THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE NOUSHAD ALI W.P. No.6631 of 2004 ORDER: (Per NA,J.) -- This Writ Petition is filed to call for the records connected with O.A.No.6891 of 2000, dated 31-12-2003 on the file of the A.P. Administrative Tribunal, Hyderabad (for brevity, ‘the Tribunal’) and quash the same as illegal and contrary to A.P. Ministerial Service Rules and violative of Presidential Order. The petitioner was respondent No.3 in the O.A. and respondent No.3 herein was the applicant in O.A. The O.A. was filed questioning the orders of the first respondent i.e., the Commissioner of Labour, Hyderabad vide Memo No.A3/12655/99, dated 17-02-2000 and the consequential proceedings No.A/3075/2000, dated 25-08-2000 of the second respondent viz., the Deputy Commissioner of Labour, Guntur. Under the proceedings of the first respondent, dated 17-02- 2000, the first respondent considered the appeal filed by the petitioner and directed the second respondent to fix the seniority of the third respondent and two others with effect from the dates of their joining in the Labour Department and further directed to issue show cause notice to the third respondent and two other individuals, while amending the final seniority list of Junior Assistants of Guntur zone issued vide proceedings No.A/2151/96, dated 02-01-1999 of the second respondent. Under proceedings No.A/3075/2000, dated 25-08- 2000, the petitioner and another were temporarily promoted as Senior Assistants with effect from the date of their joining. The Tribunal set aside the aforesaid orders and directed that the third respondent be shown as senior to the petitioner and that the third respondent had to take last rank in the list of approved probationers of Junior Assistants in the Labour Department and he be given promotion as per his seniority. The O.A. was allowed granting notional benefits up to the date of filing of the O.A. and monetary benefits thereafter. Aggrieved by the said order, the petitioner has filed the present Writ Petition. The brief facts are that the petitioner was appointed as Junior Assistant in the Labour Department on 04-03-1987. The post of Junior Assistant is the District Cadre Post. The second respondent prepared seniority list by proceedings, dated 28-10-1996, wherein the petitioner was assigned rank No.1 showing his seniority from the date of his appointment dated 04-03-1987. The third respondent was assigned rank No.4 with effect from 03-11-1988 the date on which he joined the Labour Department. The third respondent was originally appointed as Record Assistant in the Judicial Department in the year 1977 and later promoted as Junior Assistant in the same Department. His services as Junior Assistant were regularized on 25-05-1984. While working as Junior Assistant in the Additional District Munsif Court, Kavali, the third respondent made a request vide application, dated 14-06-1985 for transfer to Labour Department. The High Court of Andhra Pradesh vide letter No.2815/85-13, dated 18-07-1985 forwarded the application of the third respondent to the second respondent. The Collector and Chairman, District Selection Committee, Nellore vide Proceedings Rc.No.P4/43210/88, dated 12-07-1988 expressed no objection for transfer of the third respondent from the Judicial Department to the Labour Department. Accordingly, the third respondent was transferred as Junior Assistant to the Labour Department at his request purportedly under Rule 16(1) of the A.P. Ministerial Services, Rules, 1966 and that he would take last rank among the Junior Assistants working in the Labour Department on the date of his transfer. He was also informed that he was not entitled to any joining time and TPA. Consequent of such transfer, the third respondent was posted as Junior Assistant in the office of the Assistant Labour Officer, Udayagiri in the existing vacancy. The second respondent prepared a provisional seniority list of Junior Assistants working in Labour Department, Zone-III in respect of those who are appointed between 01-01-1986 and up to 31-12-1993. In the said provisional seniority list, the petitioner was shown at serial No.1 with 04-03-1987 as the date of his regular appointment to the post of Junior Assistant in the Labour Department. The third respondent was shown at serial No.4. In the remarks column, it was mentioned that the third respondent was transferred from the Judicial Department to Labour Department at his request, vide proceedings No.A/4035/1988, dated 07-10- 1988 of the Deputy Commissioner of Labour, Guntur. Two other individuals viz., Smt.K.Annapoornamma and Sri P.Sasidhar Reddy were also shown in