IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY SECOND DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE GHULAM MOHAMMED & THE HON'BLE SRI JUSTICE G.BHAVANI PRASAD WRIT PETITION NO : 20585 of 2008 Between: 1 The Chief Postmaster General, A.P. Circle, Dak Sadan, Abids, Hyderabad. 2 The Director of Accounts (Postal), A.P. Circle, Dak Sadan, Abids, Hyderabad. 3 The Senior Accounts Officer / Admn-I Sn., O/o. The Director of Accounts (Postal), A.P. Circle, Dak Sadan, Abids, Hyderabad. 4 The Senior Accounts Officer / Admn-II Sn., O/o. The Director of Accounts (Postal), A.P. Circle, Dak Sadan, Abids, Hyderabad. ..... PETITIONERS AND T. Mahadev Singh S/o. T. Nagmal Singh O/o. The Director of Accounts (Postal) A.P. Circle, Dak Sadan, Abids, Hyderabad. .....RESPONDENT 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 order or direction more particularly in the nature of Writ of Certiorari calling for the records pertaining to order dt. 22.02.2008 in O.A. 646 of 2007 on the file of the Hon'ble Central Administrative Tribunal, Hyderabad Bench, Hyderabad and quash the same. Counsel for the Petitioner:MR.A.RAJASHEKAR REDDY (ASST SOLICITOR GEN) Counsel for the Respondent No.1: SANKA RAMAKRISHNA RAO. The Court made the following : THE HON'BLE SRI JUSTICE GHULAM MOHAMMED & THE HON'BLE SRI JUSTICE G.BHAVANI PRASAD WRIT PETITION NO : 20585 of 2008 ORAL ORDER: (Per Hon’ble Sri. Justice Ghulam Mohammed) This writ petition is filed challenging the order, dated 22.2.2008 passed by the Central Administrative Tribunal, Hyderabad, in O.A.No.646 of 2007. The respondent herein is the applicant before the Tribunal. He filed the above O.A., seeking to set aside the order, dated 24.4.2007, contending that his appointment/promotion as Junior Accountant on account of his passing SLCE cannot be treated as promotion from LDC and therefore, he was rightly granted second ACP by order, dated 4.8.2006 with effect from 9.9.2003 and that the cancellation of the said order by the 2nd respondent therein, is illegal and arbitrary and that the amount recovered from the applicant shall be refunded to him. On hearing the rival contentions of both the parties and relying upon the clarification given by the Ministry of Personnel, Public Grievances and Pensions (DOPT), the Tribunal allowed the O.A and set aside the orders dated 24.4.2007 and 10.7.2007 and directed the respondents to refund the amount already recovered, if any, towards alleged excess payment. Aggrieved thereby, the authorities filed the present writ petition. Heard the learned Government Pleader and the learned Counsel appearing for the 1st respondent and perused the material available on record. The facts remained undisputed are that the applicant was appointed as LDC in the Postal Accounts Office and thereafter, in April, 1979, he appeared for SLCE examination and was selected on merit and then, he was appointed as Junior Accountant with effect from 4.8.1979. Subsequently, on 9.8.1999, on the introduction of Assured Career Progression Scheme providing two financial upgradations, to be granted to the Government Servant on completion of 12 years and 24 years of regular service, the applicant was granted second ACP as he completed 24 years of service. Subsequently, the 3rd respondent cancelled the ACP promotion on the ground that the applicant has got two promotions and that the appointment of the applicant as Junior Accountant be treated as departmental promotion. It is the contention of the applicant that he was appointed as Junior Accountant within one year four months from the date of his joining as LDC, against direct recruitment quota and therefore, it cannot be treated as departmental promotion. Further, it is contended that he has completed 24 years and within these 24 years, he got one promotion from the cadre of Junior Accountant to Senior Accountant. On the other hand, the authorities contended that the second ACP scheme is applicable only to those who could not secure two promotions within 24 years and as the applicant after joining as LDC secured two promotions, he is not entitled for the benefit of ACP. It is further contended that the Limited Departmental Competitive Examination was not an open examination but was applicable to eligible departmental staff and thus, the entry to the cadre of Junior Accountant by passing this examination cannot be taken as direct recruitment and that relevant recruitment rules provide promotion quota by this examination and thus, it has to be taken as one promotion since the relevant recruitment rules provide promotion quota by seniority- cum-fitness & promotion quota by Departmental Examination. It is also contended that the applicant was promoted from LDC to Junior Accountant and from Junior Accountant to Senior Accountant on a regular basis and he availed two regular promotions/financial upgradations by way of passing departmental examination and therefore, the applicant is not entitled to the 2nd financial upgradation. It is pertinent to note that originally, the applicant was granted 2nd ACP. But, on the doubt entertained by the 2nd respondent as to whether the officials, who were appointed/promoted consequent on passing SLCE, are to be treated as direct recruitment or