V.S. Murty and ors. Vs. Deputy Chief Accounts Officer and ors. - Court Judgment

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service - appointment - rule 3 of andhra pradesh ministerial services rules,1961 - certain temporary employees absorbed into permanent service - issue involved whether deputy chief accounts officer can be considered as head of department so as to make appointment valid - power to declare head of department vests with government - government order showed that government treated deputy chief accounts officer as head of department - decision of tribunal that deputy chief accounts officer was not head of department set aside. - [civil appeals 1756 of 1967. nos. 1755] section 10a(b) of the punjab security of land tenures act, 1953, provides that no transfer or other disposition of land which is comprised in a surplus area [as defined in s. 2(5a)], at the commencement of the act, shall affect the utilization thereof for the resettlement of ejected tenants; and s. 10a(c) provides that for the purpose of determining the surplus area, any judgment, decree or order of a court or other authority,which diminishes the surplus are a,shall be ignored. under the act, land owners who had land in excess of the 'permissible area' could reserve for themselves lands to the extent of the permissible area; and the rest, excluding the permissible area of the tenants, was the surplus area of the landowner. section 18 provides that a tenant, who has been in continuous occupation of the land comprised in his tenancy for a minimum period of 6 years, shall be entitled to purchase from the landowner, the land so held by him. at the commencement of the act on april 15, 1953, a landowner owned three items of property which did not form part of her reserved area. one of the items was under her self-cultivation while there were tenants on the other two. those tenants later gave up possession and abandoned the lands. the landowner made a gift of the 3 items to her daughter, who sold them to her husband and his brother, the 1st and 2nd respondents respectively. the collector (surplus area), while determining the surplus area of the landowner, ignored the gifts and sales, and included the 3 items in the landowner's surplus area. the respondents appealed to the commissioner. they also applied to the assistant collector under s. 18, for purchase of the lands in their possession on the ground of continuous occupation for 6 years. the applications were allowed on the basis of a compromise between the applicants (respondents) and the landowner, and the respondents paid the purchase price determined by the assistant collector. on the basis of those purchase orders the commissioner, set aside the order of the collector (surplus area) declaring the surplus area of the landowner, and directed him to inquire into the matter afresh. the collector [the asstt. collector who had allowed the purchases by the respondents had by then become collector (surplus area)] thereupon determined the surplus area of the landowner under s. 10a(c). he, however, held that the leases granted to the respondents were collusive and that the orders of purchase under s. 18 were ineffective, and included the 3 items again in the landowner's surplus area. the high court allowed the writ petitions of the respondents on the ground that the authority acting under s. 10a(c) could not ignore the purchase orders passed under s. 18. allowing the appeals to this court, held : per palekar and krishna lyer, jj. (sarkaria j. dissenting) : 1(a) the public policy of s. 10a cannot be outwitted by consent orders calculated to defeat the provision, and, without the statutory authority charged with the inquiry being satisfied about the bonafides of and eligibility for, the purchase. [175g] when high public policy finds expression in socioeconomic legislation contractual arrangements between interested individuals, sanctified into consent or compromise decrees or orders cannot be binding on the instrumentalities of the state called upon to enforce the statute, although the tribunals, enjoined to enforce the law, may take probative note of the recitals in such compromise or consent statements in proof of facts on which their jurisdiction depends. neither the materials on record in the present case, nor the recitals in the compromise, disclose the application of the judicial mind. [174c] (b) it was found by the collector (surplus area) that the leases in question have been collusively got up to dwindle the surplus area of the landowner and that the landowner had conspired with her son-in-law and big brother to retain the area in contravention of the law. further, s. 18 applies only to persons who are legally tenants. in the present case' the lease was granted by the landowner after gifting the property to her daughter. also, the section requires 6 years continuous occupation by the tenant; but the collector found that the respondents had not completed the period at the time of their application under s. 18. the order in fact is thus a nullity. therefore, it could not be contended that the orders of purchase in favour of the respondents passed by the concerned officer under s. 18 had become final and not having been set aside bind the other authority determining the surplus area. (c) there is no provision in s. 18 to give notice to the collector who is to declare the surplus area and so, the state (represented by the collector), which is vitally concerned in the resettlement of ejected tenants by utilising the surplus area, has no opportunity to present its case against the fraudulent character of the proceedings under s. 18 before the assistant collector. the state, not being a party to that order, in any case, cannot be bound by it, whatever may be the effect as between the parties to those proceedings. since the state is not a party it has no right of appeal or review.