THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE K.G.SHANKAR W.P.No.29009 OF 2009 %07.06.2011 #G.Venkateswara Rao. ...APPELLANT VERSUS $The Andhra Pradesh Administrative Tribunal, Hyderabad, rep. by its Registrar and 3 others. ...RESPONDENTS < GIST: > HEAD NOTE: !Counsel for Appellant: Sri J.Sudheer. ^Counsel for Respondents 3 and 4: Sri J.Suryakar Reddy. ? Cases referred THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE K.G.SHANKAR W.P.No.29009 OF 2009 ORDER : (Per Hon’ble Sri Justice Ghulam Mohammed) This writ petition is filed seeking a writ of certiorari declaring the order dated 15-12-2009 passed in O.A.No.6364 of 2009 on the file of the A.P. Administrative Tribunal, Hyderabad (for brevity ‘the Tribunal’), as illegal, arbitrary and contrary to the Andhra Pradesh Administrative Tribunal Non- gazetted Service Rules, 1981 (for short ‘1981 Rules’) issued in G.O.Ms.No.541, dated 15-10-1981 and against the judgment of the Supreme Court in The District Registrar, Palghat and another Vs. M.B.Koyakutty[1]. 2. Brief facts of the case are as follows: The petitioner was initially appointed as Attender on 08-02-1983 in A.P. Administrative Tribunal and later promoted to the post of Record Assistant by proceedings dated 18-10-1989. Subsequently, he was promoted to the post of Junior Assistant by order dated 30-03-1992. His services were regularised in the said post vide proceedings of the 1st respondent dated 23-10-1993. In the provisional seniority list dated 27-10- 2004 of the Junior Assistants (Lower Division Clerks (LDCs)), his name was shown at Sl.No.8 and whereas the names of the respondents 3 and 4 stood at Sl.Nos.10 and 12, respectively. He is qualified for promotion to the post of Senior Assistant (Upper Division Clerk (UDC)) by virtue of his seniority and eligibility. He passed departmental tests required for promotion as per the Rules. The 2nd respondent issued ad-hoc rules in G.O.Ms.No.541General Administration (SPF.B) Department, dated 15-101981 governing the non- gazetted posts in the Tribunal. As per Rule 4 of the 1981 Rules, the post of senior assistant (UDC), has to be filled by promotion from the post of care taker or by promotion from the post of Junior Assistant (LDC) and typist in the ratio of 3:1 and that qualification of degree is not prescribed for promotion to the post of senior Assistant from the post of Junior Assistant. Further, as per Rule 6 (1) (b) of the 1981 Rules, a degree in Arts or Science or Commerce or Law of a university in India is required only for direct recruitment to the post of junior assistant (LDC). Except for the direct recruitment to the post of Junior Assistant under the 1981 Rules, there is no requirement of possessing degree qualification for promotion to the post of senior Assistant. Recruitment to the post of senior assistant is only by way of promotion from the feeder categories of junior assistant, typist and caretaker and the 1981 rules have not prescribed direct recruitment to the category of senior assistants. 3. When vacancies in the category of senior assistants arose, the petitioner along with one A.Venkatesh submitted a representation on 24-04- 2009 to the Hon’ble Chairman, Tribunal, to consider their case for promotion to the post of senior assistant in the said vacancies. Without considering their representation, the 1st respondent vide proceedings dated 12-05-2009 promoted respondents 3 and 4 along with two others. Challenging the said order, the petitioner filed O.A.No.6364 of 2009 before the Tribunal. The Tribunal by interim order dated 10-06-2009, directed the respondents to consider his case for promotion to the post of senior assistant as per Rules, eligibility and suitability, observing that the qualification of graduation for the post of UDC was not prescribed anywhere in the Rules. The respondent No.1 did not implement the orders dated 10-06-2009 and further gave a show cause notice dated 07-07-2009 for cancellation of 16 years promotion scale granted to the petitioner on the ground of non-possession of graduation qualification. Aggrieved by the same, he filed C.A.No.538 of 2009. He also filed another O.A.No.7999 of 209 challenging the show cause notice dated 07-07-2009. The Tribunal by common order dated 15-12-2009, dismissed both the O.A.s along with C.A. holding that graduation qualification is required to get the promotion to the post of senior assistant. 4. As per Rules issued in G.O.Ms.No.541, dated 15-10-1981, there is no prescription of possessing degree qualification for being promoted to the post of senior assistant. It is only on the basis of seniority in the category of junior assistants, promotions have to be effected subject to, however, passing of departmental tests prescribed in Rule 6 (2) (a) of the Rules. When the petitioner got eligibility for promotion to the post of junior assistant, it was rightly given to him vide proceedings dated 30-03-1992, therefore, there cannot be any impediment for his promotion to the post of senior assistant as there is no requirement of possessing degree qualification for promotion to senior assistant. Without disposing of the representation made by him, the 1st respondent promoted his juniors i.e., respondents 3 and 4. 