IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY FOURTH DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 4161 of 2009 Between: 1 M.Vittal Rao S/o.Madurai (Late) O/.o.Director of Accounts (General) Andhra circle, Hyderabad 2 P.Gangaiah S/o.Late Gabriel (Late) O/.o.Director of Accounts (Postal) Andhra circle, Hyderabad 3 M.Paidiraju S/o.Krishna (Late) O/.o.Director of Accounts (Postal) Andhra circle, Hyderabad 4 K.S.R.Anjaneyulu S/o.Narasimha Rao (Late) O/.o.Director of Accounts (Postal) Andhra circle, Hyderabad 5 S.V.S.Naik S/o.S.Bhojanaik O/.o.Director of Accounts (Postal) Andhra circle, Hyderabad ..... PETITIONERS AND 1 The Chief Postmaster-General, Andhra Circle Dak Sadan, Abids, Hyderabad 2 The Director of Accounts (Postal), Andhra Circle Dak Sadan , Abids,Hyderabad 3 Union of India., rep.by its Secretary, Department of Posts Dak Bhavan, Parliament Street, New Delhi 4 Smt.Yashodhara Menon Chief Postmaster -General, Andhra circle, Dak Sadan Abids, Hyderabad 5 Smt.M.S.Vasundara Rao W/o.Sri M.S.Sudhakar Rao O/o.Director of Accounts (Postal) Andhra circle, Hyderabad 6 N.Padmanabha Rao S/o.Late N.Krishna Murthy O/o.Director of Accounts (Postal) Andhra circle, Hyderabad 7 P.Venkat Rao S/o.Late P.Butchi Kotaiah O/o.Director of Accounts (Postal) Andhra circle, Hyderabad .....RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a writ order or direction especially one in the nature of writ of Certiorari calling for records pertaining to order passed in OA.No.406 of 2008 dated 11.11.2008 of Hon`ble Central Administrative Tribunal and quash the same. Counsel for the Petitioners: MR.M.SURENDER RAO Counsel for the Respondent Nos.1 to 3: MR.A.RAJASHEKAR REDDY (ASST SOLICITOR GEN) Counsel for the Respondent Nos.5 to 7: MR. P.V.KRISHNAIAH The Court made the following: ORDER: (PER HON’BLE SRI JUSTICE GHULAM MOHAMMED) 1. This writ petition has been filed by the petitioners, who are 5 in number, seeking writ of certiorari calling for records pertaining to the order dated 11.11.2008 passed in O.A.No.406 of 2008 on the file of the Central Administrative Tribunal, Hyderabad and quash the same. 2. The petitioners are not parties before the Central Administrative Tribunal, Hyderabad Bench, Hyderabad (for short, ‘the Tribunal’) and hence, they sought leave of this Court to assail the order passed by the Tribunal by filing WPMP No.37303 of 2008, which was allowed granting leave to the petitioners by an order-dated 26.02.2009. 3. The petitioners assailed the validity of the order-dated 11.11.2008 in O.A.No.406 of 2008 passed by the Tribunal. They stated that they are the members of reserved category working as Senior Accountants in the Postal Department. In the postal department, next promotion from the post of Senior Accountant is to the post of Junior Accounts Officer, Group-B non-gazetted, governed by Rules issued in G.S.R. 20 (E), DATED 10.01.2002 (for short Rules). Rule 2 of the said Rules speaks about number of posts, classification, scale of pay, method of recruitment etc. Rule 4 of the said Rules speaks about limited departmental competitive examinations consisting of part I & II. Rule 7 of the said rules provides for power to relax the rules. In terms of the schedule, 90% of the posts shall be filled up by promotions through limited departmental competitive examinations from among 9 categories of officials who have completed 3 years of service in the department and who were qualified in the limited departmental competitive examinations for JAO Part I & II. The remaining 10% shall be filled by promotions from among the Senior Accountants in the pay scale of Rs.5,000 –Rs.8000 with 3 years of regular service. It was the case of the applicants in the O.A. that they passed examination for JAO Part I & II held in the year 1991 and that there are more than 40 candidates who have passed the said examination by or after 1991 and that they were being promoted as JAOs from the year 2000 on adhoc basis. They were reverted at the end of 180 days and that they sought for a declaration to the effect that they are entitled for regular promotions as JAOs. According to them, the cadre strength of the JAOs is 10. Out of the said 10 posts, 2 posts are reserved for SCs and one post is reserved for ST and that all the remaining posts have been regularly filled up and there are no vacancies in the unreserved posts. According to the applicants in the O.A., a higher post to the post of JAO is the post of AAO. The cadre strength of the Assistant Accounts Officer (AAO) is 40. In the said 40 posts, 6 posts are reserved for SCs and 3 posts are reserved for STs and 