IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE THIRTY FIRST DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 5603 of 2005 Between: P.Singaiah, s/o Kotaiah, M.P.Upper Primary School, Mukthinuthalapadu, Ongole Mandal, Prakasam District. ..... PETITIONER AND 1 The Audit Officer, Locan Funds, Ongole, Prakasam District. 2 The Chief Executive officer, Zilla Parishad, Ongole, Prakasam District. 3 The Mandal Educational officer, Ongole, Ongole Mandal, Prakasam District. .....RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to pass orders, particularly one in the nature of writ of mandamus, declaring the orders of the 1st respondent in Lr.L.F.NO.92/MPP dated 5-7-1993 and the judgment of the Honourable A.P. Administrative Tribunal in O.A.No.3841/1993, dated 13-12-1999 and review M.A.No.4825/2002, dated 16-2-2005 thereon as arbitrary, illegal, misconceived, discriminatory and violative of Articles 14, 16 and 21 of the Constitution of India, and consequently set-aside the same, and direct the respondents to give service and benefits of secondary Grade Teacher on par with his juniors in the merit list of selection, and grant such other relief as this Honourable High Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner: MR.KASAJAGANMOHAN REDDY Counsel for the Respondents.: GP FOR EDUCATION The Court made the following : ORDER: (per Hon’ble Sri Justice GHULAM MOHAMMED) This writ petition is filed by the petitioner seeking a writ of Mandamus declaring the orders of the Audit Officer, Local Funds, Ongole, Prakasam District-1st respondent in Lr.L.F.No.92/MPP, dated 05.07.1993, and the Order dated 13.12.1999 passed in O.A.No.3841 of 1993 and the order dated 16.02.2005 passed in Review M.A.No.4825 of 2002 on the file of the Andhra Pradesh Administrative Tribunal, Hyderabad, (for short, ‘the Tribunal’), as arbitrary and illegal and consequently, direct the respondents to give seniority of service and benefits of Secondary Grade Teacher on par with his juniors. 2. The petitioner herein is the applicant in the O.A. The petitioner was selected as Special Teacher in the year 1983 on a consolidated pay of Rs.398/- p.m. and later, by proceedings dated 23.12.1985 the District Development Officer, Ongole, absorbed the petitioner in the regular post of Secondary Grade Teacher with effect from 06.09.1986, but he was given regularization with effect from 11.01.1986 though he actually did not perform his duties from 11.01.1986 to 05.09.1986. The petitioner has sought arrears of pay for the period from 11.01.1986 to 05.09.1986, which was rejected by the Assistant Audit Officer, Local Funds (MPP), Ongole, vide letter dated 05.07.1993, on the ground that the petitioner did not discharge his duties as Secondary Grade Teacher during the said period. Hence, the petitioner filed the O.A. 3. After hearing learned counsel for the parties and on perusal of the counter-affidavit stating that the petitioner actually joined the duty only on 05.09.1986 and did not perform his duties as S.G.T. prior to that date and thus, his regularization, seniority and pay was also fixed accordingly, the Tribunal rejected the relief as sought for by the petitioner. Further, the petitioner filed Review M.A.No.4825 of 2002, which was also dismissed by the learned Tribunal on 16.02.2005, holding that no error of law or facts was apparent on the face of the record or new grounds are urged. Aggrieved of the same, the petitioner filed this writ petition. 4. Heard learned counsel appearing for the parties. 5. It is the grievance of the petitioner that the petitioner was selected by the District Selection Committee as Special Teacher in the year 1983 and allotted to Kondepi Samithi. Subsequently, he was transferred to Ongole Samithi. Though orders were issued absorbing the Special Teachers as Secondary Grade Teachers, the petitioner was not absorbed along with others. He learnt that he was also absorbed as a regular teacher allotting him to Kondapi Mandal and that the same was not informed to him either by the authorities of Ongole Mandal or Kondapi Mandal, and as such he was subjected to both monetary and seniority loss. Hence, he made a representation saying that the earlier service is to the counted since a Secondary Grade Teacher would discharge the same functions as of Special Teacher, but the Tribunal refused to grant monetary benefit on the ground that he did not actually perform the duties of a Secondary Grade Teacher from 11.01.1986 to 05.09.1986 and that the arrears of pay from 11.01.1986 to 05.09.1986 cannot be granted. But, nonetheless to that extent of the order impugned before the Tribunal, the 1st respondent has rightly denied the monetary benefits. Curiously, the 1st respondent has stated that so far as seniority is concerned, his services are to be regularized with effect from 05.09.1986. It is needless to mention, in the circumstances of this case, that it is for the employer under whom the employee is discharging his functions to decide the date of seniority but not the audit authority, who shall deal with monetary aspects. 6. In this context, it is useful to refer Rule 33(b) of the A.P. State and Subordinate Services Rules, 1996 (for short, ‘the Rules’), which clarifies regarding the authority who has to decide the seniority of an employee. The said rule reads as under: “33. Seniority:- (a) ….. (b) The appointing authority may, at the time of passing an order appointing two or more persons simultaneously to a service, fix either for the purpose of satisfying the rule of reservation of appointments or for any other reason the order of preference among them; and where such order has been fixed, seniority shall be determined in accordance with it; Provided further that the order of merit or order of preference indicated in a list of selected candidates prepared by the Public Service Commission or other selecting authority, shall not be disturbed inter-se with reference to the candidates position in such list or panel while determining the seniority in accordance with this rule and notional dates of commencement of probation to the extent necessary, shall be assigned to the persons concerned, with reference to the order of merit or order of preference assigned to them in the said list. [c]….. (d) …. (e) …. (f) …. (g)….” In view of the above Rule, when once a person is appointed in a particular post or cadre, his service has to be reckoned with from the date of his appointment for the purpose of fixing the seniority. The order of absorption of the petitioner has not been communicated to him and therefore, he cannot be put into disadvantageous position with regard to counting of his seniority is concerned. However, since he started functioning in the absorbed post with effect from 05.09.1986, he is not entitled for pay attached to the absorbed post prior to that date. The Order of the Tribunal to this extent needs no interference. As far as counting of seniority is concerned, he is deemed to have been absorbed into service since the date on which his immediate junior has been absorbed into the post of Secondary Grade Teacher. In the facts and circumstances of the case and also in view of Rule 33(b) of the Rules referred to above, the petitioner is entitled to reckon with his seniority with effect from 11.01.1986. 7. Accordingly, the writ petition is disposed of modifying the Order dated 13.12.1999 passed in O.A.No.3841 of 1993 of the Tribunal and the respondents are directed to fix the seniority of the petitioner with effect from 11.01.1986. No costs. ____________________ GHULAM MOHAMMED, J. ______________________ B.SESHASAYANA REDDY, J. Date:31st March, 2009. Tnb/cs ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1) 2 CD copies Form-NIC-OGS/WP{TRT} THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 5603 of 2005 (per Hon’ble Sri Justice Ghulam Mohammed) Dated:31st March, 2009