D.S.R. VARMA, J.

( 1 ) THIS writ petition is filed challenging the common order dated 23-10-1998 passed by the Andhra Pradesh Administrative tribunal. Hyderabad in O. A. Nos. 23086 to 23091 of 1991.

( 2 ) BY the impugned order, the Tribunal set aside the proceedings of the Government in memo No. 451/tr. I (l)/89-l dated 19-5-1990 and directed the official respondents to consider the claim of the applicants who have come from Civil supplies Department to the Transport department, for regularization of their services as Junior Assistants with effect from the date of their first appointment in the civil Supplies Department and for promotion in the Transport Department. Aggrieved by the said direction, the unofficial respondents before the Tribunal who were originally appointed in the transport Department, filed the present writ petition.

( 3 ) THE facts in brief are that the writ petitioners were originally appointed on temporary basis in the Transport department in the years between 1967 and 1969 they were regularized on 1-1-1971 and whereas, the unofficial respondents 4 to 7 herein were originally appointed in the rationing Department, which was a wing of civil Supplies Department as Lower division Clerks. After some time retrenchment was effected in the Rationing department and the unofficial respondents were declared as surplus staff. Instead of retrenching them, the Government thought it necessary to take steps to accommodate such of those retrenched employees of the rationing Department in other departments and possibilities and avenues in that regard were explored. Upon such exercise, the transport Department was found to be suitable department to appoint the retrenched employees of the Rationing department. Accordingly some additional posts were sanctioned on temporary basis in the grade of Lower Division clerks through proceedings dated 15-5-1970. Such reappointment of the surplus staff is governed by the conditions incorporated in g. O. Ms. No. 1002 General Administration (Services -A) Department dated 29-11-1967, which deal with pay, leave, pension and seniority of such retrenched employees.

( 4 ) NOW the claim of the applicants before the Tribunal is that their previous service rendered in Rationing Department of Civil supplies Department also should be computed for the purpose of seniority in the transport Department in the related cadre. First time a representation has been made in the year 1981 in this regard. The same was rejected through memo dated 7-8-1981. Again another representation was made in the year 1989, and the same was also rejected on 19-5-1990. After one year of such rejection, the present O. As. were filed before the Tribunal.

( 5 ) THE Tribunal having heard both the sides, agreed with the claim of the applicants and taking into consideration rule 33 (c) of A. P. State and Subordinate services Rules (for short hereinafter referred to as s. S. S. Rules) directed the official respondents that for the purpose of computation of seniority of the applicants, the service rendered by them in the rationing Department shall be taken into account.

( 6 ) THE learned counsel for the writ petitioners contended that the petitioners were originally borne in the service of transport Department and the applicants who were not in the service of Transport department or members of the said department, cannot claim seniority over the petitioners. He stated that the unofficial respondents are retrenched employees and only since the Government has taken a policy decision, they were treated as surplus staff and alternative avenues were created, keeping in view the hardship that would likely to be meted out to the applicants and, therefore, they were appointed in the transport Department on a later date on temporary basis and hence their case cannot be considered on par with the petitioners. He further contended that though they were appointed under Rule 10 (a) (i) (l) of the S. S. S. Rules, since a specific condition was incorporated in their appointment orders to the effect that as and when regular appointments are made, their services would be dispensed with, they cannot claim seniority and their services also shall not be kept under probation and their service shall, in strict sense be treated only on temporary basis, inasmuch as those appointments were subject to certain qualifications. It is further submitted that the order of the Tribunal is improper, inasmuch as directions were given to the Government to consider the cases of the applicants taking into account their past service also for the purpose of computing their seniority and for other benefits.

( 7 ) PER contra, the counsel for the unofficial respondents submitted that they were appointed under Rule 10 (a) (i) (l) of S. S. S. Rules and there was no discontinuation of their services even for a day and that they were simply transferred to the Transport department on administrative grounds, since they were found to be surplus in rationing Department. Therefore, he contended that the past service of the unofficial respondents in their earlier or parent department. i.e., Rationing department shall also be counted for the purpose of seniority.

( 8 ) THE Tribunal having heard both the sides and also having referred to relevant rules, held that in so far as the applicants are concerned, Rule 33 (c) of S. S. S. Rules has to be made applicable, even though the specific provision under Rule 33 (f) of the S. S. S. Rules is available.

