HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR W.P.NO.1234 OF 2007 Dt.4.2.2010 Between: M.Gopidhar and another .. Petitioners And The Principal Secretary, Panchayat Raj & Rural Development (Estt.VA) Department, Secretariat, Hyderabad and others .. Respondents HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR W.P.NO.1234 OF 2007 ORDER: (Per Sri Justice V.Eswaraiah) Petitioners herein, who are respondents 4 and 5 in O.A.No.6493 of 2006 on the file of the Andhra Pradesh Administrative Tribunal, filed this writ petition questioning allowing the O.A. by the Tribunal by order dated 3.7.2007. The said O.A. was filed by respondents 4 and 5 herein questioning proceedings No.1690/CPR&RE/II/2005, dated 1.7.2006 issued by the Commissioner of Panchayat Raj & Rural Employment, Government of Andhra Pradesh, and the consequential proceedings in Rc.No.7954/1995-A3, dated 16.10.2006, issued by the Chief Executive Officer, Zilla Parishad, Machilipatnam, Krishna Distict, in revising the seniority of the applicants before the Tribunal as illegal and arbitrary. The parties herein are referred to as they are arrayed before the Tribunal. The undisputed facts are that the applicants and the unofficial respondents in the said O.A. were appointed as Junior Assistants on compassionate grounds by the Chief Executive Officer, Zilla Parishad, Machilipatnam, by a common proceedings in Roc.No.9139/1985-A3, dated 1.9.1991. The said appointments were made pursuant to the orders issued by the Government in G.O.Ms.No.417, PR&RD (Estt.V) Department, dated 31.7.1991, creating supernumerary posts and all are continued in the said posts till regular vacancies of Junior Assistants arise for absorbing them in such regular posts. In the year 1993, the 3rd respondent has prepared provisional seniority list initially and subsequently the same was confirmed vide proceedings of the District Development Officer, Zilla Parishad, Krishna, in Rc.No.5786/93/A3, dated 20.1.1994, and in the said seniority list the 2nd applicant was placed at serial No.317, while the unofficial respondents were placed at serial Nos.330, 318, 328 and 325 respectively. The name of the 1st applicant was not shown in the said seniority list and for that reason he was not absorbed in the regular vacancy at the relevant point of time. The said seniority list dated 20.1.1994 has become final. However, the said seniority list was further revised vide proceedings No.7954/95/A3, dated 8.12.2004 by the 3rd respondent. Aggrieved by the said combined seniority list, the unofficial respondents preferred an appeal before the Commissioner of Panchayat Raj and Rural Employment, Government of Andhra Pradesh, and the said appeal was allowed vide proceedingsNo.1690/CPR&RE/II/2005, dated 1.7.2006. The 3rd respondent also issued consequential proceedings in Rc.No.7954/1995-A3, dated 16.10.2006. Questioning the said proceedings of the appellate authority as well as the consequential proceedings, the said O.A. was filed which has been allowed under the impugned order. The applicants and the unofficial respondents, who are dependants of the deceased employees of Zilla Parishad as well as dependents of the employees who retired on medical invalidation, were appointed as Junior Assistants under social security measure by creating supernumerary posts. Since there were no posts available, the Chief Executive Officer, Zilla Parishad, Machilipatnam, sent proposals to the Government for approval. The said proposals of the Chief Executive Officer was examined by the Government and accorded sanction for creation of 44 supernumerary posts in the cadre of Junior Assistants from the date of their appointments up to 29.2.1992 or till a regular vacancy arises under the control of the Zilla Parishad, Krishna, whichever is earlier. Accordingly, the Government issued orders in G.O.Ms.No.417, Panchayat Raj and Rural Development (Estt.V) Department, dated 31.7.1991, directing the District Development Officer, Zilla Parishad to accommodate the candidates i.e., the dependants of the deceased employees / retired on medical invalidation employees of Zilla Parishad in the aforesaid supernumerary posts as Junior Assistants subject to the conditions of recruitment prescribed in the said rules such as age, educational qualifications, date of submission of application in the Zilla Parishad etc., as detailed in the annexure contained therein. The said supernumerary posts sanctioned should be adjusted against regular vacancies. It was further directed that the candidates appointed under the said order as Junior Assistants shall be posted to the places indicated in column (8) of the statement enclosed to the said G.O. and the pay was also fixed under column (9). We have perused the annexure appended to the said G.O., showing the particulars of children/ spouse of deceased/ retired on medical invalidation employees to be appointed as Junior Assistants in Krishna District. The particulars of 44 candidates to be appointed as Junior Assistants have been furnished giving their name and father’s name, date of death of the