IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE FIFTEENTH DAY OF JUNE TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH and THE HON'BLE MR JUSTICE P.SWAROOP REDDY WRIT PETITION NO : 13039 of 1999 Between: K.Narasimha Murthy son of Laxmi Narasimha Murthy Sri Ujjanini Mahankali Devasthanam Secunderabad ..... PETITIONER AND 1 B.Veerender Varma son of Late B.Madhukrishna Commissioner , Endowments Department , Tilak Road, Hyderabad 2 Principal Secretary to Government Revenue Department Government of Andhra Pradesh Secretariat, Hyderabad 3 The Commissioner of Endowments Department , Tilak Road , AP, Hyderabad 4 Registrar, AP Admn.Tribunal 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 or order or direction or writ, more particularly one in the nature of Writ of Certiorari calling for the records relating to orders of the Tribunal, dt. 23/04/1999 in O.A.No. 1507/97 and quash the same by declaring it as illegal, bad, arbitrary and contrary to the rules and also declare that the first respondent is not eligible for promotion to the post of Assistant Commissioner of Endowments, without being Converted as Superintendent Counsel for the Petitioner: MR.J.R.MANOHAR RAO Counsel for the Respondent No.: GP FOR SERVICES II The Court made the following : ORDER: (Per Sri V.Eswaraiah, J.) The case of the petitioner is that he was initially appointed as L.D.C. on 24.7.1968 and promoted as Senior Assistant and further promoted as Superintendent on 14.9.1989. He also passed all the tests for promotion to the post of Assistant Commissioner by transfer. According to the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Service Rules (for short, ‘the Rules’) the post of Assistant Commissioner is to be filled by promotion of the Superintendents in the Endowments Department besides direct recruitment and promotion of Executive Officer Grade-I and there is no channel for promotion of a Special Category Stenographer. The post of Special Category Stenographer is not a feeder post for promotion to the post of Assistant Commissioner. Though the Government passed orders in G.O.Ms.No.90, dated 24.2.1992, to treat Special Category Stenographer on par with the Superintendents etc., for the purpose of appointment by transfer to such posts outside their regular channel of promotion without insisting on their being converted into clerical cadre, necessary amendments to the Special Rules/Ad-hoc Rules will have to be issued by the Departments concerned. The Rules issued in G.O.Ms.No.679, Revenue (Endowments-I), dated 4.10.1988 were not amended. Therefore, Special Category Stenographer is not one of the feeder cadre posts for appointment of Assistant Commissioner by promotion till the amendments are made. The Andhra Pradesh Ministerial Service Rules makes it clear that the Special Category Stenographers are not eligible for promotion to the executive post without being converted as Superintendents. Therefore, the order of the Government in G.O.Ms.No.90, dated 24.2.1992, have no significance until the relevant rules are amended. The Andhra Pradesh Administrative Tribunal without considering the relevant Rules erroneously disposed of the O.A.No.1507 of 1997 filed by the first respondent by order dated 23.4.1999 to consider the case of the first respondent for appointment to the post of Assistant Commissioner in terms of G.O.Ms.No.90, dated 24.2.1992, without any practical training as prescribed in Government Memo. No.75522/E.I/95, dated 20.11.1996. It is not in dispute that the petitioner is the senior most Superintendent and eligible for promotion to the post of Assistant Commissioner of Endowments. The petitioner being the affected party was not impleaded in the aforesaid O.A.No.1507 of 1997 and in view of the directions of the Tribunal, the authorities have considered the case of the first respondent alone for promotion to the post of Assistant Commissioner ignoring the claim of the petitioner, aggrieved by the said order, the petitioner filed this writ petition in the nature of writ of certiorari calling for records relating to the orders passed by the Tribunal in O.A.No.1507 of 1997 dated 23.4.1999 and to quash the same as illegal, arbitrary and contrary to the Rules. It is not in dispute that as per the amendment made vide G.O.Ms.No.443, Revenue (Endowments-I), dated 13.4.2006, the Special Category Stenographer in Endowments Department was added one of the feeder post for appointment by transfer to the post of Assistant Commissioner of Endowments. Therefore, the first respondent became eligible for promotion being the Special Category Stenographer by transfer to the post of Assistant Commissioner of Endowments. Had the first respondent was not promoted, the petitioner and other similarly situated persons alone were eligible for appointment by transfer to the post of Assistant Commissioner of Endowments as per the then existing Rules. As already indicated above, we are of the opinion that the administrative instructions issued by the Government in G.O.Ms.No.90, dated 24.2.1992 have no overriding effect over the existing rules and the statutory rules alone will prevail over the administrative instructions. The action of the Government in considering the case of the first respondent pursuant to the order of the Tribunal without making amendment to the Rules is illegal and unsustainable. The said G.O., issued by the Government is in exercise of executive powers of the State under Article 162 of the Constitution of India. The executive power of the State to issue any orders in respect of matters to which the Legislature of the State has power to make laws and therefore the G.O., issued in exercise of powers under Article 162 of the Constitution will not override the statutory rules. In fact, the Government itself indicated that the relevant rules have to be amended entitling the Special Grade Stenographers for promotion to the post of Assistant Commissioner of Endowments. The existing rules were not amended till 2006 and therefore the first respondent is not entitled for promotion. While admitting the writ petition, the order of the Tribunal was suspended on 13.7.1999 and the same was also made absolute on 23.3.2001. In spite of the said order, the first respondent was promoted illegally. We are of the opinion that the promotion of the first respondent to the post of Assistant Commissioner of Endowments is against the statutory rules and the same is illegal and unsustainable. Therefore, we have no hesitation to set aside the order of the Tribunal. The learned counsel appearing for the first respondent submits that the first respondent was promoted 10 years back and he was holding the post of Assistant Commissioner of Endowments and got subsequent promotion and therefore if the order of the Tribunal is set aside his promotion will be treated from the date of his eligibility pursuant to the amendment made to the Rules vide G.O.Ms.No.443, dated 13.4.2006, and therefore requested that it may not be just and proper to set aside the order at this length of time. We are unable to accept the said contention of the learned counsel for the first respondent in view of facts and circumstances of the case particularly in the nature of the case where the order of the Tribunal was suspended and made absolute on a petition filed by the first respondent and in spite of the said order he managed to get promotion. Accordingly, we set aside the order of the Tribunal in O.A.No.1507 of 1997, dated 23.4.1999, and allow the writ petition as prayed for. There shall be no order as to costs. ________________ V.ESWARAIAH, J. ________________ P.SWAROOP REDDY, J. 15.6.2009 kpr