[172b] (2) the authority under s. 10a may ignore the order of the authority under s. 18. (a) there is an apparent conflict between ss. 10 and 18 and the basic judicial approach should be to harmonise the two sections. the major premise of statutory construction is that the rule of law must run close to the rule of life and the court must read into an enactment, language permitting, the meaning which promotes, the benignant intent of the legislation in preference to the one which perverts the scheme of the statute. the objects of the agrarian reform underlying the act are : (a) to impart security of tenure; (b) to make the tiller the owner; and (c) to trim large land holdings thus creating peasant proprietorships ensuring even distribution of land ownership. the intendment of the statute is that reservation was to be made by a landowner to enable self-cultivation, and so, landowners could eject tenants. but, since agrarian reform must promote not eviction but security of tenure, it became necessary for the state to create surplus area of a considerable extent, so that, the evicted tenants could be rehabilitated on such surplus lands, enjoying fixity of tenure and paying. rent to the owners. the success of the scheme depends on preventing leakages through private alienations, collusive awards and decrees and the like, and so, care was taken in s. 10a(c) to interdict alienations and to ignore decrees and orders which diminished the surplus pool. such a strategic provision must receive a benignantly spacious construction. [160h, 161f, 157h] (b) there is no force in the contention that the benefit under s. 18 would be completely nullified and obliterated if s. 10a(c) were to prevail and apply to orders under s. 18. though s. 10a(c) uses the words 'shall be ignored it is not every order under s. 18 that would have to be ignored but only those orders which have the effect of diminishing the surplus area. the person who is entitled to purchase under s. 18 is a person lawfully inducted on the land as a tenant. the cases under the section would be, (i) of tenants who are eligible to purchase by virtue of 6 years continuous occupation of land in their permissible area, and (ii) of tenants resettled on surplus area of the landowner, after 6 years continuous occupation. the purchase in the first case being from the tenant's permissible area is outside the surplus area of the landowner and does not have the effect of diminishing the landowner's surplus area. in the second case, the purchase fulfils the object of the statute of making the tiller the owner. the principal category adversely affected would be post statutory collusive tenants and perhaps some bonafide tenants, who, however do not deserve sympathy since they damage the prospects of displaced persons to be resettled. section 18(1)(iii) apparently contemplates purchase rights for persons who had no possession when the act came into force, but the exception was made only in case of those persons who had been deprived of their rights by unjust eviction prior to the act coming into force. [169h-170d] (3) the purchase order by the assistant collector under s. 18 was rightly ignored by the collector (surplus area), as 'other authority' in s. 10a(c) includes the officers under s. 18. the plain meaning of the sub-section is that any order by any authority which shrinks the surplus area of the landowner is invalid to the extent laid down in that clause, and orders under s. 18, if they diminish the surplus area suffer the same fate. the high court was wrong in inferring from the statement of objects and reasons that 'other authorities' in s. 10a(c) are arbitrators or such like agencies and not authorities under the act. the objects and reasons relating to the clause of a bill may be read for finding the object of the law and not to control its amplitude. the purpose as revealed in the statement of objects is that the legislature wanted to ensure the invulnerability of the surplus pool provision to attacks, by ignoring judicial and quasi-judicial orders of every sort. this object of s. 10a(c) cannot be fulfilled unless the widest meaning were given to the expression 'court or other authority'. nor is there any basis for truncating the ambit of 'other authority'. 'other authority' is every other authority within or without the act. [168f, 169b, 171a-b] (4) further, the expression 'transfer or other disposition of land' in s. 10a(b) covers leases, which by very definition, are a species of transfer of land. in the pre- sent case, the lands in dispute fell outside the landowner's reserved area and were therefore included in her surplus area. the first respondent, to be entitled to be a lessee, must prima facie show that the alienation in his favour, as a lessee, does not violate s. 10a(b) which prohibits all transfers and other dispositions which diminish .the surplus area of the landowner. under s. 2(1), the word 'landowner' includes also the lessee and the permissible area of the tenant is excluded from the surplus area of the landowner. merely because of the outstanding leases in favour of the prior tenants at the commencement of the act, the two items which were earlier leased to tenants do not ipso facto fall outside the surplus area of the landowner. that would be so only if they are comprised in the permissible area of the tenant on the relevant date but there is no evidence to that effect. in relation to the prior tenants no such claim has been set up by the first respondent, and the first respondent was not a transferee from the prior tenants, but a de novo tenant. after the prior tenants gave up possession the lands came into the actual possession of the landowner and the leases were extinguished. it follows, that one item was always in the possession of the landowner and other two came into her possession subsequent to the coming into force of the act, that those three items of property should be computed as part of the landowner's surplus area, and that s. 10a(b) operates to invalidate the alleged leases to the respondents, since they diminish the surplus area of the landowner. the respondents, therefore, had no right, as tenants, to purchase under s. 18.[167d,167h-168d] (5) it could not be contended that even if leases are prohibited by s. 10a(b) the sub-section does not affect involuntary transfers and that since a purchase under s.18, effects an involuntary transfer it is not affected by s. 10a(b). the three subclauses of s. 10a, read together, show that if the landowner, by any act or omission of his suffered a diminution in the surplus area by a transfer, voluntary or otherwise contrary to the right of the state government to dispose of it, such a transfer is liable to be set aside. the expression 'transfer' is wide enough to cover transfers by operation of law, as in the present case, under s. 18. to uphold the contention of the respondents that involuntary transfers are not affected would stultify s. 10a and the scheme of the statute altogether as they would diminish the available surplus area of a landowner. moreover, special exclusion to save transfers by way of inheritance and compulsory land acquisition by the state would be supererogatory had involuntary transfers been automatically excluded from s. 10a(b). [172h] the court expressed the hope that land reform measures would be quickly implemented, because, in the present case, more than a score of years notwithstanding the processes of fixing reserved