Andhra HC (Pre-Telangana)
Managing Director, Vice-Chairman, ... vs M. Venkat Rao on 19 December, 2000
Equivalent citations: 2001(1)ALD347, 2001(1)ALT371
Author: Satya Brata Sinha
Bench: Satya Brata Sinha, B. Subhashan Reddy
ORDER
Satya Brata Sinha, CJ
1. This appeal is directed against a judgment dated 9-7-1998 passed by a learned single Judge of this Court in Writ Petition No.1885 of 1993 whereby and whereunder the writ application filed by the respondent herein was allowed.
2. The basic facts of the matter are not in dispute." The writ petitioner was appointed as temporary Driver Grade-II with effect from 6-11-1977. He was posted at Nellore Depot, which was then in Ongole Division. He, thereafter, was posted to Kalahasti Depot, which was in Tirupati Division. The services of the writ petitioner were regularise as Driver Grade-Ii with effect from 6-11-1977. The writ petitioner filed an application for his transfer to Ongole Division in the year 1986 and basing on his representation that the would not claim his original seniority, he was permitted to join at Ongole on or about 4-8-1986. In the writ application, however, the writ petitioner-respondent contended that his seniority should be counted from 6-11-1977. The said writ application was allowed by reason of the impugned order.
3. The learned Counsel appearing on behalf of the appellant inter alia, submitted that having regard to the fact that the writ petitioner himself opted for transfer to Ongole Division, he could not claim his seniority in relation to services rendered earlier. Our attention, in this connection has been drawn to a Circular letter issued on 8-9-1977 and Para 5.3 of the said Circular reads thus :
"Request transfers ordered outside the seniority area should result the employee becoming junior most in that cadre in the seniority area to which he is to be transferred".
4. The learned Counsel would urge that the validity of the aforementioned Circular came up for consideration before a Division Bench of this Court in A.P.S. Road Transport Corpn. v. B. Sreenivasulu, 1995 (3) ALD 1030.
5. The learned Counsel appearing on behalf of the respondent, on the other hand, submitted that a learned single Judge of this Court in Writ Petition No.172 of 1978 had held that in terms of the Regulations governing the field, the seniority of such person should be reckoned from the date of initial joining. It was submitted that in any event the Apex Court while considering similar matters in Union of India v. C.N. Ponnappan, and Scientific Advisor to Raksha Mantri v. V.M. Joseph, 1998 (3) Scale 529, has categorically held that where an employee holds a permanent post acquiring a permanent status, he cannot be excluded from consideration for determining his eligibility for promotion, though he may have been placed at the bottom of the senior list at the transferred place.
6. It is not in dispute that the conditions of service of the writ petitioner-respondent are governed by the Andhra Pradesh State Road Transport Corporation Employees (Service) Regulations, 1964. Regulations 3 and 5 of the said Regulations read thus:
"3. Seniority:
(a) The "Seniority" of a person in 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. If any portion of the service of such person does not count towards probation his seniority shall be determined by the date of commencement of his service which counts towards probation.
5. A member of a service or class of a service may be required to serve any where and in any post borne on the cadre of such service or class in the Corporation".
7. It appears that on 8-9-1977 the appellant herein issued a Circular, Para 5.3 whereof relates to reckoning of the seniority of the employee who had been transferred at his own request as quoted supra.
8. The only question, which arises for consideration in this appeal, is as to whether the writ petitioner was entitled to be considered for promotion irrespective of the fact that he was placed as a junior-most employee at his transferred place.
9. Having considered all the aforementioned decisions referred to at the Bar, it appears that the point at issue is no longer res integra. It may be that the validity of Para 5.3 of the aforementioned Circular/ letter dated 8-9-1977 has been upheld in B. Sreenivasulu (supra) by a Division Bench of this Court. Despite that fact, the learned single Judge has proceeded on the basis that the aforementioned Circular, being contrary to Regulation 3.1 of the aforementioned Regulations, is ultra vires.
10. There cannot be any doubt, having regard to the aforementioned decision of the Apex Court, that although by reason of the said Circular dated 8-9-1977 the rule of seniority had been laid down but thereby the transferred employee does not lose his chance of promotion. The Apex Court has clearly laid down that the eligibility for promotion cannot be confused with seniority as they are two different and distinct factors. The point at issue, thus, is squarely covered by the aforementioned decisions of the Apex Court in Scientific Advisor to Raksha Mantri (supra). It has been held:
"The appellants contended that, since the respondent had been transferred on compassionated ground, on his own request to the post of Store Keeper at Cochin and was placed at the bottom of the seniority list, the period of 3 years of regular service can be treated to commence only from the date on which he was transferred to Cochin. This is obviously fallacious inasmuch as the respondent had already acquired the status of a permanent employee at Pune where he had rendered more than 3 years of service as a Store Keeper. Even if an employee is transferred at his own request, from one place to another, on the same post, the period of service rendered by him at the earlier place where he held a permanent post and had acquired permanent status, cannot be excluded from consideration for determining his eligibility for promotion, though he have been placed at the bottom of the seniority list at the transferred place. Eligibility for promotion cannot be confused with seniority as they are two different and distinct factors.
This Court in Union of India and others v. C.N. Ponnappan, , has held that, where an employee is transferred from one unit to another on compassionate ground and is placed at the bottom of the seniority list, the service rendered by him at the earlier place from where he has been transferred, being regular service, has to be counted towards experience and eligibility for promotion".
11. In view of the aforementioned authoritative pronouncements, although the seniority of the writ petitioner-respondent cannot be counted with effect from 6-11-1977, he shall be considered for promotion to the next higher post, if he is otherwise eligible therefor. This appeal is disposed of with the aforementioned direction.