Andhra HC (Pre-Telangana)
The Apsrtc, Rep. By Its Managing ... vs V.Muralidhar on 3 June, 2014
Bench: L. Narasimha Reddy, Challa Kodanda Ram
HONBLE SRI JUSTICE L. NARASIMHA REDDY AND HONBLE SRI JUSTICE CHALLA KODANDA RAM
WRIT APPEAL No.658 of 2014
03-06-2014
The APSRTC, rep. by its Managing Director, Hyderabad and four others.
Appellant
V.Muralidhar Respondent
Counsel for the Appellant :Sri H. Venugopal
Learned Standing Counsel for the APSRTC
Counsel for the respondent :Sri V. Narasimha Goud
Learned Counsel for the
Respondent
<Gist:
>Head Note:
? Cases referred:
(1998) 5 SCC 305
HONBLE SRI JUSTICE L. NARASIMHA REDDY
AND
HONBLE SRI JUSTICE CHALLA KODANDA RAM
WRIT APPEAL No.658 of 2014
JUDGMENT:- (per Honble Sri Justice L. Narasimha Reddy) The A.P.S.R.T.C. (for short the Corporation) filed this Writ Appeal assailing the order dated 25.09.2013 in W.P.No.10745 of 2009 which in turn, was filed by the sole respondent.
The respondent joined the service of the Corporation as a Conductor in Bhagyanagar region on 27.03.1985, and on his request, he was transferred to Nizamabad region vide orders dated 05.08.1987. He stated that he passed, the test prescribed for promotion to the post of Junior Assistant in the year 1993 itself. He was promoted to as Junior Assistant on 04.07.2008 along with 12 others vide orders dated 03.07.2008 passed by the 3rd appellant. However, through an order dated 29.05.2009, the 3rd appellant reverted the respondent to the post of Conductor. The reason mentioned by the 3rd appellant was that the seniority of the respondent was wrongly reckoned, with effect from the date of his initial appointment i.e., 27.03.1985, in stead of the date of his joining the service in the Nizamabad Region i.e. 18.08.1987. It was also pointed out that the respondent was placed at Sl.No. 284 in the seniority list of Conductors of Nizamabad Region, on the basis of his date of joining of service 27.03.1985, and on correction of the mistake, the respondent came to be placed at Sl.No.434A in the revised seniority list dt.21.03.2009.
The respondent challenged the proceedings dated 29.05.2009, by raising several grounds. He pleaded that according to relevant service regulations, the criterion for promotion to the post of Junior Assistant is an inter se seniority list, prepared for the candidates, hailing from all the feeder categories, and no illegality, as such, has crept in to the matter. He further pleaded that he was permitted to appear in the departmental tests, only on being found otherwise eligible and came to be included in the panel, on the basis of the performance in the test as well as reckoning of the service from the date of initial recruitment.
The appellant opposed the writ petition by stating that the seniority in the feeder category of Conductor constituted the basis, and the mere fact that the respondent secured eligibility, does not enable him to steal march. It was also urged that under a mistaken impression that the respondent joined the Nizamabad Region on 27.03.1985, he was placed at serial No.284 and once the mistake was noticed and it was realized that the respondent joined the Nizamabad Region only on 18.08.1987, he was placed at S.No.434-A. The appellant further pleaded that the question of violation of principles of natural justice does not arise and that the impugned order came to be issued, on the basis of revised seniority list dt.21.03.2009.
Heard Sri H. Venugopal, learned Standing Counsel for the Corporation and Sri V. Narasimha Goud, the learned counsel for the respondent.
It is an admitted fact that the respondent joined the service of the appellant on 27.03.1985 in the Bagyanagar Region. For the post of Conductor, Region, is the unit of appointment. The respondent intended to shift to Nizamabad Region, and his request was acceded to, and vide orders dated 05.08.1987, he was transferred to Nizamabad Region. As provided under service regulations as well as settled principles of law, the respondent had to forego his seniority in Bagyanagar Region, and he joined on 18.08.1987 in the Nizamabad Region as the junior most candidate, in that region.
For the post of Junior Assistant, the feeder category is not only the post of Conductor, but also other posts, such as, Routine Clerk, Telephone Operator, Comptist. Only such of the candidates who have put in a minimum service of seven years, and who have passed the departmental tests, become eligible for promotion, subject to inter se seniority and availability of vacancy.