5. The Tribunal dismissed the O.As. on the ground that A.P. Ministerial Service Rules, being the special rules for non-gazetted employees are applicable to non-gazetted posts in the Tribunal, and the 1981 Rules issued by the government in G.O.Ms.No.541 are silent, ambiguous and not exhaustive. The Tribunal held that as per APMS Rules and the 1981 Rules for direct recruitment to the post of junior assistant, the prescribed qualification is degree and there cannot be two different educational qualifications for different methods of appointment to the same post, therefore, educational qualification of possession of degree prescribed in 1981 rules for direct recruitment equally applies in the case of promotion to the post of senior assistant and in the absence of any direct recruitment to the post of senior assistant and prescription of any educational qualification to the said post, it implies that the educational qualification required for the purpose of promotion to the post of senior assistant is possession of degree apart from special qualifications of passing the departmental tests and rejected the contention of the petitioner that there is no prescription of qualification of degree for promotion to the post of senior assistant. The file relating to promotion of petitioner to the post of Junior Assistant was not produced before the Tribunal. The Tribunal, however, on the basis of the contents of letter of the 1st respondent dated 15.7.2009 rejecting the request of the petitioner for promotion as senior assistant assumed that petitioner was promoted to the category of junior assistant, though he has not possessed the qualification of degree, under the proviso to Rule 22 of the APMS Rules, 1966 which provided that those who were already appointed in the offices of the Heads of Departments and Directorates prior to 15th December, 1984 and those appointed in the Offices other than Heads of the Departments and Directorates prior to 29th October, 1987 shall be eligible for appointment as junior assistants etc., if they have passed SSC or any equivalent examination and such benefit of relaxation cannot be extended for the purpose of promotion to the higher posts like senior assistants, superintendents and that the General Rules for the State and Subordinate Service shall apply to the members of the service in the Tribunal and the rule confined such benefit only for the purpose of appointment to the post of junior assistant, not for the purpose of promotion to higher posts. The Tribunal further held that since there is no special modification to the qualification to the post of junior assistant in the 1981 rules, the qualifications prescribed for direct recruitment would apply to the promotes also. Since the petitioner has not possessed the qualification of degree which is required for the post of junior assistant by direct recruitment, the Tribunal dismissed both the O.As. Hence, the present writ petition. 6. Heard Sri J.Sudheer, learned counsel for the petitioner as well as Sri T.Suryakaran Reddy, learned counsel for the respondents 3 and 4. 7. Sri J.Sudheer, learned counsel for the petitioner contended that this is a case of a small employee of the Tribunal fighting for his rights, where ignoring his rights, his juniors were promoted. The ad-hoc rules issued in G.O.Ms.No.541 are framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India by the Governor of Andhra Pradesh for the temporary non-gazetted posts in the Tribunal, which have come into force with effect from 06-07-1976. He further contended that the General Rules for the State and sub-ordinate services shall apply to the members of the service subject to the modifications specified in the ad hoc rules. He further contended that this is a clear case of misinterpretation of Rules by the Tribunal. While interpreting the Rules, the words cannot be added or deleted and even the ‘cama’ or ‘full stop’ cannot be changed and that any words should not be mixed or added or misinterpreted so as to destroy the harmonious construction of the Rules. He further contended that graduation qualification is required for the direct recruitment whereas for promotion, there is no requirement of possessing graduation qualification. The Tribunal has misinterpreted the Rules. He has drawn our attention to Rule 3 of the 1981 Rules, which deals with the constitution of non-gazetted service of the Tribunal. It provides that temporary non-gazetted posts viz., Librarian, UDCs, LDCs and typists