P. Srinivas
Vs. M. Radhakrishna Murthy & Ors [2004] Insc 59 (30 January 2004)
Doraiswamy
Raju & Arijit Pasayat
(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 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 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 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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