in Drugs Control Administration. In the said Memo dated

05.02.2019 issued by the 1st respondent, it is categorically clarified that

those who are willing to come to office of the DG, DCA for

appointment by transfer must forego their seniority in their present unit

and take last rank after last regular candidate in the new unit, as these

transfers are from one unit to another i.e., from various units of Director

of Public Health and Family Welfare to the Office of the Director

General, Drugs Control Administration and also from local cadre to

State Cadre i.e., from District cadre to State cadre.

iii) In pursuance of the said Memo dated 05.02.2019 issued by the 1st

respondent, the 2nd respondent vide proceedings dated 08.02.2019 issued

appointment orders by transfer in the cadre of Junior Analyst in the

Department of Drugs Control Administration (under 20% quota) in

relaxation of Rules issued in G.O.Ms.No.411 dated 11.08.1994.

Subsequently, the petitioner reported for duty as Junior Analyst on

13.02.2019 F.N. The 2nd respondent issued proceedings dated

20.11.2020 wherein the probation of the individuals was declared in the

cadre of Junior Analyst who were appointed by transfer as per Rule 18

(a) of the A.P. State Subordinate Service Rules, 1996. In the said

proceedings, the name of the petitioner was shown at Sl.No.4 and the

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names of the unofficial respondents were shown at Sl.Nos.1 and 3 and

the name of one Smt. M. Aruna was shown at Sl.No.2. The petitioner

has no grievance in respect of Smt. M. Aruna as she was senior to the

petitioner in the cadre of Pharmacist, Grade-II. But, by the original

proceedings issued by the 1st respondent on 05.02.2019, the petitioner

was posted to the present department through appointment by transfer

and her name was shown at Sl.No.2 and the names of unofficial

respondents were shown at Sl.Nos.3 and 4.

iv) The 1st respondent issued impugned Memo dated 29.09.2020

wherein he directed the 2nd respondent to consider the deputation period

of Smt. M. Aruna and the 3rd respondent for reckoning the notional

seniority without any monetary benefits from the date of joining on

deputation posts of Junior Analyst and further directed the 2nd

respondent to fix the seniority in respect of four Junior Analysts as per

Rule 35(b) of the A.P. State Subordinate Service Rules, 1996 (for short

'the rules, 1996') as their appointment was by transfer from one unit of

appointment to another unit of appointment. When the petitioner

submitted objections on 04.03.2020 to the tentative seniority list dated

28.02.2020 communicated by the 2nd respondent, surprisingly there was

no reference at all in the memo issued by the 1st respondent on

29.09.2020 and the 1st respondent has directed the 2nd respondent to fix

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the seniority simply basing on the report submitted by the 2nd

respondent. This action of both the respondents 1 and 2 is illegal and

arbitrary.

v) While issuing the impugned memo dated 29.09.2020 by the 1st

respondent, the representations made by Smt. M. Aruna and the 3rd

respondent herein were taken into consideration, but the objections of

the petitioner vide letter dated 04.03.2020 to the tentative seniority list

issued by the 2nd respondent vide proceedings 28.02.2020 were not

considered. In spite of the specific objections, without looking into the

same, the 2nd respondent submitted his report to the 1st respondent on

07.08.2020, in turn, the 1st respondent issued the present impugned

memo dated 29.09.2020. After issuance of the memo dated 29.09.2020

by the 1st respondent, surprisingly the 2nd respondent communicated a

revised tentative seniority list of Junior Analysts on 25.10.2020 and

called for objections. Subsequently, the 2nd respondent had declared the

probation of individuals in the cadre of Junior Analyst vide proceedings

dated 20.11.2020. Finally, the Department had finalised the seniority list

on 23.11.2020 and issued promotions on 31.03.2021 in favour of the 3rd

respondent along with Smt. M. Aruna.

