IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THIS THE 18th DAY OF FEBRUARY, 2010 PRESENT: HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR WRIT APPEAL No.1993 of 2002 BETWEEN: Md. Khaja … APPELLANT(S) AND A. Prabhakar and others …RESPONDENT(S) HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR WRIT APPEAL No.1993 of 2002 JUDGMENT: (Per the Hon’ble Sri Justice A. Gopal Reddy) This intra-court appeal under Clause 15 of the Letters Patent is directed against the orders of the learned Single Judge dated 19.03.2002 in W.P.No.19217 of 1996. Background facts in a nutshell leading in filing of this appeal are that the 1st respondent herein filed W.P.No.19217 of 1996 seeking to issue a writ in the nature of mandamus declaring the action of the respondents 2 to 4 herein in issuing the proceedings No.E2/225(12)96-MW(N) dated 14.08.1996 by promoting the appellant herein (4th respondent in the writ petition) as Leading Hand as illegal and arbitrary, and for a consequential direction to the respondents 3 and 4 herein to promote him as Leading Hand in the first vacancy in Group III in the Zonal Workshop, Nellore. The case of the writ petitioner (1st respondent herein) is that he was appointed in the respondent-Corporation as Kalasi on 01.03.1990; promoted as Machinist Grade-II by Selection Committee; office orders dated 18.01.1994 have been issued promoting him as Machinist Grade-II; his next promotion lies to the post of ‘Leading Hand’; and the Regional Workshop at Nellore had been started in September 1992 with chassis shop and the staffing pattern including seniority and promotion channel of different trades of workmen have been formulated on the basis of Circular No.PD-36/92 dated 21.05.1992 issued in respect of Regional Workshop, Vizianagaram. As per Clause 2.11 of the said Circular, vacancies of Leading Hand in the chassis shop are being regulated group wise namely, Mechanics as Group-I; Electricians (AC/DC) as Group-II; Machinists/Mill Wright Mechanics/ Instrument Repairers as Group-III; and Tinsmiths, Blacksmiths, Moulders and Welders in Smithy Section as Group-IV; and, as per Clause 2.14 thereof, a separate seniority for Machinists and a common seniority for Mill Wright Mechanics and Instrument Repairers shall be maintained for the purpose of promotion to the post of ‘Leading Hand’ and a common seniority for Mill Wright Mechanics and Instrument Repairers shall be maintained based on the date of appointment/promotion to the post of Mill Wright Mechanic or Instrument Repairer, as the case may be, and in a unit of three vacancies of Leading Hands under this group, the 1st and 2nd vacancies shall be filled in by the senior most Machinists and the 3rd vacancy shall be filled in by a senior most Artisan from the common seniority list of Mill Wright Mechanics and Instrument Repairers. The writ petitioner (1st respondent herein) claims that according to the final seniority list of Artisans of Zonal Workshop, Nellore, published vide notification dated 15.09.1994, in the cadre of Machinists, he stood at Sl.No.1 and that there was no Instrument Repairer in the workshop at the relevant point of time, whereas in the cadre of Mill Wright Mechanics, appellant was the only employee working in that category at zonal workshop, Nellore. When three vacancies of Leading Hand posts pertaining to Group-I and one vacancy of Leading Hand post pertaining to Group-II arose, they were filled up as per the Andhra Pradesh State Road Transport Corporation Employees’ Recruitment Regulations, 1966 (hereinafter referred to as ‘the Regulations’). The 3rd respondent herein accorded sanction to fill up the 5th post of Leading Hand in Group-III which is the first vacancy of Leading Hand post arose in Group-III and, as per the Circular, the same is to be filled in with the senior most Machinist. As per Regulation 3(1) of the Regulations, appointment to the posts in the Corporation shall be made either by (a) direct recruitment; or (b) promotion; or (c) transfer or deputation of an Official already in the service of a Department of the Central or State Government or a State Transport Undertaking. Regulation 3(2) of the Regulations provides the method of recruitment to each post specified in column 2 of Annexure-A shall be as shown in the corresponding entry in column (3) thereof and the qualifications prescribed for each such post shall be as shown in the corresponding entry in column (4). Regulation 30 of the Regulations which deals with ‘Temporary Promotion’ reads as hereunder: “(1) (i) Where it is necessary in the administrative interest to fill emergently a vacancy in a post borne on the cadre of a higher category in a service or class by promotion from lower category and if the filling of such vacancy in accordance with these regulations is likely to result in undue delay, the appointing authority may promote a person temporarily otherwise than in accordance with these Regulations. (ii) No person who does not possess the qualifications, if any, prescribed for the said service, class, or category