in the Tribunal shall constitute a temporary addition to the corresponding categories in the A.P. Ministerial Service. Rule 4 of the 1981 Rules deals with the appointment to the posts mentioned in column No.1 viz., Librarian, U.D.Cs., L.D.Cs, Typists and Caretaker shall be made in the manner specified against them in column No.2 thereof and that the petitioner’s case is concerned with U.D.Cs. only. He further contended that qualifications are prescribed for direct recruitment but not for the promotion. With regard to the promotions are concerned, the Rules are silent and petitioner was promoted to the category of Junior Assistant from other categories of Tribunal ie General Subordinate Service. In support of his contention, he relied upon a judgment of the Apex Court in Delhi Financial Corpoation Vs. Rajiv Anand[2], wherein the Apex Court held as follows: “17. In support of the submission that the legislature did not intend to apply Section 32-G to a surety, reliance was placed upon the case of P.K. Unni v. Nirmala Industries 10 wherein it has been held that the court must proceed on the assumption that the legislature did not make a mistake and that it intended to say what it said. It was held that assuming there is a defect or an omission in the words used by the legislature, the court cannot correct or make up the deficiency. It was held that the court cannot add words to a statute or read words into it which are not there, especially when a literal reading thereof produces an intelligible result. It was held that the court is not authorised to alter a word or provide a casus omissus. Reliance was also placed on the case of Union of India v. Elphinstone Spg. and Wvg. Co. Ltd. 11 which is to a similar effect. There can be no dispute with these propositions. It is on this basis that this Court is holding that words cannot be added in Section 32-G. To accept Mr Mehta’s submission would require this Court to add words to Section 32-G to the effect “due from the industrial concern” after the words “amount due to the financial corporation”. It is presumed that the legislature made no mistake when it omitted to use these words. It is presumed that the legislature intended what it said, namely, that Section 32-G is to apply wherever any amount is found due to the financial corporation.” Sri Sudheer further contended that even otherwise also, the case of the petitioner is covered by the decision of the Supreme Court in B.Koyakutty’s case (1 supra) referred to supra and petitioner is entitled to be considered for promotion to the category of senior assistants. 8. On the other hand, the learned counsel for the respondents 3 and 4 contended that since Rule 3 of 1981 Rules deals with the constitution which says that temporary non-gazetted posts viz., librarian, UDCs, LDCs and typists in the Tribunal shall constitute a temporary addition to the corresponding categories in the A.P. Ministerial Service, the petitioner has to possess intermediate qualification even for the purpose of promotion to senior assistant, as per Rule 6 (2) of the APMS Rules unless he possesses intermediate qualification, he is not eligible for appointment to any post in the service either by direct recruitment or by appointment by transfer or by promotion including conversion. Rule 6 (2) of the AP Ministerial Service Rules, 1998 (for brevity ‘APMS Rules’), reads as follows: “Rule 6 (2): No person shall be eligible for appointment to any post in the service either by direct recruitment or by appointment by transfer or by promotion, including conversion, unless he possesses the intermediate qualification and where higher educational qualification is prescribed for such post.” Provided that that those who were already in service prior to 15th December, 1984 and those appointed in Offices other than the Heads of Departments and Directorates prior to 29.10.1987 shall be eligible for appointment as Junior Assistant etc., if they passed SSC or any equivalent examination. As contemplated by the Rule making authority, the petitioner has to qualify intermediate. Since the petitioner has possessed only S.S.C., he is not entitled to be promoted to the category of senior assistant. He further contended that the 1981 Rules have to be read along with the APMS Rules. The 1981 Rules cannot be read in isolation. It has to be read together with the APMS Rules. Therefore, he has to possess intermediate qualification as prescribed under Rule 6 (2) of the APMS Rules. Hence, the petitioner is not entitled for promotion as senior assistant and the writ petition is liable to be dismissed. 9. The points that arise for consideration to resolve the controversy are: 1) Whether A.P.Ministerial Service Rules, 1998 are applicable to the case of the petitioner for the purpose of promotion to the category of Senior Assistants? 