employee, date of submission of application, date of birth and age of the candidate, qualification, post for which they are eligible, place of posting and the relevant head of account in which the expenditure is debited. Applicant No.1 was at Sl.No.43 in the said annexure and the date of medical invalidation of his father was 23.3.1991, the date of submission of application was 18.5.1991 and he was aged 27 years and qualified Intermediate. Similarly, the 2nd applicant was at Sl.No.16 and the date of death of his father was 6.11.1988, the date of submission of application was 26.11.1988 and he was aged 24 years and qualified Intermediate. The perusal of the annexure appended to the said G.O. indicates that they were arranged in such a manner taking into account the date of death of the employee/ date of medical invalidation of the employee. Accordingly, the appointing authority issued common proceedings dated 1.9.1991 appointing them in their places indicated by the Government. The appellate authority in his proceedings dated 1.7.2006 while allowing the appeal of the unofficial respondents before the Tribunal held that the applicants as well as unofficial respondents were appointed in a common proceedings by the District Development Officer vide proceedings dated 1.9.1991 pursuant to the permission accorded by the Government vide G.O.Ms.No.417, dated 31.7.1991 and as per the clarification the seniority among the candidates appointed shall be as per order of preference among themselves in the orders of appointment issued vide proceedings dated 1.9.1991 of the 3rd respondent in terms of Rule 33(a) and (b) of the A.P.State and Subordinate Service Rules (for short, ‘the Rules’). Accordingly, the 3rd respondent issued consequential proceedings dated 16.10.2006 revising the seniority list as per orders of the Government as well as the appointing authority as held by the appellate authority. Sri M.Surender Rao, learned counsel appearing for the writ petitioners/unofficial respondents before the Tribunal submits that the Tribunal erroneously held that the seniority has to be fixed in accordance with Rule 33(a) read with sub- rule (2) of Rule 2 of the Rules. It is stated that pursuant to the approval of the candidates by the Government, the order of preference as indicated therein to be appointed by the appointing authority, the seniority has to be fixed in accordance with proviso to Rule 33(b). It is also stated that the selection process involved in sending of particulars of the dependent employees and in processing their applications and approving by the Government, which is the selecting authority for the appointment of the dependants, proviso to Rule 33(b) would apply. Whereas, Sri P.R.Prasad, learned counsel appearing for the applicants submits that there is no selection process involved and the 3rd respondent issued common appointment orders and therefore Rule 33(a) read with Rule 2(2) of the Rules alone would apply. With regard to seniority, the date of appointment as mentioned in Rule 33(a) has to be understood in terms of sub-rule (2) of Rule 2 of the Rules. For the purpose of convenience, it would be appropriate to extract sub-rule (2) of Rule 2, Rule 33(a) and (b) and Rule 36(i) of the Rules as hereunder: “2 (2) Appointed to a service: A person is said to be “appointed to a service” when, in accordance with these rules, except under rule 10 and in accordance with the Special Rules or adhoc rules applicable to such service he discharges for the first time, the duties of a post borne on the cadre of such service or commences the probation, instruction or training prescribed for members thereof”. “33. Seniority:- (a) 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: Provided that the seniority of a probationer or approved probationer in a service, class or category from which he stood reverted on the 1st November, 1956 or prior to that date, shall be determined in the statewide gazetted posts and non-gazetted posts in the Departments of the Secretariat and the officers of the heads of departments with reference to the notional date of continuous officiation with or without breaks in that service, class or category prior to the 1st November, 1956 to the date of re-appointment made thereafter, but it shall not disturb the inter- seniority which obtained in the Andhra State. (This proviso shall be in force till 31st October, 1996) (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.” 