IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE SEVENTEENTH DAY OF OCTOBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GODA RAGHURAM and THE HON'BLE MR JUSTICE P.V.SANJAY KUMAR WRIT PETITION NO : 11450 of 2005 Between: 1 E. Prakash Rao S/o. E. Subbaramaiah, R/o. Kandukur, Principal Junior Civil Judge Court, Kandukur, Prakasam District. 2 N. Prbhakar Rao S/o. N. Jangaiah R/o. Kanigiri Personal Assistant t Junior Civil Judge Court. Kanigiri , Prakasam District. 3 Sri. K. Raghava Rao S/o. K. Koteswara Rao, R/o. Ongole,LD Clerk in the Court Of Special Session Judge for Trial of Offences under SC& ST, (Prevention Of Attrocities) Act, Prakasam at Ongole. 4 Smt. Meenakshi Devi W/o. A. Suryaprakasa Rao, R/o. Ongole, ASCJ Court, Ongle, Prakasam Dist. 5 M. Purnachander Rao S/o. M. Venkatasubbaiah, R/o. Ongle, LDC, District Court, Ongole, Prakasam Distrrrict. ..... PETITIONER(S) AND 1 The District& Sessions Judge, Prakasam District at Ongle. 2 The Registrar (Administration), High Court Of Andhra Pradesh, Hyderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to issue a writ of Mandamus or any other appropriate writ or direction declaring the action of the ﬁrst respondent in applying the new rules even in respect of vacancies arose prior to coming to force of new rules as illegal, arbitrary and consequently direct that the ﬁrst respondent to consider the claims of the petitioners for the vacancies arose prior to new rules under the qualiﬁcations prescribed under the old rules and pass such further or other orders as this Hon'ble court may deem ﬁt and proper in the facts and circumstances of the case. Counsel for the Petitioner:MR.O.MANOHER REDDY Counsel for the Respondent No.: SMT.M.BHASKARA LAKSHMI (SC FOR APHC) The Court made the following : ORAL ORDER: (PER GR.J) In substance, the ﬁve petitioners seek promotion as Upper Division Clerks/Senior Assistants. The petitioners are working as Lower Division Clerks in various Courts in Prakasam District in the State, having been appointed as such with eﬀect from 28.6.1982, 25.12.1993, 16.6.1994, 21.9.1981 and 6.11.1983 respectively. They do not have an Intermediate qualiﬁcation and possess only a pass in the 10th class, which was the requisite qualiﬁcation for appointment to the category of LDC prior to the substitution of the erstwhile Andhra Pradesh Judicial Ministerial Service Rules, 1964 (for short ‘the 1964 Rules’) issued in G.O.Ms.No. 206, Home (Courts-A) Department, dated 17.2.1964 by the Andhra Pradesh Judicial Ministerial Service Rules issued in G.O.Ms.No.129, Law (L.A. & J-Home- Courts-D) dated 12.11.2003. The currently operative Rules (2003 Rules) came into eﬀect from 5.12.2003. The 1964 Rules and the 2003 Rules have been issued in exercise of the powers conferred on the Governor by the proviso to Article 309 of the Constitution of India. Rule 39 of the 2003 Rules, which is the repeal and savings provision enjoins that the 1964 Rules as amended from time to time are repealed. The proviso to Rule 39 states that nothing in these rules shall eﬀect the appointments made in accordance with the repealed rules, prior to the coming into force of the 2003 Rules. Rule 8 of the 2003 Rules mandates that no person shall be eligible for appointment to the categories speciﬁed in Column (1) of Annexure-1 to the Rules by the method speciﬁed in Column (2), unless such person possesses the qualiﬁcations specified in the corresponding entry in column (3) thereof. Annexure-I relatable to the substantive provisions in Rule 8 sets out the methods of appointment and qualiﬁcations for the several categories of service covered in the constitution of the service in the 2003 Rules. Insofar as the posts of Junior Assistants are concerned, Annexure-I at Serial No.4 enjoins that appointment to this category, whether by direct recruitment or by promotion, requires the possession of a pass in Intermediate examination conducted by the A.P. State Board of Intermediate Examination or any equivalent examination. Note (2) following the Annexure reads: “A person appointed to a post in accordance with the rules applicable to him at the time of his appointment shall not be required to acquire higher qualiﬁcations prescribed for that post subsequent to his appointment.” On an interactive analysis of the provisions of Rule 8 with Serial No.4 in the Annexure and Note (2), the position is clear that a Junior Assistant duly appointed under the 1964 Rules shall not be required to acquire the higher qualiﬁcation, of a pass in intermediate examination, which is the current prescribed qualiﬁcation for appointment to the post of Junior Assistant. Insofar as the post of Senior Assistant is concerned, the qualiﬁcations for promotion to the said post are set out at Serial No.3 of the Annexure to the 2003 Rules. To the extent relevant and material for the purposes of this case, it requires to be noticed that (at Serial No.3 to the Annexure), in the prescription of qualifications, it is enjoined that a candidate for eligibility for promotion as a Senior Assistant (i) must have passed the Civil Judicial Test Parts I and II and Criminal Judicial Test and (ii) must have passed the Accounts Test for Subordinate Oﬃcers, Part-I. Notes (1) and (2) do enjoin an exemption from the requirement from passing the Civil and Criminal Judicial Tests and for preference to Law