areas and surplus areas' on the strength of which alone confirment of proprietary rights on tenants and resettlement of a ejected tenants could proceed, are still lingering. [176c] mam rai v. state of punjab i.l.r. (1969) 2 pun. & har. 680; 682-683, over-ruled. chari v. seshadri [1973] 1 s.c.c. 761, bahadur singh v. muni subrat [1969] 2 s.c.r. 432, kaushalya devi v. k. l. bansal [1969] 2 s.c.r. 1048 and ferozi lal jain v. man mal [1970] 3 s.c.c. 181, refeffed to. per sarkaria j. (dissenting) (1) (a) the collector (surplus area) would be entitled to ignore the order of the asstt. collector under s. 18 independently of s. 10a of the act if the order based on the compromise is void and a nullity. but if it is only voidable or erroneous, it could be avoided only by way of appeal review or revision or in other appropriate pro- ceedings, known to law and the collector (surplus area) could go behind it only when it is so set aside, or if the provisions of s. 10a entitle him to do so. (b) an order is null and void if the quasi-judicial tribunal passing it lacks inherent jurisdiction over the parties and the subject matter. in the present case, the assistant collector who made the order under s. 18 was duly invested with jurisdiction under the section. the respondents were tenants and merely because-they were related to the landowner they could not be denied the rights and privileges under the act. the allegations in the purchase application about the applicants' being in continuous occupation of the lands comprised in their tenancy for the requisite period, coupled with admission by the landowner in the compromise, furnished sufficient material on the basis of which the authority could have been satisfied about the existence of all the facts essential for the exercise of his jurisdiction under s. 18. [191f, 192e] (c) it is not correct to say, that on the facts of the instant case the assistant collector passed the orders solely on the basis of the compromise without applying his mind to the facts of the case. application of mind is evident from the circumstance that he assessed the price to be paid by each of the applicants who thereafter did so. the mere fact that he did not record a finding in so many words that he was satisfied from such and such material in regard to the existence of the basic conditions necessary for making the order under s. 18 did not render his order a nullity when such material was otherwise evident on the record. therefore, the order under s. 18 was not a nullity and it could not be ignored as non-est by the collector (surplus area). [192e] k. k. chari v. r. m. seshadri [1973] 1 scc 761, nagindas ramdas v. dalpatram ichchram civil appeal no. 2479/72 decided on 30-11-1973, smt. ujjam bai v. state of uttar pradesh, air 1962 s.c. 1621=[1963]1 scr 778 and ittyavira mathai v. varkey varkey, a.i.r, 1964 s.c. 907 (910)= [1964]1 scr 495, followed. (d) the collector (surplus area) and the collector acting under s. 18, are coordinate authorities exercising separate and distinct jurisdictions'. if one feels that a certain order passed by the other in the exercise of his distinct jurisdiction is erroneous it was open to that authority to get it rectified in the appropriate manner provided by the act, that is, by way of appeal, review or revision. the provisions in regard to appeal, review and revision against an order of the assistant collector under s. 18 are, under ss. 24 and 25 of the act, ss 80 to 84 of the punjab tenancy act, 1887. there is nothing in the act or the rules framed under the act, or in the tenancy act, as to who can file an appeal or revision against the decision or order of the collector exercising jurisdiction under s. 18; and, in view of the long practice there could be no doubt that the state government or its department can, if aggrieved or prejudiced by such a decision, go in appeal or revision against it. a person who is not a party to a decree or order, may with the leave of the appellate court prefer an appeal and as a rule, leave will not be refused to a person who might have been made a party to the proceedings. in any case, the state or the department could have moved the financial commissioner to set right the illegality or impropriety in revision. the financial commissioner under the tenancy act has wide powers in revision to correct errors committed by the inferior authorities and there is no time limit to the exercise of the revisional power. once the application of the tenant under s. 18 has been allowed and the order is not set aside in appeal or revision, it becomes final and remains immune to an attack against its validity on any ground, including that of collusion, before the coordinate authorities under the act dealing with the question of the determination of surplus area. in the present case the collector (surplus area) could not go behind the orders under s. 18 or himself sit in appeal over them, especially when the officer who passed the two orders happended to be the same person. [194c] amir chand v. state of haryana 1971 plj. 449, securities insurance co. [1894] 2 ch. 410, province of bombay v. w. l automobile association a.i.r. 1949 dom. 141, heera singh v. veerka, a.i.r. 1958 raj. 181, shivaraja v. siddamma a.i.r. 1963 mys. 127, executive officer v. raghavan pillai a.i.r. 1961 kerala 114, b. an infant, [1958] 1 q.b. 12; govinda menon v. madhvan nair a.i.r. 1964 kerala 235(db), punjab state v. dr. iqbal singh [1965] punjab law journal 110, man raj and ors v. state of punjab i.l.r. [1969] 2 punj and haryana 680 and shyamlal v. state of gujrat [1965] 2 s.c.r. 457, referred to. (2)the view taken by the high court with regard to the interpretation and inter-relation of s. 10a and s. 18 is sound and therefore s. 18 prevails over s. 10a and so, the authority under s. 10a cannot ignore the order of the authority under s. 18. [197b] (a) the two canons of interpretation applicable to the statute are, (i) if choice lies between two alternative constructions, that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating; and that alternative is to be rejected which will introduce uncertainty friction or confusion into the working of the system and, (ii) if there is an apparent conflict between different provisions of the same enactment they should be so interpreted that, if possible, effect may be given to both. [195e] king emperor v. benori lal sarma [1944] 49 cwn 178 (pc)=72 ia 57, referred to.' (b) section 18 is designed to promote one of the primary objects of the act, namely of procuring ownership of the land to the tiller on easy terms. the self sufficing machinery of this section is available for purchase of their tenancies to