( 9 ) FIRSTLY it is relevant to note Rule 33 (c) of the S. S. S. Rules, which is as under: the transfer of a person from one class or category of a service to another class or category of the same service carrying the same pay or scale of pay shall not be treated as first appointment to the later for purposes of seniority; and the seniority of a person so transferred shall be determined with reference to the date of his first appointment to the class or category from which he was transferred. Where any difficulty or doubt arises in applying this sub-rule, seniority shall be determined by the appointing authority.

( 10 ) FROM the above rule it is to be seen that the transfer of person from one class or category "of a service" to another class or category "of the same service" carrying the same pay or scale of pay shall not be treated as a first appointment for the purpose of seniority and that the seniority of a person so transferred shall be determined with reference to the date of his first appointment to the class or category from which he was transferred.

( 11 ) THE Tribunal relied on Rule 16 of A. P. Ministerial Service Rules (for short ARMS rules of 1966), which deals with transfer of probationers and approved probationers either on administrative grounds or on request. In this context, Rule 16 is necessary to be extracted to the extent relevant:- rule 16. Transfer of probationers and approved probationers: Notwithstanding anything contained in rules 10 to 13 and 15, all the transfers of probationers and approved probationers either on administrative grounds or on request of the individuals from the unit of the office of the Head of the Department originally allotted, to another unit of the office of the Head of the department. . . . . . . . . . . . . . . . . . . . . subject to the condition that their seniority shall be regulated in accordance with the provisions contained in Rule 27 of Andhra Pradesh Ministerial Service rules.

( 12 ) SINCE the transfer of the probationers and approved probationers, as postulated by Rule 16 of A. P. M. S. Rules is subject to rule 27 of the said rules, it is necessary to refer to Rule 27 to the extent relevant as under: rule 27. Probation, Seniority and confirmation - Special Provisions: (1) Service rendered in a post or group of posts bearing distinct designation and included in a category as constituted by Rule (1) shall count for probation and seniority in such post or group of posts irrespective of the scales of pay applicable to such posts or group of posts and irrespective of the department or office in which such service was rendered: (I) Provided that, in the case of a person whose services are lent from one department or office to another,. . . . . . . . . . . . . . . . . . . . . . . . . . . (II) The seniority of a member of the service who is transferred on administrative grounds only from one department or office to another shall be fixed in the latter department or office with reference to the date of his first appointment in the former department-or office; (III) The seniority of a member of the service who is transferred at his own request from one department or office to another shall be fixed in the latter department or office with reference to the date of his first appointment in the latter department or office; (IV ). . . . . (v). . . A combined reading of Rules 16 and 27 of APMS Rues makes it abundantly clear that only in case of transfer of probationers and approved probationers, the seniority shall be in accordance with Rule 16 and transfer from one department to another department is permissible on administrative grounds, or when the services of an incumbent lent by one department to other. In so far as seniority of a member of a service whose transfer was effected on request, shall be fixed in the latter department with reference to the date of his first appointment in the latter department.

( 13 ) IN the present case, it is firstly to be examined as to whether the applicants were transferred on administrative grounds or on request.

( 14 ) FROM the judgment of the Tribunal it could be seen that the applicants were treated to have been transferred on administrative grounds, since there was no break in service, even though they were treated as surplus staff. We cannot accept with this reasoning of the Tribunal.

( 15 ) IN the preamble of the proceedings of the Secretary, State Transport Authority, Hyderabad dated 5-5-1970 through which the unofficial respondents herein were appointed in the Transport Department as lower Division Clerks, it was categorically stated that the Director of Civil Supplies stated that they are retrenched employees in the category of Lower Division Clerks. Typists, Roneo Operators, Watchmen and peons. . . . . . . to be considered for absorption in his department". It was further categorically indicated as under: the Lower Division Clerks and Typists of the Civil Supplies Department are informed that their appointments are purely temporary under rule 10 (a) (i) (l) of the General Rules for state and Subordinate Services and they are liable to be replaced by regular candidates at any time. They shall not be regarded as probationers in the category in which they are appointed or be entitled to any preferential claim to future appointments to the said service or category. Their services are liable to be terminated at any time without assigning any reasons and without notice, as per Rule 10 (a) (iv) and (v) of the General Rules for State and Subordinate Services. They are informed that the posts sanctioned in g. O. 1st cited are temporary up to 31-8-1970. They should join at there new stations immediately.