3 6 . Inter-se seniority where the dates of commencement of probation are same: - The seniority of the persons in the service shall be determined as follows: (i) in respect of the candidate selected by the Andhra Pradesh Public Service Commission or other selecting authorities by direct recruitment, shall be with reference to their ranking assigned irrespective of the date of commencement of their probation in that category.” The question that arises for consideration is whether Rule 33(a) read with sub-rule (2) of Rule 2 applies for determining the seniority of the said 44 compassionate appointments or their seniority is fixed by following Rule 33(b) of the Rules. If there is no selection process involved by the selecting authority and in the absence of seniority fixed by the appointing authority, the seniority has to be fixed in accordance with Rule 33(a) read with sub-rule (2) of Rule 2. If the selection process is involved by the selecting authority, the seniority has to be fixed in accordance with the order of preference indicated by the selecting authority. In the absence of any order of preference as indicated in the list selected by the selecting authority, it is open for the appointing authority to determine the seniority. In the instant case, the appointing authority requested the Government to sanction supernumerary posts and approve the list of candidates proposed to be appointed subject to fulfillment of their qualifications. All the candidates herein are qualified to hold the post of Junior Assistant and there are no any special rules for compassionate appointments and therefore the A.P.State and Subordinate Service Rules will apply for the purpose of seniority and the qualification also to hold the said post. All the candidates are qualified for the said post of Junior Assistant under Rule 12 of the Rules. It is also to be noticed that Rule 33(a) deals with seniority of a person in a service and sub-clause (b) deals with the situation where two or more persons are simultaneously appointed to a service. The contention of the learned counsel appearing for respondents 4 and 5 are relevant in case if the appointment is made by a single proceeding for a post. In the instant case, all the 44 candidates have been appointed by a common order of the Government, as shown in the annexure, and the appointing authority appointed them by a common proceeding dated 1.9.1991 referred to above. The annexure to the said G.O.Ms.No.417, dated 31.7.1991, indicates that the date of death of the employee or the date of retirement of the employee on medical invalidation of the employee has been taken into consideration. All the 44 vacancies have been sanctioned by a common order and all the 44 candidates are eligible to be appointed as their applications have been forwarded by the Zilla Parishad as per the enclosed statement. Therefore, it cannot be said that there was no any selection process as the appointments are to be made for more than two persons with reference to Rule 33(a), but whereas in the instant case the applications of 44 candidates were simultaneously processed and the selecting authority i.e., the Government prepared the list determining the seniority in accordance with the date of death of the employee. Therefore, the appointing authority issued common appointment orders with the same preference showing the same order of preference. Even for their absorption as against regular vacancies, the same order of preference has to be maintained. As a matter of fact, the 1st applicant was not absorbed till all the candidates shown were absorbed in the regular vacancies. Therefore, it cannot be said that taking into account the date of death of the employee for giving seniority as indicated by the Government in its annexure to the said G.O., and the consequential appointment orders are in accordance with the proviso to Rule 33(b) of the Rules. We are also of the opinion that even if the selecting authority has not indicated the order of preference, it is always open for the appointing authority at the time of passing orders in respect of two or more persons to a service may fix the order of preference among them. The order of preference as indicated by the appointing authority also shows that the date of death of the employee was taken into account. The said criteria is also justified as the need to give appointment in the place of the deceased employee on compassionate grounds arises on the date of death of that employee. But, however, for various reasons including their being no posts available, the appointment of dependents could not be made at that time and only under G.O.Ms.No.417, dated 31.7.1991, the claims of as many as 44 dependants were considered by a common order. Therefore, the criteria based upon the date of death of the employee was right and valid, as the first claim has to be given preference over the second claim and so on. The Government while preparing the list of candidates to be appointed by taking into account the seniority of the date of death of the employee as well as orders of the common appointment orders of the appointing authority showing the order of preference among them are in accordance with Rule 33(b). Therefore, we are of the opinion that the Tribunal committed error in holding that Rule 33(b) has no application and Rule 33(a) read with sub-rule (2) of Rule 2 is applicable. For the aforesaid reasons, the Tribunal by an erroneous interpretation allowed the application filed by the applicants. The impugned order of the Tribunal is accordingly set aside. The writ petition is allowed accordingly. No order as to costs. _________________ V.ESWARAIAH, J. _________________________ VILAS V. AFZULPURKAR, J. 4.2.2010 kpr