shall ordinarily be promoted under sub-clause (i). Every person who has been or is promoted under sub-clause (i) shall be replaced as soon as possible by promoting a person possessing such qualifications. (2) Where it is necessary to fill a short vacancy in a post borne on the cadre of a higher category in a service or a class, by promotion from lower category and the appointment of a person who is eligible for such promotion under these Regulations, would involve excessive expenditure on travelling allowance or exceptional administrative inconvenience, the appointing authority may promote any other person possessing the qualifications, if any, prescribed for the post. (3) A person promoted under sub-clause (i) of clause (1) whether or not he possesses the qualification prescribed for the service, class or category to which he is promoted shall as soon as possible be replaced by a member of the service who is eligible to hold the post under the Regulations or orders in force.” The Regulations prescribe the method of recruitment for promotion to the post of Leading Hand. According to which, in a unit of 12 vacancies in a Division, (a) the 1st, 3rd, 4th, 7th, 9th and 12th vacancy shall be filled by promotion by selection from the ranks of Mechanics Grade-I or otherwise from the ranks of Mechanics Grade-II; (b) the 5th, 8th and 11th vacancy shall be filled by promotion by selection from the ranks of other Artisans (other than Mechanics); (c) the 6th and 10th vacancy shall be filled by promotion by selection of Mechanic Grade-I or Grade-II who are directly recruited as such from ITI candidates; and (d) the 2nd vacancy shall be filed by promotion by selection of other Artisans Grade-I or Grade-II (other than Mechanics) who are directly recruited as such from ITI candidates; and the qualification prescribed for such promotion is that a candidate must have rendered not less than five (5) years of service as such. The appellant herein who was initially appointed as Cleaner on 07.06.1981, was promoted as Mill Wright Mechanic on 15.06.1987 and had put in the minimum 5 years of service and thereby became eligible to be promoted to the post of ‘Leading Hand’. The final seniority list of Artisan of Zonal Workship at Nellore was published on 15.09.1994. According to the said seniority list, the name of the 1st respondent herein was shown at Sl.No.1 in the category of Machinists in Group-III, the appellant was the only Mill Wright Mechanic working at Zonal Workshop, Nellore, and there were no other Instrumental Repairers. When three posts in the category of Leading Hand pertaining to Group- I and one post of Leading Hand pertaining to Group-II arose, those posts were filled up as per the Regulations. The 3rd respondent accorded sanction to fill up the 5th post of Leading Hand which is the first vacancy in Group-III. As per Clause 2.14 of the Circular dated 21.05.1992, the 1st vacancy of Leading Hand in Group-III has to be filled in with a senior most Machinist and, as per the Regulations, an employee must have rendered not less than 5 years of service for promotion to the post of Leading Hand. Though the 1st respondent stood at Sl.No.1 in the category of Machinists in Group-III, as he was promoted to that category only with effect from 19.01.1994 and, therefore, not rendered the required minimum service, and as there were no Instrumental Repairers working in Nellore Zone, the selection committee promoted the appellant, who was the senior most in the category of Mill Wright Mechanic and put up 9 years of service, to the post of Leading Hand, by order dated 14.09.1996. Since the said vacancy has been earmarked for the category of Machinists in Group- III, the 1st respondent filed Writ Petition questioning the promotion of the appellant to the post of Leading Hand. In the Writ Petition, the respondent-Corporation filed counter admitting that the 1st and 2nd vacancies of the post of Leading Hand are earmarked for the senior most Machinists and the 3rd vacancy is earmarked for a senior most Artisan from the common seniority list of Mill Wright Mechanics and Instrument Repairers. It was further admitted that the appellant has got 9 years of service in the post of Mill Wright Mechanic and he was promoted under Regulation 30 of the Regulations which provides for temporary promotions as the said vacancy was not earmarked for the Mill Wright Mechanic/ Instrument Repairers and the said promotion was made in accordance with the circular instructions and the Regulations. The appellant, though served with notice in the writ petition, did not contest the claim of the 1st respondent herein. The learned Single Judge, after taking into consideration the rival contentions and the Regulation 30 of the Regulations, held that the case of the 1st respondent herein should be considered for promotion by replacing the appellant who had been temporarily promoted at the relevant time and, accordingly, directed the respondent-Corporation to consider the case of the 1st respondent herein for promotion to the post of