( 16 ) FROM the above appointment order it is very clear that the unofficial respondents herein had the knowledge that they would not be regarded as probationers in the category in which they were appointed or be entitled to any preferential claim and they could also be replaced by regular candidates at any time. Further those temporary appointments were sanctioned only till 31-8-1970.

( 17 ) THEREFORE, we are of the view that the tribunal was in error in holding that the applicants were transferred on administrative grounds, since it was categorically indicated in their appointment order that their appointment was purely conditional as already extracted above. Therefore, the Tribunal was further wrong in applying Rule 16 read with Rule 27 of a. P. M. S. Rules, inasmuch as their appointment at any stretch of imagination cannot be treated as appointment by transfer.

( 18 ) THE counsel for the petitioners has taken a specific plea before the Tribunal with regard to the applicability of Rule 33 (f) of S. S. S. Rules. Rule 33 (f) is extracted as under: the seniority of any member of the service who was re-employed after having been retrenched by the erstwhile Government of Hyderabad or by the Government of Andhra Pradesh owing to reduction of staff as a measure of economy shall ordinarily be determined in accordance with the date of his absorption into the service.

( 19 ) THIS is specific provision under the rules made for the purpose of computing the seniority of a member who was re- employed after retrenchment on economy measures. The said rule contemplates that, in such a contingency the seniority would be determined only from the date of his absorption into the service after re- employment.

( 20 ) IN the instant case, it is to be noted that the unofficial respondents were retrenched and declared as surplus staff. But to avoid unpleasantness, certain measures were taken to re-employ or absorb them in other departments and accordingly they got appointment in the Transport Department. The applicants are admittedly retrenched employees and declared as surplus staff, and it could be seen from the appointment order dated 15-5-1970 that they were appointed in the Transport Department from the said date of appointment. i.e., 15-5-1970 and it is not in dispute that their services were regularized with effect from 1-1-1971. Therefore, since the unofficial respondents were simply appointed on temporary basis with effect from 15-5-1970, they cannot be said to have been absorbed. Here the expression "absorption" indicated in Rule 33 (f) of S. S. S. Rules is not defined in the service rules and hence it shall be construed as appointment on regular basis. Since admittedly they were regularized with effect from 1-1-1971 and they should be deemed to have been absorbed on that date. Further it is also admitted that even before this date, the writ petitioners were appointed and regularized.

( 21 ) IN this context, it is also relevant to note G. O. Ms. No. 1002 dated 29-11-1967, which deals with the pay, leave, pension and seniority of the retrenched employees owing to reduction of staff as a measure of economy, on their re-absorption. Clause IV of the said G. O. postulates as under: those persons will start their probation and acquire seniority from the date of their regularization in the post in which they are appointed in the departments concerned.

( 22 ) IN fact the above clause of the g. O. Ms. No. 1002 was taken into account by the official respondents in passing the impugned proceedings dated 7-8-1981, while rejecting the claim of the unofficial respondents at the earliest point of time.

( 23 ) IN the decision reported in H. V. Pardasani v. Union of India at paragraph no. 6 it was held as under: in the absence of any special provision regulating determination of seniority, length of continuous service in any particular grade would be the basis for determining seniority in that grade. But if a rule prescribed a method of fixation of inter se seniority, the normal practice would not apply and the rule shall prevail, subject to its constitutionality. . . . . . .

( 24 ) COMING to the present case, as already pointed out there is a specific provision made by way of Rule 33 (f) of s. S. S. Rules. That provision specifically deals with employees who were retrenched owing to economy measure and prescribes the method of computing the seniority of such employees and accordingly the unofficial respondents being retrenched employees and declared as surplus staff and appointed on temporary basis in another department. i.e., the transport department, their seniority shall be counted from the date of their regularization/absorption. Obviously the regularization was with effect from 1-1-1971. Therefore Rule 33 (f) in our considered view is the only relevant provision under the present set of facts.