graduates respectively, but that is not an area which concerns us in this case. There is no prescription that for promotion as Senior Assistant a candidate must have a pass in the Intermediate examination. That is a qualiﬁcation prescribed only for appointment as Junior Assistant under 2003 Rules. In view of the provisions of Rule 8 r/w the qualiﬁcations enumerated for the appointment to the post of Senior Assistant by promotion at Serial No.3 in the Annexure read with Note (2), the position is clear that since the petitioners are and continue to be members of the Andhra Pradesh Ministerial Judicial Service as Junior Assistants, if they are otherwise eligible for promotion as Senior Assistants by either having the qualiﬁcations of a pass in the Civil and Criminal Judicial Tests or are exempted from having these qualiﬁcations, they would be eligible to be considered for promotion notwithstanding that they have not a pass in the Intermediate qualification. It is represented by Smt M. Bhaskara Lakshmi, the learned Standing Counsel appearing for the 1st and 2nd respondents that even after the ﬁling of the writ petition and earlier too, a number of persons were already promoted as Senior Assistants and the relief in specie as sought by the petitioners if granted would adversely impact the seniority of the persons earlier appointed and no such relief could be granted since the petitioners have not chosen to implead all the parties likely to be so aﬀected. The petitioners are seen to have impleaded Respondents 3 to 8 as respondents to the Writ Petition and the record discloses that except Respondent No.6, the other respondents i.e., 3, 4, 5, 7 and 8 have been served. It is represented by Smt Bhaskara Lakshmi that the 6th respondent has since retired from service. From the particulars furnished by Smt Bhaskara Lakshmi, it is seen that on 19.5.2005, 15 individuals including the Respondents 3 to 8 were promoted as Senior Assistants and thereafter they were further promoted to the post of Superintendent on various dates in the years 2006, 2007 and 2008. Apart from the above 15 individuals, 18 persons were promoted in February, March and September 2006 as Senior Assistants; some of whom were also further promoted to the post of Superintendent, in the years 2007 and 2008. Again in August, September and November 2007, six individuals from the categories of LDCs and Typists were promoted as Senior Assistants. In 2008, ﬁve more individuals were promoted from the categories of LDCs, Personal Assistants and Typists as Senior Assistants. Except for Respondents 3 to 8, none of the others promoted as Senior Assistants before or during the pendency of the writ petition have been impleaded as respondents to the writ petition. It further requires to be noticed that in May 2005, of the 15 individuals promoted, one Smt. D. Aruna Kumari, LDC promoted as Senior Assistant on 19.5.2005 ranks senior to the Respondents 3 to 8. In the aforesaid circumstances, grant of relief to the petitioners as prayed for which has the eﬀect of granting them seniority in the category of Senior Assistants, over persons earlier promoted (who are claimed to be juniors to the petitioners in the category of LDCs or equivalent posts), would require aﬀording of fair and reasonable opportunity to such affected persons before any relief is granted to the petitioners. Based with this piquant situation, the learned counsel for the petitioners states that the petitioners would eschew their claim for seniority consequent on consideration and promotion as Senior Assistants and would be satisﬁed with the limited relief of a direction to the respondents to consider their cases for promotion as Senior Assistants prospectively. In the light of the submission made and the restricted relief sought, this could be considered even without the persons already promoted as Senior Assistants arrayed as party respondents to the writ petition. On the analysis above, the petitioners are declared to be entitled to consideration and appointment as Senior Assistants if they are otherwise qualiﬁed, even though they do not have a pass in the Intermediate examination, which is the requisite qualiﬁcation under the 2003 Rules for appointment to the post of Junior Assistant. Accordingly, the Writ Petition is allowed to the extent of directing the respondents to consider the cases of the petitioners for appointment to the post of Senior Assistants with eﬀect from the dates on which their juniors in the category of LDCs have been so promoted without any entitlement to the petitioners for seniority or monetary beneﬁts (if considered for such promotion from an anterior date). The petitioners shall however be entitled to monetary beneﬁts prospectively from the date orders of appointment/promotion are given to them to the category of Senior Assistants. Since the 3rd petitioner (K. Raghava Rao) is stated to have retired from service, the 3rd petitioner shall be entitled, if appointed as a Senior Assistant pursuant to the directions herein, to re-ﬁxation and grant of terminal beneﬁts, treating the said petitioner as having retired in the category of Senior Assistant. Writ Petition is allowed as above. There shall be no order as to costs. -------------------------------- GODA RAGHURAM, J ----------------------------------- P.V. SANJAY KUMAR, J DATE: 17/10/2008 CVM