the tenants inducted before or after april 15, 1953, by the landowner, equally with tenants settled by the government on the surplus area. the act does not takeaway the right of the landowner to induct tenants on such area. every sale made by the operation of s.18 in favour of a tenant admitted by the landowner on the surplus area causes diminution of the surplus area or affects the utilisation thereof by the government. under s.10a(c) every judgment, decree or order of a court or the authority, which diminishes the surplus area shall be ignored.if sales in favour of tenants inducted by the landowner after april 15, 1953 were to be ignored under s. 10a(c) then it will reduce the working of the system of the act to a mockery, because it will present the spectacle of manifest contradiction and absurdity of an act giving a right with one hand and taking it away by another. the adoption of such an interpretation may not completely obliterate. s. 18 but it will certainly truncate it, with reference to the category of tenants inducted by the landowner after april 15, 1953. [195g] (3) the conflict between the two provisions can be avoided only if the general words 'other authority' in s. 10a(c) are read ejusdem generis with the specific words 'judgment, decree or order of a court' which immediately precede them. thus construed, the general words 'or other authority' will not take in an authority exercising jurisdiction under s. 18 of the act. [196b-c] (4) the lease created by the landowner in the present case, ceased to subsist as soon as the collector made orders of purchase under s. 18 in favour of the respondent. the question whether the extinct lease which preceded the purchase orders was a transfer or not, did not therefore survive for decision. [197a] bhajan lal v. punjab state [1968] 70 i.l.r. 664, bishan singh v. punjab state [1968]47 llt 284 and lakshmi bai v. state of haryana [1971] lxxiii punj. l.r. 8 1 5, referred to. further, the land comprised in the lease of the prior tenants was far less than their permissible limit and the high court rightly presumed that the lands were within their permissible area, since there was. no evidence that they held any other land. surplus area has to be determined, as appears from s. 19f, with reference to the situation as on april 15, 1953, when the act came into force. the disputed land held by the prior tenants was within their permissible area and therefore it could not be included in the surplus area of the landowner. at the time when the ,collector (surplus area ) took up determination of the surplus area, these lands were still comprised in a tenancy though under a different tenant, namely the first respondent. such change of the tenant does not amount to a future acquisition of land, comprised in that tenancy, by the landowner within the contemplation of s. 19a or s. 19b of the act. [197h-198d] bhagwan das v. the state of punjab, [1966] 2 scr 511, followed. harchand singh v. punjab state, (1964) 66 p.l.r. 285; 1963 p.l.j. 144, approved- (5) the expression 'transfer and other disposition of land in s.10a(b) does not include completed sales effected under s. 18. the words transfer or other disposition of land' must be restricted to voluntary dispositions of land made by the landowner and cannot be extended to cover involuntary transfers brought about by operation of law or circumstances beyond the control of the landowner. this is the only reasonable interpretation of the words 'transfer or other disposition of land' in s. 10a (b) which is consistent with s. 18 and can reconcile and keep effective both the sections. the two types of involuntary transfers. namely compulsory acquisition of land by government or by an heir by inheritance are only illustrative of the intention of the legislature. [196 d] - they accordingly filed the writ petition from which this appeal arises, contending that the appellants were holding substantively post of udc in the office of the chief engineer and they were not transferred but sent on deputation in the pay and accounts office as per the order dated february 8, 1964 and other like orders by the chief engineer, n. cao in february 1964. 5. this order clearly shows that the transfer was for administrative convenience. 96 of 1970. after the appellants were transferred, their services were regularised by the chief engineer as per his proceedings dated august 11, 1968. this proceeding was challenged by some of the persons similarly situated like the present respondents on the ground that the present appellants had come on deputation and not on transfer and they cannot be given seniority over those who joined service in n. thus the first challenge failed. the tribunal therefore, concluded that apart from any other consideration unless all the conditions for attracting rule 3(2) are satisfied, the order must fail. cao is the head of the department, the tribunal has referred to the definition of the expression 'head of a department' as set out in article 6 chapter ii of the andhra pradesh financial code volume 1, which provided that 'head of a department' means 'any authority specially declared by the government to be the head of a department'.assuming that the definition of the expression 'head of a department' in the financial code which is relevant to ascertain the financial powers of a head of department, holds good for all other powers conferred on a head of a department under other rules, this definition merely provides that any one would be a head of a department who is specially declared by the government to be the department. cao is declared an appointing authority, the power usually enjoyed by head of a department. alternately, one may not be a head of a department for other purposes and yet may enjoy full financial control if declared to be 'head of the department' for financial code. project were considered to enjoy the status of the heads of the department offices. the contention of the respondents must fail.1. this appeal by special leave is directed against the decision in writ petition no. 1021 of 1975 filed in the andhra pradesh high court at hyderabad which came to be transferred under para 14(1) of the andhra pradesh administrative tribunal order 1975 and which was numbered as transferred writ petition no. 1663 of 1976, by which andhra pradesh administrative tribunal (tribunal' for short) allowed the writ petition and quashed the orders permanently absorbing respondents 2 to 10 in the various posts in the office of deputy chief accounts officer, nagarjuna sagar project. respondents 2 to 10 in the high court are the appellants in the present appeal, and original petitioners are respondents 2 to 