THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.20729 of 1999 DATE: 24-02-2010 Between: K.Vishweshwar Rao …. Petitioner And 1. The Government of Andhra Pradesh Rep. by its Secretary, Animal Husbandry & Fisheries Dept Secretariat, Hyderabad and 3 others … Respondents THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.20729 of 1999 ORDER: The action of the respondents in not reckoning the petitioner’s seniority from the date of initial appointment i.e., 3.5.1975, as per proceedings of the 2nd respondent dated 29.7.1999, is under challenge in this writ petition as being arbitrary and illegal. The petitioner seeks a consequential direction to the respondents to reckon his seniority from the date of his initial appointment on par with his juniors. The petitioner was originally appointed as a typist in the Animal Husbandry department of the State Government on 3.5.1975. His services were regularized in the category of typist by proceedings dated 8.2.1978 with effect from 3.5.1975. The 1st respondent, vide proceedings dated 22.3.1977, directed the A.P. Dairy Development Corporation to take over management of the Feed Mixing Plant, Amadalavalasa along with its staff. The Corporation took over management of the Feed Mixing Plant, along with the staff including the petitioner, with effect from 1.8.1977 and, by proceedings dated 14.6.1980, all the transferred employees including the petitioner herein were asked to exercise their option. The petitioner submitted his option in the prescribed proforma on 30.6.1980, for being absorbed in the Corporation. Consequent thereto the 1st respondent transferred 13 persons including the petitioner. The Corporation was subsequently wound up and, by G.O.Ms.No.590 dated 30.12.1980, employees of the Corporation were transferred to the 2nd respondent – Federation and, therefrom, were transferred to 3rd respondent on 31.1.1985 under G.O.Ms.No.68 dated 31.1.1985. The third respondent was later transformed into a public limited company i.e., 4th respondent herein. Under Rule 1(c) of the A.P. Dairy Development Corporation Ltd Employees Service Regulations, 1976 the service rendered by an employee under the Government is to be counted for the purpose of seniority, probation, increment, leave, pension etc., as if it were service rendered to the Corporation, except in the case of temporary candidates. The petitioner was not a temporary candidate and, as such, was entitled to the benefit of Rule (1)(c) referred to hereinabove. As his repeated representations were of no avail, the petitioner filed W.P.No.4714 of 1997 before this Court and, by order dated 1.3.1999, this Court directed the petitioner to seek redressal of his grievances before the 2nd respondent – Federation raising all contentions which had been raised in the Writ Petition. The respondents were directed to consider the petitioner’s case for promotion according to seniority and to pass appropriate orders within six months. The petitioner, thereafter, preferred an appeal to the Managing Director of the 2nd respondent on 29.3.1999 which resulted in the impugned proceedings dated 29.7.1999 being passed. The proceedings dated 29.7.1999 records that an unconditional option had been called for from employees of the Feed Mixing plant at Amadalavalasa on the said unit being transferred to the control of the Dairy Development Corporation, the employees had exercised such options and were transferred to the Corporation on a permanent basis vide G.O.Ms.No.590 dated 31.12.1980 and, since the petitioner was transferred to the services of the A.P. Dairy Development Corporation with effect from that date, the petitioner was entitled for seniority reckoning his service from 31.12.1980. It is stated that, since the petitioner had exercised his unconditional option, the Government vide letter dated 4.6.1997 had informed that his services as typist had to be taken into account from the date on which orders were issued by the Government directing absorption of the staff of the Food Mixture Plant, Amadalavalasa in the 2nd respondent on permanent basis ie., 31.12.1980. While conceding that the petitioner was initially appointed in the Animal Husbandry department of the State Government on 3.5.1975 as a typist, the 1st respondent submits that, since his services were transferred on 31.12.1980, he was not entitled to have his past service, rendered in the Animal Husbandry department, reckoned for the purpose promotion. Sri Dilip Rao, Learned Standing Counsel for the 2nd respondent, would submit that the petitioner’s claim for seniority to be reckoned from 1975 is hit by laches in as much as the petitioner had invoked the jurisdiction of this Court in the year 1999 nearly 25 years from the date on which he was initially appointed in the Animal Husbandry department. Learned Standing Counsel would contend that the petitioner belongs to the district unit; he could not claim to be an employee of the 2nd respondent; and, since his services were transferred to the 3rd respondent, the liability to pay the petitioner’s terminal benefits, on his retirement from service during the pendency of this writ petition, was required to be discharged by respondents 3 and 4 and not the 2nd respondent herein. He would place reliance on Rule 16(b) of the Rules whereunder an employee transferred from one unit to another at his request would be ranked junior most in the particular category of post on the date he joins the new unit. The said rule has been held inapplicable to transfer on administrative grounds. Dr.P.B.Vijay Kumar, Learned counsel appearing on behalf of respondents 3 and 4, would