Judgment:
ORDER
S.B. Sinha, CJ
1. This writ petition is directed against an order dated 30-4-1999 passed by the Andhra Pradesh Administrative Tribunal in OA Nos.2196 of 1993 and 7066 of 1997.
2. The basic fact of the matter is not in dispute. The petitioner was appointed as Junior Assistant in Pothukatla Gram Panchayat. His services have been regularised by the District Panchayat Officer, Ongole by a proceeding dated 19-5-1984 with effect from 6-7-1981. He was put on probation and said to have been successfully completed his period of probation w.e.f. 5-7-1983. At his request, by proceedings of the Collector dated 6-2-1989 he was transferred to the Unit of the District Panchayat Officer. However, subsequently, by a proceeding dated 17-9-1990 he was reverted to his parent unit of Gram Panchayat.Petitioner challenged the said order before the Tribunal in OA No.58182 of 1990.
On a clarification sought by the District Panchayat Officer, the Government in its Memo No.57524/Estt.DO/92-2, dated 17-10-1992 clarified that as the transfer of the petitioner was within the district, his seniority has to be reckoned from the date of his original appointment i.e., 6-7-1981. Basing on the said clarification, the seniority of the petitioner in the category of Junior Assistants was reckoned from 6-7-1981 and he was promoted as Senior Assistant on 12-4-1993. Aggrieved by the Memo dated 17-10-1992, one Sri G. Prabhakar who is working as Junior Assistant in the Unit of the District Panchayat Officer has filed OA No.2196 of 1993.
3. While things stood thus, the petitioner was promoted as Extension Officer (Panchayats) by the proceedings of the Commissioner of Panchayat Raj dated 2-8-1997 and subsequently based on the revised seniority in the category of Junior Assistants with reference to Govt. Memo dated 17-10-1992 he was given notional promotion w. e.f. 8-11-1995 by the proceedings of the Commissioner dated 24-9-1997. Aggrieved by the said notional promotion given to the petitioner, one Sri V.V.M. Lakshmanarao who was working as Extension Officer (Panchayats) from 8-11-1995 has filed OA No.7066 of 1997. The Govt. Memo dated 17-10-1992 was also called in question in the said OA.
The Tribunal disposed OA No.58182 of 1990, OA No.2196 of 1996 and OA No.7066 of 1997 by a common order which is impugned in this writ petition.
4. By the order impugned herein, the Tribunal held that in view of Rule 27(iii) of A.P. Ministerial Service Rules the transfer of the petitioner to the Unit District Panchayat Officer is permissible and accordingly allowed OA No.58182 of 1990setting aside the re-transfer orders dated 17-10-1990. As regards OA Nos.2196 of 1993 and 7066 of 1997, the Tribunal held that since the transfer of (he petitioner to the Unit of DPO was at his request, he, in law, is entitled to his seniority with reference to the date of his appointment in the Unit of DPO only and thus the Govt. Memo dated 17-10-1992 is in violation of A.P. Ministerial Service Rules and directed to review the seniority of the petitioner in the respective categories. The operative portion of the order of the Tribunals reads as follows:
'In the result:
(a) OA No.58182 of 1990 is allowed by setting aside the orders issued by the District Collector, Ongole in his Re No.277/90/Pts./A4, dated 17-9-1990.
(b) OA Nos.2196 of 1993 and 7066 of 1997 are allowed by selling aside the orders issued by the Government in their Memo No.57524/Estt.IX/92-2, dated 17-10-1992, proceedings issued by the Collector in his Re No.1509/93/Pts-A1 dated 12-4-1993 and proceedings of Commissioner of Panchayat Raj in proceedings No.58691/F1/97, dated 24-9-1997 with a direction that promotion of the unofficial respondent in these OAs to the category of UDC and the notional date of promotion given to the unofficial respondent in the category of Extension Officer (Rural Development) as well as his placement in the seniority list of Junior Assistants/Senior Assistants and Extension Officer (Rural Development) should be reviewed taking that he is entitled for seniority in the category of Junior Assistants with reference to the date on which he joined the Unit of the District Panchayat Officer with reference to the orders issued by the District Collector, Ongote in his proceedings Rc.No.3455/88/Pts./A4, dated 6-2-1989.'