The respondent, no doubt, has put in seven years of service, if reckoned from the date of initial appointment and cleared the departmental tests in the year 1993. However, he was treated as being within the zone of consideration, on reckoning his seniority in Nizamabad Zone the date of his initial appointment from 27.03.1985. Accordingly, he was promoted as Junior Assistant, through an order dated 03.07.2008.
The fact that the respondent joined Nizamabad Zone only on 18.08.1987, was noticed, after the respondent was promoted. The consequential steps of revising the seniority list were taken and a fresh revised seniority list was issued on 21.03.2009. In the revised seniority list, the respondent came to be placed at Sl.No.434-A. He could not have been in the Zone for consideration had he been at Sl.No.434-A when he was promoted. Therefore, the order of reversion was issued.
The contention advanced by the learned Counsel for the respondent, is that the integrated seniority list prepared, as per the note in the relevant service regulations, constitutes the basis for promotion of the respondent and the revised seniority list has nothing to do with the promotion to the post of Junior Assistant. This infact is the plea raised in the affidavit filed in support of the petition. We are in agreement with the same, but in part. The note appended to regulations at page 82 is only for the purpose of preparing inter se seniority list of the selected candidates, for the post of Junior Assistant from different feeder categories as well as from different regions, since the post of Junior Assistant happens to be zonal in nature. That exercise can be treated as one relevant for the fixation of seniority in the category of conductors, which alone happens to be basis for promotion. The seniority list in the category of Junior Assistant would also become relevant for identifying the eligible candidates, within the zone of consideration.
The seniority list for the post of Junior Assistant in Nizamabad region was prepared by reckoning the service of the respondent from the date of his initial appointment. The regulations make it clear that though the service in a unit of appointment has to be reckoned, from the date of joining of the post on appointment or on transfer, the date of initial recruitment must be taken in to account, in the context of determining the eligibility to consider for promotion. In other words, even if the length of service of the respondent in the Nizamabad Region is only for two years, the service rendered by him in Bhagyanaram Region must be added to him for limited purpose for determining his eligibility.
Another contention advanced by the learned counsel for the respondent was that the impugned order is violative of principles of natural justice. There is a clear mention of the revised list dt. 21.03.2009 in the impugned order. The respondent did not make any grievance, when the remaining seniority list was issued. As long as trial remains, he cannot challenge the consequential order of reversion. Once the promotion of the respondent was on the assumption that he placed at Sl.No.284 of the seniority list and ultimately emerged that he has to be placed at Sl.No.434-A, the inevitable consequence is that reversion must take place and trial is what exactly has taken place.
Even otherwise, we are not satisfied with the grounds pleaded by the respondent for assailing the revised seniority list. The reason is that he did not dispute the fact that he joined in Nizamabad Region only on 18.08.1987. If that is taken in to account, his place in the seniority list must be at Sl.No.434-A. The reason that weighed with the learned Single Judge, in the order under the appeal, is difficult to be sustained. The judgment of the Supreme Court rendered in the case of Scientific Advisor to Raksha Mantri Vs. V.M. Joseph is only in the context of reckoning minimum service, as regards. There is no dispute about that, in the instant case, seniority, however, is to be determined from the date of joining in the region. The observation made by the learned Single Judge that the seniority of the respondent for the promotion to be reckoned from 27.03.1985 i.e. the initial appointment does not draw support from the regulations. Even on the settled principles of service law, if an employee seeks transfer to a different unit of appointment, he must forego the service rendered in the earlier unit, and must be placed below the last candidate in the unit of appointment, to which he has been transferred. Viewed from any angle, we do not find any basis to interfere with the order of revision dated 29.05.2009.
It is not known whether any candidate who is now junior to the respondent has been promoted as Junior Assistant. If that has taken place the necessity to revert the respondent may not arise. We, therefore, allow the writ appeal
a) Setting aside the order dated 25.09.2013 passed by the learned Single Judge in W.P. No.10745 of 2009, and
b) Directing that in case of any Conductor, who is below to the respondent in the seniority list in Nizamabad Region, has been promoted as Junior Assistant, the respondent shall be continued in that post, subject to the revision of his seniority in the post of Junior Assistant.
Miscellaneous petitions, if any, pending in this Writ Appeal shall stand closed. There shall be no order as to costs.
________________________ L.NARASIMHA REDDY, J ________________________ CHALLA KODANDA RAM, J Date:03.06.2014