Andhra Pradesh High Court - Amravati
K. Siva Parvathi W/O. T. Rama Krishna Rao vs D.V. Ramana Murthy S/O. D. Tavitayya on 22 June, 2022
Author: Prashant Kumar Mishra
Bench: Prashant Kumar Mishra
IN THE HIGH COURT OF ANDHRA PRADESH : AMARAVATI
HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA, CHIEF JUSTICE
&
HON'BLE MR. JUSTICE D.V.S.S. SOMAYAJULU
W.A. Nos. 1406 of 2016 & 304 of 2017
(Proceedings through physical mode)
W.A. No. 1406 of 2016:
K. Siva Parvathi W/o. T. Rama Krishna Rao,
Aged 42 years, Occ: Assistant Registrar in
Dr.NTR University of Health Sciences,
Examination Wing, Vijayawada,
R/o. Flat No.403, PVN Plaza, Srinivas Nagar,
Bank Colony, Vijayawada, Krishna District
and another. ..Appellants
Versus
D.V. Ramana Murthy S/o. D. Tavitayya,
Aged 44 years, Occ: Superintendent in
Dr.NTR University of Health Sciences,
Vijayawada, R/o. Flat No.S-2, S.S. Towers,
Srinivas Nagar, Bank Colony, Vijayawada,
Krishna District and others. ..Respondents
Counsel for the Appellants : Mr. P.B. Vijay Kumar
Counsel for Respondents No.1 to 5 : Mr. M. Vijaya Kumar
Counsel for Respondent No.6 : Mr. G. Vijaya Kumar,
Standing Counsel for Dr.NTR
University of Health Sciences
W.A. No. 304 of 2017:
Dr. NTR University of Health Sciences,
Vijayawada, rep. by its Registrar. ..Appellant
Versus
D.V. Ramana Murthy S/o. D. Tavitayya,
Aged 44 years, Occ: Superintendent in
Dr.NTR University of Health Sciences,
Vijayawada, R/o. Flat No.S-2, S.S. Towers,
Srinivas Nagar, Bank Colony, Vijayawada,
Krishna District and others. ..Respondents
Counsel for the Appellant : Mr. G. Vijaya Kumar,
Standing Counsel for Dr.NTR
University of Health Sciences
Counsel for Respondents No.1 to 5 : Mr. M. Vijaya Kumar
Counsel for Respondents No.6 & 7 : Mr. P.B. Vijay Kumar
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COMMON JUDGMENT (ORAL)
Dt: 22.06.2022 (per Prashant Kumar Mishra, CJ) Both these two intra-court appeals under Clause 15 of the Letters Patent would call in question the same order passed by the learned single Judge in W.P. No.35244 of 2012 dated 04.11.2016.
2. For the purpose of convenience, the parties will be referred to as arrayed in the writ petition.
3. By the order under appeal, the learned single Judge has allowed the writ petition by declaring the action of the 1st respondent - Dr. NTR University of Health Sciences, Vijayawada in placing the writ petitioners below respondent Nos.2 and 3 (K. Siva Parvathi and G.N.J.P. Kumari respectively) in the final seniority list communicated on 10.10.2012 as contrary to law and while setting aside the same, a direction was also given to the 1st respondent-University to place the writ petitioners above respondents No.2 and 3 in the final seniority list in the cadre of Senior Assistants. Since the respondents No.2 and 3 as well as the writ petitioners were subsequently promoted to the post of Superintendent and even in the final seniority list communicated vide circular dated 29.09.2014 for the cadre of Superintendent in the University, the writ petitioners have been placed below respondents No.2 and 3, the said final seniority list dated 29.09.2014 has also been set aside and the 1st respondent-University has been directed to review the said seniority with effect from 10.12.2011 giving promotion with effect from 10.12.2011 as Superintendents and restore the writ petitioners' seniority above respondents No.2 and 3. The said exercise was directed to be done within two months from the date of receipt of a copy of the order. 3
4. Brief facts, which are necessary for the purpose of disposal of the present appeals, are as follows:
(i) The writ petitioners as well as the unofficial respondents were working as Senior Assistants in the 1st respondent/University. While the writ petitioners No.1 to 4 have initially joined the service as directly recruited Junior Assistants, the writ petitioner No.5 has joined as directly recruited Telephone Operator, in the year 1996. On the other hand, the respondents No.2 and 3 have joined as directly recruited Junior Stenographers in the year 1996.