5. By reason of the aforementioned order, the order dated 17-9-1990 in terms whereof the petitioner was directed to be reverted to Panchayat has been quashed. However, the OAs filed by the unofficial respondents herein for setting aside the promotion of the petitioner were allowed.
6. Aggrieved by that part of the order of the Tribunal which directed review of the seniority of the petitioner in the respective categories, the petitioner has filed the present writ petition.
7. The question which arises for consideration in this writ petition is as to whether a Junior Assistant who is appointed in the Gram Panchayat, upon provincialisation derives a right to be incurred?
8. It is not in dispute that a Presidential Order was issued in terms of Article 371D of the Constitution of India in G.O. Ms. No.728, General Admn. (SPF.A) Dept., dated 1-11-1975 for organisation of local cadres in respect of posts under the Government of Andhra Pradesh and for allotment of persons holding such posts to the local cadre to be so organised. Paragrapah 4 of the said order reads as follows:
'4. Category of posts and manner of organising Local Cadres :--The categories of posts covered by the scheme are required to be organised into different local cadres for different parts of the State as follows:
(A)Junior Assistants and othercategories of posts equivalent to or lower than that of a Junior Assistant.
Posts belonging to each suchcategory in each department in each district shall be organised into aseparate local cadre which may be briefly referred to as a Districtcadre.'
9. Mr. Ratna Reddy, the learned Counsel appearing on behalf of the petitioner, inter alia, submitted that having regard to the aforementioned provisions, coupled with the Govt. Memo dated 17-10-1992 and also the order dated 12-4-1993 whereby and whereunder the petitioner was shown as senior to the unofficial respondents, the impugned order cannot be sustained. The order dated 12-4-1993 promoting the petitioner to the category of Senior Assistants impugned before the learned Tribunal could not have been set aside and thus the Tribunal must be held to have erred in law in passing the order under challenge. The learned Counsel would contend that the petitioner had the requisite qualifications and thus he having been shown as senior to the respondents in the provisional seniority list of Junior Assistants working in the Units of District Panchayat Officers of Zone-Ill dated 9-11-1993 wherein his name appears at S.No.28 whereas the names of respondents 5 and 6 appears at S.Nos.59 and 45 respectively, the impugned order must be held to be bad in law. It was submitted that the learned Tribunal also failed to take into consideration the fact that the petitioner had been promoted to a higher post. Our attention has also been drawn to the fact that even in the order dated 29-12-1993 the services of certain Senior Assistants were regularised, the name of the petitioner appears at S.No.2 whereas the name of Respondent No.6 appears at S.No.4. Our attention has further been drawn to the fact that in the seniority list of Senior Assistants issued on 1-9-1998, the name of the petitioner was placed at S.No.6 and that of the 6th respondent at S.No.8. Mr. Ratna Reddy further submits that the State is taking different stands at different stages inasmuch as whereas before the Tribunal it supported its own order dated 19-10-1992, before this Court, it is now contended that the Office of District Panchayat Officer and the Unit Gram Panchayat constitute separate units.
10. The learned Government Pleader and Mr. Mohan Reddy learned Counsel appearing for the 6th respondent on the other hand submitted that the petitioner himself having sought for the voluntary transfer, the impugned order is unassailable. Our attention has further been drawn to the scheme framed by the State in this regard. The learned Counsel would contend that recourse to the provisions of Article 371D of the Constitution of India cannot be taken as no rules have been issued subsequent to the scheme of provincialisation. It has further been pointed out that the petitioner himself had acquiesced to the said order of transfer as he admitted that he would be willing to take last rank in the seniority list of the Unit of District Panchayat Officer.
11. Rule 27 of A.P. Ministerial Service Rules so far it is relevant for the purpose of this case reads as follows:
'27. Probation, Seniority and confirmation Special provisions :- (1) Service rendered in a post or group of posts bearing distinct designation and included in a category as constituted by Rule (1) shall count for probation and seniority in such post or group of posts irrespective of the scales of pay applicable to such posts or group of posts and irrespective of the department or office in which such service was rendered.