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vi) As per recruitment Rules for the post of Junior Analyst is only

direct recruitment and appointment by transfer and there is no procedure

or method available for absorption on deputation. Now, contrary to the

said rule, the 1st respondent issued the memo dated 29.09.2020

considering the deputation period of Smt. M. Aruna and the 3rd

respondent for reckoning their notional seniority. More so, the post held

by them under deputation is not equivalent cadre post and their original

post cannot be treated as absorption post. These two individuals have

joined in the 2nd respondent office on deputation as a foreign service but

not as on absorption. Out of four individuals including the petitioner, no

one was absorbed as Junior Analyst and not included absorption on

deputation.

vii) In view of the above rule, the department has to prepare the

common seniority list as per sub rule (a) of Rule 33 of the Rules, 1996

also i.e., the seniority of a person in a service, class, category or grade

shall be determined by the date of his 1st appointment to such service,

class, category or grade. In the present case, the petitioner's original

date of joining as Pharmacist Grade-II is 06.09.1995 and of respondent

Nos.3 and 4 is 07.09.1995 and 04.10.1995 respectively, which clearly

shows that the petitioner is senior to respondent Nos.3 and 4. In view of

the above, it is very clear that the official respondents failed to follow

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Rule 34 of the Rules, 1996 and fixed the seniority contrary to the said

Rule and also issued promotion in favour of the 3rd respondent as Drug

Inspector. The same is questioned in the writ petition.

4. The 2nd respondent filed a counter affidavit wherein it is stated

that as per the Memo dated 29.09.2020, the Government directed to fix

seniority of four Junior Analysts viz., Smt. M. Aruna, petitioner herein,

Sri K. Suresh Kumar and Smt. K. Hemalatha as per Rule 35(b) of the

Rules, 1996 as their appointment was by transfer from one unit of

appointment to another unit of appointment on their own request and

accordingly the seniority was fixed. The Government also directed to

consider the deputation period of Smt. M. Aruna and Sri K. Suresh

Kumar, Junior Analysts, Vijayawada, for reckoning the deputation

period of the post of Junior Analyst in the Drugs Control Administration

Department as per the orders issued in G.O.Rt.No.461, dated 23.11.2016

without effecting the posts meant for direct recruitment. All the four

individuals have raised their objections against the seniority list

communicated on 28.02.2020. Basing on their objections, a letter was

addressed to the Government for clarification on seniority. Basing on

the clarification given by the Government vide memo dated 29.09.2020,

a revised tentative seniority list was communicated to the individuals

vide proceedings dated 15.10.2020, for which no objections were

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received from the individuals including the petitioner within the

stipulated time. On this, final seniority list was communicated on

23.11.2020. As no objections were received on the final seniority list

fixed among the individuals, the 4th respondent was promoted as Drugs

Inspector.

i) The Government vide memo dated 05.02.2019 clarified that those

who are willing to come to the Office of the Director General, Drugs

Control Administration for appointment by transfer on their request

must forego their seniority in the present unit and take last rank after last

regular candidate in the new unit as these transfers are from one unit to

another unit. After agreeing with the conditions of the said memo, the

petitioner reported to duty on 13.02.2019 in Drugs Control

Administration, Guntur. Hence, Rule 35 (b) is only applicable and Rule

34 is not applicable. The writ petition is devoid of merits and liable to be

dismissed.

5. The 3rd respondent also filed a counter affidavit stating that in

pursuance of the memo dated 05.02.2019 of the 1st respondent, the 2nd

respondent issued appointment orders by transfer in the cadre of Junior

Analyst in the Department of Drugs Control Administration vide

proceedings dated 08.02.2019. Pursuant thereto, she reported to duty as

Junior Analyst on 08.02.2019, whereas the petitioner has reported to

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duty on 13.02.2019 F.N. The 3rd respondent along with Smt. M. Aruna

made a representation to the 2nd respondent to consider notional services

for the period rendered as Junior Analyst on deputation due to exigency

of services. Considering the same, the 2nd respondent issued a memo

dated 29.09.2020. Despite having knowledge about the same, the

petitioner did not make any protest against the memo dated 29.09.2020

and now questioning the same, which is not tenable in law. Once the

seniority in Pharmacists Grade-II is foregone, Rule 35(b) applies for

fixing of seniority. There are no merits in the writ petition and hence,

the same is liable to be dismissed.

