IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) 25/02/2010 PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION NO : 2054 of 2006 Between: M. SanyasiNaidu, S/o Satyanarayana ..... PETITIONER AND Engineer in Chief (Admn.Wing) I & CAD Department, A.P. Hyderabad and two others .....RESPONDENTS ORDER: (Per Sri Justice GHULAM MOHAMMED) This Writ Petition has been filed in the nature of Writ of Certiorari calling for the records relating to the order of the A.P. Administrative Tribunal dated 31.8.2004 in O.A.No. 4393 of 2003 and quash the same as illegal and further declare that the petitioner is entitled for increments, confirmation on attaining the age of 40 years and 45 years in terms of G.O.Ms.No. 1324 dated 10.12.1964 and also entitled for Automatic Advancement Scales including SPP-I and SPP-II Scales and further direct the respondents to pay the interest at 18% per annum on the delayed payment of pension, gratuity and other retiral benefits. Brief facts of the case are that the petitioner was appointed as Assistant Engineer in the Irrigation Department on 9.12.1976. According to rules the Assistant Engineer has to pass the accounts test for PWD Officers and Subordinates within the period of probation. It is stated that there is no rule in the special rules prescribing the period of probation by the Assistant Engineer. According to Note 2 Rule 7 of A.P. Engineering Subordinate Service Rules, an Additional Assistant Engineer (Asst. Engineer/Supervisor) on probation shall be discharged or reverted for failure to pass the above test within the period of his probation, shall be extended and his increment stopped till he passes the test. It is also stated that the Government issued G.O.Ms.No. 1324 GAD dated 10.12.1964 exempting the employees from passing the special departmental test for the purpose of confirmation and increments on reaching the prescribed age i.e., 40 or 45 years as the case may be where the penalty was prescribed in the rules for failure to pass the test or tests is only stoppage of increments. Hence, the petitioner is entitled for exemption from passing the departmental test on crossing 40 years of age for the purpose of increments and 45 years of age for the purpose of confirmation. It is further stated that the Government issued G.O.Ms. No. 474 dated 20th September 1994 modifying the earlier orders issued in G.O.Ms.No. 1324 dated 10.12.1964 and directed that where the Special Rules prescribed passing of a test a precondition for drawal of increments/declaration of probation, the employees who crossed 45 years of age and if they have not passed the prescribed tests, the annual grade increments may be released. It is further stated that the Engineer- in-Chief vide Memo datd 2.5.1995 directed the Superintending Engineer, Irrigation Circle, Visakhapatnam to take necessary action in terms of G.O.Ms.No. 475 dated 20th September, 1994. The superintending Engineer in turn directed the Executive Engineer on 23.5.1995 for taking necessary action. Accordingly, the increments of the petitioner were released with effect from 1.12.1979 and thereafter, his pay was fixed in the SPP-I Scale vide Proc. Dated 12.9.2000. Even though in G.O.(P) No. 150 dated 1.9.1999, the Government directed that the orders shall come into force from 1.7.1998 but the Engineer-in-Chief fixed the pay of the petitioner in the Special Promotion Post-I Scale from 1.9.1999. It is stated that the Engineer-in-Chief vide his letter dated 13.11.2002 addressed to the Chief Engineer, raised an objection regarding sanctioning of increments to the petitioner with effect from 1.12.1979 to 1.12.1994 and the petitioner was given monetary benefit only with effect from 11.10.1989 on completion of 45 years of age. The Engineer-in-Chief in his letter dated 13.11.2002 stated that the petitioner can be given notional increments on completion of 45 years of age from time to time with money benefit only with effect from 20th September 1994 and the monetary benefit allowed from 11.10.1989 to 19.9.1994 is to be recovered. Pursuant to the said letter, the Executive Engineer vide proceedings dated 7.1.2003 recovered Rs. 77,726 from his pensionary benefits. It is also stated that after receiving the pension papers the Engineer-in-Chief issued impugned proceedings dated 1.4.2003 cancelling the pay fixation in SPP-I Scale on the ground that as per G.O.Ms.No. 225 dated 18.5.1999 the petitioner is not entitled for exemption. Pursuant to the proceedings dated 1.4.2003, the Engineer- in-Chief issued the consequential impugned Memo dated 26.4.2003 ordering recovery of the amounts paid to the petitioner from his gratuity. The Tribunal after taking into consideration of the facts held that the action of the respondent in issuing impugned proceedings dated 1.4.2003 and the consequential proceedings dated 26.4.2003 cannot be found fault with, in so far as the claim of the applicant with regard to special promotion post is concerned. The applicant is only entitled for claiming the benefit under G.O.Ms.No. 475, GA (Ser.C) Department, dated 20.9.1994 with effect from the date of the issue of the said G.O. The learned counsel appearing for the petitioner is vehemently contended that the Tribunal has committed a serious error in relying upon the G.O.Ms.No. 475 dated 20.9.1994, which relates to release of increments and G.O.Ms.No. 225 dated 18.5.1999, which relates to promotion. He also contended that the Tribunal ought to have relied upon G.O.Ms.No. 1324 dated 10.12.1964 while disposing of the O.A as the petitioner initially did not pass the departmental test and later he crossed the age of 44 years in December 1984. Therefore, the petitioner is entitled for Automatic Advancement Scales including SPP-I and SPP- II scales. On the other hand the learned Government Pleader for Services I supports the order of the Tribunal stating that the order passed by the Tribunal needs no interference by this Court and the Tribunal rightly held that the petitioner is only entitled for claiming the benefit under G.O.Ms.No. 475 dated 20.09.1994. Heard the learned counsel appearing for both sides and also perused the entire material made available on record. The controversy is in narrow compass as to whether the petitioner is entitled for Automatic Advancement Scales including SPP-I and SPP- II scales on completion of 45 years though he has not passed the departmental test. A plain reading of G.O.Ms.No. 1324 GAD dated 10.12.1964, shows that the Government issued the said G.O exempting the employees from passing the Special Departmental Test