IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE THIRTIETH DAY OF OCTOBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE G.BHAVANI PRASAD WRIT PETITION NO : 21444 of 2008 Between: O.C. Venkataiah, S/o. Venkatanna, Govt. S.C. Boys Hostel, Nandivargam, Banganpalli Mandal, Kurnool District. ..... PETITIONER AND 1 The District Collector (S.W.), Kurnool. 2 The Deputy Director of Social Welfare, Kurnool. 3 B. Sreerama Chandrudu, Hostel Welfare Officer, Grade-I, Govt. S.C. Boys Hostel, Gadivemula, Kurnool District. 4 R. Ravindranath Reddy, Grade I Hostel Welfare Officer, Govt. S.C. Boys Hostel, Uyyalawada, Kurnool District. .....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 to issue a writ, order or direction more particularly one in the nature of Writ of Certiorari and call for the records relating to and connected with the orders passed OA NO. 5360 of 2007, dated 05-9-2007 of the Hon'ble of A.P. Administrative Tribunal and quash or set-a-side the same and further holding that, the impugned promotion proceedings No. A1/684/2003, dated 16-6-2007 of the 1st respondent which were issued in favour of the unoﬃcial respondents ignoring the petitioner case as highly illegal, arbitrary, improper, unsustainable in the Eye of law and consequently to direct the 1st respondent to treat that petitioner to have been promoted to the post of Grade-I Hostel Welfare Oﬃcer w.e.f. the date of promotion of unoﬃcial respondents with all consequential beneﬁts including seniority, pay fixation and other benefits, and pass Counsel for the Petitioner:MR.SANTHAPUR SATYANARAYANA RAO Counsel for the Respondent No.: GP FOR SOCIAL WELFARE The Court made the following : HON’BLE SRI JUSTICE GHULAM MOHAMMED AND HON’BLE SRI JUSTICE G.BHAVANI PRASAD Writ Petition No.21444 of 2008 ORDER: (Per Hon’ble Sri Justice Ghulam Mohammed) This petition is ﬁled seeking a writ of certiorari to quash the order dated 05-09-2007 passed in O.A.No.5360 of 2007 on the ﬁle of Andhra Pradesh Administrative Tribunal, Hyderabad. 2. The petitioner ﬁled the above O.A. challenging the proceedings No.A/1/684/03, dated 16-06-2007 issued by the ﬁrst respondent to the extent of giving promotions to the unoﬃcial respondents herein as Hostel Welfare Oﬃcers – Grade-I, and further seeking direction to promote him on par with them, with all consequential beneﬁts. The case of the petitioner is that he was initially appointed as Warden Grade-II (re- designated as Hostel Welfare Oﬃcer) on 27-05-1985 and it is averred that he was possessing the qualiﬁcation of Intermediate and TTC and that he had crossed 45 years of age, which exempts from passing of departmental tests as per ad hoc Rules issued in G.O.Ms.No.225, G.A. (Ser.C) Deptt., dated 18-05-1999. The petitioner claims that even though he is senior to 3rd and 4th respondents herein as per the ﬁnal seniority list of Wardens Gr.II of Kurnool district, he was not given promotion as Hostel Welfare Oﬃcer Gr.I, whereas the said respondents were promoted to that grade. The petitioner further claims that he is fully qualiﬁed and eligible for promotion as given to unoﬃcial respondents. The oﬃcial respondents contended that the petitioner had passed Intermediate only and does not possess SGBT/TTC qualiﬁcation, which is a pre-requisite for promotion as Hostel Welfare Officer Gr.I, and that as per the clarification vide Circular Rc.No.10922/Ser.C/98, dated 26-03-1998, the exemption from passing the departmental test prescribed for promotion as Hostel Welfare Oﬃcer Gr.I is applicable to those employees who appeared but could not pass the test. 3. The unoﬃcial respondents also contended that they possess degree and B.Ed. qualiﬁcations and passed the departmental test and as such, they are fully qualiﬁed and eligible for promotion and the petitioner has not ﬁled objections before the preparation of ﬁnal seniority list and he kept quiet all these years. The Tribunal after considering the rival contentions of the parties and perusing the material papers available on record, dismissed the O.A. upholding the promotion orders in favour of unoﬃcial respondents. Hence, this writ petition is preferred by the applicant. 4. Heard learned counsel for the petitioner, learned Government Pleader and learned counsel appearing for respondents 3 and 4. 5. Learned counsel for the petitioner submitted that the post of Hostel Welfare Oﬃcer Grade-I is a non-selection post and the petitioner had entered into service on 27-05-1985 as Hostel Welfare Oﬃcer Grade-II, much prior to 3rd and 4th respondents, who have joined service on 20-10-1987 and 20-01- 1989, respectively, but his claim for promotion was ignored, even though he had crossed 45 years of age and there is automatic exemption from passing the departmental test vide G.O.Ms.No.225. Learned counsel also contended that the qualification of TTC could not be entered in the service register even though the petitioner appeared for the exam in July, 1981 and certificate was issued on 07-01-1982 and as such, the petitioner is fully qualiﬁed and eligible for promotion as the unoﬃcial respondents, and entitled to the benefit of G.O.Ms.No.225. 