THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE K.G.SHANKAR W.P.No.28387 of 2010 Date: 28-02-2010 Between: Dr. T.S. Chandragupta ………. Petitioner and State of Andhra Pradesh, rep. by its Principal Secretary, medical, Health and Family Welfare Department, Secretariat, Hyderabad and others. ……… Respondents THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE K.G.SHANKAR W.P.No.28387 OF 2010 ORDER : (Per Hon’ble Sri Justice Ghulam Mohammed) This writ petition is filed assailing the legality and validity of the order dated 08-10-2010 in O.A.No.4393 of 2010 on the file of the A.P. Administrative Tribunal, Hyderabad (for brevity ‘the Tribunal’), wherein the Tribunal dismissed the O.A. filed by the petitioner to set aside the impugned proceedings No.10996/E1A/2010-3, dated 30-06-2010, issued by the 1st respondent keeping the 3rd respondent full additional charge of the post of Principal, Rangaraya Medical College, Kakinada, as illegal and contrary to law and consequently direct the 1st respondent to keep the petitioner as full additional charge of the said post. 2. Brief facts of the case are that initially the petitioner was appointed as Civil Assistant Surgeon on 02-12-1982 and his services were regularized in the said category. Presently, he is working as Professor (Sexually Transmitted Diseases), Rangaraya Medical College, Kakinada. 3rd respondent jointed service as Civil Assistant Surgeon on 18-11-1983 and presently he is working as Professor (Paediatrics). The main grievance of the petitioner is that when the post of Principal, Rangaraya Medical College, Kakinada, fell vacant, the 1st respondent passed the impunged order dated 30-06-2010 keeping the 3rd respondent as full additional charge to the post of Prinicpal, Rangaraya Medical College, Kakinada, in spite of representation made by the petitioner to consider his case for posting him as in charge of the said post. The main grievance of the petitioner is that while appointing the 3rd respondent as full additional charge to the post of Principal, Rangaraya Medical College, Kakinada, the 1st respondent violated the rule position and settled legal position. Therefore, aggrieved by the same, he filed the present O.A. Respondents 1 and 2 filed counter affidavit denying the allegations made by the petitioner and stated that as per the method of appointment the 3rd respondent is the senior than the petitioner and as per the ranks of the petitioner and the 3rd respondent, 1982/267 and 1982/175, respectively, as assigned by the AP Public service Commission, the 3rd respondent is eligible to hold the post of Principal, Rangaraya Medical College, Kakinada. Therefore, there is no illegality or irregularity made by the respondents in appointing the 3rd respondent as full additional charge to the said post. The 3rd respondent also filed a counter alleging that the petitioner is not eligible for promotion since his name was not even recommended for promotion as he was not within the zone of consideration. Further, the petitioner is having less than one year of service to consider his case for promotion. The 1st respondent after considering his seniority, experience and achievements only, issued impugned proceedings dated 30-06-2010, hence, he requested to dismiss the O.A. The Tribunal after considering the contentions raised by the parties, dismissed the O.A. on the ground that the 3rd respondent is the senior to the petitioner and that the 1st respondent based on the rank obtained by the 3rd respondent and panel containing the name of the 3rd respondent, issued impugned orders by exercising his discretionary powers. Aggrieved by the same, the petitioner approached this Court and filed the present writ petition. 3. Heard Sri Pratap Narayan Sanghi, learned counsel for the petitioner, learned Government Pleader for Services-I, appearing for the respondents 1 and 2 and Sri P.Ratnam, learned counsel for the 3rd respondent. 4. The learned counsel for the petitioner contended that the petitioner joined service on 02-12-1982, and his probation was declared on 13-01-1985. The 3rd respondent joined service on 18-11-1983 and his probation was commenced from 17-11-1985. The learned counsel has drawn the attention of this Court to Rules 33, 34, 35 and 36 of the A.P.State Subordinate Service Rules (for brevity ‘Rules’) stating that when a person joined at a later date, as per Rule 33 (a) of the Rules, the length of service is required to be taken into consideration for considering the case of an individual promotion to the higher post. He further contended that the 3rd respondent joined after one year later to the appointment proceedings. Hence, the decision of the Service Commission in assigning the rank to the 3rd respondent has no basis. 5. On the other hand, the learned Government Pleader for Services- I, appearing for the respondents 1 and 2, has drawn our attention to the Rule 29 of the Rules, which reads thus: “29. Appointment of full members.-(a) Subject to the provisions of Rule 9 an approved probationer shall be appointed by the appointing authority, or in the case of an approved probationer in an initial gazetted post by the Head of the Department to be a full member of the service in the class or category for which he was selected, at the earliest possible opportunity, in any substantive vacancy which may exist or arise in the permanent cadre of such class or category and if such vacancy existed from a date previous to the issue of the order of appointment, he may be so appointed with retrospective effect from the date or as the case may be, from any subsequent date from which he was continuously on duty as a member of the service in such class or category or in a higher class or category. Provided that where more than one approved probationer is available for such appointment as full member the senior most approved probationer on the date of the vacancy shall be appointment. Explanation-I-For the purpose of this proviso, if there are more persons than one who have completed the prescribed period of probation, the senior most among them shall be deemed to be the senior most approved probationer eligible for appointment as full member notwithstanding the fact that his probation has not been declared provided the delay in declaration is due to administrative reasons, but subject to the condition of his probation being declared subsequently to have been satisfactorily completed. Note:- If there is a senior who joined duty later due to administrative reasons, such as availing of joining time, and the like, and hence commenced probation from a date later than his junior, the senior shall be deemed to be the approved probationer eligible for appointment as full member notwithstanding the fact that he has not completed the prescribed period of probation on the date of the vacancy, but subject to his satisfactorily completing the prescribed period of probation.” The learned Government Pleader contended that though the 3rd respondent was jointed in service on 18-11-1983, and in the seniority list prepared in the category of Civil Assistant Surgeon, the 3rd respondent is shown as he is senior than the petitioner as per the rank assigned by the Service Commission. 6. The learned counsel for the 3rd respondent contended that the 3rd respondent was joined duty within the time frame. He was working in Kerala when the posting orders were served on him and he joined in the post on 18- 11-1983 within 60 days as provided by the stipulated joining time. Hence, there is no question of seniority of the petitioner than the 3rd respondent. 7. Now the point that arises for consideration is whether the order passed by the Tribunal suffers from any illegality. 8. We have considered this matter at length. By virtue of Rules 29 and 33 of the Rules, the 3rd respondent is senior in the rank as assigned by the recruitment agency and it is the main criteria while considering promotion to them. Hence, though the 3rd respondent joined later, it is not the ground for the petitioner to contend that there is an illegality in appointing the 3rd respondent as full additional charge. The Tribunal having considered this matter gave specific reasons in dismissing the O.A. and therefore, as per the merit rank assigned by the Commission, the petitioner is not a senior to the 3rd respondent. Further, it is the discretion of the authorities to find a suitable candidate to appoint in the said post and moreover, in the provisional seniority list prepared by the committee for considering promotions, the name of the 3rd respondent was found, and accordingly, he was appointed as full additional charge to the post of Principal, Rangaraya Medical College, Kakinada. 9. In the circumstances, we are of the considered opinion that the Tribunal has rightly dismissed the O.A. We do not find any illegality in the order passed by the Tribunal and the Tribunal has not committed any error warranting interference by this Court. 10. In the result, the writ petition is dismissed. There shall be no order as to costs. _____________________________ JUSTICE GHULAM MOHAMMED Dated: 28-02-2011 ________________________ JUSTICE K.G. SHANKAR kvr