V. S. MURTY & OTHERS v. THE DEPUTY CHIEF ACCOUNTS OFFICER & OTHERS

Citation: [1983] 2 S.C.R. 404

Court: Supreme Court of India

Bench: D.A. DESAI, V. BALAKRISHNA ERADI

Case summary

ing 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....

Judgment text

V. S. MURTY & OTHERS v. THE DEPUTY CHIEF ACCOUNTS OFFICER & OTHERS February 22, 1983 [D. A. DESAI AND V. BALAKRISHNA BRAD! , JJ. ) A. ndhra Prad. sh Ministerial Rules, 1961, Rule 3(2)-Whether the Deputy ChiefAccounts Officers N. S. Project, is the Head ofthe Department-Senioritylnter-1e seniority ofappellants and respondents, whether will be gOverMd by the jir1t proviso to Rule 36(e) or by the _second prov_iso thereto. The appeUants, who were serving in thC office of the Chief Engineer Nagarjuna Unit as officiating Upper Division Clerks, were transferred to the ·office of Deputy Chief Accounts Officer, N. S. Project by an order dated February 8, 1964. Respondents 2 to 108 were initially recruited as Lower Division Clerks during the period 1959-65 and some of them were prom()ted as Upper Division Clerks from 1961 onwards; After their transfer, their services were regularised by the Chief Engineer, as per bis proceedings dated August 11, 1968.

This was challenged by some of the persons similarly situated like the present respondents and the High Court disn1issed the Writ Petition as well as the writ appeal, -holding that the transfer was on administrative grounds and therefore their length of service in the parent department bad to be taken into account for the purpose of determining their seniority. By its order G. O. M. S. 27 P. W. D. dated February 3, 1972, the State Government accorded sanction to tbe permanent retention of the posts set out in the order with effect from 1. 4. 1967 in the office of the Deputy Chief Accounts Officer. Among other, 38 posts of the Upper Division Clerks were thus made permanent by this order with a further provision that the posts so made permanent shall be filled in by personnel already working in the Accounts organisation. The appe1lants, whose services were aJre of pay applicable to staff in the offices of the Heads of Departments. Further the adhoc-rules issued in G. 0. Ms. No.

337 PWD Projects Wing dated 24. 9. 1968 stipulate that the Deputy Chief Accounts Offcer, Nagarjunasagar Project is the appointing authority up to the leave/ of Superintendents in his orga. nisation. '' If there was any lurcking doubt whether the Dy. CAO is the Head of the Departments, it stands wholly removed by the Note extracted herein above. It may be recalled that the power to deaclare Head of the Department as defined in the Financial Code vests in the Government and the Govenment acts on the advise of the concerned Secretariat Department. The concerned department is of Financial Adviser and Chief V. s. MURTY v. D. C. A. OFFICER (Desai, J,) 41S Accounts Officer, which is declared as the Secretariat Department. And this note shows that the Secretariat Department meaning thereby the Government treated the Dy. CAO as the Head of the Dpartment. Therefore, for the purpose of Rule 3 (2), there is no room for doubt that Dy. CAO was the Head of the Department. If Dy.

CAO was the Head of the Department then in view of Rule 3 (2) with regard to the recruitment in the cadre of UDC first out of every four successive substantive vacancies is to be filled in from the subordinate offices and according to the proviso to Rule 3 (2), if there is no subordinate office, from any other office of the Head of the Departments or Directorate. There is a recital to that effect in the impugned order which was questioned on the short that Dy. CAO was not the Head of the Department. Once that ground is out of the way. The contention of the respondents must fail. I Briefly, we may point out that this very conclusion can be reached by a slightly different process of reasoning. Appellants were transferred to the office of Dy. CAO in 1964. The judgment of the High Court of Andhra Pradesh, practically inter partes, affirms the po•ition that appellants were transferred and their appointments by transfer were valid.

Their services were regularised and the High Court held regularisation valid and legal. They were given seniority over respondents in that organisation. If appellants have been working for so many years, they were entitled to oe absorbed, if there was no legal bar against absorption. Their entry in office has been held by the Andhra Pradesh High Court in the earlier judgment as valid and regular and they having ren· dered service for l l long years before the impugned action was taken, they were entitled to be absorbed in he department. Now the present dispute arose when by G. 0. dated February 3, 1972, 38 posts in the cadre of UDC were made permanent. That very G. O. provided that the posts made permanent shall be filled in by the personnel already working in the Accounts Organisation. Appel· , llants were working in the Accounts Organisation since 1964. Their services were regularised. They were given seniority.

Therefore, at the relevant tirne in 1975 they were working in Accounts Organisation. They could theref~re, be absorbed without reference to Rule 3 (2). The controversy arose because Dy. CAO referred to Rule 3 (2) in the impugned order. In our opinion that was unnecessary. They could claim to be absorbed according to senitority in the posts made permanent. And therefore, also the impugned orders were valid but as the Dy. CAO proceeded to exer· cise power under Rule 3 (2), we would nphold the validity for the reasons mentioned in the earlier portion of the judgment. ·Before we conclude, we must advert to one contention, that as the appellants came at their own request, their seniority would be governed not by the first proviso to Rule 36 (e) but by the second proviso. The relevant provisos to· Rule 36 (e) cater to the method of determining seniority of persons transferred on administrative ground or at the request of Government servant from one department to any other, department.

If the transfer was on administrative ground from one department or office to another, the seniority of the transferred Government servant shall be fixed with reference to the date of his first appointment in the former department or office from where he is transferred. If on the other hand, the transfer is·at the request of the concerned Government servant, his seniority will be determined with reference to the date of hi_s appointment in the department to which he is transferred. After referring to these pro· visos, it was urged that the appellants were transferred at their re· quest and therefore, their seniority has to be determined with reference to the date on which they came to be transferred to the organisation of Dy. CAO. In fact, this contention is concluded by the earlier decision of the Andhra Pradesh High Court. Even apart from that there is no merit in the contention. Appellants were transferred in February 1964 and we have referred to the transfer order more than once.

There is not the slightest whisper of transfer on request in that order. But it was urged that initially transfer was for a period of one year only and the subsequent continua(ion in the office of the Dy. CAO does not prescribe the. period of transfer. However, the respondents placed reliance on a corrigendum issued on March 3, 1964 by which following sentence was added to the order of transfer dated Feb. 8, 1964. The addition reads as under : "The above transfers will be for a period of one year in the first instance. " It was then pointed out that in the subsequent order the expression used is not 'period of transfer' but 'period of deputation' and an inquar,y 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 the \r. S. MURTY '· D. c. A. OFFICER (Desai, J. ) 417 office of the Dy.

CAO since 1964 and 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 gover. oed 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 riot 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. 1663/76 dated September 1, 1980 is quashed and set aside and the Writ Petition field by the respondents in the Andhra Pradesh High Court is djsniis;ed with no order as to costs. S. R. Appeal allowed. .. . J_