Civil Appeal No 263 of 1982
Appeal by special leave from the Judgment and order dated the Ist September 1980 of the Andhra Pradesh Administrative Tribunal Hyderabed in Transferred Petition No 1663 of 1976
A Subba Rao for the Appellant
PP Rao and GN Rao for Respondent No 1
T V R Tatachari and A V V Nair for the Respondents 406 The Judgment of the Court was delivered by DESAI J
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
Nagarjuna Sagar Control Board was constituted in the year 1955 charged with a duty to implement NS 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 NS Dam with the Chief Engineer as Head of the Department
Appellants were serving in the office of the Chief Engineer NS Dam Unit
By the order dated February 8 1964 appellants were transferred to the office of the Pay and Accounts officer NS Project
At the time of transfer appellants were officiating as UDC and were directed to report to the Deputy Chief Accounts officer NS 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 Superintendent
By the GOMs
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 141967 in the office of Dy
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 407 a representation to the Dy
CAO for the permanent absorption in A 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
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 NS Dam and they had a permanent lien in the parent department and therefore they could not be absorbed in 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
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 The learned member of the Tribunal held that the Dy
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 GOMs No 27 dated February 3 1972
As a corollary it was held that the various orders made in February 1975 permanently 408 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 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
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 PAO s office NS Project
The order directs all the transferred UDCs to report for duty to Dy
CAO NS 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 Superintendent
So far there is no controversy
The Tribunal nowhere examined the power of the Chief Engineer NS Dam Project to transfer persons working under him to the office of Dy
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
lt 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
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 409 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 NS 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
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
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
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 410 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  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 32 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 of Directorate
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 Ir 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  411 in the Financial Code which is relevant to ascertain the financial A 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
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 vs Surya Rao one of the appellants left the organisation of Dy
CAO on February 9 1977 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
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 412 N section 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 On May 3 1966 by GOMs
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
lt 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 GO 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
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 Nagarjuna sagar 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 lo 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 Superintendents 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 413 under whom Dy
CAO was directly working were declared in 1966 A 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
R It was however contended that GOMs
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 GO reads as under In the circumstances stated by the Financial Adviser and Chief Accounts officer NS Project in the NO Note read above the Dy
Chief Accounts officer NS Project in is delegated with the following powers instead of declaring him as the Head of the Department
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 GO 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 414 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
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 directly working
The Relevant portion of the Note may be extracted
It reads as under Hitherto recruitment to the post of LD Clerks UD Clerks in Deputy Chief Accounts officers organisation Nagarjun sagar 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 section Project were considered to enjoy the status of the Heads of the Department offices
In G O Ms No 178 PWD Projects Wing dated 351966 orders were issued that the office of the Financial Adviser and Chief Accounts officer Nagarjuna sagar 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 scale 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 2491968 stipulate that the Deputy Chief Accounts officer Nagarjuna sagar Project is the appointing authority up to the leavel of Superintendents in his organisation
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 deaclare 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 415 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
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
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 orgaoisation
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 GO 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
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 416 was unnecessary
They could claim to be absorbed according to senitority 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
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 re quest 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
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
 It was then pointed out that in the subsequent order the expression used is not period of transfer  but period of deputation  and an inquary was made whether the further extension of period was necessary
This appears to us to be quibeling
Except for appellant 9 RV Surya Rao all the appellants have been working in the 417 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
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 1663176 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
SR Appeal allowed


Summary:
The appellants who were serving in the office of the Chief Engineer Nagarjuna Unit as officiating Upper Division Clerks were transferred to the office of Deputy Chief Accounts officer
NS Project by an order dated February 8 1964
Respondents 2 to 108 were initially recruited as Lower Division Clerks during the period 1959 65 and some of them were promoted as Upper Division Clerks from 1961 onwards
After their transfer their services were regularised by the Chief Engineer as per his proceedings dated August 11 3 1968
This was challenged by some of the persons similarly situated like the present respondent and the High Court dismissed the Writ Petition as well as the writ appeal holding that the transfer was on administrative grounds and therefore their length of service in the parent department had to be taken into account for the purpose of determining their seniority
By its order GOMS 27 PWD dated February 31972 the State Government accorded sanction to the permanent retention of the posts set out in the order with effect from 1 41967 in the office of the Deputy Chief Accounts officer
Among other 38 posts of the Upper Division Clerks were thus made permanent by this order with a further provision that the posts so made permanent shall be filled in by personnel already working in the Accounts organisation
The appellants whose services were already regularised were now made permanent by the Deputy Chief Accounts officer
Feeling aggrieved by the said orders the respondents filed a writ petition before the High Court of Andhra Pradesh which was transferred to the AP Administrative Tribunal
The Tribunal allowing the petition held that the Deputy Chief Accounts officer had not the powers of the Head of a Department and was therefore not competent to absorb and retain the appellants in his office and confirm them against the posts made permanent
Hence the appeal by special leave
405 Allowing the appeal tho Court  HELD 11
The Deputy Chief Accounts officer DOW redesignated as Director of Accounts is the Head of Department for the purpose of Rule 32 of Service Rules and therefore the confirmation of the appellants against the permanent posts of Upper Division Clerk is in order
411 E 415 A B 12
The Deputy Chief Accounts officer is shown to be directly working 8 under a secretariat department without intervention of any higher office
When the office of the Financial Adviser and Chief Accounts officer under whom the Dy
CAO was directly working was declared in 1966 as Secretariat department the Dy
CAO was invested with power of appointing authority which comprehended the power to appoint persons who would be eligible for pay scales applicable to the staff in the offices of the Heads of Department
The unofficial note dated June 11 1969 of the FA and CAO makes the position clear
412 G 413 A B 13
Even without reference to Rule 32 tho appellants could be absorbed in tho instant case
Appellants were transferred to tho office of Dy
CAO in 1964
Their regularisation was held as valid and regular by an earlier decision of the AP High Court They having rendered service for eleven long years in the Accounts organisation before the impugned action was taken they were entitled to be absorbed in the department by virtue of tho proviso in GOMS 27 dated 3rd February 1972
415 DEF H 416 A 21 The inter se seniority of the appellants and the respondents would be governed by the first proviso to Rule 36e and not by the second proviso thereto
This position not only stands concluded by tho earlier decision of the AP High Court but also by the very orders of transfer
417 A B 22
The transfers were on administrative grounds and certainly not at the request of the appellant
Further tho 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 be would be entitled which in this case are not shown to have been made available to the appellants
412 A B