( 25 ) BUT the Tribunal while not agreeing with the said proposition put forth by the writ petitioners, placed reliance on rule 33 (c) of S. S. S. Rules, which is already extracted above. From the said rule, the basic requirement is transfer from one service to the other. In the instant case, the unofficial respondents are reappointed after being declared as surplus staff in another service in the Transport Department. The principle enunciated in Rule 33 (c) can be made applicable even in cases where transfer was effected from one service to the other in special contingencies on administrative grounds. But the same is not permissible when a specific provision like rule 33 (f) of the S. S. S. Rules, is provided, as laid down by the Apex Court in Pardasanis case (supra). In other words, only in the absence of Rule 33 (f), perhaps Rule 33 (c) can be invoked in certain contingencies like the administrative grounds.

( 26 ) WE have already held that the appointment of the unofficial respondents in the transport department cannot be treated as a transfer on administrative grounds or on request. Their appointment in the latter department was owing to a specific and particular contingency. i.e., retrenchment and consequent declaration as surplus staff. If the applicants were not declared as surplus staff, the only option that could have been available to the Government was to retrench them. Further their appointment in the later department was subject to certain conditions. At the cost of repetition we may say that merely because there was no break- in-service, it cannot be said that the unofficial respondents are continuously in service in the transport department or their services shall be taken into account right from their initial appointment in their parent department. We are fortified with the decision of the Supreme Court in Yogendra Prasad Mandal v. State of Bihar. In the said case also the incumbent originally belonged to Forest Department. Subsequently the said department was closed down its project and it resulted in the declaration of surplus staff. In that context, it was held at paragraph no. 4 of the judgment as under: it is the contention of the applicant that he was not freshly appointed in the service of the State Government but he was merely transferred and is, therefore, entitled to continuity of service and all consequential benefits. We have not been shown any provision or any Rule under which the services of an employee of an autonomous body can be transferred to the State Government with continuity of service or preservation of seniority. In the minutes of 11-11-1981 there is no mention of any continuity of service being maintained or the seniority of the staff absorbed being preserved from the date of their joining the Bihar State forest Development Corporation. In the absence of this specific provision, the appointment in the State cadre has to be considered as appointment from the date when it takes effect. The High court, therefore, was right in coming to the conclusion that the services of the appellant will count from the date of his appointment in the State Trading wing of the Forest Department of the state of Bihar and the earlier service rendered by him with the Corporation will not be counted for the purpose of seniority and other benefits. This appeal is therefore, dismissed.

( 27 ) IN the instant case also the unofficial respondents who were declared as surplus staff by virtue of their appointment in the later department, cannot be treated as transferred on administrative grounds.

( 28 ) IN Satyanarain v. Satish Kumar, the Honble Apex Court held at paragraph No. 2 as under:. . . . . . The recruitment to the post of clerk is governed by a set of Rules called the Punjab Forest Subordinate services (Ministerial Section) Rules 1943". The statutory provision being there governing the recruitment to the posts of Clerks, the appointment of the appellants under the Scheme was dehors the Rules and, therefore, by no stretch of imagination, such appointment made dehors the Rules could be tagged on the period which they have rendered subsequent to their absorption in the cadre.

( 29 ) VIEWING from any angle, it cannot be said that the unofficial respondents can be treated as transferred from one department to other on administrative ground and they acquire the right of seniority over others who are already in service in later department.

( 30 ) IT is further on record that when the applicants made a representation, almost after ten years of their regularization in the latter department and it was rejected through proceedings dated 7-8-1981, the same was not challenged. Yet another representation was made to the concerned authorities only in the year 1989. In our view the second representations is made only in order to give a fresh lease and look to the litigation only to maintain an O. A. before the tribunal. On this ground also the O. As could have been dismissed.

( 31 ) FURTHER it was contended by the unofficial respondents that some other individuals were given seniority in the latter department, taking into consideration their earlier service. This ground also cannot be accepted. There cannot be an estoppel against law as declared by the Supreme court and various High Courts time and again. The illegality committed by the government or an illegal benefit extended to an individual cannot be a ground to apply the same to others also. In other words the illegality cannot be allowed to be perpetuated, when the same is apparent on the face of record and contrary to the rules.

( 32 ) THE Government is at liberty to take all corrective steps in this regard.

( 33 ) FOR the foregoing reasons, the impugned order of the Tribunal is set aside and the writ petition is allowed. No costs.