Andhra HC (Pre-Telangana)
K. Venkateswar Rao vs Secretary To Government Health Medical ... on 10 April, 2001
Equivalent citations: 2001(4)ALD139
Author: S.B. Sinha
Bench: S.B. Sinha
ORDER S.B. Sinha, C.J.
1. This writ petition is directed against a judgment and order dated 27-10-1999 passed by the Andhra Pradesh Administrative Tribunal in OA No.656 of 1999 dated 27-10-1999 whereby and whereunder the original application filed by the respondent No.5 herein questioning the order in G.O. Rt. No. 1097, Health, Medical and Family Welfare (Q.1) Department, dated 30-7-1997 and the consequential order dated 5-1-1999 of the Director of Insurance, Medical Service cancelling the selection grade granted in his favour on 1-1-1975, was allowed.
2. The petitioner was appointed temporarily as Typist in the Directorate of Health Services on 8-2-1966 and he having been selected by the A.P Public Service Commission, was regularly appointed as Typist in the year 1967. His services as Typist were regularised with effect from 7-6-1968. He was converted as LDC with effect from 1-10-1971. Respondent No.5 was appointed as LDC on 1-11-1968 and his services as such were regularised with effect from 23-3-1969.
3. By reason of the recommendations of the Pay Revision Commissioner, 1969, the Government in G.O. Ms. No. 173, dated 13-6-1969, issued orders introducing selection grade posts. According to the said orders, one out of every seven posts borne on the cadre of each class or category of a service shall be on the selection grade. The A.P. State and Subordinate Service Rules were amended accordingly introducing Rule 46-A.
4. In the seniority list of LDCs issued on 4-7-1974, the petitioner was shown as senior to respondent No.5. The petitioner was promoted to the category of UDC on 25-12-1976. Respondent No.5 was appointed to selection grade post on 5-2-1975 with effect from 1-1-1975. Petitioner contends that Government issued Memo. No.1381/ Y1/84 dated 17-1-1985 clarifying that the service rendered by a person as Typist should be taken into consideration for the purpose of grant of section grade and for promotion to the next higher post and the said clarification has the approval of the Finance Department UO No.31370/822/A1/ PC-II/94 dated 31-12-1994. It is also stated that Government issued G.O. Ms. No. 190, dated 10-6-1983 directing revision of the pay of the senior at par with his junior who was granted selection grade scale. The petitioner made representation to step up his pay at par with respondent No.5. The Government in G.O. Rt. No. 1097, dated 30-7-1997 took a provisional decision to cancel the selection grade given to respondent No.5 and directed the Director of Insurance, Medical Services to issue notice to respondent No.5 to make his objections and accordingly a notice was issued to him on 13-5-1998. The Government after considering the representation of respondent No.5, by orders dated 5-1-1999 cancelled the selection grade given to him and appointed the petitioner herein to the selection grade post in the category of LDC with effect from 1-1-1975.
5. Two questions arises for consideration in this writ petition, namely, (1) whether there exists any conflict between Rule 46-A of the A.P. State and Subordinate Service Rules and Rule 4 of A.P. M.S. Rules and (2) whether the State Government could have cancelled the order granting selection grade in favour of respondent No.5 hereinafter twenty four years?
6. It is not in dispute that the 5th respondent herein was appointed as LDC on 23-3-1969. He completed five years service in the year 1974.
The petitioner herein, as indicated hereinbefore, was transferred at his own request to the post of LDC.
7. Rule 46-A of the A.P. State and Subordinate Service Rules, 1962 provide for grant of selection grade in the A.P. Revised Scales of Pay, 1969.
The said rule clearly lay down the mode and manner in which the selection grade shall become payable to an employee. Each post and group of posts for the purpose of the said rule, having regard to sub-rule (7) thereof, shall be deemed to constitute separate category.
8. Selection grade scale of pay will be granted having regard to sub-rule (2) of Rule 46-A which says that one out of every seven posts borne on the cadre of each class or category of a service or class of a service shall constitute selection grade.
9. In a situation of this nature, in our opinion, the concept of equal pay for equal work or stepping up of pay of the senior with reference to the pay of the junior cannot be brought into effect. In the impugned judgment, it has been held:
"Be that as it may, the fact remains that the request of the fifth respondent for conversion under Rule 33(c) of A.P. S.S.S. Rules was considered only in the year 1971 and he was converted as LDC in the year 1971. The fact remains that he did not put in minimum five years of service in the category of LDC for getting selection grade post. The applicant's case was considered for selection grade basing upon his recruitment and the qualification and the official respondents fixed him in the selection grade from 1-1-1975. We have already demonstrated that the posts of Typist and LDC belong to two different categories of the A.P. Ministerial Service Rules. By virtue of this, independent selection grade posts have to be created by the appointing authority in the category of the A.P. Ministerial Service Rules. The case of the applicant was considered in the category of LDC against the quota earmarked for the LDC in the year 1975. By then, the fifth respondent did not put in minimum service of five years for consideration for appointment to the selection grade. We are, therefore, of the considered view that in view of the unequivocal position of law in respect of preparation of the selection grade as laid in Rule 46(A) of the A.P S.S.S. Rules, the applicant has rightly been considered for the selection grade post and that cannot be denied by the respondents after a lapse of 25 years."
