IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY SECOND DAY OF JUNE TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE GHULAM MOHAMMED and THE HON'BLE SRI JUSTICE G.CHANDRAIAH WRIT PETITION No.1382 of 2005 Between: M.Rajasekharaiah ..... PETITIONER(S) AND The Director, A.P. Govt. Text Book Press, Hyderabad and others .....RESPONDENT(S) THE HON'BLE SRI JUSTICE GHULAM MOHAMMED and THE HON'BLE SRI JUSTICE G.CHANDRAIAH WRIT PETITION No.1382 of 2005 ORDER: (per HON'BLE SRI JUSTICE GHULAM MOHAMMED) This Writ Petition is filed seeking to quash the orders dated 03.03.2004 in O.A.No.2113 of 2003 and dated 04.08.2004 in Review M.A.No.1346 of 2004 in O.A.No.2113 of 2003 on the file of the Andhra Pradesh Administrative Tribunal, Hyderabad, and to direct the 1st respondent to promote the petitioner as Auxiliary Hand with effect from 03.08.2002. The facts, in brief, are that the petitioner was initially appointed as daily wage earner in the office of the 1st respondent- Press and, on completion of 15 years of service, he was appointed as Khallasi vide Rc.No.11420/Et2/99-2 dated 27.10.1999 and posted to Plate Making Section where he joined on 28.10.1999. Though, on the basis of seniority in the said Section, he was promoted as Auxiliary Hand in a vacancy that arose on 18.07.2002 vide proceedings Rc.No.3680/ET3/2002 dated 03.08.2002, the 1st respondent, without issuing any notice and without giving reasons or an opportunity of hearing, through proceedings Rc.No.3680/ ET.3/02 dated 25.02.2003 cancelled his promotion and reverted him to the post of Khallasi. It is his case that seniority in the cadre of Khallasi in respective Sections is to be taken into consideration for promoting an individual to the post of Auxiliary Hand. It is his case that though he was working as Khallasi in Plate Making Section since 1999, only with an intention to deprive him of the promotion and to accommodate one B.Ramesh, he was transferred on 01.07.2000 to Binding Section, where he submitted his joining report on 20.07.2000 taking a plea that he may be permitted to join in that Section without effecting his seniority in the Plate Making Section and further promotion and the said plea was accepted by the authorities. It is stated that he was re- transferred to Plate Making Section vide proceedings dated 01.08.2000. It is his case that the unofficial respondent who was working in Off-set Section was posted to Plate Making Section by proceedings dated 01.08.2000 and he joined on 02.08.2000. It is his contention that though he was senior to the unofficial respondent in Plate Making Section, the 1st respondent vide proceedings Rc.No.3680/ET3/2002 dated 25.02.2003 promoted the unofficial respondent to the post of Auxiliary Hand and his representation dated 03.08.2002 to the 1st respondent seeking to continue him as Auxiliary Hand with continuity of service was not considered. The 1st respondent filed counter before the Tribunal contending that while promoting the petitioner to the post of Auxiliary Hand in the promotion orders itself it was made clear that the said promotion is purely temporary and that he is liable for reversion at any time without giving any prior notice or assigning any reasons thereof and so no notice need be given to him before reverting him to the post of Khallasi and, in as much as it was noticed that he was appointed in the post of Auxiliary Hand by promotion and not as per his seniority in the cadre of Khallasi, he was reverted to the post of Khallasi and the unofficial respondent, being a senior most Khallasi, was promoted as Auxiliary Hand. The Tribunal dismissed the said O.A. holding that number of Khallasis are being transferred from one Section to the other and it is not the petitioner alone who was transferred from Plate Making Section to Book Binding Section and vice versa and so the contention of the petitioner that he was transferred to another Section with a mala fide intention only to deprive him of the promotion cannot be countenanced; the unofficial respondent was undisputedly senior to the petitioner in the cadre of Khallasi; there was no proof to show that the rules prescribe that the seniority in a particular Section alone has to be taken into consideration for promotion as Auxiliary Hand. Against the said order, the petitioner filed Review M.A.No.1346 of 2004 which was also dismissed by the Tribunal by order dated 04.08.2004. Hence, the Writ Petition. Heard the learned counsel for petitioner and the learned Government Pleader for School Education and Services-I. The learned counsel for petitioner vehemently contended that, in the category of Khallasi though the unofficial respondent is senior to the petitioner, since the unofficial respondent joined in Plate Making Section only on 02.08.2000; since the petitioner was working in Plate Making Section from 28.10.1999 i.e. the date of his joining as Khallasi and even on re-transfer he joined in that Section on 01.08.2000 and so he is senior to the unofficial respondent; since the cadre of Khallasi is not a feeder category for promotion to the post of Auxiliary Hand; and since the petitioner was transferred to some other Section only with a mala fide intention to deprive him of the seniority in the Section and consequent promotion to the post of Auxiliary Hand, his reversion to the post of Khallasi and the consequent promotion of the unofficial respondent to the post of Auxiliary Hand are illegal and bad in law. The learned Government