2) If the answer to Point No.1 is in the negative, how the case of the petitioner is to be dealt with in the absence of prescription of a rule like 6(2) of APMS Rules in the Special Rules issued in G.O.Ms.No.541 dated 15.10.1981 dealing with non-gazetted posts of the Tribunal Service? And 3) Whether the decision of the Supreme Court in The District Registrar, Palghat and another vs. M.B. Koyakutty has application to the case of the petitioner? 10. Point No.1: The members of non-gazetted service of A.P. Administrative Tribunal are governed by the Rules issued by the Governor of Andhra Pradesh in exercise of the powers conferred under Article 309 of the Constitution of India in G.O.Ms.No.541 General Administration (SPF.B) Department dated 15.10.1981. These Rules are called the Andhra Pradesh Administrative Tribunal Non-gazetted Service Rules, 1981 and they may be termed as Special Rules for non-gazetted posts of the Tribunal. Rule 2 of the said Rules which specifies about the applicability of General Rules for the State and Subordinate Services reads as follows: “ The General Rules for the State and Subordinate Services shall apply to the members of the service subject to the modifications specified in these rules.” 11. Rule 3 of the 1981 Rules provides that the temporary non-gazetted posts in the Andhra Pradesh Administrative Tribunal shall constitute a temporary addition to the corresponding categories in the Andhra Pradesh Ministerial Service. Like the applicability of the General Rules to the 1981 Rules, there is no mention about the applicability of A.P. Ministerial Service Rules which consists of various classes and categories of posts of various departments in A.P. Ministerial Service Rules. The Tribunal found that since under sub-rule (a) of Rule 1 of the General Rules for the State and Subordinate Services, the gazetted and non-gazetted posts under the State Government shall be constituted into various State and Subordinate Services and they shall be governed by the Andhra Pradesh State and Subordinate Service Rules (General Rules) and Special Rules as well as the 1981 Rules issued by the Government and since the APMS Rules being the Special Rules for non-gazetted employees, they are also applicable to the non- gazetted posts in the Andhra Pradesh Administrative Tribunal wherever the 1 9 8 1 Rules issued in G.O.Ms.No.541 are silent or ambiguous or not exhaustive. We are unable to agree with this. No doubt Rule 3 of the 1981 Rules provided that temporary Non-gazetted posts in the Tribunal constitute a temporary addition to the corresponding categories in the APMS Service. But the Rules, however, did not specify that wherever the 1981 Rules are silent or ambiguous or not exhaustive, the APMS Rules will fill the gap though in the case of general rules, the same were made applicable subject to modifications in the 1981 Rules. Though the 1981 rules are ad hoc in nature, they are to be treated as special rules for the purpose of non-gazetted posts of A.P. Administrative Tribunal; therefore, the APMS Rules cannot fill the gap in the 1981 Rules. If the rules are not exhaustive, it is for the authority to take necessary steps to meet the situation by seeking amendment of the 1981 Rules. Therefore, in the absence of any provision in the 1981 Rules issued in G.O.Ms.No.541 making APMS Rules also applicable to the Tribunal non- gazetted Service, the APMS Rules have no application to the case of the petitioner. The point is answered accordingly. 12. Points 2: Rule 4 of the 1981 Rules, which deals with the ‘appointment’ of various posts in the Tribunal so far as it relates to Junior Assistants (LDC) and Senior Assistants (UDC) reads as follows: “(1) Appointment to the posts mentioned in column (1) of the Table below shall be made in the manner specified against them in column (2) thereof:- THE TABLE Sl.No. Post Method of Appointment (1) (2) (3) 2. Upper Division Clerk i) By promotion from the post of Care Taker in the Andhra Pradesh Administrative Tribunal; or ii) By promotion from the post of Lower Division Clerks and Typists in the Andhra Pradesh Administrative Tribunal, in the ratio of 3:1. Provided that in every cycle of 4 vacancies, the fourth vacancy shall be filled from the posts of typists in Andhra Pradesh Administrative Tribunal by a person qualified under Rule 6: Provided further that in the case of a Typist eligible for promotion if he holds a degree in Arts, Science, Commerce or Law as mentioned in Rule 6 (i) (b) shall be promoted in the third vacancy. Note: If there is no qualified a suitable member from amongst typists, the turn will lapse and the vacancy shall be filled by next turn in the order or rotation without taking account of any such lapsed turns in filing future vacancies. 