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2003(2) Supreme 906
SUPREME COURT OF INDIA
(From Andhra Pradesh High Court)
Doraiswamy Raju and Arijit Pasayat, JJ.
A.G. Sainath Reddy -Appellant
versus
The Govt. of A.P. & Ors. -Respondents
Civil Appeal Nos. 12578-12582 of 1996
Decided on 28-2-2003
Counsel for the Parties :
For the Appellant : S.K. Dholakia, Sr. Advocate, N.M. Popli and B. Kanta Rao, Advocates.
For the Respondents : Gururaja Rao, Sr. Advocate, Ms. Bina Madhavan, Prasanth P. Ms. Meena C.R., Mangesh Kale, S.U.K. Sagar, V. Balaji, Ms. T.S. Samthi, Ms. Aarthi Radhakrishnan. P.N. Ramalingam, Guntur Prabhakar, Ms. T. Anamika, Mrs. Sudha Gupta and B. Kanta Rao, Advocates.
Held : One basic feature which needs to be considered is that the posts were advertised by the Commission in 1983 for direct recruits. Requisitions were sent to the Commission by the government before that. Since the posts were to be filled up by direct recruits on the basis of acceptance of recommendations of Commission, any arrangement to fill up those posts on officiating basis does not confer any right of probation on the person appointed as there was no post to which there could be appointment of a promotee after requisitions were sent to the Commission to such posts earmarked for direct recruitment. Any officiating arrangement is really of no consequence. (Para 4)
Held further : One thing further is to be noted, Rule 2(3) of the Rules is applicable when departmental candidates are not available. Since no qualified departmental candidates were available, the vacancies were notified to the Commission. It is further to be noted that the crucial words in Rule 4 are "shall from the date on which he joins duty be on probation...". There is no question of any deemed probation or notional date of probation as probation starts from the actual date of joining duty. The question of joining duty on probation shall arises only when there is a substantive appointment against a post available and not any ad hoc or officiating arrangement. (Para 7)
Held finally : That being the position, the Tribunal was justified in allowing the original applications filed before it. We find no merit in these appeals. The appeals fail and are dismissed. Costs made easy. (Para 8)
JUDGMENT
Arijit Pasayat, J.-Challenge in these appeals is to the order passed by the Andhra Pradesh Administrative Tribunal at Hyderabad (in short the Tribunal ). The controversy lies within a very narrow compass i.e. the date of seniority of the appellant and, therefore, a brief reference to the factual aspects would suffice.
2. Appellant joined as Welfare Officer in Andhra Pradesh Jails Department on 8-9-1978. He completed his probation on 5-10-1981. On 16-6-1983, nine posts of Deputy Superintendent of Jails were notified to be filled up and on 25-8-1983 an advertisement was issued by a requisite Gazette Notification by the Andhra Pradesh Public Service Commission (in short the Commission ) for filling up the aforesaid vacancies by direct recruitment. Five years service is required for an employee other than a direct recruit to be eligible for consideration for the said post. On 16-10-1984, 11 prisons welfare officers and jailors were appointed as Deputy Superintendents of Jails on ad hoc basis. Appellant joined as Deputy Superintendent of Jails on 20-10-1984 on the aforesaid ad hoc basis. The Commission conducted the written examination in October 1985 and interviews were conducted in October 1986. The results were declared in 1987. By Government Order dated 17-12-1987, four persons were given appointment, but only three joined. Subsequently, two persons were appointed on 4-5-1988 and 19-6-1989. A Government Order No. 595 dated 1.10.1990 was issued by the Government where the date from which service as Deputy Superintendent of Jails was to be regularised was indicated. While the dates of regularisation for direct recruits were indicated to be the date they joined, so far as the appellant is concerned, it was indicated to be the date when he had joined on ad hoc basis in 1984. This was questioned by the direct recruits before the Tribunal. They raised two contentions in the applications filed under Section 19 of the Administrative Tribunals Act, 1985 (in short the Act ). They were (i) their seniority should be counted from the date of notification i.e. 16-6-1983; (ii) and in any event, the dates fixed by the non-direct recruits were not legal as their appointments were on purely ad hoc basis and merely as stop gap arrangement since they were appointed in respect of the posts for which requisitions had been sent to the Commission by the State Government. The Tribunal accepted the second contention. It came to hold that there was no scope for retrospective regularisation and deemed probation. Reference was made to Rule 4 of the Andhra Pradesh Deputy Superintendents of Jails Service Rules, 1974 (in short the Rules ). These rules are framed under Article 309 of the Constitution of India, 1950 (in short the Constitution ). As afore-noted, the judgment of the Tribunal disposing of the 5 original applications is the subject matter of challenge in these appeals.
3. Mr. S.K. Dholakia, learned senior counsel appearing for the appellant submitted that the approach of the Tribunal is erroneous. The method of appointment is indicated in Rule 2 of the Rules. There are three sources of appointment, i.e. (i) recruitment by transfer of jailors in jails other than sub-jails in Andhra Pradesh Jail Subordinate Services; (ii) recruitment by transfer of Welfare Officers of Branch II of the aforesaid Services and (iii) by direct recruitment if no qualified or suitable person is available by any of the other two methods. Where the recruitment is by transfer, the concerned officer is required to have served as a Jailor in jail other than sub-jails or as Welfare Officer for not less than five years. There is a requirement that every person appointed to the post by transfer has to be on probation for a specified period. Appellant was recruited in terms of the Rules and merely because his appointment was styled as an ad hoc appointment the same will not make a difference. The appointment was on the basis of the Rules and not on the basis of the Gove
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