108. deputy chief accounts officer is respondent no. 1.2. nagarjuna sagar control board was constituted in the year 1955 charged with a duty to implement n.s. project. the board had the power to recruit required ministerial staff on purely temporary basis. on august 1, 1959, a decision was taken by the andhra pradesh government to disband the autonomous board and to convert it into a department of the government. on the conversion of the set up of the board into a department of the government it became necessary to devise ways and means to absorb the employees recruited by the board. number of controversies surfaced and to some extent the present one is one such controversy. there was an office styled as : the office of the chief engineer, n.s. dam with the chief engineer as head of the department. appellants were serving in the office of the chief engineer, n.s. dam unit. by the order dated february 8,1964 appellants were transferred to the office of the pay and accounts officer, n.s. project. at the time of transfer, appellants were officiating as udc and were directed to report to the deputy chief accounts officer, n.s. project to be posted as udcs. since then appellants have been working in the office of the dy. cao and some of them have been even promoted, may be temporarily, to the post of superintendant. by the g.o.ms. no. 27 pwd dated february 3, 1972, the state government accorded sanction to the permanent retention of the posts set out in the order with effect from 1.4.1967 in the office of dy. cao. amongst other 38 posts of udcs were thus made permanent by this order. the aforementioned order further provided that the posts so made permanent shall be filled in by personnel already working in the accounts organisation. it appears that some of the appellants made a representation to the dy. cao for the permanent absorption in his office. ultimately by various orders made in february 1975, appellants were permanently absorbed as udcs in the establishment of dy. cao and they were given seniority as provided in rule 27 of andhra pradesh ministerial service rules. the respondents 2 to 108 who were petitioners before the tribunal were working as udcs or ldcs since the inception of their career in the office of dy. cao. they were initially recruited as ldcs during the period 1959-65. some of them were promoted as udcs from 1961 onwards. they were aggrieved by the permanent absorption of the present appellants who were respondents in the high court. they accordingly filed the writ petition from which this appeal arises, contending that the appellants were holding substantively post of udc in the office of the chief engineer and they were not transferred but sent on deputation in the pay and accounts office as per the order dated february 8, 1964 and other like orders by the chief engineer, n.s. dam and they had a permanent lien in the parent department and therefore, they could not be absorbedin the office of the dy. cao. it was, therefore, contended that they may be repatriated to the parent department but in any event even if these are not to be repatriated, they could not claim to be absorbed permanently over the respondents who have been since the inception of their career working in the office of dy. cao. the specific contention was that the dy. cao not being the head of the department, the provision contained in rule 3(2) of andhra pradesh ministerial service rules, 1961 would not be attracted and therefore, the appellants could not be said to have been recruited by transfer and therefore, could not have been absorbed and they had no right to either claim any permanent post or promotion in the office of the dy. cao. the submission was that the permanent retention and absorption of the appellants adversely affected the promotional prospects of the present respondents and the retention and absorption and consequent seniority being contrary to relevant rules must be struck down as invalid.3. the learned member of the tribunal held that the dy. cao. had not the powers of the head of a department. it was not therefore, within his competence to absorb and retain the appellants in his office and confirm them against the posts made permanent by the g.o.ms. no. 27 dated february 3, 1972. as a corrollary it was held that the various orders made in february 1975 permanently transferring, absorbing and retaining and consequently granting seniority to the appellants were violative of the rules and were struck down. hence this appeal by the original respondents 2 to 10.4. appellants indisputably were working as udcs for a period of more than 3 years before they came to be transferred by the chief engineer to the office of dy. cao in february 1964.5. this order clearly shows that the transfer was for administrative convenience. no where the orders recite that the transfer was at the request of the transferred personnel. the order is the usual short cryptic government order which recites that the udcs whose names were set out in the order were transferred to p.a.o.'s office, n.s. project. the order directs all the transferred udcs to report for duty to dy. cao, n.s. project immediately on their relief. the language of this order leaves no room for doubt that the head of the department under whom the appellants were working transferred them for administrative reasons and for exigencies of service. complying with this order, the appellants reported for duty to the dy. cao and since then, except appellant no 9, the rest of them have been continuously working as udc and have earned temporary promotion as superintendant. so far there is no controversy.6. the tribunal nowhere examined the power of the chief engineer, n.s. dam project to transfer persons working under him to the office of dy. cao. it must therefore, be assumed that he had the power to transfer appellants to the office of the dy. cao. it does not transpire from the record that the transfer was at the request of transferees. it does not appear that these persons held the lien in the parent department. it does not transpire from the record that they were given any proforma promotions in the parent department. virtually, since the transfer, they have been treated as part and parcel of the establishment of dy. cao. the appellants were holding the post of udc for a period of more than 3 years prior to their transfer from the offices of the chief engineer to the office of the dy. cao. indisputably, therefore, when they were transferred and occupied the identical post in the office of the dy. cao, some of the respondents working in the office of the dy. cao would have been adversely affected because in the absence of the appellants, if it