Andhra Pradesh High Court - Amravati

G. Venugopal, Chitoor District vs The Director Of State Audit 3 Ors, ... on 2 May, 2023

THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
                                   AND
      THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO


                  W.P.Nos.22798 and 24588 of 2010


COMMON ORDER: (per Hon'ble Sri Justice Cheekati Manavendranath Roy)

       Both these writ petitions are filed against the common

order, dated 03.09.2010, of the Andhra Pradesh Administrative

Tribunal at Hyderabad, (for short, "the Tribunal"), passed in

O.A.Nos.12667 and 12888 of 2009, whereby the orders of

reverting the petitioner to the lower grade post and the order

fixing the seniority of the petitioner as junior to respondent No.3,

are confirmed.

2. Both the petitions were heard together and they are being

disposed of by this common order as the Tribunal has disposed

of both the O.As by a common order.

3. Heard the learned counsel for petitioner and the learned

counsel for the 3rd respondent.

4. The petitioner was initially appointed on compassionate

ground as an attender in State Audit Department of Tirumala 2 CMR, J & VGKR, J W.P.Nos.22798 & 24588 of 2010

Tirupati Devasthanam, as per the order issued by the District

Collector, Chittoor to that effect. The third respondent was also

appointed as attender in the same Department of

T.T.Devasthanam as per the proceedings issued by the District

Collector. The third respondent was appointed in S.C. backlog

vacancy.

5. The third respondent was earlier promoted to the higher

post. But, subsequently, the third respondent was reverted on

the ground that she was junior to the petitioner.

6. Questioning the said proceedings of reverting the third

respondent back to the previous post and fixing the seniority

showing the petitioner as senior to the third respondent, the third

respondent filed O.As. before the Tribunal. Both the said O.As.

were allowed holding that the third respondent is senior to the

petitioner. The Tribunal also in its order held that the seniority

has to be fixed as per Rule 33-A of Andhra Pradesh State and

Subordinate Service Rules, 1996.

7. Aggrieved thereby, the petitioner preferred these two writ

petitions challenging the order of the Tribunal.

3 CMR, J & VGKR, J W.P.Nos.22798 & 24588 of 2010

8. Although it is contended by the learned counsel for

petitioner that the petitioner was originally appointed as attender

on 19.06.2002 and the third respondent was appointed on

21.06.2002, the said contention is not found to be correct as per

material available on record. As per the proceedings, dated

15.06.2002, both of them were appointed on 15.06.2002 itself.

Rule 33-A of Andhra Pradesh State and Subordinate Service

Rules, 1996 deals with fixation of seniority and it reads thus:

"The seniority of a person in service, class, category or grade, shall, unless he has been reduced to a lower rank as punishment be determined by the date of his appointment to such service, class, category or grade."

9. It is well settled law that when there is specific Rule, which

deals with fixation of seniority, the seniority of employees has to

be fixed in accordance with the said Rule without any deviation.

As the rule mandates that the seniority has to be determined by

the date of the appointment of the employee to such service, the

seniority of the petitioner is rightly fixed on the basis of his

appointment.

4 CMR, J & VGKR, J W.P.Nos.22798 & 24588 of 2010

10. Considering the facts and circumstances of the case, the

Tribunal also rightly held, at para.20 of the common order, as

follows:

"20. It is further seen that the post of Junior Auditor is borne on the AP State Audit Subordinate Service, for which rules are framed vide G.O.Ms.No.213, dt.18.07.2006 under proviso to Article 309 of the Constitution of India. Rule 3 of the said Rules provides for the method of appointment and appointing authority for various categories of posts sanctioned to the department. The post of Junior Auditor falls under Category-2 of the Table appended to Rule 3. Rule 6 r/w. Annexure in Category-2(iii) of the Rules, provides for minimum qualifications of a pass in Intermediate examination or any equivalent examination. Rule-8 states that in case of Record Assistants and Attenders (now Office Subordinates), they shall have to put in not less than five years of service from the date of commencement of probation in the respective category for appointment by transfer to the category of Junior Auditor. Sub-clause-iv in Rule 3 of the Table appended to the rules provides for appointment by transfer from among Attenders working in the State Audit Department. Every second vacancy in a cycle of six vacancies shall have to be filled up by appointment by transfer from the post of Record Assistant/ Attender. The applicant had acquired the training qualification. Further, she is an approved probationer in the category of Attender and had put in five years of service and qualified as on the date of occurrence of second vacancy in a cycle of six vacancies for the post of Junior Auditor to be filled up by Attender. As pointed out supra, but for the mistake committed by the respondents, the applicant ought to have been appointed by transfer as Junior Auditor with effect from the date of occurrence of the vacancy.

                                       5                             CMR, J & VGKR, J
                                                         W.P.Nos.22798 & 24588 of 2010




               I have perused the impugned orders.           The impugned

orders sans reasons and have not determined the seniority issue which was directed to be decided. Further more, it is seen that till to date, no seniority list of Attenders as well as Junior Auditors is maintained by the respondents. Thus, the contention of the 2nd respondent that the 3rd respondent is senior to the applicant, is without any basis."

11. Therefore, as rightly held by the Tribunal, the 3rd

respondent got requisite service of five years and qualified to be

promoted/appointed as Junior Auditor by the date on which

second vacancy in a cycle of six vacancies arose. So, she is

entitled to promotion from that date. Therefore, she is senior to

the petitioner.

12. The contention of the petitioner that seniority is to be fixed

as per the roster point is not tenable. Roster point is meant only

for the purpose of appointment on the basis of various

reservations contemplated under the said roster. In fact, the

Supreme Court also in Bimlesh Tanwar Vs. State of Haryana

and others1, clearly held that seniority cannot be fixed in terms of

roster points.





    2003 SCC (L&S) 737
                               6                          CMR, J & VGKR, J
                                              W.P.Nos.22798 & 24588 of 2010

13. The Tribunal also while relying on the said judgment of the

Apex Court in Bimlesh Tanwar1 rightly held that seniority cannot

be fixed in terms of roster point, as contended by the petitioner

herein.

14. Therefore, we do not find any legal flaw or infirmity in the

impugned common order of the Tribunal. Ergo, the same is,

sustainable under law.

15. Resultantly, these writ petitions are dismissed, confirming

the orders of the Tribunal. There shall be no order as to costs.

Miscellaneous petitions, if any, pending in these petitions shall stand closed.

________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY

_______________________________ JUSTICE V.GOPALA KRISHNA RAO