V. Ayyanna Vs. Govt. of
A.P. & Ors. [2010] INSC 774 (23 September 2010)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3352 OF 2007 V. AYYANNA
.... Appellant Versus GOVT. OF A.P. & ORS. .... Respondents
Dr. MUKUNDAKAM
SHARMA, J.
1.
This
appeal is preferred by the appellant challenging the legality of the judgment
and order dated 03.11.2003 passed by the Andhra Pradesh High Court in W.P. No. 18386
of 2003 whereby the High Court has affirmed the judgment and order of the
Andhra Pradesh Administrative Tribunal at Hyderabad dated 12.12.2002.
By the said judgment
and order, the State Administrative Tribunal dismissed several Original
Applications filed by the applicants, including the appellant herein.
2.
There
were number of feeder categories under the rules framed by the State Government
in G.O.Ms. No. 3845 dated 17.11.1964. The appellant and other similarly
situated persons were initially appointed during the years 1971-1975. Sometime
in the year 1978, the Government with the intention of having a rationalized
structure of cadres of some posts, merged various categories of posts to
constitute a single cadre of Health Assistants, consequent upon which, the
Government of India issued a G.O.M. No. 85 dated 21.01.1978, merging 10
categories including the post of Lab Assistants, Surveillance Workers, Health
Sub-Inspectors Grade-II, Microscopist, Lab Technician, Basic Health Worker,
Field Assistants and Health Assistants of posts to that of Health Assistant's post.
It is also to be clarified at this stage that Basic Health Workers, Superior
Field Workers, Malaria Surveillance Workers were drawing lesser scale of pay
than that of the pay-scale attached to the post of Multipurpose Health
Assistants at the relevant time. It is 2 also required to be stated that the
basic qualification required for appointment to the post of Multipurpose Health
Assistant was that the candidate must possess the academic qualification of
intermediate and must have a Sanitary Inspector Training Course [for short
`SITC'] Certificate, which was in vogue on the date of G.O.Ms. No. 85, dated
21.1.1978. The aforesaid G.O.Ms. stipulated that Basic Health workers, Malaria
Surveillance Workers and others would continue to draw their own scale of pay
till they acquire the SITC certificate and get converted as Health Assistants.
3.
The
appellant herein was not having a SITC certificate qualification as on
21.01.1978 and he acquired the said SITC certificate subsequently.
4.
After
the issuance of the aforesaid notification and creation of one cadre of Health
Assistants, a seniority list was prepared in the cadre of Multipurpose Health
Assistant Workers. The said seniority list in that cadre came to be challenged
before the State Administrative Tribunal attacking the principle of fixation of
seniority on the basis of qualifications. Pursuant to the aforesaid 3
challenge, the Tribunal decided the said issue in R.P. No. 2860 of 1987 and
batch and separately in O.A. No. 5410 of 1994 and batch. In terms of the order
passed by the Tribunal, the respondents proceeded to prepare a seniority list
dated 03.09.1998.
5.
The
appellant herein and some other persons, without seeking any review of the
earlier orders passed by the Tribunal in R.P. No. 2860 of 1987 and batch and
O.A. No. 5410 of 1994 and batch, which had incidentally become final and
binding and pursuant to which the aforesaid seniority list was prepared in the
year 1998, challenged not only the aforesaid seniority list, but also the
principle laid down by the Tribunal in the earlier orders passed in R.P. No.
2860 of 1987 and batch and O.A. No. 5410 of 1994 and batch. The State
Administrative Tribunal, after considering the issues raised by the appellant
herein and others, dismissed the said petition on the ground that the principle
of fixation of seniority in the cadre of Health Assistants was already settled
in view of the decision in the aforesaid R.P. and 4 O.A. which had since
become final and binding and, therefore, no interference was called for.
6.
Being
aggrieved by the said order, the appellant herein and others filed various Writ
Petitions before the High Court which were taken up together, and by a common
judgment and order dated 03.11.2003, High Court dismissed all the Writ
Petitions including that of the appellant herein. Being aggrieved by the said
judgment and order of the High Court, present appeal by way of a Special Leave
Petition is filed on which we heard the learned counsel appearing for the
parties.
7.
Counsel
appearing for the appellant submitted before us that the appellant, pursuant to
the G.O.Ms. No. 85 dated 21.01.1978, is entitled to get his seniority in the
category of Multipurpose Health Assistant from the date on which their services
were regularized in the category of Basic Health Worker / Field Worker /
Malaria Surveillance Worker, etc. He also submitted that the very principle
settled by the Tribunal in R.P. No. 2860 of 1987 and batch and O.A. No. 5410 of
1994 and batch is illegal and contrary to law. It was his further submission
that 5 seniority should always be counted from the date of appointment and,
therefore, giving the benefit of seniority from an artificial date is arbitrary
and required to be set aside and quashed.
8.
Counsel
appearing for the respondent, however, refuted the aforesaid allegations and
submitted that the criteria of fixation of seniority having been settled by the
State Tribunal in R.P. No. 2860 of 1987 and batch and O.A. No. 5410 of 1994 and
batch, and the appellant having not taken any steps to get the same set aside
and quashed by filing a separate petition before the Tribunal, the said
principle, which has become final and binding, cannot be challenged at such a
distant stage. It was also submitted that the appellant was working in the scale
lower than that of Multipurpose Health Assistant and, therefore, he cannot ask
for his seniority from the date of issuance of the notification by the State
Government creating single cadre effective from 21.01.1978, but he would be
entitled to get his seniority once he acquired the qualification of acquiring
the SITC certificate, which 6 was one of the essential qualifications for
appointment to the said post.