submit that while Rule 1(c) of the Rules governing the service conditions of employees in the A.P. Dairy Development Corporation required the service rendered by an employee under the Government to be counted for the purpose of seniority, probation, increment, leave, pension etc, it did not specifically provide for such service to be reckoned for promotion to higher posts. Learned counsel would submit that, while the petitioner may be entitled to have the services rendered by him in the Animal Husbandry department added to the service rendered with respondents 2 to 4, he could not claim that he should be placed at a particular place in the seniority list in the absence of those, who would be affected thereby, being arrayed as respondents in the writ petition. Learned counsel would submit that, in any event, since the rules do not require the services rendered in the Animal Husbandry department to be reckoned for the purpose of promotion to higher posts in respondents 2 to 4, the petitioners claim for promotion and for notional fitment consequent thereto could not be accepted. The plea of laches, urged on behalf of the 2nd respondent, is only to be noted to be rejected. The proceedings under challenge in this writ petition is the proceedings of the 2nd respondent dated 29.7.1999. This writ petition was filed on 1.10.1999 within two months of the impugned proceedings being passed. The 2nd respondent, in the said proceedings dated 29.7.1999 has rejected the petitioner’s claim for seniority on merits and not on the ground of laches. Since it these proceedings dated 29.7.1999 which are under challenge in this writ petition, I see no reason to deny the petitioner the relief sought for by him on the ground of delay and laches. As noted hereinabove the petitioner was working in the Food Mixing Plant at Amadalavalasa and the said unit was under the control of the Animal Husbandry department of the Government of Andhra Pradesh. The unit, in its entirety, along with its staff, was handed over to the A.P. Dairy Development Corporation and the employees were given the option either to remain in Government service or opt to join the services of the A.P. Dairy Development Corporation. The petitioner, having opted to join the latter, was taken over by the A.P. Dairy Development Corporation and subsequently absorbed by the 2nd respondent – Federation pursuant to G.O.Ms.No.590 dated 31.12.1980. It is only in case of transfer of an employee from one unit to another would Rule 16(b) apply. The said rule has no application whatsoever to the facts of the case on hand. The contention that the petitioner was an employee of the District Unit, and not the Federation, is wholly misconceived. No such plea has been taken in the counter affidavit filed before this Court nor does the impugned proceedings show that the petitioner was an employee of the District Unit and not that of the 2nd respondent-Federation. Factual aspects raised for the fist time before this court across the bar does not merit acceptance in the absence of such facts being specifically pleaded in the counter affidavit filed on behalf of the 2nd respondent. None of the contentions urged on behalf of the 2nd respondent by Sri Dilip Rao merit acceptance. Rule 1(c) of the A.P. Dairy Development Corporation Ltd Employees Service Regulations, 1976 would entitle the petitioner to have the service rendered by him in the State Government reckoned as service in the Corporation for the purpose of seniority, probation, increments, leave, pension etc. The said rule does not specifically require such seniority to be reckoned for the purpose of promotion. Even otherwise the petitioner’s request to be placed higher in the seniority list would necessitate those above him being brought down in the seniority list. This relief cannot be granted in the absence of such employees being arrayed as respondents in the writ petition. I consider it appropriate, therefore, to restrict the relief sought for in this writ petition only to the extent that the service rendered by the petitioner in the Animal Husbandry department of the State Government shall be reckoned for the purpose of payment of his pensionary benefits in as much as the petitioner has retired from service during the pendency of this writ petition. While Dr. P.B. Vijay Kumar, Learned Counsel for respondents 3 and 4, would submit that the service rendered by the petitioner with the 3rd respondent was reckoned for the purpose of computation of prorata pension and the amount was remitted to the 2nd respondent, Sri G.Vidyasagar, Learned Counsel for the petitioner, would vehemently contend that the petitioner has not been paid the pensionary benefits till date. I deem it appropriate, therefore, to direct all the respondents to extend to the petitioner the benefit of service rendered by him in the Animal Husbandry of the State Government reckoned for the purpose of computation and payment of his pensionary benefits. The petitioner’s salary will be notionally fixed taking into account the service rendered by him in the Animal Husbandry department of the State Government and his salary, on the date of his retirement, determined. On the basis of the salary, so determined, the petitioner’s pensionary benefits shall be computed and paid to him. The entire exercise in this regard, culminating in payment of terminal benefits due to the petitioner, shall be completed within a period of three months from the date of receipt of a copy of this order. The writ petition is allowed to the extent indicated above. However, in the circumstances, without costs. ___________ 24-2-2010 asp