6. Learned counsel for the petitioner would contend that notional

seniority cannot be granted basing upon the period of deputation. She

submits that in the present circumstances, Rule 34 of the Rules, 1996 is

applicable and if it had been followed, the petitioner would have got

promotion, but Rule 35(b) is not applicable. She submits that as per the

proceedings dated 05.02.2019 and 08.02.2019 under which the

petitioner and the 3rd respondent along with others were appointed by

transfer to the post of Junior Analyst in the Drugs Control

Administration and the petitioner is placed at serial number 2 and the 3rd

respondent is placed at serial number 3. Later, the 1st respondent issued

proceedings dated 29.09.2020 directing the 2nd respondent to consider

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the deputation period of one Smt. M. Aruna and the 3rd respondent

herein for reckoning the notional seniority from the date of their joining

in the deputation posts of Junior Analysts in the Drugs control

Administration without effecting the posts meant for direct recruitment,

by observing Rule 35(b) of the Rules, 1996 which is illegal, arbitrary,

against Rule 34 of the Rules, 1996 and also against the law laid down by

the Full Bench of this Court in W.P.No.27933 of 1996 dated

25.09.2012. The learned counsel, therefore, prays to allow the writ

petition by setting aside the impugned proceedings.

i) In the judgment dated 25.09.2012 in W.P.No.27933 of 1996, the

Full Bench of this Court categorically held as under:

"In R.SURYANARAYANA MURTHY (1), the Division Bench was dealing with the absorption in the TTD of an Assistant Director in the Department of Information and Public Relations, Government of Andhra Pradesh, who was sent on deputation as a Public Relations Officer to the TTD. The learned single Judge had held that such absorption was contrary to the then extant Tirumala Tirupati Devasthanams‟ Office Holders and Servants (other than Hereditary Office Holders) Recruitment Rules, 1978 (for brevity, „the Rules of 1978‟) framed vide G.O.Ms.No.1350, Revenue (Endowments-III), dated 02.08.1978, as the said Rules did not contemplate absorption of officers on deputation as a method of recruitment. In appeal before the Division Bench, it was contended that though the Rules did not provide for absorption of an employee on deputation, they would only apply to recruitment at the initial stage and as the person on deputation had already entered the service of the organization he could be absorbed on a permanent basis thereafter as there was no prohibition under the Rules. The Division Bench, however, was not persuaded to agree in the light of the edict of the Supreme Court in C.MUNIYAPPA NAIDU v. STATE OF KARNATAKA [2] and held that the matter

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was squarely covered by the same. The Bench was therefore disinclined to accept the Calcutta High Court‟s view in WEST BENGAL INDUSTRIAL DEVELOPMENT CORPORATION LTD.

v. WEST BENGAL INDUSTRIAL DEVELOPMENT CORPORATION EMPLOYEES UNION [3], which held to the contrary. The Bench consequently upheld the view of the learned single Judge that absorption of the Government employee sent on deputation to the TTD was illegal. This Judgment was challenged by the TTD before the Supreme Court but its appeal was dismissed on 17.08.1994.

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Sri M.Surender Rao, learned counsel, drew our attention to the recent Judgment of the Supreme Court in ASHOK KUMAR RATILAL PATEL v. UNION OF INDIA [11]. This was a case dealing with appointment on deputation through a regular selection process. Drawing a distinction between appointment on deputation and transfer on deputation, the Supreme Court observed thus:

"13. Ordinarily transfers on deputations are made as against equivalent post from one cadre to another, one department to another, one organization to another, or one Government to another; in such case a deputationist has no legal right in the post. Such deputationist has no right to be absorbed in the post to which he is deputed. In such case, deputation does not result into recruitment, as no recruitment in its true import and significance takes place as the person is continued to be a member of the parent service.

14. However, the aforesaid principle cannot be made applicable in the matter of appointment (recruitment) on deputation. In such case, for appointment on deputation in the services of the State or organization or State within the meaning of Article 12 of the Constitution of India, the provisions of Article 14 and Article 16 are to be followed. No person can be discriminated nor is it open to the appointing authority to act arbitrarily or to pass any order in violation of Article 14 of the Constitution of India. A person who applies for appointment on deputation has an indefeasible right to be treated fairly and equally and once such person is selected and offered with the letter of appointment on deputation, the same cannot be cancelled except on the ground of non-suitability or unsatisfactory work."