(i) Provided that, in the case of a person whose 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 services were lent shall count for seniority in the parent department or office only from the date of regular appointment or promotion 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 only from one department or office to another shall be fixed in the latter department or office with reference to the date of his first appointment in the former department or office;
(iii) the seniority of a member of the service who is transferred at his own request from one department or office to another shall be fixed in the latter department or office with reference to the date of his first appointment in the latter department or office'.
12. The question which arises for consideration is as to whether clause (ii) or clause (iii) of Rule 27 of the above Rules would be applicable in the instant case. The learned Tribunal, inter alia, held that clause (iii) is applicable.
13. It is not in dispute that the petitioner herein had sought for voluntary transfer to the Unit of District Panchayat Officer, in terms of clause (iii) of Rule 27, he is to be placed at the bottom of the seniority list at the transferred place. It is also not in dispute that the cadre of Junior Assistant in the two units have not been merged as no notification has been issued by making any consequential amendment to the scheme of provincial isation nor any special rules in this behalf have been issued. It is also not in dispute that separate seniority lists are maintained for the two units and separate quota for promotion has also been provided for. By reason of the direction of provincialisation or as only because salary is being paid from consolidated fund of the State, it cannot be said that both the cadres have been directed to be merged.
14. The petitioner herein never took the plea that the impugned order is vitiated by reason of clause 10 of Article 371Dof the Constitution of India, which reads thus:
'The provisions of this Article and of any order made by the President thereunder shall have effect not with standing anything in any oilier provision of this Constitution or in any other law for the time being in force'.
15. Having regard to the provisions contained in para (4) of the notification issued in G.O. Ms. No.728, dated 1-11-1975, there cannot be any doubt whatsoever that the same pre-supposes that a separate notification was required to be issued in terms thereof for merger of cadre. The said provision is merely an enabling provision.
16. It may further be noticed that the State in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India read with Section (3) of Section 36 of the Andhra Pradesh Panchayat Act, 1964 framed A.P. Panchayat Raj (Executive Subordinate) Service Rules. The service conditions of the Executive Subordinates consisting of four categories of officers which includes the category of Extension Officers (Pts.) are governed by the said Rules.
17. In the absence of any rule having been made, it must be held that despite provincialisation of the services of Gram Panchayat by the State, the Unit of Grama Panchayat and the Unit of District Panchayat Officer would constitute separate Units. Further more, the petitioner himself in the Original Application No.58182 of 1990 filed before the Tribunal stated:
'(IV) The applicant humbly submits that to his utter surprise the 2nd respondent issued impugned proceedings Roc.No.277/ 90/(Pts)/A4, dated 17-9-1990 reverting the applicant to his parent unit. The same is marked as Annexure-III to thisOA. This impugned order was issued without any notice and opportunity to the applicant. They are said to have been issued basing on the clarification of the 1st respondent stating that the transfer of the applicant to the Unit of District Panchayat Officer as a Junior Assistant in the Office of the Extension Officer (Pts.) is irregular as both are separate units. Neither the 1st respondent nor the 2nd respondent gave any notice or opportunity to the applicant before the issuance of the impugned orders. The allegation that rules does not permit for transfer from one unit to another unit is not correct. In fact the transfer orders were effected as perk the provisions of G.O. Ms. No.527 Govt. (Ser.B), dated 30-7-1977, and in accordance with Rule 16 of A.P. Ministerial Service Rules. Rule 16 of the A.P. Ministerial Service Rules clearly permits for a transfer from one unit to another unit. The only condition placed under the Rule 16 is to forgo seniority in the event of transfer from one unit to other unit on request. In the present case, the applicant has foregone his seniority and occupied the last place among the approved probationers in conformity with Rule 16 of the A.P. Ministerial Service Rules. Therefore, the reasons given by the respondents are untenable in the eye of law'. (underlining is ours for emphasis)
From the aforementioned averments, it is evident that he himself questioned his reversion which was the subject-matter of OA No.58182 of 1990, inter alia, on the ground that transfer was permissible as he was to be placed at the bottom of the seniority list. The petitioner, therefore, having admitted such legal position, must be held to have waived his right, if any. Further more, in view of the fact that the two original applications were filed by the respondents 5 and 6 questioning hispromotion and seniority, a single writ petition is not maintainable.
18. For the reasons aforementioned, wedo not find any merit in the writ petitionwhich is dismissed accordingly. No orderas to costs.