HON'BLE SRI JUSTICE GHULAM MOHAMMED AND HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No : 14274 of 2009 O R D E R: (per Hon'ble Sri Justice Ghulam Mohammed) This Writ Petition is filed seeking a mandamus to declare the order passed by the Andhra Pradesh Administrative Tribunal, Hyderabad in O.A.No. 1877 of 2008, dated 11.06.2009 in favour of the 1st respondent as illegal, arbitrary and against the principles of natural justice. The petitioner was appointed as a Secondary Grade Teacher on 18.06.1991 and probation of his services was declared on 17.06.1993, whereas the 1st respondent was appointed as a S.G.T. on 04.10.1982 in an unaided post and probation of his services was said to have been declared with effect from 03.10.1984. Subsequently, on 01.03.2002, the services of the 1st respondent were absorbed into a regular aided post. The grievance of the petitioner, therefore, is that he is senior to the 1st respondent and as such, his case has to be considered first for the purpose of promotion. The 1st respondent filed O.A.No. 1877 of 2008 before the Tribunal seeking directions to consider his case for promotion to the post of School Assistant (Special/C.F.L., Head Master). In the said O.A., the petitioner herein was not made as a party, enabling him to put forth his grievance. The Tribunal, through its order dated 11.06.2009 has concluded the issue in the following manner: “ In view of such circumstances, as it is clear from the seniority list published by the respondents in the year 2006, that the applicant’s name has been shown at Sl.No. 1 having been taken his date of joining as 04.10.1982 and declaration of his probation with effect from 03.10.1984, the respondents cannot deny the promotion to the applicant, in accordance with the said seniority list. Therefore, the respondents are directed to consider the case of the applicant for promotion to the post of School Assistant (Social)/L.F.L. Head Master and pass necessary orders. If any juniors have been promoted, the respondents are directed to give promotion to the applicant from the said date of promotion of his junior and the consequential orders shall be passed within a period of 8 weeks from the date of receipt of a copy of this order. The O.A. is accordingly allowed.” In the counter-affidavit filed by the 4th respondent, it has been stated at paragraph 6, which reads as under: “ It is submitted that the 1st respondent joined in service on 04.10.1982 in an unaided post and his probation was declared on 03.10.1984 and he was given 8 years scale, subject to approval of Local Fund and Audit Department, as per Government Memo No. 3866/F2/78-6, Education Department, dated 10.01.1980. But the Local Fund and Audit Department cancelled the scale, vide its Proceedings Roc.No. 1828/96/C1, dated 11.03.1997. Later in pursuance of the Proceedings in Rc.No. 1236/D1-2/2000, dated 20.02.2002 of the Commissioner & Director of School Education, Andhra Pradesh, Hyderabad, the 1st respondent was adjusted in the existing vacancy of Secondary Grade Teacher, as such the 1st respondent has joined duty on 01.03.2002 at Municipal Elementary School, Visathiwada, Ponnur.” Learned counsel for the petitioner contends that the 1st respondent has not made the affected persons as party respondents to the O.A. filed before the Tribunal. He further contends that admittedly, the respondent applicant joined service in an un-aided post in 1982 and later, he was admitted to grant-in-aid on 01.03.2002 and that therefore, his seniority should be reckoned from that date only. Heard the learned counsel for the 1st respondent and the learned Government Pleader for Services-I for Respondents 2 to 4. Section 3 of the Andhra Pradesh Private Aided Educational Institutions Employees (Regulation of Pay) Act, 2005 (Act No. 37 of 2005), reads as follows: “ Counting of service for fixation of pay, automatic Advancement Scheme, Career Advancement Scheme and Pension: Notwithstanding anything contained in any order of the Government or any judgment of any Court or Tribunal every employee of Private Aided Educational Institution, shall from the date of approval of his appointment in an aided post, be eligible to count the service rendered after such date of approval, for fixation of pay in the said post and Automatic Advancement Scheme, Career Advancement Scheme, Pension made applicable or extended to such employee from time to time.” From the above said provision, it is clear that the service rendered by an employee in an un-aided post cannot be counted for the purpose of seniority. The Tribunal without examining this aspect and without impleading the affected persons as parties to the O.A., passed the impugned order. Therefore, we are of the opinion that this matter requires fresh consideration by the Tribunal. Accordingly, we set aside the order dated 11.06.2009 passed by the Tribunal in O.A.No. 1877 of 2008 and direct that the petitioner herein be impleaded as a party respondent to the O.A. The Tribunal shall adjudicate the matter afresh, in accordance with law, after considering the facts and circumstances of the case and after affording an opportunity of hearing to the affected parties. The Writ Petition is therefore, allowed. No costs. ---------------------------- (GHULAM MOHAMMED,J) ---------------------------------- (NOOTY RAMAMOHANA RAO, J) 7th April 2010 ksld 1. ..... REGISTRAR 2. // TRUE COPY // 3. SECTION OFFICER To 4. 1) 2 CD copies 5. Form-NIC-OGS/WP{BMR} 3rd August 2009 ksld