31 posts are unreserved. Among the posts of AAOs, there are no vacancies in the unreserved posts of 31. The official respondents filed counter in the O.A. stating that the applicants in the O.A. are OCs and they cannot claim, as a matter of right, promotion in the reserved vacancies. In the said circumstances, the applicants in the O.A. were promoted on adhoc basis and were reverted at the end of every 180 days. The official respondents relied upon office memorandum dated 30.03.1988. In para.4(3) of the memorandum, it was stated that Adhoc promotions may be made on the basis of seniority and fitness (a) after making proper scrutiny by the appointing authority of the records of the officer; (b) only those officers who fulfill the eligibility conditions prescribed in the recruitment rules should be considered for Adhoc promotions. If, however, there are no eligible officers necessary relaxation shall be obtained from the competent authority;; [c] claim of SC & ST in adhoc promotion shall be considered in accordance with guidelines contained in Official Memoranda dated 20.04.1983 and 30.09.1983. They also relied upon the communication bearing No.3(3)/99/PA-Admn.1/584, dt.19.11.2007, wherein, it was further clarified that, in case JAO Part II examination, qualified SC & ST candidates are not available for making officiating arrangements against reserved vacancies under 90% quota, such vacancies may be filled by eligible Senior Accountants of the reserved categories only as provided in para.1(b) of the office letter dated 07.07.2006. They also relied upon the Government of India Instructions, dated 02.07.1997 regarding posts based on roasters. The applicants in the O.A. stated that there are 9 vacancies in AAO cadre and that the said 9 vacancies shall be operated in the JAO cadre. However, they did not make a prayer that they are entitled to occupy 9 unfilled AAO vacancies. They cannot also claim the same as they are not even promoted regularly to the JAO cadre. Even assuming that the vacancies in the AAO cadre shall be operated in the JAO cadre, then also applicants in the OA cannot be promoted as JAO in the said vacancies. The 9 vacancies available in the AAO cadre are those which arose in the posts reserved for SCs & STs. If such vacancies are operated in the JAO cadre, they shall be filled up by the members belonging to SC & ST. The Tribunal framed the following 5 issues.: i) Whether the Respondents have erred in promoting the applicants who were qualified and eligible for a period of 180 days only on adhoc basis and reverting them by impugned order dated 10.06.2008 (in OA 531/2008) and 19.8.2008 (in OA 537/2008); ii) Whether the Respondents have erred in promoting the ineligible SC candidates on adhoc basis initially for a period of 180 days and subsequently for one year and allowing them to continue them as JAOs; iii) Whether the Respondents have violated the interim orders of this Tribunal dt: 9.7.2008 and 17.7.2008 as alleged by the applicants; iv) Whether the applicants are eligible to be promoted as JAOs on a regular basis against the nine vacancies in the AAO cadre which are operated in the lower cadre; and v) To what relief if any are the applicants entitled? The Tribunal gave a finding in respect of Issues 1 and 2 against the applicants. In Issue No.3, the allegations made by the applicants in O.A.531/2008 regarding the posting of Sri J.Hanumtha Rao on 31.07.2008 has not been properly replied by 2nd respondent. The issue is decided in favour of the applicants in the O.A. Accordingly, in Issue No.4, the Tribunal has considered the various aspects, which reads as follows: “A reading of various circulars and instructions would make it clear that intention of the Respondent No.3 was to provide some relief in view of the administrative problems that were taken to his notice by permitting the Heads of Circles to operate an equal number of vacant AAO posts in the lower grade of JAOs, without at the same time downgrading vacant AAO posts. As and when eligible persons became available, they were to be promoted as AAOs, subject to clearance by the DPC. The mode of operation of the excess posts has also been explained in clarification given in letter dated 16.08.2007 i.e. 90% by promotion of JAO examination qualified candidates and 10% by Sr. Accountants with three years of regular service. Clear instructions have also been given as to how separate rosters have to be maintained for AAO and JAO cadres and how the unfilled vacancies in the AAO cadre should be filled as per JAO roster. The Respondent No.3 has also made it clear that there is