as promotion, the matter was referred to Circle Internal Financial Advisor, who observed as follows: “The point of discussion is whether or not to count promotion of the official in March, 1978 from LDC to JA against Direct Recruitment Quota on passing Limited Competitive Examination for ACP. The case was examined with reference to order ACP and LCE and observed that even though the promotion is made against DR quota from amongst eligible Departmental LDCs who satisfy the eligibility conditions and pass the LCE. Accordingly, the official is not eligible for ACP-II w.e.f. 17.4.2002 since the applicant has got two promotions viz., (1) LDC to JA and JA to Sr. Accountant.” Basing on the above observation, the 2nd ACP promotion of the applicant was cancelled. At this juncture, it is very relevant to note the clarification given by the Ministry of Personnel Public Grievances and Pensions (DOPT) letter No.35034/1/97-Estt (D) (Vol.IV), dated 10.2.2000 (Annexure R- V), which reads as hereunder: “If the relevant recruitment rules provide for filling up of vacancies of stenographers Grade-D/Junior stenographers by direct recruitment, induction of LDCs to the aforesaid grade through limited departmental competitive examination may be treated as direct recruitment for the purpose of benefit under ACPs. However, in such cases, service rendered in a lower pay scale shall not be counted for the purpose of benefit under ACPs. The case of group-D employees who become LDCs on the basis of departmental examination stands on different footing. In their case, relevant recruitment rules prescribe a promotion quota to be filled up on the basis of departmental examination. Therefore, such appointments shall be counted as promotion for the purpose of ACPs. In such situations, past regular service shall also be counted for further benefits, if any, under the scheme.” The clarification of the DOPT makes it clear that if the relevant recruitment rules provide for filling up of vacancies of Stenographers grade – D/Junior Stenographers by direct recruitment, induction of LDCs to the stenographers Grade – D through limited departmental competitive examination may be treated as direct recruitment for the purpose of benefit under ACPs, but in such cases service rendered in a lower pay scale shall not be counted for the purpose of benefit under ACP. The said clarification is applicable to the instant case. The applicant was appointed as Junior Accountant by way of direct recruitment while he was working as L.D.C. Merely because he applicant was working in the department as LDC, it cannot be treated as promotion, especially when the appointment order itself shows that he was promoted against the direct recruitment quota. Further, as can be seen from the material on record, it is obvious that the recruitment rules contemplate for filling up 35% of Junior Accountants posts by way of direct recruitment. Out of 35%, 10% were filled up through SLCE. As per the rules, LDCs, who are eligible, were afforded an opportunity to appear for Junior Accountant posts through SLCE, by way of direct recruitment. It is pertinent to note that the applicant was appointed as Junior Accountant within one year four months from the date of his joining as LDC and the appointment order for the post Junior Accountant itself goes to show that he was promoted against direct recruitment quota. Apart from that, for giving benefit under ACP II, the period of 24 years was reckoned from the date of appointment as Junior Accountant. It is not the case of the authorities that they reckoned the period of 24 years from the cadre of LDC. Further, it is pertinent to note that the applicant was appointed as temporary LDC and within one year four months from the date of his joining LDC, he was appointed as Junior Accountant on qualifying the examination in the order of merit. Therefore, it cannot be said that an LDC having one year and four months of service can be promoted to Junior Accountant by way of departmental promotion. Under the Rules provided, the applicant was permitted to appear the examination for the post of Junior Accountant against direct recruitment quota. In this view of the matter and in view of the clarification of the DOPT, it can easily be inferred that the candidates who are working as LDCs, are afforded an opportunity to compete for Junior Accountants Posts through SLCE. Merely because the applicant was selected from the cadre of LDC, it cannot be said that it is departmental promotion as rightly observed by the Tribunal. Therefore, the cancellation of ACP II to the applicant and recovery of excess payment, are contrary to the Rules as well as the clarification of DOPT. In view of the foregoing circumstances, we have no hesitation to hold that the order of the Tribunal does not suffer from any irregularity or illegality warranting interference. Accordingly, the writ petition is dismissed. No order as to costs. __________________________ Justice Ghulam Mohammed ________________________ Justice G. Bhavani Prasad Date: 22.9.2008 Nn THE HON'BLE SRI JUSTICE GHULAM MOHAMMED & THE HON'BLE SRI JUSTICE G.BHAVANI PRASAD WRIT PETITION NO : 20585 of 2008 (Order delivered by Hon’ble Sri Justice Ghulam Mohammed) 22.09.2008