Pleader for Services-I vehemently contended that since the post of Khallasi is an unskilled post and is a non-selection post; since the seniority in the post of Khallasi is a criteria for promotion, Section wise seniority is being taken into consideration for convenience sake; and since the petitioner was transferred to some other division on his request and came back to Plate Making Section in 2000; in the absence of any feeder category, or any particular rule, for promotion to the post of Auxiliary Hand, the general rules i.e. the Rules 5(b), 6(i) and 33 of the Andhra Pradesh State & Subordinate Service Rules, 1996 (herein after referred to as – ‘the Rules’), which deal with non- selection posts and seniority shall apply in the case on hand. It is also contended that since the unofficial respondent was senior to the petitioner in the category of Khallasi, he was rightly given the promotion. With regards reversion of the petitioner, it is contended that since in the letter of appointment itself there was a clause that in case of any irregularity in the appointment to any provisions of the Government Orders, if found, in future, he will be reverted back as Daily Wage Earner without prior notice or without assigning any reasons therefor and so the petitioner need not be given any prior notice. As per Rule 5(b) of the Rules, no non-gazetted post should be treated as selection post, and promotion and appointment by transfer to higher posts other than those mentioned in sub-rule (a) shall be made in accordance with seniority-cum-fitness, unless such promotion or appointment by transfer of a member has been withheld as a penalty or a member is given special promotion for conspicuous merit and ability. As per Rule 6(i) of the Rules, for non-selection posts referred to in sub-rule (b) of Rule 5 of the Rules the appointing authority shall prepare a list of eligible employees every year i.e., from 1st September of the year to 31st August of the succeeding year after considering the record sheet and the qualifications prescribed for the said post in the relevant Special Rules for promotion to next higher category of non- selection post. As per Rule 33 of the Rules, the seniority of a person in a service, class, category or grade, shall unless he had been reduced to a lower rank as a punishment, be determined by the date of his first appointment to such service, class, category or grade. There is no dispute that the unofficial respondent and the petitioner have joined in the post of Khallasi on 23.07.1998 and 28.10.199, respectively, and so the unofficial respondent is senior to the petitioner category wise. Generally, the recruitment will be of two types; one is direct recruitment and the other is recruitment by transfer. As per G.O.Ms.No.2198 Education Department dated 12.08.1965, the method of recruitment to the post of Auxiliary Hand is by any method. The case of the petitioner is that the seniority of Khallasis in the respective Sections shall be taken into consideration for promoting an individual to the post of Auxiliary Hand. It is stated in the counter affidavit filed by the 1st respondent that since there are different channels from the post of Khallasi in each technical Section and separate set of adhoc/special rules are prescribed for promotion from the posts to the Khallasis working in different Sections; the promotion posts to the Khallasis are either Auxiliary Hand, Machine Attendant, Helper, Binder, Junior Machine Minder etc., basing on the Sections where they are working. It is also stated therein that as per the rules, experience in the concerned Section is required to become eligible for promotion to those higher posts as per seniority in the concerned Section and hence the Section seniority of each technical Section is taken into account while considering promotion to the higher post and, however, while fixing the seniority in the concerned Section, the original seniority while absorbing the Daily Wage earners as Khallasis is taken as criteria. Admittedly, the petitioner has joined in service as Khallasi on 28.10.199 and was working in Plate Making Section since then. Thereafter, he was transferred to Binding Section and joined there on 20.07.2000 and again, on his request, he was re-transferred to Plate Making Section and joined duty on 01.08.2000. Admittedly, the unofficial respondent was transferred to Plate Making Section by proceedings dated 01.08.2000 and joined there on 02.08.2000. But, the petitioner cannot claim seniority over the unofficial respondent on the plea that he joined on 01.08.2000 itself as the seniority in the Section is fixed basing on the seniority at the time of absorption from daily wage earner. The contention of the petitioner that he was reverted to the post of Khallasi without giving any notice and without any reasons also cannot be countenanced in as much as in the letter of appointment itself there was a clause that in case of any irregularity in the appointment to any provisions of the Government Orders, if found, in future, he will be reverted back as Daily Wage Earner without prior notice or without assigning any reasons therefor and so the petitioner need not be given any prior notice. The Writ Petition is thus devoid of merits and is liable to be dismissed. The writ petition is accordingly dismissed. However, in the circumstances, without costs. ___________________________ GHULAM MOHAMMED, J. ____________________ G.CHANDRAIAH, J. 22nd June 2010 CVRK