3. Lower Division Clerks: i) By direct recruitment; or ii) By transfer from the posts of Typists in the Andhra Pradesh Administrative Tribunal, or iii) By promotion from any other category of posts in the Andhra Pradesh Administrative Tribunal, constituted into the Andhra Pradesh General Subordinate Service or the Andhra Pradesh Last Grade Service; or iv) By transfer or deputation from any other service. 13. Rule 6 of the 1981 Rules, dealing with ‘qualification’ reads as follows: “6. QUALIFICATION:- (1) General:- No person shall be eligible for appointment by direct recruitment to the post of :- (a) Librarian, unless he holds a diploma in Library Science awarded by a University established or incorporated by or under a Central Act or a State Act, or by a State Government or Board. (b) Lower Division Clerk unless he holds a degree in Arts or Science or Commerce or law of a University in India established or incorporated by or under a Central Act, provincial Act or a State Act or from any other institution recognized by the University Grants Commission. (c)Typist, unless he possesses the minimum general educational qualification that may be prescribed for admission, into the Andhra Pradesh Ministerial Service. (d) No person shall be eligible for promotion from the post of Care Taker to the post of Upper Division Clerk in the Andhra Pradesh Administrative Tribunal unless he holds a degree in Arts, Science or Commerce or Law of a University in India established or incorporated by or under a Central Act, Provincial Act or a State Act or from any other institution recognized by the University Grants Commission. (2) Special :- (a) No person shall be eligible for appointment by promotion to the post of Upper Division Clerk unless he has passed the Civil Judicial Test and Accounts Test for Subordinate Officers Part – I. (b) No person shall be eligible for appointment by transfer or by promotion to the post of Lower Division Clerk unless he has passed the Civil Judicial Test or possesses such other qualification as may be considered by the Chairman to be equivalent to the said qualification or unless the Chairman considers such person otherwise fit for the post. Provided that a person appointed by direct recruitment shall pass the special test within the period of probation, if he has not already passed to the said test. Note: The holders of a degree in Law of a University in India established or incorporated by or under a Central Act, Provincial Act or a State Act or an Institution recognized by the University Grants Commission shall not be required to pass the Civil Judicial Test. (c) No person shall be eligible for appointment by direct recruitment or by transfer or by promotion to the post of typist unless in addition to the qualification prescribed in sub-rule (1), he has passed the Government Technical Examination in Typewriting by High Grade.” 14. The petitioner was initially appointed as Attender in the Tribunal on 08-02-1983 and promoted as Junior Assistant by proceedings dated 30-03- 1992, with effect from 01-04-1992, which reads as follows: “Under Rule 4 (1) (3) (iii) of the AP Administrative Tribunal Non- Gazetted Service Rules issued in the G.Os., cited, Sri G.Venkateswar Rao, Record Assistant is promoted as Junior Assistant with effect from 01-04- 1992 FN in the time scale of pay of Rs.910-1625 with usual allowances, in the vacancy caused due to promotion of Smt. R.Vimala Kumari, junior Assistant as Senior Assistant.” 15. The petitioner has been appointed to the post of Junior Assistant by promotion from the post of Record Assistant from the General Subordinate Service with effect from 01-04-1992 under Rule 4 (1) (3) (iii) of the 1981 Rules, extracted supra. Rule 6 (1) (b) of the 1981 Rules, provides that no person shall be eligible for appointment by direct recruitment to the post of LDC unless he holds a degree in Arts or Science or Commerce or Law of a University in India established or incorporated by or under a Central Act, provincial Act or a State Act or from any other institution recognized by the University Grants Commission. T h e 1981 Rules have not prescribed qualification for the purpose of promotion to the category of LDC from the Andhra Pradesh General Subordinate Service or the Last Grade Service. The petitioner does not possess the qualification of Graduation at the time he was promoted as LDC. Question then arises how the petitioner came to be promoted as Junior Assistant from the Andhra Pradesh General Subordinate Service as the official respondents failed to produce the record relating to the promotion of the petitioner as Junior Assistant before the Tribunal on the ground that it is not available. Obviously, the petitioner must have been promoted keeping in view the position that under Rule 12 (2) of the General Rules the minimum general educational qualification is a pass in SSC examination or equivalent examination. 16. Rule 4 (1) (2) of the 1981 Rules deals with promotion to