Case: V.S. Murty &amp; Others Vs. Deputy Chief Accounts Officer and Others

Nagarjuna Sagar Control Board was constituted in the year 1955 charged with a duty to implement N.S. Project. The Board had the power to recruit required ministerial staff on purely temporary basis. On August 1, 1959, a decision was taken by the Andhra Pradesh Government to disband the autonomous Board and to convert it into a department of the Government. On the conversion of the set up of the Board into a department of the Government it became necessary to devise ways and means to absorb the employees recruited by the board. Number of controversies surfaced and to some extent the present one is one such controversy. There was an office styled as: The office of the Chief Engineer, N.S. Dam with the Chief Engineer as Head of the Department. Appellants were serving in the office of the Chief Engineer, N.S Dam Unit. By the order dated February 8, 1964 appellants were transferred to the office of the Pay and Accounts officer, N.S. Project. At the time of transfer, appellants were officiating as UDC and were directed to report to the Deputy Chief Accounts officer, N.S. Project to be posted as UDCs. Since then appellants have been working in the office of the Dy. CAO and some of them have been even promoted, may be temporarily, to the post of Superintendent. By the G.O.Ms. No. 27 PWD dated February 3, 1972, the State Government accorded sanction to the permanent retention of the posts set out in the order with effect from 1.4.1967 in the office of Dy. CAO. Amongst other 38 posts of UDCs were thus made permanent by this order. The aforementioned order further provided that the posts so made permanent shall be filled in by personnel already working in the Accounts organisation. It appears that some of the appellants made a representation to the Dy. CAO for the permanent absorption in A his office. Ultimately by various orders made in February 1975, appellants were permanently absorbed as UDCs in the establishment of Dy. CAO and they were given seniority as provided in Rule 27 of Andhra Pradesh Ministerial service Rules The respondents 2 to 108 who were petitioners before the Tribunal were working as UDCs or LDCs since the inception of their career in the office of Dy. CAO. They were initially recruited as LDCs during the period 1959-65. Some of them were promoted as UDCs from 1961 onwards. They were aggrieved by the permanent absorption of the present appellants who were respondents in the High Court. They accordingly filed the writ petition from which this appeal arises, contending that the appellants were holding substantively post of U DC in the office of the Chief Engineer and they were not transferred but sent on deputation in the Pay and Accounts office as per the order dated February 8, 1964 and other like orders by the Chief Engineer, N.S. Dam and they had a permanent lien in the parent department and therefore, they could not be absorbed in the office of the Dy. CAo. It was, therefore, contended that they may be repatriated to the parent department but in any event even if these are not to be repatriated they could not claim to be absorbed permanently over the respondents who have been since the inception of their career working in the office of Dy. CAO. The specific contention was that the Dy. CAO not being the Head of the Department, the provision contained in Rule 3 (2) of Andhra Pradesh Ministerial Service Rules, 1961 would not be attracted and therefore the appellants could not be said to have been recruited by transfer and therefore, could not have been absorbed and they had no right to either claim any permanent post or promotion in the office of the Dy. CAO. The submission was that the permanent retention and absorption of the appellants adversely affected the promotional prospects of the present respondents and the retention and absorption and consequent seniority being contrary to relevant rules must be struck down as invalidThe learned member of the Tribunal held that the Dy. CAO. had not the powers of the Head of a Department. It was not therefore, within his competence to absorb and retain the appellants in his office and confirm them against the posts made permanent by the G.O.Ms. No. 27 dated February 3, 1972. As a corollary it was held that the various orders made in February 1975 permanently transferring, absorbing and retaining and consequently granting seniority to the appellants were violative of the rules and were struck down. Hence this appeal by the original respondents 2 to 10Appellants indisputably were working as UDCs for a period of more than 3 years before they came to be transferred by the Chief Engineer to the office of Dy. CAO in Februaryorder clearly shows that the transfer was for administrative convenience. No where the orders recite that the transfer was at the request of the transferred personnel The order is the usual short cryptic government order which recites that the UDCs whose names were set out in the order were transferred to P.A.O.s office, N.S . Project. The order directs all the transferred UDCs to report for duty to Dy. CAO, N.S. Project immediately on their relief. The language of this order leaves no room for doubt that the head of the department under whom the appellants were working transferred them for administrative reasons and for exigencies of service. Complying with this order, the appellants reported for duty to the Dy. CAO and since then, except appellant No. 9, the rest of them have been continuously working as UDC and have earned temporary promotion as Superintendent. So far there is noTribunal nowhere examined the power of the Chief Engineer, N.S. Dam Project to transfer persons working under him to the off ice of Dy. CAO. It must therefore, be assumed that he had the power to transfer appellants to the office of the Dy. CAO. It does not transpire from the record that the transfer was at the request of transferees. It does not appear that these persons held the lien in the parent department. It does not transpire from the record that they were given any proforma promotions in the parent department. Virtually, since the transfer, they have been treated as part and parcel of the establishment of Dy. CAO. The appellants were holding the post of UDC for a period of more than 3 years prior to their transfer from the offices of the Chief Engineer to the office of the Dy. CAO. Indisputably, therefore, when they were transferred and occupied the identical post in the office of the Dy. CAO, some of the respondents working in the office of the Dy. CAO would have been adversely affected because in the absence of the appellants, if it became necessary to have more posts in the category of UDC, obviously some of the LDCs working in the office of the Dy. CAO could have been promoted. This becomes manifest from the judgment of a Division Bench of the Andhra Pradesh High Court in Writ Appeal No. 96 of 1970. After the appellants were transferred, their services were regularised by the Chief Engineer as per his proceedings dated August 11, 1968. This proceeding was challenged by some of the persons similarly situated like the present respondents on the ground that the present appellants had come on deputation and not on transfer and they cannot be given seniority over those who joined service in N.S. Dam Unit from the inception of their career. The learned Single Judge dismissed the petition holding that the present appellants were transferred on administrative ground; that the temporary posts which they filled in were converted into permanent posts and the appointments of the appellants in those posts were regularised. It was held that the transfer was on administrative ground, and therefore, their length of service in the parent department had to be taken into account for the purpose of determining their seniority. On this finding, the writ petition was dismissed, and t he appeal met with the same fate. Thus the first challenge failed. Appellants were thus given seniority over respondents in the office of the Dy. CAO.

Reasoning:
We would presently examine the contention which has found favour with the Tribunal and which in our opinion is wholly untenable.After reciting the various contentions, the Tribunal addressed itself to the question which in its view was a primary question whether the Dy. CAO was the Head of the Departments. The Tribunal observed that it is only if it is held to be office of Head of a Department that the transfer of the present appellants in one out of 4 vacancies of UDC under Rule 3 (2) can bewe are of the opinion that this question hardly arises in t his case, in view of the earlier decision of Andhra Pradesh High Court determining the status of the appellants in the establishment of Dy. CAO. However, keeping aside for the time being the decision of the High Court, we would proceed to examine the contention which found favour with the Tribunal onwas then pointed out that in the subsequent order the expression used is not period of transfer but period of deputation and an inquary was made whether the further extension of period was necessary. This appears to us to be quibeling. Except for appellant 9-R.V. Surya Rao, all the appellants have been working in theOffice of the Dy. CAO since 1964 an d it is too late in the day now to contend that the subsequent extension was at the request of the appellants Therefore, the seniority would be governed by the first proviso to Rule 36 (e) and not the second proviso and that having been done no question arises for interfering with the same.As we are of the opinion that the Tribunal was in error in holding that the Dy. CAO was not the Head of the Department, the decision of the Tribunal is unsustainable and must be quashed and set aside. Accordingly this appeal is allowed, and the decision of the Andhra Pradesh Administrative Tribunal, Hyderabad in Transferred Writ Petition No. 1663176 dated September 1, 1980 is quashed and set aside and the Writ Petition field by the respondents in the Andhra Pradesh High Court is dismissed with no order as to costs.