Full Judgment Text
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CASE NO.:
Appeal (civil) 628 of 2004
PETITIONER:
P. Srinivas
RESPONDENT:
M. Radhakrishna Murthy and Ors.
DATE OF JUDGMENT: 30/01/2004
BENCH:
DORAISWAMY RAJU & ARIJIT PASAYAT
JUDGMENT:
J U D G M E N T
(Arising out of SLP (Civil) No. 2733/2003)
ARIJIT PASAYAT, J.
Leave granted.
Appellant questions correctness of the judgment
rendered by a Division Bench of the Andhra Pradesh High
Court which by the impugned judgment held that respondent
no.1 was to be ranked senior to the appellant in the
seniority list. The view taken by the Andhra Pradesh
Administrative Tribunal at Hyderabad (for short ’the
Tribunal’) holding that the appellant was senior to
respondent no.1 was upset.
Factual scenario which is also almost undisputed is as
follows :
The Andhra Pradesh Service Commission (for short ’the
Commission’) issued an advertisement inviting application
from eligible candidates to be appointed to the post of Road
Transport Officer (for short ’the RTO’). Appellant and
Respondent no.1 and others responded to the advertisement.
On 13.5.1987 appointment order was issued to the appellant
and other selected candidates including respondent no.1
after they were successful in the selection process
conducted by the Commission. In the appointment order 60
days time was granted to the appellant as well as other
selected candidates to join the post i.e. the selected
candidate was to join the duty on or before 12.7.1987. At
the relevant time, the appellant was employed with the
Central Secretariat as Section Officer. Therefore, he made a
request to the Government of Andhra Pradesh to extend the
time as per clause 3 for joining the duty in terms of
appointment order. On 25.6.1987, the Government vide its
memo dated 25.6.1987 extended the joining time and permitted
the appellant to join duty on or before 31.7.1987. In
reality the appellant joined on 21.7.1987. By Govt. memo
no.470 dated 10.10.1991 appellant’s services in the post of
RTO were regularized. Seniority lists were periodically
prepared and circulated on 28.3.1989, 13.5.1993 and
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27.5.1996 where the appellant was shown as senior to
respondent no.1. There was no challenge to the same by the
1st respondent, at any of the relevant points of time.
In 1997, both the appellant and respondent no.1 were
promoted as Deputy Transport Commissioner and in the
promoted post also, appellant was shown at Sl.No.14 as
against 1st respondent shown as Sl. No.17. In the
seniority list prepared on the basis of notional dates given
in G.O.M.S.No.153 dated 14.8.1997 was said to have been
approved and communicated by Transport Commissioner in his
proceedings dated 19.6.1995 also the appellant was shown as
senior to respondent no.1. Respondent no.1 approached the
Tribunal only at this stage making a grievance that his
representation regarding fixation of seniority was not being
disposed of. By order dated 17.5.2000 in OA No. 2369 of
2000 the Tribunal directed the concerned authorities to
dispose of the representation said to have been made for
relief. On 26.5.2000 a combined list of RTOs was published
as noticed above, where the appellant was shown as senior at
Sl.No.41 to respondent no.1 shown as Sl.No.44. Subsequently
on 31.5.2000 provisional seniority list of DTCs was
published as indicated above. Respondent no.1 assailed the
seniority lists dated 26.5.2000 and 31.5.2000 before the
Tribunal in OA No. 3381 of 2000. During pendency of the
matter before the Tribunal, the Government issued GOMs No.14
dated 29.1.2001 showing respondent no.1 as senior to the
appellant in the seniority list. In view of this memo,
respondent no.1 wanted disposal of his application before
the Tribunal as infructuous, but the Tribunal refused to
accept the prayer observing that there was challenge to the
correctness of the same in some connected matters.
The stand of respondent no.1 before the Tribunal was
that since the appellant had joined the duties after the
prescribed period of 60 days indicated in the appointment
order, he had to be ranked junior to respondent no.1 who had
joined earlier. It was submitted that Government could not
have extended the joining report and it was the Commission
alone which is competent to do it. In any event, the effect
of G.O.Ms. 822 dated 18.9.1967 made the position clear that
if a person does not join within the stipulated time not
only there was power to withdraw his selection but even if
somebody had joined later, the fact that he did not join
within the stipulated period of 60 days disentitled him from
seniority. Tribunal did not accept this plea. It also found
no substance in the plea that the date of joining would
govern seniority if the concerned employee had not joined
within the time stipulated in the appointment order. It
took note of the fact that Government had permitted the
appellant to join by 31.1.1987, and in fact, he had joined
on 21.1.1987. Referring to Rule 33(b) of the Andhra Pradesh
State and Subordinate Service Rule 1962 (in short ’the
Rule’), it held that the appointing authority may at the
time of passing an order appointing two or more persons
simultaneously to a service, fix the order of preference
among them and when such order has been fixed, seniority is
to be determined in accordance with it. Appellant,
indisputably was placed on the basis of merit performance in
inter se ranking higher than the respondent no.1. Obviously,
he has to be treated necessarily as senior to the respondent
no.1.
