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2023 DIGILAW 747 (AP)

G. Venugopal, S/o Late G. Lakshmaiah v. Director Of State Audit

2023-05-02

CHEEKATI MANAVENDRANATH ROY, V.GOPALA KRISHNA RAO

body2023
ORDER : CHEEKATI MANAVENDRANATH ROY, J. Both these writ petitions are filed against the common order, dated 03.09.2010, of the Andhra Pradesh Administrative Tribunal at Hyderabad, (for short, “the Tribunal”), passed in O.A.Nos.12667 and 12888 of 2009, whereby the orders of reverting the petitioner to the lower grade post and the order fixing the seniority of the petitioner as junior to respondent No.3, are confirmed. 2. Both the petitions were heard together and they are being disposed of by this common order as the Tribunal has disposed of both the O.As by a common order. 3. Heard the learned counsel for petitioner and the learned counsel for the 3rd respondent. 4. The petitioner was initially appointed on compassionate ground as an attender in State Audit Department of Tirumala Tirupati Devasthanam, as per the order issued by the District Collector, Chittoor to that effect. The third respondent was also appointed as attender in the same Department of T.T.Devasthanam as per the proceedings issued by the District Collector. The third respondent was appointed in S.C. backlog vacancy. 5. The third respondent was earlier promoted to the higher post. But, subsequently, the third respondent was reverted on the ground that she was junior to the petitioner. 6. Questioning the said proceedings of reverting the third respondent back to the previous post and fixing the seniority showing the petitioner as senior to the third respondent, the third respondent filed O.As. before the Tribunal. Both the said O.As. were allowed holding that the third respondent is senior to the petitioner. The Tribunal also in its order held that the seniority has to be fixed as per Rule 33-A of Andhra Pradesh State and Subordinate Service Rules, 1996. 7. Aggrieved thereby, the petitioner preferred these two writ petitions challenging the order of the Tribunal. 8. Although it is contended by the learned counsel for petitioner that the petitioner was originally appointed as attender on 19.06.2002 and the third respondent was appointed on 21.06.2002, the said contention is not found to be correct as per material available on record. As per the proceedings, dated 15.06.2002, both of them were appointed on 15.06.2002 itself. 8. Although it is contended by the learned counsel for petitioner that the petitioner was originally appointed as attender on 19.06.2002 and the third respondent was appointed on 21.06.2002, the said contention is not found to be correct as per material available on record. As per the proceedings, dated 15.06.2002, both of them were appointed on 15.06.2002 itself. Rule 33-A of Andhra Pradesh State and Subordinate Service Rules, 1996 deals with fixation of seniority and it reads thus: “The seniority of a person in service, class, category or grade, shall, unless he has been reduced to a lower rank as punishment be determined by the date of his appointment to such service, class, category or grade.” 9. It is well settled law that when there is specific Rule, which deals with fixation of seniority, the seniority of employees has to be fixed in accordance with the said Rule without any deviation. As the rule mandates that the seniority has to be determined by the date of the appointment of the employee to such service, the seniority of the petitioner is rightly fixed on the basis of his appointment. 10. Considering the facts and circumstances of the case, the Tribunal also rightly held, at para.20 of the common order, as follows: “20. It is further seen that the post of Junior Auditor is borne on the AP State Audit Subordinate Service, for which rules are framed vide G.O.Ms.No.213, dt.18.07.2006 under proviso to Article 309 of the Constitution of India. Rule 3 of the said Rules provides for the method of appointment and appointing authority for various categories of posts sanctioned to the department. The post of Junior Auditor falls under Category-2 of the Table appended to Rule 3. Rule 6 r/w. Annexure in Category-2(iii) of the Rules, provides for minimum qualifications of a pass in Intermediate examination or any equivalent examination. Rule-8 states that in case of Record Assistants and Attenders (now Office Subordinates), they shall have to put in not less than five years of service from the date of commencement of probation in the respective category for appointment by transfer to the category of Junior Auditor. Sub-clause-iv in Rule 3 of the Table appended to the rules provides for appointment by transfer from among Attenders working in the State Audit Department. Sub-clause-iv in Rule 3 of the Table appended to the rules provides for appointment by transfer from among Attenders working in the State Audit Department. Every second vacancy in a cycle of six vacancies shall have to be filled up by appointment by transfer from the post of Record Assistant/ Attender. The applicant had acquired the training qualification. Further, she is an approved probationer in the category of Attender and had put in five years of service and qualified as on the date of occurrence of second vacancy in a cycle of six vacancies for the post of Junior Auditor to be filled up by Attender. As pointed out supra, but for the mistake committed by the respondents, the applicant ought to have been appointed by transfer as Junior Auditor with effect from the date of occurrence of the vacancy. I have perused the impugned orders. The impugned orders sans reasons and have not determined the seniority issue which was directed to be decided. Further more, it is seen that till to date, no seniority list of Attenders as well as Junior Auditors is maintained by the respondents. Thus, the contention of the 2nd respondent that the 3rd respondent is senior to the applicant, is without any basis.” 11. Therefore, as rightly held by the Tribunal, the 3rd respondent got requisite service of five years and qualified to be promoted/appointed as Junior Auditor by the date on which second vacancy in a cycle of six vacancies arose. So, she is entitled to promotion from that date. Therefore, she is senior to the petitioner. 12. The contention of the petitioner that seniority is to be fixed as per the roster point is not tenable. Roster point is meant only for the purpose of appointment on the basis of various reservations contemplated under the said roster. In fact, the Supreme Court also in Bimlesh Tanwar Vs. State of Haryana and others, 2003 SCC (L&S) 737, clearly held that seniority cannot be fixed in terms of roster points. 13. The Tribunal also while relying on the said judgment of the Apex Court in Bimlesh Tanwar1 rightly held that seniority cannot be fixed in terms of roster point, as contended by the petitioner herein. 14. Therefore, we do not find any legal flaw or infirmity in the impugned common order of the Tribunal. Ergo, the same is, sustainable under law. 15. 14. Therefore, we do not find any legal flaw or infirmity in the impugned common order of the Tribunal. Ergo, the same is, sustainable under law. 15. Resultantly, these writ petitions are dismissed, confirming the orders of the Tribunal. There shall be no order as to costs. Miscellaneous petitions, if any, pending in these petitions shall stand closed.