became necessary to have more posts in the category of udc, obviously some of the ldcs working in the office of the dy. cao could have been promoted. this becomes manifest from the judgment of a division bench of the andhra pradesh high court in writ appeal no. 96 of 1970. after the appellants were transferred, their services were regularised by the chief engineer as per his proceedings dated august 11, 1968. this proceeding was challenged by some of the persons similarly situated like the present respondents on the ground that the present appellants had come on deputation and not on transfer and they cannot be given seniority over those who joined service in n.s. dam unit from the inception of their career. the learned single judge dismissed the petition holding that the present appellants were transferred on administrative ground; that the temporary posts which they filled in were converted into permanent posts and the appointments of the appellants in those posts were regularised. it was held that the transfer was on administrative ground, and therefore, their length of service in the parent department had to be taken into account for the purpose of determining their seniority. on this finding, the writ petition was dismissed, and the appeal met with the same fate. thus the first challenge failed. appellants were thus given seniority over respondents in the office of the dy. cao. we have serious doubts whether the tribunal had jurisdiction to reopen the settled question about the status of the present appellants in the office of the dy. cao, which would incidentally be the effect of the judgment of the tribunal. we would presently examine the contention which has found favour with the tribunal and which in our opinion is wholly untenable.7. after reciting the various contentions, the tribunal addressed itself to the question which in its view was a primary question whether the dy. cao was the head of the departments. the tribunal observed that it is only if it is held to be office of head of a department that the transfer of the present appellants in one out of 4 vacancies of udc under rule 3(2) can be justified.8. frankly we are of the opinion that this question hardly arises in this case, in view of the earlier decision of andhra pradesh high court determining the status of the appellants in the establishment of dy. cao. however, keeping aside for the time being the decision of the high court, we would proceed to examine the contention which found favour with the tribunal on merits. 9. the question of ascertaining whether dy. cao was the head of the department arises in view of the provision contained in rule 3(2) of the andhra pradesh ministerial rules 1961. before we extract rule 3(2), it may be mentioned that rule 4 provides for recruitment by promotion. rule 3(2) provies that 'besides promotion as provided in rule 4 the first vacancy out of every four successive substantive vacancies of upper division clerks in the offices of heads of department and directorates shall be reserved to be filled only from among the suitable upper division clerks working in the subordinate offices of the concerned head of the department or directorate.' there is a proviso which provided that : 'where any head of the department or directorate has no subordinate office under its administrative control, the vacancy shall be filled by a suitable upper division clerk working in the office of any other head of the department or directorate or any other subordinate office, as the case may be, in this service.'10. the tribunal after referring to this rule took notice of the recital in the impugned order dated february 28, 1975 wherein the dy. cao purported to exercise the power under rule 3(2) of the andhra pradesh ministerial service rules. the tribunal therefore, concluded that apart from any other consideration unless all the conditions for attracting rule 3(2) are satisfied, the order must fail. undoubtedly, before rule 3(2) could be attracted, it must be shown that the vacancies in which appellants were absorbed were in the cadre of udc and were in the office of the head of the department. if it be so, then out of 4 successive substantive vacancies, the first one is to be reserved to be filled in either from amongst suitable upper division clerks working in the subordinate office or if there is no such office, then according to the proviso, from the office of the other head of the department or directorate.11. to ascertain whether dy. cao is the head of the department, the tribunal has referred to the definition of the expression 'head of a department' as set out in article 6 chapter ii of the andhra pradesh financial code volume 1, which provided that 'head of a department' means 'any authority specially declared by the government to be the head of a department'. assuming that the definition of the expression 'head of a department' in the financial code which is relevant to ascertain the financial powers of a head of department, holds good for all other powers conferred on a head of a department under other rules, this definition merely provides that any one would be a head of a department who is specially declared by the government to be the department. the declaration if and when made under the financial code would be confined to the financial code and unless expressly provided, it cannot be extended to comprehend the head of department under other rules. with this limitation let us examine whether dy. cao is the head of the department.12. to begin with the tribunal records a concession by the learned government pleader appearing for the dy. cao that no order has been issued declaring the office of the deputy chief accounts officer, nagarjuna sagar organisation as head of department, we are a little surprised at the stand taken on behalf of the dy. cao in the high court and in this court. in the high court an affidavit was filed contesting the writ petition filed by the present respondents meaning thereby justifying the order in favour of the appellants. after the tribunal quashed the orders and respondents 2 to 10 filed the present appeal, an affidavit has been filed by one shri t. venkatanarayana, styling himself as director of accounts which seems to be the new designation for the former designation of dy. cao opposing the appeal of the present appellants. he desires the present appeal to be dismissed on the ground that original transfer orders were only for one year and there was no order extending the period of transfer. he also stated that r.v. surya rao one of the appellants left the organisation of dy. cao on february 9, 1972 and was again taken in the year 1975 at his request. the stand