no objection to filling up of the posts in the lower cadre on regular basis after expanding the JAO cadre. This means that the persons promoted against these vacancies should not be reverted once in six months but can be allowed to continue till a suitable person in that category becomes available. The implication is that these vacancies, though temporary, were to be filled on a regular basis. In our considered view, the term “on a regular basis” means they should be kept in the higher cadre continuously but not permanently. When the instructions are so clear and unambiguous, it is not known why the Respondents have not acted upon them and operated the nine vacant posts of AAOs by expanding the JAO cadre and filled them up on a regular basis as per JAO roster. We are, therefore, of the view that the applicants, who are otherwise eligible and qualified, deserve to be considered for promotion on a regular basis against the nine AAO vacancies, which have been permitted to be operated in the lower cadre. The Respondents have certainly erred in assuming that all the nine posts are meant for reserved category and therefore, they should be filled by only SC/ST candidates even if they are ineligible. The purpose of keeping the AAO strength in tact and not expanding or contracting the AAO roster is to make sure that ultimately all the vacancies that are meant for reserved category would go only to that category. The Respondent No.2 seems to have misunderstood the import of these instructions. Therefore, this issue is decided in favour of the applicants.” 4. Heard learned counsel appearing for the parties. 5. Learned counsel appearing for the petitioners submits that the departmental examination has not been held from 1995 onwards for the reserved category and that they ought not have de-reserved and filled the same by regular OC candidates in the cadre of JAO. The eligibility for being promoted to the cadre of JAO is passing of the departmental examination in Part I and Part II. He contended that when once the posts are for reserved category, de-reserving the same amounts to violation as provided under Article 16 of the Constitution and that the Tribunal has misread the instructions issued by the authorities and the tribunal ought not have given a positive direction directing them to consider their cases for regular promotion to the 9 vacancies of AAOs. It is further contended that when there is a duty cast upon the respondents to hold examination, which was not done since a long time, and for which the petitioners cannot be penalized as their rights are being jeopardized and that the Tribunal was not justified in granting directions to fill the posts which are earmarked for SCs and STs. Further, he has drawn our attention to the Circular No.3 (3)/99/PA-Admn.1/245 to 288, dated 7.7.2006 with reference to officiating arrangements in the cadre of JAO, which reads as under: “ The matter regarding simplifying the existing instructions on making local officiating arrangements in JAO cadre was under consideration of this office. In supersession of all the existing instructions, it has been decided that local officiating arrangements in JAO cadre may be made in the following order of preference. 1) Against vacancies arising under 90% quota: a. From amongst JAO Part II examination qualified candidates working whether in O/o DA (P) or in other office of Department of Posts in that Circle. b. In case of non-availability of the above category, from amongst Sr.Accountants with minimum three years of regular service in the grade, as per prescribed procedure. 2) Against vacancies arising under 10% quota: From amongst Sr.Accountants with 3 years regular service in the grade as per prescribed procedure. Above procedure may be adopted while making such arrangements against reserved vacancies also. While locally officiating as JAO Part II examination qualified candidates, as also Sr.Accountants will be entitled for grade pay subject to restrictions under FR 35. All other terms and conditions restrictions and duration of vacancies against which local officiating arrangements are made, would continue to apply. This will take effect from the date of issue of the orders.” 