(ii) At the relevant point of time, the writ petitioners were promoted as Senior Assistants and the date of promotion of each of the writ petitioners is as follows:
Petitioner No.1 - 15.10.2009 Petitioner No.2 - 30.08.2011 Petitioner No.3 - 30.08.2011 Petitioner No.4 - 30.08.2011 Petitioner No.5 - 30.08.2011
(iii) On the other hand, the respondent No.2 was promoted as Senior Stenographer on 18.09.2000, whereas the respondent No.3 was promoted as Senior Stenographer on 17.07.2003. Vide two separate orders dated 30.08.2011, the respondent Nos. 2 and 3 were appointed, by conversion, to the post of Senior Assistant as per Note (10) under Rule 3 and Rule 16 of the Andhra Pradesh Ministerial Service Rules, 1998 (for short "the Rules of 1998"), which permitted such conversion as a lawful mode of appointment. There is no challenge at any point of time to the conversion of these respondents from the post of Senior Stenographer to the post of Senior Assistant under the Rules of 1998.4
(iv). While the matters stood thus, the University issued tentative seniority list in the cadre of Senior Assistant as on 01.09.2012.
Certain objections to the said tentative seniority list were received and consequently, the Vice-chancellor constituted a committee to verify the representation and to take a final decision in the matter. The committee submitted its report on 09.10.2012, recommending to finalize the tentative seniority list placing the respondent Nos.2 and 3 above the petitioners in the cadre of Senior Assistant. It is the said seniority list which has been called in question by the petitioners before the writ Court on the ground that their joining in the post of Senior Assistant is prior to the joining of the respondent Nos.2 and 3 and, therefore, they are seniors to the respondent Nos.2 and 3 and as such, by virtue of Rule 33 of the Andhra Pradesh State and Subordinate Services Rules, 1996 (for short "the Rules of 1996"), they are entitled to be placed above the respondent Nos.2 and 3.
(v) By the order under challenge, the learned single Judge has allowed the writ petition and issued the directions as noted in the preceding paragraph. Aggrieved thereby, the respondent Nos.2 and 3 have preferred W.A.No.1406 of 2016, while the 1st respondent- University has preferred W.A.No.304 of 2017.
5. Before the learned single Judge, the petitioners pressed into service the provisions contained in Rule 33 of the Rules of 1996, whereas the University and the unofficial respondents laid emphasis on the applicability of the Rules of 1998. Faced with this situation, the learned single Judge considered the issue as to which of the above two Rules would apply in the given fact situation.
6. Learned single Judge has observed that while promoting the respondent Nos.2 and 3 to the cadre of Superintendent, the 1st 5 respondent-University has followed the Rules of 1996, whereas in allowing their conversion from the post of Senior Stenographer to Senior Assistant, the 1st respondent-University has followed the Rules of 1998 and in reply to a query under the Right to Information Act, the Registrar of the University as P.R.O. has informed that the University has decided to follow the Rules of 1996 in respect of the ministerial staff of the University. The learned single Judge has, therefore, concluded that it is the Rules of 1996 which would apply to determine the inter-se seniority between the parties and not the Rules of 1998.
7. It is argued before us by the learned counsel for the appellants that under Rule 1(d) of the Rules of 1996, a special rule would prevail over the general rule, i.e., the Rules of 1996 in the present case, therefore, in terms of Rule 15(2)(i) of the Rules of 1998, the seniority of the respondent Nos.2 and 3 has rightly been reckoned from the date of their appointment as Senior Stenographers. It is also argued that the Registrar of the University is not empowered to take any decision as to the applicability of the Rules of 1998 or the Rules of 1996 to the ministerial staff and a decision in that regard has to be taken by the competent body of the University.
8. On the other hand, learned counsel appearing for the writ petitioners would harp on Rule 33 of the Rules of 1996 and the reply of the Registrar of the University in response to the Right to Information Act. According to him, once the University has chosen to apply the Rules of 1996, it cannot take a different stand in respect of the writ petitioners.
9. We have considered the submissions of the learned counsel for the parties and perused the record.
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10. From the rival contentions of the parties, it is apparent that the issue as to which of the two Rules, i.e., the Rules of 1996 or the Rules of 1998 would govern the aspect of seniority, is the bone of contention between the parties.