9.
In
the light of the aforesaid submissions of the counsel appearing for the
parties, we have considered the records in depth. The appellant was working as
Basic Health Worker which was carrying a lesser pay-scale than that of the
Multipurpose Health Assistant. The aforesaid post to which the appellant was
appointed and on which he was working as on 21.01.1978, did not belong to or
was equivalent to the post of Health Assistant. However, the State Government,
in order to have a rationalized structure of posts, merged various categories
of posts to constitute a single cadre of Health Assistants.
Consequently, the
Government also issued the aforesaid G.O.Ms. No. 85 dated 21.01.1978 merging
various posts including that of the Basic Health Worker to Multipurpose Health
Assistant. It may be stated at this stage that under the then existing rules
framed by the Government which was in operation and in vogue as on 21.01.1978,
the qualification for appointment to the post of Health Assistant was
intermediate pass with a 7 certificate of Sanitary Inspector Training Course.
The appellant did not have the said qualification as he did not possess a
certificate of the aforesaid nature, therefore, although his post was merged
with that of the Multipurpose Health Assistants, he was not given the same
pay-scale till he had acquired the aforesaid qualification or possessing a SITC
certificate. The aforesaid actions were taken by the respondents pursuant to
the specific stipulations in the notification itself which stated that Basic
Health Workers, Malaria Surveillance Workers and others would continue to draw
their own scale of pay till they acquire SITC certificate and get converted as
Health Assistants. The appellant was not having SITC certificate qualification
as on 21.01.1978 and he had acquired SITC certificate subsequently.
10.
State
Government subsequently issued revised rules in G.O.Ms. No. 273, Health dated
24.04.1989 as far as the post of Multipurpose Health Assistant is concerned.
The said rules were given retrospective effect from 01.04.1983 and an order was
also issued on 30.03.1982 by the State 8 Government to prepare a seniority
list in the feeder categories as per G.O.Ms. No. 85 dated 21.01.1978.
11.
The
follow-up action taken by the State Government was challenged by some of the
employees by filing R.P. No. 1530/1985. The State Tribunal disposed of the said
R.P. by its judgment dated 05.07.1986. Subsequent thereto, another judgment was
rendered by the said Tribunal in R.P. No. 2860/1987 and batch which was
delivered on 25.09.1987 in which various directions were issued to Respondents
for preparation of the seniority list.
Subsequently, OAs No.
5410/94 and batch were filed seeking a direction to the Respondents to
implement the judgment dated 25.09.1987. The above OAs were disposed of on
28-11-1995 issuing directions to the State Govt. in terms of the directions
issued earlier in the judgment dated 25.09.1987 in R.P. No. 2860/1987 and
batch. In both the judgments, i.e. the judgment dated 25.09.1987 in R.P. No.
2860/1987 and batch and the judgment dated 28.11.1995 in OAs No. 5410/94 and
batch, it was categorically held that Basic Health Workers and others who were
not required to pass 9 Sanitary Inspector Training Course for regularization
in their service but who were designated as Health Assistant on passing the
SITC shall count their seniority in the category of Health Assistants from
21.01.1978/01.01.1980 or from the date of passing the SITC, whichever is later,
the inter se seniority among them being determined on the basis of their length
of service in the lower category of Basic Health Workers etc.
12.
Consequent
upon the directions given in the aforesaid judgments, a seniority list was
prepared on 03.09.1998, the legality and validity of which was challenged
before the Tribunal and also before this Court.
13.
The
aforesaid facts make it crystal clear that the orders which were passed by the
Tribunal in the earlier litigation had become final and binding and the final
seniority list was prepared in compliance thereof. The effect of the said final
seniority list is that the appellant would get his seniority in the aforesaid
cadre from the date he has obtained the SITC certificate and not from a prior
date. It is needless to point out, and also made clear hereinbefore, that
possession of a SITC certificate is an 10 essential qualification, and as
such, the appellant could not have claimed his seniority from a retrospective
date.
He could get his
seniority only from the date when he acquired such a certificate in terms of
the provisions of the rules.
1.
14.As
the principles stated say that the persons who have been re-designated as
Health Assistants on passing the SITC certificate would count their seniority
in the cadre as Health Assistant from 21.01.1978/01.01.1980 or from the date of
passing the SITC certificate whichever is later, the Tribunal upheld the
aforesaid position and held that the appellant would be entitled to get his
seniority on the aforesaid principle, i.e., from 20.01.1978/01.01.1980 or from
the date of passing the SITC certificate, whichever is later. The aforesaid
findings recorded by the Tribunal, which reiterated the earlier orders passed
by the Tribunal on 25.09.1987 and 28.11.1995, appear to be just and proper and
cannot be said to be in any manner to be arbitrary.
14.
In
terms of the circular issued by the Government, the appellant although
appointed initially to the category of 11 Health Assistant, could not be so
appointed on a regular basis till he had passed the SITC and therefore, his
seniority will have to be counted from the date when he obtained such a
certificate or from 21.01.1978/01.01.1980, whichever is later, and he could not
have claimed for a seniority position prior to the effective date as he was not
eligible to hold such a post.
15.
Considering
the facts and circumstances of the case, we are of the considered opinion that
the judgment and order passed by the High Court affirming the judgment and
order passed by the Tribunal is legal and valid and that there is no infirmity
in the said orders.
16.
Consequently,
we find no merit in this appeal, which stands dismissed but we leave the
parties to bear their own costs.
............................................J
[ J.M. Panchal ]
............................................J
[Dr. Mukundakam Sharma]
New
Delhi,
September
23, 2010.
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