appears to be self-contradictory and it has left us guessing about this volute face. out of abundant caution we have decided to keep aside the stand of the dy. cao in this behalf. more so because there is inexplicable silence on the point whether the dy. cao was not the head of the department.13. it is therefore, necessary to independently examine whether dy. cao virtually enjoys the powers of the head of a department, so as to be treated as head of the department for the purpose of rule 3(2). when the appellants came to be transferred by the chief engineer on february 8, 1964, it appears that the office of dy. cao was administratively subordinate to the chief engineer, n.s. dam project. if it were otherwise, the chief engineer could not have transferred the appellants who were borne on his establishment to the office of the dy. cao. as pointed out earlier, the transfers were on administrative ground and certainly not at the request of the appellants. further the transferred personnel could not have been considered as on deputation because if a government servant is sent outside his office on deputation, there are certain benefits to which he would be entitled, which in this case are not shown to have been made available to the appellants. they were transferred from the post of udc to the corresponding post of udc. in 1964 it atleast appears that dy. cao was not the head of the department.14. on, may 3, 1966 by g.o.ms. no. 178, it was, inter alia, direct that the staff working in the office of deputy chief accounts officer and pay and accounts offices may be treated as ministerial service and will be given the scales of pay applicable to the staff in the offices of the heads of departments. it appears that there was difference in the pay scales available to the staff in the office of the head of the department and in subordinate offices. by this g.o. the ministerial staff in the office of dy. cao was held eligible for scales applicable to the staff in the office of the head of the department. this will impart a flavour to the dy. cao as being the head of department.15. the governor of andhra pradesh made what are styled as ad-hoc rules for the temporary posts of ministerial staff in the offices of the deputy chief accounts officer and pay and accounts officers under financial adviser and chief accounts officer's organisation, nagarjunasagar project, in exercise of the power conferred by the proviso to article 309 of the constitution. by rule 1, the general and special rules commonly applicable to the holders of the permanent posts of the respective categories in the public works department in the andhra pradesh ministerial service were made applicable to the holders of the temporary posts at superintendants, udcs, and typists and steno-typists in the office of the deputy chief accounts officer and pay and accounts officers subject to the modifications set out in the subsequent rules. one such modification worth noticing is that dy. cao was constituted as appointing authority for the aforementioned staff in his office. further the financial adviser and chief accounts officer under whom dy. cao was directly working, were declared in 1966 secretariat department. accordingly dy. cao came directly under the secretariat department, and was invested with power of appointing authority which comprehended the power to appoint persons who would for pay scales applicable to staff in the offices of the heads of departments.16. it was however contended that g.o.ms. no. 335 dated november 1, 1974 would leave no room for doubt that dy. cao is not the head of the department. the preamble of this g.o. reads as under:in the circumstances stated by the financial adviser and chief accounts officer, n.s. project in the n.o. note read above, the dy. chief accounts officer, n.s. project in is delegated with the following powers instead of declaring him as the head of the department.17. the extent of delegation of power is irrelevant. it was submitted that the recitals herein extracted would put the matter beyond the pale of controversy that dy. cao was not only not the head of the department but as he lacked powers of the head of the department certain powers had to be specifically conferred upon him. on the contrary this would justify the belief that 'head of department' for financial code and for service rules are not terms of co-extensive connotation and the have different meaning in different context for example, for service rules the dy. cao is declared an appointing authority, the power usually enjoyed by head of a department. but such head of department may not be so declared for the financial code. in the g.o. dated november 1, 1974, it was considered unnecessary to declare him head of a department for financial code and, therefore, certain powers had to be conferred upon him. a perusal of powers would reveal that they were financial powers one can be a head of the department but whose financial powers, may be curtailed under the financial code. alternately, one may not be a head of a department for other purposes and yet may enjoy full financial control if declared to be 'head of the department' for financial code. we are concerned in this case with the meaning of the expression 'head of a department' in rule 3(2). in this connection if the dy. cao is shown to be directly working under a secretariat department without intervention of any higher office and if it is declared an appointing authority and the scales admissible to the ministerial service in its office are those admissible to the staff in the office of the heads of department, there is no escape from the conclusion that for purposes of rule 3(2), he would be the head of the department.18. we are fortified this conclusion from u.o. note dated june 11, 1969 of the office of financial adviser and chief accounts officer, which is the secretariat department under which dy. cao is direly working. the relevant portion of the note may be extracted. it reads as under:hitherto, recruitment to the post of l.d. clerks, u.d. clerks, in deputy chief accounts officers organisation, nagarjunsagar project was done based on the allotment of candidates who passed group ii. services examination of the andhra pradesh public service commission, since, the offices of the deputy chief accounts officer and pay and accounts officers, n.s. project were considered to enjoy the status of the heads of the department offices. in g.o. ms. no. 178 pwd, projects wing, dated 3.5.1966 orders were issued that the office of the financial adviser and chief accounts officer nagarjunasagar project may be treated as secretariat and that the staff working in the offices of the