11. The Rules of 1996, which are made by the State Government in exercise of the powers conferred under the proviso to Article 309 of the Constitution of India, are general rules applicable to the State and Subordinate Services and to the holders of the posts, whether temporary or permanent, included in any State or Subordinate Services except to the extent otherwise expressly provided, as mentioned in Rule 1(c). Significantly, Rule 1(d) provides that if any provisions in these Rules are repugnant to the provisions in the special rules applicable to any particular service in regard to any specific matter, the latter shall, in respect of such service and such specific matter, prevail over the provisions in these Rules. Rule 2(17) of the Rules of 1996 defines 'General Rules' to mean the Andhra Pradesh State and Subordinate Service Rules. Similarly, Rule 2(31) defines 'Special Rules' to mean the rules applicable to each service or class or category of a service, which include ad-hoc rules applicable to temporary posts in a service, or class or category, which are not covered by the special rules.
12. The Rules of 1998 have also been enacted in exercise of the powers conferred under the proviso to Article 309 of the Constitution of India, and these Rules are the Special Rules applicable to the classes and categories of posts mentioned in Rule 2. Thus, the Rules of 1998 have been made applicable to certain specified categories of posts and not in general to all the categories of posts in the State Government. While Rule 33 of the Rules of 1996 provides that the seniority of a person in a service, class, category or grade, shall unless he had been reduced to a lower rank as a punishment, be determined by the date of 7 his first appointment to such service, class, category or grade, Rule 15 of the Rules of 1998 makes special provision for determining the seniority.
13. Rule 15 of the Rules of 1998, to the extent relevant, is extracted hereunder:
"15. SENIORITY :- (1) Service rendered in a post or group of posts bearing a distinct designation and included in category as constituted by Rule (2) shall count for seniority in such category, post or group of posts irrespective of the Department or Office in which such service was rendered:
Provided that--
(i) in the case of a person those 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 his services were lent shall count for seniority in the parent Department or office only from the date of regular appointment 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 from one department or office or unit of appointment to another department or office or unit of appointment shall be fixed in the latter department or office or unit with reference to the date of his first appointment in the former department or office or unit;
(iii) the seniority of a member of the service who is transferred at his own request from one department or office or unit of appointment to another department or office or unit of appointment shall be fixed in the latter department or office or unit with reference to the date of his first appointment in the latter department or office or unit;8
(2) (i) The seniority of a member of the service who is appointed by conversion from the post of Special Category Stenographer to the post of Superintendent or from the post of Senior Stenographer or U.D. Typist 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 or UD Typist as the case may be.
(2) (ii) The seniority of a member of service who is appointed by conversion from the post of Junior Stenographer/Typist to the post of Junior Assistant or Assistant-cum-Typist after 14.7.1998 shall be fixed with reference to the date of his first appointment as Junior Stenographer/Typist as the case may be.
Provided that the seniority of the Junior Assistants, who were already promoted as Senior Assistants shall be protected.
........."
14. A plain reading of Rule 15 of the Rules of 1998 would manifest that seniority of a member of the service, who is appointed by conversion from the post of Senior Stenographer to the post of Senior Assistant, is to be fixed with reference to the date of their first appointment as Senior Stenographer. Admittedly, the respondent Nos.2 and 3 were appointed in the post of Senior Stenographer on 18.09.2000 and 17.07.2003 respectively, i.e., before the appointment of the writ petitioners in the said post. Here, it is to be noted that their conversion from the post of Senior Stenographer to the post of Senior Assistant, in terms of the Rules of 1998, was never put to challenge by anyone. In the circumstances, if the Rules of 1998 are made applicable, in terms of Rule 15 of the Rules of 1998, on their conversion from the post of senior Stenographer to the post of Senior Assistant, the respondent Nos.2 and 3 would be entitled for fixation of their seniority with reference to the 9 date of their first appointment as Senior Stenographer, i.e., from 18.09.2000 and 17.07.2003 respectively.
15. There is no material on record that the University has chosen any particular Service Rules to be made applicable to its employees. The Executive Council of the University, by its resolution dated 23.12.1991, has resolved to adopt both the Rules, i.e., the Rules of 1996 and the Rules of 1998. Such being the case, the issue that needs consideration is whether, in the present case, the special rules, i.e., the Rules of 1998, or the general rules, i.e., the Rules of 1996, would be made applicable in the matter of seniority of the respondent Nos.2 and 3. In this regard, the law is well settled that when there are two Rules framed by the State Government under Article 309 of the Constitution of India, the Special Rules framed for any particular class or category of employees would govern such class or category of employees and not the General Rules.