10. As before the Tribunal, before us also, reliance has been placed on Rule 33(d) of A.P. State and Subordinate Service Rules to show that the seniority of a transferred employee shall be determined with reference to the date of his first appointment in the class or category of persons. As indicated hereinbefore, Rule46-A of 1962 rules contains a self-contained code. It may be that even in Rule 4 of the A.P. Ministerial Service Rules, for the purpose of promotion, the seniority in the post of Typist may be counted.
11. Both the rules operate in different fields. Respondent No.5 herein had been conferred selection grade scale in terms of the rules as it then existed. As per sub-rule (4Xa) of Rule 46-A, one has to put in a minimum service of not less than five years in the class or category for grant of selection grade. Sub-rule (5) says that appointment to the selection grade shall be made on the basis of seniority-cum-efficiency. Admittedly, by the time the respondent No.5 herein was appointed to selection grade in the category of LDC i.e., 1-1-1975, he had completed five years of service and was senior in the said category.
12. In our view, the determining factor for grant of selection grade as laid down in Rule 46-A of the State and Subordinate Service Rules cannot be held to be bad in law. The eligibility of a person to get the selection grade, in our considered opinion, should be determined on the basis of the rules governing the field. It has not been disputed that separate selection grades are being granted to the Typists and other grades of employees and separate seniority lists are also being maintained. Furthermore, sub-rule 7 of Rule 46-A clearly states that every post or group of posts in any category bearing a distinct designation shall be deemed to constitute a separate category.
13. In this connection, it is useful to note Rule 27 of the A.P.MS. Rules which reads Thus:
Probation, seniority and confirmation special provisions :--(1) Service rendered in a post or group of posts bearing distinct designation and included in a category as constituted by Rule (1) shall count for probation and seniority in such post or group of posts irrespective of the scales of pay applicable to such posts or group of posts and irrespective of the department or office in which service was rendered:
(i) Provided that, in the case of a person whose services are lent from one department or office to another, the service rendered by him in any higher post in the department or office to which services were lent shall count for seniority in the parent department or office only from the date of regular appointment or promotion to such higher post in the parent department or office;
(ii) the seniority of a member of the service who is transferred on administrative grounds only from one department or office to another shall be fixed in the latter department or office with reference to the date of his first appointment in the former department or office;
(iii) the seniority of a member of the service who is transferred at his own request from one department or office to another shall be fixed in the latter department or office with reference to the date of his first appointment in the latter department or office;
(iv) the seniority of a member of the service who is appointed from the post of special Category Stenographer to the post of Superintendent or from the post of Senior Stenographer to the post of Senior Assistant shall be fixed with reference to the date of his first appointment as Special Category Stenographer or Senior Stenographer as the case may be.
(v) the seniority of the first Grade Clerks of the erstwhile Hyderabad Government shall be reckoned with reference to the date of the first appointment to that category for the purpose of fixation of seniority in each of the three grades of Superintendents, namely, Senior Superintendents, Junior Superintendents, Grade I and Junior Superintendents, Grade II as on 1st November, 1956, so however that the promotion of Andhra Superintendents on or after the 1st November, 1956 from one grade to the next grade under the Andhra Rules shall not affect the seniority showing in the gradation lists of Superintendents as approved by the Government of India as on the 1st November, 1956.
(2) xxx (3) The seniority of a person who immediately before the 1st November, 1956 was a member of the Hyderabad General Service (Subordinate Service) and was absorbed into his service as a Superintendent from the post of First Grade Stenographer, or a Senior Assistant from the post of Second Grade Stenographer, or Second Grade Typist, shall be fixed in the category of Superintendent or Senior Assistant with reference to the period of his continuous officiation as First Grade Stenographer, or as a Second Grade Stenographer or Section Grade Typist, as the case may be, and he shall not be reverted to the post from which he was so absorbed except from unsuitability or for want of a vacancy in his duel turn.
(4) In respect of the substantive vacancies in the posts of Superintendents, Senior Assistants and Junior Assistants in the office of the Heads of Departments and Directorates, reserved to be filled by transfer under sub-rules (1), (2) and (8-A) of Rule 3 respectively, appointment of full members shall be made from among such transferees.
(6) The seniority of a Telephone Operator appointed as Junior Assistant or Typist or Steno-typist shall be fixed in the latter category from the date of such appointment.
14. Thus the service rendered in a particular post or group of posts with distinct designation shall be counted for the purposes specified therein i.e., probation and seniority in such post or group of posts irrespective of the scales of pay applicable to such posts of group of posts and irrespective of the department or office in which such service was rendered, subject to the fulfilment of the conditions laid down therein.
15. The question, in our considered opinion, must be viewed from that angle. The doctrine of equal pay for equal work would not mean that all the members of a cadre must receive the same packet of emoluments irrespective of their seniority, source of recruitment, educational qualifications and various other incidence of service. There may be certain fortuitous circumstances by reason whereof if a junior get a higher pay, unless and until there exists a statutory rule in that behalf, the senior cannot claim the same pay as that of the junior as a matter of right.
16. The grant of selection grade, as indicated hereinbefore, has got nothing to do with the seniority and the benefit of one rule cannot be brought in aid for the purpose of another. Furthermore, such selection grade having been granted in favour of the 5th respondent as far back in the year 1975, as rightly held by the learned Tribunal, the same could not have been set aside after twenty five years which would be unjust. It is, therefore, not a case where the Tribunal could be said to have committed an illegality warranting interference by this Court in exercise of the power of judicial review under Article 226 of the Constitution of India.
17. For the reasons, aforementioned, we find no merit in the writ petition which is accordingly dismissed. There shall be no order as to costs.