6. Sri.P.V.Krishnaiah, learned counsel appearing for R5 to R7 submits that the petitioners cannot agitate the self same relief as sought for in O.A.No.514 of 2008, which was disposed of on 15.10.2008. The relief sought for in O.A.No.514 of 2008, reads as under: “ Hence, it is prayed that this Hon’ble court in the interest of justice be pleased to direct the respondents to conduct the departmental test for promotions to the post of JAO and to make promotion to the category of JAO and AAO on regular basis only after conducting such test and to fill the said vacancies meant for reserved candidates only by reserved candidates till conducting of departmental test and/or till availability of reserved qualified candidates by holding the action of the respondents in not conducting the departmental test and filling and contemplating to fill up the JAO and AAO vacancies meant for reserved candidates by unreserved candidates continuously on officiating basis by issuing various instructions the latest being 22.2.2008 as bad, illegal, contrary to the special rules governing the post of JAO and AAO and violative of the very spirit and concept of reservation and pass such other order or further orders as are deemed fit and proper in the circumstances of the case.” He further submits that the said O.A.No.514 of 2008 was disposed of directing the respondents to treat the O.A. as representation of the applicants and consider the same and pass appropriate orders within two months from the date of receipt of a copy of the order. 7. Learned Assistant Solicitor General appearing on behalf of R1 to R4 submits that the Tribunal ought not have issued directions to consider the applicants therein for regular promotion against the nine vacancies in the cadre of AAO by operating them in the lower JAO cadre as per the instructions given by R3 on 15.6.1994 and the clarifications issued from time to time and instead the Tribunal should have kept it open to the authorities to make their own arrangements and that in view of the directions of the Tribunal R5-Smt.M.S.Vasundara Rao and R6- N.Padmanabha Rao have been promoted in the cadre of AAO on regular basis in the O.C. vacancies. 8. We have perused the Circular dated 7.7.2006 issued by Ministry of Communications and Information Technology, Department of Posts, Postal Accounts Wing, Dak Bhavan, Sansad Marg, New Delhi. The said Circular was issued, simplifying the instructions existing as on that day, on making local officiating arrangements in the cadre of JAO, in supersession of all the existing instructions as under: Against vacancies arising under 90% quota: a. From amongst JAO Part II examination qualified candidates working whether in O/o DA (P) or in other office of Department of Posts in that Circle. b. In case of non-availability of the above category, from amongst Sr.Accountants with minimum three years of regular service in the grade, as per prescribed procedure. Against vacancies arising under 10% quota: From amongst Sr.Accountants with 3 years regular service in the grade as per prescribed procedure. It is stated in the Circular that the above procedure may be adopted while making such arrangements against reserved vacancies also. While locally officiating as JAO, Part II examination qualified candidates, as also Sr.Accountants will be entitled for grade pay subject to restrictions under FR 35. All other terms and conditions restrictions and duration of vacancies against which local officiating arrangements are made, would continue to apply. 9. In the case on hand, the department was making adhoc or officiating arrangements due to the exigencies of administrative requirements. Likewise, the same arrangements were extended even for the unreserved category applicants in the reserved category posts. The Tribunal, in our considered opinion, has exceeded its jurisdiction in directing the official respondents to consider the case of the applicants for regular promotions in the 9 vacancies of AAO, which in our opinion is impermissible. However, two candidates have been promoted i.e. R5- Smt.M.S.Vasundara Rao and R6-N.Padmanabha Rao, which we do not want to disturb and hence only one vacancy remains. To that extent, we modify the order of the Tribunal directing the official respondents to treat that post on adhoc or officiating basis. It is disheartened to note from the record that since more than a decade the JAO examination has not been conducted though number of vacancies are available for SCs/STs. Therefore, we direct the authorities to hold the examination for the post of JAO within a period of eight weeks from the date of receipt of a copy of this order. 10. Accordingly, this writ petition is disposed of. No costs. 24th March, 2009. ( GHULAM MOHAMMED, J ) TNB/CS ( B.SESHASAYANA REDDY,J) ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1) 2 CD copies Form-NIC-OGS/WP{TRK} THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 4161 of 2009 (per Hon’ble Sri Justice Ghulam Mohammed) Dated:24th March, 2009