deputy chief accounts officers and pay and accounts officer may be treated as ministerial service and will be given scales of pay applicable to staff in the offices of the heads of departments. further the adhoc-rules issued in g.o. ms. no. 337 pwd projects wing dated 24.9.1968 stipulate that the deputy chief accounts officer, nagarjunasagar project is the appointing authority up to the level of superintendents in his organisation.19. if there was any lurcking doubt whether the dy. cao is the head of the departments, it stands wholly removed by the note extracted herein above. it may be recalled that the power to declare head of the department as defined in the financial code vests in the government and the government acts on the advise of the concerned secretariat department. the concerned department is of financial adviser and chief accounts officer, which is declared as the secretariat department. and this note shows that the secretariat department meaning thereby the government treated the dy. cao as the head of the department. therefore, for the purpose of rule 3(2), there is no room for doubt that dy. cao was the head of the department.20. if dy, cao was the head of the department then in view of rule 3(2) with regard to the recruitment in the cadre of udc first out of every four successive substantive vacancies is to be filled in from the subordinate offices and according to the proviso to rule 3(2), if there is no subordinate office, from any other office of the head of the departments or directorate. there is a recital to that effect in the impugned order which was questioned on the short that dy. cao was not the head of the department. once that ground is out of the way. the contention of the respondents must fail.21. briefly, we may point out that this very conclusion can be reached by a slightly different process of reasoning. appellants were transferred to the office of dy. cao in 1964. the judgment of the high court of andhra pradesh, practically inter partes, affirms the position that appellants were transferred and their appointments by transfer were valid. their services were regularised and the high court held regularisation valid and legal. they were given seniority over respondents in that organisation. if appellants have been working for so many years, they were entitled to be absorbed, if there was no legal bar against absorption. their entry in office has been held by the andhra pradesh high court in the earlier judgment as valid and regular and they having rendered service for 11 long years before the impugned action was taken, they were entitled to be absorbed in he department. now the present dispute arose when by g.o. dated february 3, 1972, 38 posts in the cadre of udc were made permanent. that very g.o. provided that the posts made permanent shall be filled in by the personnel already working in the accounts organisation. appellants were working in the accounts organisation since 1964.22. their services were regularised. they were given seniority. therefore, at the relevant time in 1975 they were working in accounts organisation. they could therefore, be absorbed without reference to rule 3(2). the controversy arose because dy. cao referred to rule 3(2) in the impugned order. in our opinion that was unnecessary. they could claim to be absorbed according to seniority in the posts made permanent. and therefore, also the impugned orders were valid but as the dy. cao proceeded to exercise power under rule 3(2), we would uphold the validity for the reasons mentioned in the earlier portion of the judgment.23. before we conclude, we must advert to one contention, that as the appellants came at their own request, their seniority would be governed not by the first proviso to rule 36(e) but by the second proviso. the relevant provisos to rule 36(e) cater to the method of determining seniority of persons transferred on administrative ground or at the request of government servant from one department to any other department. if the transfer was on administrative ground from one department or office to another, the seniority of the transferred government servant shall be fixed with reference to the date of his first appointment in the former department or office from where he is transferred. if on the other hand, the transfer is at the request of the concerned government servant, his seniority will be determined with reference to the date of his appointment in the department to which he is transferred. after referring to these provisos, it was urged that the appellants were transferred at their request and therefore, their seniority has to be determined with reference to the date on which they came to be transferred to the organisation of dy. cao. in fact, this contention is concluded by the earlier decision of the andhra pradesh high court. even apart from that there is no merit in the contention. appellants were transferred in february 1964 and we have referred to the transfer order more than once. there is not the slightest whisper of transfer on request in that order. but it was urged that initially transfer was for a period of one year only and the subsequent continuation in the office of the dy. cao does not prescribe the period of transfer. however, the respondents placed reliance on a corrigendum issued on march 3, 1964 by which following sentence was added to the order of transfer dated feb. 8, 1964. the addition reads as under:the above transfers will be for a period of one year in the first instance.24. it was then pointed out that in the subsequent order the expression used is not 'period of transfer' but 'period of deputation' and an inquery was made whether the further extension of period was necessary. this appears to us to be quibeling. except for appellant 9-r.v. surya rao, all the appellants have been working in the office of the dy. cao since 1964 and it is too late in the day now to contend that the subsequent extension was at the request of the appellants. therefore, the seniority would be governed by the first proviso to rule 36(e) and not the second proviso and that having been done no question arises for interfering with the same.25. as we are of the opinion that the tribunal was in error in holding that the dy. cao was not the head of the department, the decision of the tribunal is unsustainable and must be quashed and set aside. accordingly this appeal is allowed, and the decision of the andhra pradesh administrative tribunal, hyderabad in transferred writ petition no. 1663/76 dated september 1, 1980 is quashed and set aside and the writ petition field by the respondents in the andhra pradesh high court is dismissed with no order as to costs.