16. The principle that general provision should yield to the specific provision derives its source from the legal maxim generalia specialibus non derogant. The Hon'ble Supreme Court applied the said principle in Suresh Nanda v. Central Bureau of Investigation, reported in (2008) 3 SCC 674 in paragraphs 10, 11 and 18, which are reproduced as hereunder:
10. Thus, the Act is a special Act relating to a matter of passport, whereas Section 104 CrPC authorises the court to impound document or thing produced before it. Where there is a special Act dealing with specific subject, resort should be had to that Act instead of general Act providing for the matter connected with the specific Act. As the Passports Act is a special Act, the rule that "general provision should yield to the specific provision" is to be applied. See Damji Valji 10 Shah v. LIC of India [AIR 1966 SC 135] ,Gobind Sugar Mills Ltd. v. State of Bihar [(1999) 7 SCC 76] and Belsund Sugar Co. Ltd. v. State of Bihar [(1999) 9 SCC 620 : AIR 1999 SC 3125]."
"11. The Act being a specific Act whereas Section 104 CrPC is a general provision for impounding any document or thing, it shall prevail over that section in CrPC as regards the passport. Thus, by necessary implication, the power of court to impound any document or thing produced before it would exclude passport."
"18. In our opinion, even the court cannot impound a passport. Though, no doubt, Section 104 CrPC states that the court may, if it thinks fit, impound any document or thing produced before it, in our opinion, this provision will only enable the court to impound any document or thing other than a passport. This is because impounding of a "passport" is provided for in Section 10(3) of the Passports Act. The Passports Act is a special law while CrPC is a general law. It is well settled that the special law prevails over the general law vide G.P. Singh's Principles of Statutory Interpretation (9th Edn., p. 133). This principle is expressed in the maxim generalia specialibus non derogant. Hence, impounding of a passport cannot be done by the court under Section 104 CrPC though it can impound any other document or thing."
17. In Gobind Sugar Mills Ltd. V. State of Bihar, reported in (1999) 7 SCC 76, the Hon'ble Supreme Court observed that while determining the question whether a statute is a general or a special one, focus must be on the principal subject-matter coupled with a particular perspective with reference to the intendment of the Act. After analysing the two enactments falling for consideration, the Hon'ble Supreme Court observed that there can be no doubt that the legislature intended to 11 enact a special enactment for the purpose of levy of purchase tax with reference to sugarcane under the Sugarcane Act to the exclusion of such levy under the Finance Act and, further, that once we come to the conclusion that this is the intention of the legislation, then the rule "general provision should yield to special provision" is squarely attracted. In Damji Valji Shah v. LIC of India, reported in AIR 1966 SC 135 also, the Hon'ble Supreme Court observed that the provisions of the special Act, i.e. the LIC Act, will override the provisions of the general Act, viz., the Companies Act, which is an Act relating to companies in general.
18. In the present case also, the Rules of 1998 are special rules, whereas the Rules of 1996 are general rules. Therefore, considering the legislative intention of enacting a special rule under Article 309 of the Constitution of India and applying the principle generalia specialibus non derogant, to the legal issue brought before this Court, this Court is of the considered view that Rules of 1998 would apply and not the Rules of 1996.
19. Having regard to the settled legal position and considering the fact that the conversion of the respondent Nos.2 and 3 from the post of Senior Stenographer to the post of Senior Assistant was done in terms of the Rules of 1998 and such course of action adopted by the University being permissible as per rules and the conversion having been never challenged by any aggrieved party, we are of the considered opinion that the respondent Nos.2 and 3 are entitled to the benefit of fixation of their seniority with reference to the date of their first appointment as Senior Stenographers, in terms of Rule 15(2)(i) of the Rules of 1998. Thus, the action of the University in placing the respondent Nos.2 and 3 above the writ petitioners in the seniority list of Senior Assistants as on 08.10.2012, communicated on 10.10.2012, cannot be said to be 12 erroneous and the order passed by the learned single Judge holding to the contrary and issuing consequential directions is liable to be set aside.
20. Accordingly, the order under appeal passed by the learned single Judge is set aside. While setting aside all the directions issued by the learned single Judge in the order under appeal, we observe that the respondent Nos.2 and 3 shall be given all the benefits to which they are entitled, by fixing their seniority in terms of Rule 15(2)(i) of the Rules of 1998.
21. Resultantly, the writ appeals are allowed. No costs. Pending miscellaneous applications, if any, shall stand closed.
Sd/- Sd/-
PRASHANT KUMAR MISHRA, CJ D.V.S.S. SOMAYAJULU, J
GM/MRR
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HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA, CHIEF JUSTICE & HON'BLE MR. JUSTICE D.V.S.S. SOMAYAJULU W.A. Nos. 1406 of 2016 & 304 of 2017 (per Prashant Kumar Mishra, CJ) Dt: 22.06.2022 GM