Leading Hand. It was further directed that in case, for any reason, the services of the appellant were already regularized, his (appellant’s) case also may be considered in the case of other vacancies keeping in view the seniority. Hence, this appeal. Learned counsel for the appellant contends that since the appellant was the only qualified candidate who put in 9 years of service in the lower category at the relevant point of time and since he was selected and promoted by a properly constituted selection committee, his promotion should be treated as a regular promotion, but not as a temporary promotion made under Regulation 30 of the Regulations. It is further contended that since the 1st respondent herein (writ petitioner) was temporarily promoted as Machinist in Group-III on 19.01.1994, he will become eligible for promotion to the post of Leading Hand only to the vacancy arising on completion of five years of service i.e. after 19.01.1999 but not when the vacancy was sanctioned and filled up, and, in that view of the matter, the learned Single Judge committed error in allowing the writ petition by directing the respondent-Corporation to consider the case of the 1st respondent herein for promotion to the post of Leading Hand by replacing the appellant. It is the contention of the learned counsel for appellant that, admittedly, the 1st respondent herein (writ petitioner) was not eligible for promotion at the relevant point of time as by that time he has rendered only one and half years of service, and, in accordance with the Regulations, he will be said to be eligible for promotion when he renders not less than 5 years of service by the date when a vacancy arose, and, therefore, the said vacancy cannot be treated as a temporary vacancy which can wait till he acquires qualification. We do not see any merit in the above contention for the reason that under Regulation 30 (1)(i) of the Regulations no person who does not possess the qualifications, if any, prescribed for the said service, class, or category shall ordinarily be promoted under sub-clause(i). It further states that every person who has been or is promoted under sub-clause(i) shall be replaced as soon as possible by promoting a person possessing such qualifications. It is not in dispute that the said vacancy was earmarked to be filled up with a person from the category of Machinist in Group-III and the said vacancy did not accrue to be filled up with any other Artisan like Mill Wright Mechanic/Instrument Repairer. Admittedly, the appellant was a Mill Wright Mechanic in Group-III. Regulation 30 of the Regulations provides for temporary promotion only to meet the said contingencies namely, where there is likelihood of occurring undue delay in filling up of the said vacancy. Any vacancy which was earmarked for a particular service, class or category, if filled up with a person other than the service, class or category shall be treated as a temporary promotion only. Regulation 30(3) of the Regulations also provides that a person promoted under sub-clause(i) of Clause (1) whether or not he possesses the qualification prescribed for the service, class or category to which he is promoted shall as soon as possible be replaced by a member of the service who is eligible to hold the post under the Regulations or orders in force. Once the Regulations or Orders or Circulars issued by the respondent-Corporation earmarks a vacancy to the Machinists in Group-III, and if no Machinist who is eligible for promotion is available, and if such vacancy is filled up with a person from other service, class or category, such person shall be replaced as soon as possible by promoting a person possessing the qualifications. In that view of the matter, the contention urged by the learned counsel for the appellant that in as much as the appellant was the only qualified candidate who was selected and promoted by a properly constituted selection committee, he need not be replaced by the 1st respondent herein on his acquiring qualification, do not merit any consideration and the same is, accordingly, rejected. At this juncture, it is brought to the notice of this Court that subsequent to the filing of the writ appeal, the 1st respondent herein (writ petitioner) who was working as Machinist was promoted as Leading Hand, by orders of the 4th respondent dated 25.09.2002 and his services were also regularized, by orders of the 4th respondent dated 05.03.2007 with effect from 25.09.2002. As and when the vacancy of Leading Hand meant for the Mill Wright Mechanics/ Instrument Repairers in Group-III arises, the appellant would be entitled for promotion to the post of Leading Hand on regular basis. Therefore, we do not see any infirmity in the order passed by the learned Single Judge in allowing the writ petition and the writ appeal is liable to be dismissed. The writ appeal is, accordingly, dismissed. There shall be no order as to costs. ______________________ (A. GOPAL REDDY, J) ______________________________ (VILAS V.AFZULPURKAR, J) 18th February, 2010 CVRK