6. Learned counsel appearing for unoﬃcial respondents contended that the petitioner has not produced Teachers Training Certiﬁcate on 26-10-2007 and the oﬃcial respondents rightly promoted them when the petitioner did not possess the qualification as on the date of their promotion. 7. We have considered the rival submissions made on either side. Admittedly, the petitioner was appointed as Hostel Welfare Oﬃcer Grade-II on 27-05-1985 and he had crossed the age of 45 years at the relevant time to claim exemption from passing the prescribed departmental tests for promotion to the next higher post. Further, the 3rd and 4th respondents herein have entered the service on 20-10-1987 and 20-01-1989, respectively, and promoted as Hostel Welfare Oﬃcer Grade-I, which is much later than the petitioner. The grievance of the petitioner is that he was not given promotion as Hostel Welfare Oﬃcer Grade-I even though he is fully qualified and eligible, whereas his juniors (3rd and 4th respondents) have been promoted as such. It appears that the main reason for denying promotion to the petitioner is that he was not possessing the SGBT/TTC qualification, which is a pre-requisite and that the exemption from passing the departmental test prescribed for the said promotion is applicable to those employees who appeared, but could not pass the test, as clarified vide Circular dated 26-03-1998. 8. In fact, the basic qualiﬁcation prescribed for Wardens and Matrons Grade-II (Hostel Welfare Oﬃcer Grade-II) by direct recruitment is H.S.C. or SSLC or its equivalent of any University in India established or incorporated by or under a Central Act or a State Act, with a teachers training certiﬁcate from a recognized Institute or a Diploma awarded by the School of Social Work, ICSW, Andhra Pradesh Branch, Hyderabad. Admittedly, the petitioner satisﬁes the basic qualiﬁcation. Further, he has produced a copy of the Teachers Training Certificate dated 07-01-1982 issued by the Commissioner for Government Examinations, Andhra Pradesh, Hyderabad, which shows that he had appeared in the public examination held in July, 1981 and declared as passed in TTC. This shows that the petitioner had acquired the TTC qualiﬁcation even by the date of initial appointment on 27-05-1985, but it appears that there was no entry in the service register for whatever reason. Thus, the petitioner was having TTC qualiﬁcation to be considered for promotion as Hostel Welfare Officer Grade-I. 9. Similar issue has been raised in O.A.No.6370 of 2006 in regard to the post of Hostel Welfare Oﬃcer – Grade-I, which is the ﬁrst promotion post, after crossing 45 years of age in view of the exemption from passing the prescribed departmental test under G.O.Ms.No.165, dated 22-04-1997 and G.O.Ms.No.225, dated 18-05-1999. The Tribunal after considering the intent of GOs in its order 07-02-2007 observed that the intention of the Rule is to grant one promotion or appointment by transfer involving promotion to a post to the Government employee who have crossed 45 years of age by exemption from passing the departmental tests and there is no speciﬁc mention that the employee should have appeared for the tests so as to entitle him to claim for promotion and accordingly directed the oﬃcials to re-consider the case of the applicant therein for promotion to the post of Hostel Welfare Oﬃcer Grade-I from the date on which the juniors were promoted as such. 10. The promotion post of Hostel Welfare Oﬃcer Grade- I is a non-selection post; the petitioner is holding the qualiﬁcations of SSC and TTC and the exemption being automatic once the employee crosses the age of 45 years and the Circular dated 26-03-1998 issued by the Government, was set aside by the Tribunal in O.A.No.6370 of 2006 vide its order dated 07-02-2007, holding that no executive instructions can operate contrary to the statutory Rules. In the foregoing circumstances, we are of the considered view that the petitioner is fully qualiﬁed and eligible to be considered for promotion as sought. 11. Therefore, the impugned order of the Tribunal is set aside. Having regard to the facts and circumstances of the case, respondents Nos.1 and 2 are directed to treat the writ petition as representation and to consider the case of the petitioner for promotion to the post of Hostel Welfare Oﬃcer Grade-I with eﬀect from 08-02-2007, being the date from which his juniors – unoﬃcial respondents have been promoted, and pass appropriate orders in the light of the observations made hereinabove, expeditiously. It is made clear that the promotions already eﬀected in favour of unoﬃcial respondents 3 and 4 shall not be disturbed. 12. Accordingly, the writ petition is disposed of. No order as to costs. ___________________________ GHULAM MOHAMMED, J. __________________________ G.BHAVANI PRASAD, J. 30-10-2008 bsc