THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.28342 of 1998 DATE: 18-2-2010 Between: Y. Viswanadha Rao …. Petitioner And 1. The Vice-Chairman & Managing Director, Sports Authority of A.P. Hyderabad and 4 others … Respondents THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.28342 of 1998 ORDER: Selection of respondents 4 and 5 as Superintendents, vide proceedings of the 1st respondent dated 29.8.1998, is under challenge in this writ petition. The petitioner was appointed on daily wages in the Sports Council on 24.10.1981. His services were regularized as Junior Assistant, by proceedings dated 9.12.1984, with effect from 1.12.1984 along with respondents 4, 5 and others. Petitioner was subsequently promoted as Senior Assistant with effect from 24.4.1990. The 1st respondent, by the impugned proceedings, promoted the 4th and 5th respondents as Superintendents. The petitioner would submit that such promotions being effected, without a seniority list being prepared, was contrary to the statutory rules in force; while he passed the Accounts Test for Subordinate Officers Part-I in the year 1993 and had put in more than 8 years service as a Senior Assistant when the selections were held, the 5th respondent was promoted even through he did not pass the Accounts Test for Subordinate Officers Part-I at the time of selection and was given two years time to acquire the said qualification. Sri J.Ramachandra Rao, Learned Counsel for the petitioner, would contend that failure to prepare a seniority list would necessitate the selections made to the post of Superintendents being set aside in its entirety. On a query from this Court, as to when respondents 4 and 5 were initially appointed, Learned counsel would fairly state that, while their initial appointment was before the petitioner was appointed on daily wages, absence of a seniority list of Senior Assistants, though mandated under the Rules, would necessitate the entire selection being set aside. On the other hand Sri Hari Sridhar, Learned Standing Counsel appearing on behalf of the 1st respondent, would submit that, since respondents 4 and 5 are seniors to the petitioner, (their initial appointment being prior to his initial appointment), the action of the respondents in promoting them, and in not promoting the petitioner herein cannot be faulted. Learned Counsel would submit that, while Rule 18(9)(i) of the Andhra Pradesh Sports Authorities Rules, 1993, stipulates a pass in the Accounts Test for Subordinate Officers Part-I as among the eligibility criteria for being considered for promotion to the post of Superintendent, a relaxation of the rigour of Rule 18(9)(i) is provided for in Rule 18(11) for existing employees who are only required to pass the Accounts Test within the two examinations held by A.P.P.S.C. after the Government approves the Rules. Learned Standing Counsel would contend that, in view of Rule 18(11), the action of the 1st respondent in promoting the 5th respondent, subject to his passing the Accounts Test within a period of two years from the date of the impugned order, is justified. Learned Standing Counsel would further submit that the petitioner has, in any event, been promoted as Superintendent in the year 2006 and as such is not entitled to question the promotions effected by the impugned proceedings. Sri K.Raghuveer Reddy, Learned Counsel appearing on behalf of the 4th respondent, would contend that, since the 4th respondent was admittedly senior to the petitioner and had passed the Accounts Test in the year 1996 much before the selections were held in the year 1998, no interference was called for with regards her promotion as Superintendent. Sri B.G.Ravinder Reddy, Learned Counsel for the 5th respondent would vehemently contend that, since the 5th respondent was senior to the petitioner (his initial appointment being prior to that of the petitioner), he was entitled for promotion as Superintendent on the basis of seniority and that the first respondent was justified in giving him time of two years to pass the Accounts Test for Subordinate Officers Part-I. Learned Counsel would submit that the 5th respondent had passed the Accounts Test within the stipulated period of two years. Promotion to the post of Superintendent in the respondent organization is governed by statutory rules made by the Government in exercise of its powers under Section 23(i) of the Andhra Pradesh Sports Authorities Act, 1988. These rules called ‘the Andhra Pradesh Sports Authorities Rules, 1993’ were notified in G.O.Ms.No.25 dated 4.5.1993. Rule 18 of the said Rules relates to recruitment by promotion. Sub-rule (1) thereof requires the Sports Authority to prepare and maintain every year a seniority list prepared as on the 1st March each year in respect of each cadre/category of employees. Sub-rule (2) provides that appointment to a post, in any cadre, by promotion shall be from the next lower grade in line for promotion on the basis of a formally constituted Departmental Promotion Committee. Sub-rule (3) deals with the constitution of the Departmental Promotion Committee. Sub-rule (6) provides that every appointment by promotion to the posts, under senior and junior posts, shall be made by selection on the basis of merit with due regard to seniority and in the case of candidates of equal merit the senior should be given preference. Sub-rule (9) (i) prescribes