for the purpose of confirmation and increments on reaching the prescribed age i.e., 40 or 45 years as the case may be, which reads as under: “ In most of the rules, passing of some tests is not pre-requisite qualification for appointment or promotion to higher posts but they have to be passed during the period of probation. The penalty for failure to pass the test during the period of probation, or extended period of probation is discharged from service, in case of direct recruits and reversion to a lower post in case of promotions. In certain rules passing of the tests in pre-requisite condition for promotion or appointment or appointment by transfer and such of the employees who have not passed such tests are not considered for promotion of appointment by transfer to higher posts. In a few cases, the Departmental tests are prescribed and penalty for failure to pass the test is withholding of increments, where it is intended to exempt certain categories of employees on grounds of age etc., provision is made in the rules, or executive instructions to that effect. (2) The penalty of stoppage of increments in respect of such employees who attain the age of exemption later, but do not pass the test becomes severe resulting in for failure of monetary benefits of incremental salary but would accrue to them. To maintain the command of services., it was considered that no permanent loss should be allowed by way of for failure of the usual monitory benefits at the advanced age of employees. The matter was discussed at the secretariat meetings held on 10.9.1964 and 5.11.1964. (3) The Government after careful consideration of the matter, have decided that an employee may be exempted fro purposes of confirmation and increments, on reaching the prescribed age of exemption i.e., 45 or 40 years as the case may be from passing the special departmental or language tests, for which penalty is only stoppage of increments. The pay to be drawn after reaching the prescribed age of exemption i.e., 45 or 40 years as the case may be, should be the pay, he would have been eligible for, without arrears, had the tests not been prescribed at all. (4) The Departments of Secretariat are requested to amend the special and ad hoc rules, with which they are concerned, suitably wherever necessary.” Coming to G.O.Ms.No. 475 dated 20.09.1994 is concerned, in this G.O the Government granted concession of allowing the annual grade increments in respect of employees who crossed the age of 45 yeas, which reads as under: “In the G.O.Ms.No. 1324, GA(Ser-C) Depart, dated 10.12.1964, 1st read above, it was ordered that an employee may be exempted for purposes of confirmation and increments on reaching the prescribed age i.e., 45 or 40years., as the ase may be from passing the Special Departmental or Language Tests, for which the penalty, prescribed in the rules for failure to pass the test or tests is only stoppage of increments. (2) In the reference (Govt.Memo.No. 915/Ser.C/77-2, GA (Ser-C) Dept, Dt. 12.10.1971) 2nd read above, it was clarified that wherever the special Rules provide for extension of the prescribed period of probation on account of not passing Special/ Departmental Tests, no exemption from passing the said tests on the ground of age need ordinarily be granted. (3) The High Power Committee on employees demands submitted by Joint Action committee of Employees. Teachers and workers and A.P. Secretariat Coordination Committee, has recommended that the financial benefits like increments to persons who crossed 45 years of age when they do not pass the prescribed tests may be allowed. (4) After careful consideration, and in partial modification of orders issued in the G.O 1st read above, Government direct that where the special rules prescribe passing of a test as a precondition for drawal of increments/declaration of probation, the employees who crossed 45 years of age and if they have not passed the prescribed Tests, the Annual Grade increments may be released. (5) The concession allowed in para 4 above will not entitle the employee to get eligibility for the Automatic Advance Increment Scheme where acquiring qualification is a pre-requisite or for promotion to next higher category for which passing of the test is a prerequisite. (6) The Departments of Secretariat are requested to amend the Special and Ad hoc Rules with which they are concerned suitably wherever necessary.” It is needless to mention that the date of birth of the petitioner is 12.10.1944 and he has completed 45 years of age before the G.O.Ms.No. 475 dated 20.9.1994 come into force therefore, it applies to the petitioner only prospectively and not retrospectively. Secondly, G.O.Ms.No. 1324 dated 10.12.1964 deals with two things viz., confirmation as well as increments. When once the confirmation granted, it cannot be taken back. Here in this particular case, the increments of the petitioner were released with effect from 1.12.1979 and thereafter his pay was fixed in the SPP-I Scale vide proceedings dated 12.9.2000 and the Government also in G.O.(P) No. 150 dated 1.9.1999 directed that the orders shall come into force from 1.7.1998 and subsequently the Engineer-in-Chief fixed the pay of the petitioner in the Special Promotion Post I Scale from 1.9.1999 instead of 1.7.1998 by applying it retrospectively in respect of the petitioner, which is impermissible under law and this crucial aspect has missed the attention of the Tribunal. In the circumstances, when once the employee has completed 10 years and 15 years of service and obtained individual exemption with regard to passing of test, the petitioner is also entitled for exemption from passing departmental tests upon crossing 40 years of age for the purpose of increments and 45 years of age for the purpose of confirmation under G.O.Ms.No. 1324 dated 10.12.1964 as his date of birth is 12.10.1944 and the petitioner has already crossed the age before the G.O.Ms.No. 475 dated 20.09.1994 come into force. In view of the above, the Writ Petition is allowed in part to the extent of denying the benefit with regard to the Special Promotion Post-I Scale, which was granted by the Government from 1.7.1998 and latter cancelled and fixed the pay of the petitioner by the Engineer-in-Chief in the Special Promotion Post-I Scale from 1.9.1999. Accordingly, the Writ Petition is allowed in part. There shall be no order as to costs. _____________________________ GHULAM MOHAMMED, J ______________________________ SANJAY KUMAR, J Dt. 25.02.2010 KA ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 2 CD copies