Respondent no.1 questioned correctness of the
Tribunal’s judgment by filing writ petition before the
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Andhra Pradesh High Court. It was contended that power of
extension was available only to the Commission and not the
State Government. Further the GO itself merely provided that
in case a person does not join within the stipulated time,
the effect was that his name is to be removed from the list
of selected candidates, except in cases where the Commission
considers that there are valid reasons for extending the
period.
Relying on the prescription in GO.Ms. 822 GA (Services-
A) Department dated 18.9.1967 the High Court accepted
respondent no.1’s stand and directed that he is to be
treated as senior. It was held so since appellant did not
join within the period of 60 days and thereby he lost also
seniority to which he was entitled to on the basis of merit
ranking.
Learned counsel for the appellant with reference to the
order of the Government of Andhra Pradesh pointed out that
the State Government itself, in his case had granted time
upto 31.1.1987 and, in fact, the appellant had joined
admittedly even before that date. That being so, there was
no question of appellant losing his seniority fixed
initially based on merit ranking. In the present case the
name of the appellant was not removed from the list. He was
permitted to join by grant of further time and continued as
senior to respondent no.1 as shown in various seniority
lists, and there was no challenge to any of them, at the
appropriate point of time. Admittedly, the appellant joined
in the year 1987 and after more than a decade it was not
open to respondent no.1 to question the propriety of the
extension of time given by the State Government enabling the
appellant to join within the extended time. The 1st
respondent had no infeasible right to question the extension
of time granted by the State Government and at any rate to
question the same, at any time according to will and
pleasure. The long lapse of time and laches on his part
disentitles the 1st respondent to claim any such relief at
the belated stage almost after a decade.
Per contra learned counsel for respondent no.1
submitted that the State Government had no authority to
extend joining time. It was only the Commission which has
power to do so and the High Court rightly observed that the
extension given to the appellant was itself bad and,
therefore, the benefit of the Rules stipulated in terms of
seniority of the candidates who were selected during one
selection has to be reckoned in accordance with appointment
in the selection was not available to be given.
We find that the GO.Ms. 822 dated 18.9.1967 issued by
the Government of Andhra Pradesh was dealing with the
question of fixing the time limit for the candidates
selected by the Commission to join when they were to be
appointed by direct recruitment. Taking the factual position
as prevailing then, it was indicated that the time limit to
be normally 60 days. It was further stipulated therein that
in case they did not join within stipulated time, their
names could be removed from list of selected candidates.
Service Commission was enabled to extend and give further
time for joining before deleting the name of the candidate
concerned from the select list for not joining in time. The
power of extending time given to the Commission under the
G.O. was not in relation to any statutory prescription, and
cannot be also said to be in derogation of the powers of the
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State Government as the ultimate repository of all Executive
power. On the other hand, the Government itself provided
that the time could be extended if the Commission considered
it necessary. This was merely an enabling power conferred by
the Government only and the G.O. cannot be construed to be
self destructive of the power of the Government, in the
absence of any statutory rules as such, in this regard. The
Commission appears to have been enabled to grant time to
effectively monitor the operation of the main list as well
as the waiting list (in order of merit) without any undue
lapse of time, in case the selected candidates did not join
within the indicated time period. It was an executive
decision of the Government. When the Government itself
extended the time, in case of the petitioner, on the basis
of the reasonableness of the request it cannot be said that
in the absence of any order passed by the Commission
extending the time, the extension granted by the Government
was without authority in law.
It can be also looked at from another angle. The
appellant was granted extension upto 31.7.1987 to join. It
was open to the Service Commission or Government at that
stage to direct removal of his name from the list of
selected candidates. Neither the Commission nor the
Government thought it appropriate to do so. On the other
hand, the Government extended the joining period and the
appellant joined the post. In several periodical seniority
lists thereafter the appellant’s name was placed higher than
respondent no.1. For more than a decade, respondent no.1
did not question that position. After a very long period it
was not open to respondent no.1 to turn around and say that
the extension of time to the appellant was not in accordance
with law. It is undisputed that both the appellant and
respondent no.1 were selected in the same selection and the
appellant was more meritorious in terms of marks secured by
him in the selection process and ranked above the 1st
respondent and the inter se ranking and consequent inter se
seniority cannot be disturbed and rights flowing from such
ranking cannot be denied merely because there was some delay
in joining-all the more so when such delay was only of 8
days and also on account of getting relieved from the
Central Government, for reasons beyond his control, which
only seems to have weighed with the State Government to
accord extension of time also. The High Court seems to have
lost sight of the fact that it was not a case where reasons
were absent in the order of the Government extending the
joining time. On the contrary, the order itself indicates
the reasons why the appellant had sought for extension. The
Government taking note of the factual position highlighted
therein had granted extension. High Court has erroneously
held that no reasons were indicated.
In the above background, the inevitable conclusion is
that the appellant was to be placed higher in the seniority
list than respondent no.1 in terms of the inter se merit
ranking assigned by the Service Commission. The Tribunal
was right in its view, while the High Court could not be
held to be so. We set aside the judgment of the High Court
and restore that of the Tribunal so far as the appellant is
concerned.
The appeal is allowed but in the circumstances without
any order as to costs.
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