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To conclude, the Tirumala Tirupati Devasthanams‟ Employees Service Rules, 1989 do not provide for absorption of employees brought to the TTD by loan of service/deputation. The absorption of the petitioner in the service of the TTD is thus illegal. Resolution No.888 dated 07/08.12.1994 of the TTD cancelling the same and repatriating him to the APSRTC is unassailable. The view taken in R.SURYANARAYANA MURTHY v. THE PRINCIPAL SECRETARY TO GOVERNMENT, GOVERNMENT OF ANDHRA PRADESH AND OTHERS (1) is proper and would prevail. D.SRINIVASULU REDDY v. THE EXECUTIVE OFFICER, TIRUMALA TIRUPATI DEVASTHANAMS, TIRUPATI (5) does not lay down the correct law and is accordingly overruled."

7. On the other hand, learned Government Pleader for Services-IV

appearing for respondent Nos.1 and 2 would submit that the petitioner

never raised any objections to the tentative seniority list and also to the

final seniority list, but now she is agitating that Rule 34 of the Rules,

1996 is not followed. He further submits that in the present

circumstances, Rule 35(b) is applicable but not Rule 34. As the

petitioner kept quiet without submitting any objections and an appeal as

per rule 26 of the Rules, 1996 against the tentative seniority list as well

as the final seniority list, now she cannot question the final seniority list

which became final. He further submits that in view of Rule 35(b), the

deputation period of the 3rd respondent was taken into consideration for

fixation of notional promotion and seniority. In support of his

contentions, he relied upon the judgment of the Division Bench of this

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Court in S.P.Abdulla Saheb Vs. K. Krishna Murthy1. Therefore, the

present writ petition is liable to be dismissed.

i) In S.P.Abdulla Saheb case (1 supra), the Division Bench of this

Court in paras 31,32 and 33 of the judgment held thus:

"31. It is the above normal rule that the Tribunal as well as this Court appears to have followed. But the language employed in A.P. State and Subordinate Services Rules and A.P. Ministerial Service Rules appears to be quite different from the rule position prevailing in some other States. Rule 35(b) of the A.P. State and Subordinate Services Rules, 1996 reads as follows:

"35(b). The seniority of a member of a service, class or category, who is transferred on his own request from one unit of appointment to another unit of appointment shall be fixed with reference to the date of his joining duty in the latter unit of appointment."

32. Rule 35(b) does not use the words "below the last of the approved probationers". Instead, Rule 35(b) uses the words "the date of his joining duty in the latter unit of appointment". Therefore, the original applicants before the Tribunal are entitled to take seniority in the Department of Commercial Taxes with reference to the date of their joining duty, namely, 01-01-1996.

33. Admittedly as on 01-01-1996, the writ petitioners herein were undergoing probation as persons directly recruited after being selected by the Andhra Pradesh Public Service Commission. The writ petitioners have actually joined duty on various dates ranging from December, 1994 to December, 1995. Some of them had completed almost one year of probation in the Department of Commercial Taxes on 01-01- 1996 when the original applicants before the Tribunal came to this Department on their own request."

2016 SCC Online Hyd 404=(2017) 2 ALT 296 (DB)

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8. Having regard to the submissions made by the learned counsels

for the parties, it is appropriate to refer to Rules 33(a), 34 and 35(b) of

Rules, 1996 which reads as under:

"Rule 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 1st November, 1956 or prior to that date, shall be determined in the statewide gazette 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 1st 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).

Rule 34 - Preparation of integrated or common seniority list of persons belonging to different units of appointment - whereas integrated or common seniority list of a particular class or category or grade in any service belonging to different units of appointment has to be prepared for the purpose of promotion or appointment by transfer to a class or category having different units of appointment or for any other purpose, such as integrated or common seniority list shall be prepared with reference to the provisions of Sub-Rule

(a) of Rule 33 provided that the seniority list of the persons interse belonging to the same units shall not be disturbed.

Rule 35(b) - Fixation of seniority in the case of transfers on request or on administrative grounds - (b) The seniority of a member of a service, class or category, who is transferred on his own request from one unit of appointment to another unit

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of appointment, shall be fixed with reference to the date of his joining duty in the latter unit of appointment."

