M R SARMA Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) A Selection Committee consisting of the Chief Secretary to the Government of Andhra Pradesh, the Secretary to the Government, Education Department and the Director of Public Instruction interviewed candidates for appoint- ment as Professors of Electrical Enginering and selected Dr. M.R Sarma and Sri Ganti Subrahmanyam. At that time Dr. Sarma was working as instmctor in Electrical Engineering in the College of Engineering at Anantapur and Sri Subrabmanyam was working as I .istructor in Tele-Communications in the College of Engineering at Guindy (on deputation). They were appointed regularly as Professors of Engineering by G.O. Ms. No. 1118,. dated 20th June, 1955 with effect from the date of their taking charge Dr. Sarma, who was already working at Anantapur, was able to take charge on 7th July, 1955 while Sri Subrahmanyam, who had to be relieved at Guindy before he could proceed to the place where he was posted, was able to take charge only on 25th July, 1955 In the year, 1956, Sri Subrahmanyam made a representation to the Director of Public Instruction claiming that he was entitled to seniority over Dr. Sarma as he was senior to him in the lower category of Instructors. He explained that he could take charge as Professor only on 25th July, 1955 as there was delay in his being relieved by the Principal of the Engineering College at Guincy. The Director appears to have recommended the case of Sri Subrahmanyam to the Government but nothing seems to have come out of it. By G.O. Ms. No 2648, dated 11th August, 1960 both Dr Sarma and Sri Subrahmanyam were made Full Members of the Service with effect from 7th July, 1955 and 25th July, 1955 respectively. Sri Subrahmanyam once again made a representation to the Director claiming seniority over Dr Sarma. The Director of Technical Education by his memorandum dated 26th December, 1961 rejected Sri Subrahmanyam's representation on two grounds: (1) Dr. Sarma had taken charge of his post earlier than Sri Subrahmanyam. (2) The appointment of Sri Subrahmanyam was facilitated by the relaxation of a rule regarding practical training while such relaxation was not necessary in the case of Dr. Sarma. For the time being Sri Subrahmanyam appeared to acquiese but again, on 5th February, 1965 he made a representation to the Government claiming seniority over Dr. Sarma. His representation was, however rejected by the Government by its memorandum dated 7th April, 1967. The memorandum of the Government was issued by the Secretary to the Government. Meanwhile Dr. Sarma was promoted as Principal of the Nagarjunasagar Engineering College on 18th December, 1965 and his services were later regularised as Principal with effect from 18th December, 1965. Later still Dr. Sarma was also promoted temporarily to act for a short while as Director of Technical Education. On 20th June, 1969 Sri Subrahmanyam was also temporarily promoted as Principal and, later, his services were also regularised. In 1971, Sri Subrahmanyam made yet another representation to the Government claiming seniority over Dr. Sarma. This time the representation fell on more receptive years. The Director of Technical Education recommended his case to the Government. The Government, being provisionally satisfied that he had a rightful claim to seniority, issued a notice to Dr. Sarma to show cause why Sri Subrahmanyam should not be declared as senior to Dr Sarma in the categories of Professors and Principals of Engineering Colleges in the Andhra Pradesh Technical Education Service. Dr. Sarma showed cause. The Government by its G.O. Ms. No. 38, Education, dated 19th January, 1973 decided that Sri Subrahmanyam was entitled to be declared as senior to Dr. Sarma in the categories, of Professors and Principals, without, however, any retrospective berefits. By the same Government Order rule 33 (a) of the Andhra Pradesh State and Subordinate Services Rules was relaxed to enable the Government to declare Sri Subrahmanyam as senior to Dr. Sarma. Dr. Sarma has filed this application for the issue of a writ to quash G.O. Ms. No. 38 dated 19th January, 1973.

(2.) The basic assumption underlying G.O Ms. No. 38, dated 19th January, 1973 is that where the selection committee does not indicate any order of preference the Government is under an obligation to determine the seniority with reference to seniority in the lower category. It is stated in the G.O. "Therefore, the seniority of the aforesaid two officers in the category of Professors has to be fixed with reference to the seniority in the lower category". An examination of the State and Subordinate Services Rules docs not justify this basic assumption. Rule 33 (a) of the State and Subordinate Services Rules prescribes that the seniority in a service, class, category or grade shall be determined by the date of his first appoint- ment to such service, class, category on grade. Rule 3 (i) of Part I of the State and Subordinate Services Rules states: "A person is said to be appointed to a service when in accordance with these rules or in accordance with the rules applicable at the time, as the case may be, he discharges for the first time the duties of a post borne on the cadre of such service or commences the probation, instruction or training prescribed for members thereof". With reference to the definition of the expression "appointed to a service" there can be no gainsaying the fact that Dr. Sarma was appointed to the post of Professor on 7th July, 1955 and Sri Subrahmanyam was appointed to the post on 25th July, 1955. Under rule 33 (a) therefore Dr. Sarma took his seniority from 7th July, 1955 while Sri Subrahmanyam, took his seniority from 25th July, 1955. Rule 33 does not contain any exception to the principle enunciated by rule 33 (a) in the case of persons promoted from the lower category. On the other hand, rule 33 (c) provides that the transfer of a person from one class or category of a service to another class or category carrying the same scale of pay shall not be treated as first appointment to the later class or category for purposes of seniority; seniority shall be determined with reference to the date of his first appointment to the class or category from which he was transferred. There is no similar provision in the case of promotion from a lower category to a higher category. The distinction between appointment by transfer and appointment by promotion is well known. Even in the case of transfer, seniority is permitted to be carried forward only if the class or category to which a person is transferred carries the same scale of pay as the class or category from which he is transferred. Rule 33 (c) also invests the appointing authority with the power to determine seniority where any difficulty or doubt arises in applying the sub-rule. Similar provision is not found in the other sub-rules.

(3.) I must now refer to sub-rule (4) on which the learned Government Pleader relied. Rule 33 (6) provides that where two or more persons are appointed simultaneously to a service, the appointing authority may, at the time of appointment, fix the order of preference, and seniority shall be determined in accordance with such order of preference. It is clear that this power may be exercised ay the appointing authority at the time of making the appointment and not at the any other later point of time. Even at the time of making the ?ppointment, the appointing authority is not obliged to 5x the order of preference. It may or may not. If it does not, it will not be open to the appointing authority to seek to exercise the power later. In such an event the persons appointed will have to take their seniority in accordance with rule 33 (a).