the eligibility criteria and provides that holders of posts of Senior Assistants and U.D. Stenos, who have put in service of five years or more in these posts and who have passed the Accounts Test for Subordinate Officers Part-I, are eligible for consideration for promotion to the post of Superintendent. All employees in the cadre of Senior Assistants and U.D. Stenos with five service in the said post, and who have passed the Accounts Test for Subordinate Officers Part-I, form the zone of consideration for promotion to the post of Superintendent. All employees, who satisfy the eligibility criteria as on the date of selection or any other date specified by the first respondent, are required to be considered by the Departmental Promotion Committee constituted under sub-rule (3) and promoted on the basis of their inter-se merit as stipulated under sub-rule (6) of Rule 18. It is only where the inter-se merit of two or more candidate is found to be equal that sub-rule (9)(i) requires the senior to be given preference. With regards non-preparation of the seniority list, it is not in dispute that , in addition to respondents 4 and 5, three others were also promoted. Accepting the aforesaid submission of Sri J. Ramachandra Rao, Learned Counsel for the petitioner, would necessitate their selection also to be set aside. I see no reason to examine this contention in the absence of the other three selected candidates being arrayed as respondents in the writ petition. This contention of non-preparation of seniority list, therefore, necessitates rejection. It is not in dispute that the 4th respondent passed the Accounts Test prior to the date on which her candidature was considered by the D.P.C. for selection to the post of Superintendent. As the 4th respondent’s initial appointment is also said to be prior to that of the petitioner I do not see any reason to interfere with her promotion also. The only contention urged by the petitioner which merits acceptance is with regards promotion of the 5th respondent on the ground that he did not possess the prescribed qualification of having passed the Accounts Test for Subordinate Officers Part-I on the date the Departmental Promotion Committee considered his candidature for selection to the post of Superintendent. The impugned order of promotion gives the fifth respondent two years time, from the date of his promotion, to pass the said Accounts Test. Rule 18(11) on which reliance is placed by the respondents, reads as under: “A pass in the Accounts Test for Subordinate Officers Part-I and Accounts Test for Executive Officers as requisite qualifications for promotions to higher posts have been newly introduced in these rules. The existing employees who are otherwise eligible for consideration for promotion can be considered for promotion and promoted if found fit pending passing of the relevant test within the next two examinations conducted by the Andhra Pradesh Public Service Commission after the Government approves these rules as laid down in Rule 17 of General Rules for the Andhra Pradesh State and Subordinate Service Rules. This concession is allowed only for a period of two years after these rules are approved by the Government.” While the construction placed, on sub-rule (11) of Rule 18, by the Learned Standing Counsel would, if accepted, fall foul of the eligibility criteria prescribed in Rule 18(9)(i), it is wholly unnecessary for this Court to interpret Rule 18(11) as sub-rule (11) itself restricts the concession only for a period of two years after the rules are approved by the Government. While the counter affidavit is silent as to when the Government approved the Rules, it is evident that the Rules could not have been approved subsequent to the date on which they were notified in G.O.Ms.No.25 dated 4.5.1993. Even if 4.5.1993 is taken as the date on which the Government approved the rules, two years therefrom would end by 3.5.1995 and the relaxation of passing the Accounts Test for Subordinate Officers Part-I could not have been extended, even to existing officers, thereafter. It is clear that the 5th respondent was ineligible for consideration for promotion to the post of Superintendent in the year 1998 when the Departmental Promotion Committee met and considered his case for selection. The fact that he passed the Accounts Test for Subordinate Officers Part-I subsequently would, at best, enable his case to be considered in the subsequent selections for which the Departmental Promotion Committee was constituted later. The impugned order of promotion, giving the 5th respondent two years time from the date of the order to pass the Accounts Test, is ultra vires Rule 18(11) and is, therefore, illegal. The impugned order, to the limited extent the 5th respondent was promoted as Superintendent, is quashed. The 1st respondent shall constitute a Departmental Promotion Committee to consider the case of all such candidates, who were eligible for promotion and who satisfied the eligibility criteria prescribed in Rule 18(9)(i) when the Departmental Promotion Committee met in the year 1998, and promote the employee found to be the most meritorious among them in accordance with the recommendations of the Departmental Promotion Committee. The writ petition is allowed to the extent indicated hereinabove. However, in the circumstances, without costs. ___________ 18-2-2010 asp