9. The contention of the learned counsel for the petitioner that the

memo dated 29.09.2020 issued by the 1st respondent directing the 2nd

respondent to fix seniority without reference to the tentative seniority

list dated 28.02.2020 communicated by the 2nd respondent and

considering the period of deputation of the 3rd respondent is contrary to

Rule 34 of the Rules, 1996 and the judgment rendered by the Full Bench

of this court in W.P.No.27933 of 1996 dated 25.09.2012 is sustainable

and to be considered. The other contention of the learned counsel for

the petitioner that the post of Junior Analyst in the Drugs Control

Administration is only a direct recruitment or appointment by transfer

and there is no procedure or method available for absorption on

deputation and in the absence of such rules or procedure, the period of

deputation cannot be countenanced for reckoning the notional seniority,

is acceptable and admissible in view of the Full Bench judgment

rendered by this Court in the writ petition referred supra. The contention

of the learned counsel for the petitioner that the petitioner is senior to

the 3rd respondent as Pharmacist Grade-II and both were transferred by

appointment as Junior Analyst in the 2nd respondent unit and the

seniority of the petitioner cannot be disturbed on the ground that the 3rd

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respondent either continued on deputation or she joined duty prior to the

petitioner after issuance of orders of appointment by transfer, is also

valid and sustained in view of Rule 34 of the Rules, 1996.

10. As per Sub-rule (a) of Rule 33, the seniority of a person in a

service, class, category or grade shall be determined by the date of his

first appointment to such service, class, category or grade. Admittedly,

the petitioner joined as Pharmacist Grade-II on 06.09.1995, whereas

respondent Nos.3 and 4 joined as Pharmacist Grade-II on 07.09.1995

and 04.10.1995. Therefore, the contention of the petitioner that even at

the time of appointment by transfer, the seniority of the petitioner cannot

be disturbed as per Rule 33(a), is valid and acceptable.

11. On the other hand, the contention of the learned Government

Pleader that as per Rule 35(b), the 2nd respondent considered the period

of deputation of the 3rd respondent for reckoning the notional seniority

without any monetary benefits from the date of joining on deputation as

Junior Analyst in the 2nd respondent unit, is not sustainable and

acceptable as it is against Rules 33(a) and 34 of the Rules, 1996. The

other contention of the learned Government Pleader that in view of the

memo dated 05.02.2019 issued by the 1st respondent, the petitioner as

well as the 3rd respondent and two others were appointed by transfer

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from one unit of appointment to another unit of appointment and the 3rd

respondent reported to duty much before the petitioner as Junior Analyst

and as per Rule 35(b), the 3rd respondent is senior to the petitioner and

accordingly, the 3rd respondent was considered to be senior to the

petitioner and appointed as Junior Analyst, is untenable and

unsustainable, in view of Rules 33 (a) and 34 of the Rules, 1996 and

also the law laid down by the Full Bench of this Court in W.P.No.27933

of 1996 dated 25.09.2012.

12. The contention of the learned counsel for the 3rd respondent that

the 3rd respondent joined duty as Junior Analyst on 08.02.2019 pursuant

to the memo dated 08.02.2019 issued by the 2nd respondent, whereas the

petitioner joined duty on 13.02.2019, as such, as per Rule 35(b), the 3rd

respondent is senior to the petitioner, is not valid and liable to be

rejected in view of Rules 33(a) and 34 of the Rules, 1996.

13. In view of the foregoing discussion, the Writ Petition is allowed

and the Memo dated 29.09.2020 issued by the 1st respondent is set aside.

The 2nd respondent is directed to consider the case of the petitioner as

senior to the 3rd respondent, in view of Rules 33(a) and 34 of the Rules,

1996 and also in view of the principle laid down by the Full Bench of

this Court in W.P.No.27933 of 1996 dated 25.09.2012, and take

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appropriate steps for effecting promotion to the petitioner as Drugs

Inspector on par with the 3rd respondent, within a period of two months

from the date of receipt of a copy of this order. No order as to costs.

Consequently, Miscellaneous Petitions, if any, pending in the

writ petition shall stand closed.

____________________________________ VENKATESWARLU NIMMAGADDA, J 2nd February, 2023 cbs

NV,J W.P.No.18875 of 2021

HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

Writ Petition No.18875 of 2021

2nd February, 2023 cbs