the provisional seniority list with whom this writ petition is not concerned. The third respondent submitted a representation, dated 25-08-1997, stating that he was already declared as approved probationer by the Judicial Department as on the date of his transfer to the Labour Department and that as per Rule 16(1) of the A.P. Ministerial Service Rules, he must be placed in the last rank among the candidates working in the same category in Labour Department in the category of probationer or approved probationer. He further stated that the petitioner and others were not probationers, as such he wanted to place him in the first rank in the seniority list. Based on the representation, the second respondent accepted that the third respondent was to be given last rank among the approved probationers since he was transferred to Labour Department under Rule 16(1) of A.P. Ministerial Service Rules prior to the amendment of the said Rule vide G.O.Ms.No.665 G.A.(Ser.B) Department, dated 14- 12-1990. Accordingly, final seniority list of Junior Assistants in respect of Nellore District was drawn under the proceedings dated 28-10-1996 in which the third respondent was shown at rank No.1 showing 07-07-1987 as the date of seniority assigned in the category of Junior Assistant. In the remarks column it was mentioned that he was approved probationer with effect from 07-07-1985 and that he joined the Labour Department on transfer on 03-11-1988. The petitioner was shown at rank No.2 with 04-03-1987 as the date of seniority assigned in the category of Junior Assistant. Aggrieved by the final seniority list, the petitioner submitted an appeal dated 12-04-1999 to the Commissioner of Labour, A.P. (first respondent) and requested to fix his seniority over and above the third respondent and others who were transferred from other Departments subsequent to his date of joining in the Labour Department. The first respondent on consideration of the appeal accepted the same and consequently issued proceedings No.A3/12655/99, dated 17- 02-2000 directing the second respondent to fix the seniority of the third respondent and others with effect from dates of their joining in the Labour Department as per the condition imposed in the transfer orders and further directed to issue show cause notices to other individuals while amending the final seniority list of Junior Assistants. In the meanwhile, the petitioner was promoted temporarily as Senior Assistant under Rule 10(a) of the A.P. State and Subordinate Service Rules, 1966 read with Rule 4 of A.P.Ministerial Services, 1966. The third respondent thereafter filed a representation, dated 20-09-2000 to the first respondent and sought for the review of the orders, dated 17- 02-2000 of the first respondent and proceedings of the second respondent, dated 25-08-2000. Thereafter the third respondent filed the O.A.No.6821 of 2000 before the Tribunal. The Tribunal took the view that the third respondent was an approved probationer by the time he joined the Labour Department whereas the petitioner joined Labour Department on 04-03-1987 and he would be considered for promotion only after two years from 04-03-1987. The Tribunal accordingly allowed the O.A. holding that the third respondent is senior to the petitioner and on this premise held that the promotion given to the petitioner was not sustainable. Aggrieved by the orders of the Tribunal the petitioner filed the present Writ Petition. Heard Sri M.Pandu Ranga Rao learned counsel appearing for the writ petitioner and Smt.M.Vidyavathi, learned counsel appearing for the third respondent. The learned counsel appearing for the petitioner contended that the petitioner, since appointed in the Labour Department with effect from 04-03-1987, should be considered as senior to the third respondent who came on transfer at his own request from the Judicial Department to the Labour Department on 03-11-1988. He contended that the third respondent sought for a transfer on his own from the Judicial Department to the Labour Department and that the second respondent, accepting his request, issued proceedings No. A/4035/1988, dated 07-10-1988 specifically stating that he would take last rank among the Junior Assistants working in the Labour Department on the date of his transfer and therefore he should be given last rank as per Rule 27 (1) (iii) of the A.P.Ministerial Rules, 1966. He, therefore, contended that the order of the Tribunal is not sustainable and the same is liable to be set aside. On the other hand, Smt.M.Vidyavathi, learned counsel appearing for the third respondent contended that the petitioner cannot be considered as senior to the third respondent. The learned counsel contended that on the date of his transfer from the Judicial Department to the Labour Department, the third respondent was already declared as approved probationer in the Judicial Department and that the petitioner was not an approved probationer as on that date, hence as per Rule 16(1) of the A.P.Ministerial Service Rules, the third respondent should be placed in the last rank among the probationers or approved probationers in the Labour Department. The learned counsel, therefore, submitted that the order of the Tribunal is valid and sustainable in law. The facts are not in dispute. The petitioner was appointed as Junior Assistant in the Labour Department on 04- 03-1987. The third respondent was originally appointed in the Judicial Department as Record Assistant and later promoted as Junior Assistant. His services as Junior Assistant was regularized on 25-05-1984. On his request, the third respondent was transferred from the Judicial Department to the Labour Department by orders, dated 07-10-1988 and joined the Department on 03-11-1988 by virtue of the orders of the second respondent vide proceedings No.A/4035/1988, dated 07-10-1988. In order to appreciate the dispute as to the seniority between the petitioner and the third respondent, it is necessary to extract the relevant portion of this orders, which is as under : “……… Sri K.V.Ranga Rao, Junior Assistant, Additional District Munsiff Magistrate Court, Kavali is therefore transferred as Junior Assistant to the Labour Department at his request under Rule 16(1) of Andhra Pradesh Ministerial Services. He will take last rank among the Junior Assistants working in the Labour Department on the date of his transfer. He is informed that he is not entitled to any joining time and T.P.A.………” From the above, it is manifest that the third respondent was transferred with a specific stipulation that he would take the last rank among the Junior Assistants working in the Labour Department on the date of his transfer. It is conspicuous that he was not transferred with a stipulation that he would take the last rank among the probationers/approved probationers. The stipulation is unequivocal and unqualified. The third respondent accepted the transfer on this condition and joined the Labour Department at his own request. However, the petitioner was already working as Junior Assistant in the Labour Department as on the date of the transfer of the third respondent. Therefore, the contention that he should be placed after the probationers or approved probationers is not acceptable. Further, the petitioner, even assumed to be on probation from 04-03-1987 on which date he joined the Labour Department, it is not the case of the third respondent that his probation was not declared nor that he did not become an approved probationer after the completion of the probation period. Once it is accepted that the probation of the petitioner was declared, it is well settled that his seniority would date back to the date of his appointment. In this context it is useful to extract the relevant portion of Rule 27 (1)(iii) of the A.P. Ministerial Service Rules, 1966. The relevant portion of the Rule is as under : “Rule 27.Probation, Seniority and Confirmation – Special Provisions :-- (1) (i)……(ii)…(omitted as not necessary) (iii) the seniority of a member of the service who is transferred at his own request from one department or office to another shall be fixed in the latter department or office with reference to the date of his first appointment in the latter department or office;” The aforesaid provision is very clear that when a Member of a service is transferred at his own request from one Department to another, his seniority should be fixed in the latter department with reference to the date of his first appointment in the latter Department. In terms of this Rule, the third respondent should be assigned seniority with reference to the date of his appointment i.e., 03-11-1988 in the Labour Department. That apart, the third respondent accepted the conditional transfer which was made as long back as on 07-10-1988 and allowed it to become final, thereby he waived his right to assail the same and claim seniority over the petitioner. T h e same view is taken in G.Veeraiah Vs. Government of Andhra Pradesh and others[1]. In the light of the aforesaid discussion, we are of the view that the order of the Tribunal is not sustainable and the same is accordingly quashed. The Writ Petition is allowed accordingly. No costs. ___________________ A.GOPAL REDDY, J. _________________ NOUSHAD ALI, J. 08th February, 2010. skmr [1] 2001 (3) ALD 25