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 : 20186 of 2008 Between: 1 The Government of Andhra Pradesh, rep. by its Secretary, Projects, I & CAD Department, Secretariat Buildings, Hyderabad. 2 The Chief Engineer (C.D.O.) A.P. Engineering Research Laboratories, Himayathnagar, Hyderabad. ..... PETITIONERS AND K. Mukunda, Soil Mechanic Laboratory, O/o. Chief Engineer (Central Designs Organisation) A.P. Engineering Research Labs, Himayatsagar, 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 a writ, order or direction more particularly in the nature of "Writ of Certiorari" calling for the records relating to the orders of the Hon'ble A.P. Administrative Tribunal, Hyderabad passed in O.A.No.1746/2007 dated 12.06.2008 as being erroneous, illegal and unreasonable and quash the same. Counsel for the Petitioner:GP FOR SERVICES II Counsel for the Respondent No.1: SRI P.V. RAMANA The Court made the following : THE HON'BLE SRI JUSTICE GHULAM MOHAMMED & THE HON'BLE SRI JUSTICE G.BHAVANI PRASAD WRIT PETITION NO : 20186 of 2008 ORAL ORDER: (Per Hon’ble Sri. Justice Ghulam Mohammed) This writ petition is filed challenging the order, dated 12.6.2008 passed by the AP Administrative Tribunal, Hyderabad, in O.A.No.1746 of 2007. The respondent herein is the applicant before the Tribunal. He filed the above O.A., seeking to declare the orders passed by the 1st respondent therein in Memo No.63145/Ser.VIII 2004, dated 2.3.2007, rejecting his case for promotion to the post of Research Officer in Soil Mechanics Laboratory by applying new rules as arbitrary, illegal and consequently, to declare that the applicant is entitled for promotion to the post of Research Officer in Soil Mechanics labs, with effect from 5.2.2003 or from the date on which the applicant appeared for the departmental tests, without applying the new rules for the purpose of qualification criteria, with all consequential benefits. The case of the applicant in brief is as follows: The applicant, who belongs to SC community, was appointed as Research Assistant by direct recruitment on 13.4.1992 and subsequently, he was promoted as Assistant Research Officer on 24.10.1996. The Post of Research Officer can be filled up by way of (i) direct recruitment (ii) by promotion from the category of Assistant Research Officer in the Branch or (iii) by transfer from AP Engineering Service Branch I, if no Assistant Research Officer is available for promotion. Rule 3 of A.P. Engineering Service Research Branch (Branch-IV) Special Rules contemplates the qualification criteria and Rule 7 contemplates the procedure as to the tests. The Assistant Research Officer appointed by transfer from the post of Research Assistant shall pass the Accounts Test for Public Works Department Officers, within four years from the date of his appointment. In case of failure, there shall be stoppage of increment, but such stoppage shall not operate to postpone further increments after test is passed. According to the applicant, there is no requirement under the rules providing that before promotion to the post of Research Officer from the Post of Assistant Research Officer, passing of departmental tests is one of the essential qualifications. As per the minutes of the Review Departmental Promotion Committee for the panel year 2001-2002, there were two vacancies in respect of Soil Mechanics Laboratory. But the Review Departmental Promotion Committee has given a finding that since there were no eligible persons available with P.G. qualification to hold the said post, the posts were kept vacant without filling up the same. Though the applicant is not required to pass the Departmental tests for his promotion to the post of Research Officer as per old rules, he appeared for the examination on 10.9.2006 and the results were announced on 23.1.2007. It is the case of the applicant that he appeared for the examination by the date of meeting held by the Review Departmental Promotion Committee on 23.9.2006 so that he shall be treated as a person qualified and eligible to hold the post of Research Officer. When the case of the applicant was not considered for promotion, he made a representation on 21/23.1.2007 for consideration of his case for promotion but the same was rejected on the ground that as per new rules, 50% of the posts of Research Officers have been earmarked to the Executive Officers of I&CAD and against six posts, only three posts have been earmarked to the EEs of I& CAD. It is the case of the applicant that the Government issued new Special Rules in G.O.Ms.No.89, I & CAD Department, dated 12.10.2006, superseding the earlier Rules. As per the new Rules, for appointment to the post of Research Officer by promotion, the qualification prescribed is 1st Class Master’s Degree in Engineering from any University in the relevant subject. The new rules came into force w.e.f.12.10.2006 and the Review Departmental Promotion Committee was held on 23.9.2006 and therefore, the vacancies are available prior to the amended rules. It is also his case that on the earlier occasion he filed O.A.No.2699 of 2004 for applying rule of reservation and O.A.No.3228 of 2006 seeking promotion to the post of Research Officer giving preference to the PG qualification and O.A.No.5952 of 2005 questioning the orders passed by the Chief Engineer, dated 2.8.2006 in respect of passing of Departmental test and the same are pending before the Tribunal. Before the Tribunal, the authorities filed a counter contending that the applicant was promoted as Assistant Research Officer by transfer from the feeder category of Research Assistant and therefore, passing of Accounts test is required in case of the applicant. The contention of the applicant to consider the date of appearance for the examination, for treating him as qualified and eligible to hold the post of Research Officer as on 23.9.2006 is not supported by any rule position and that mere appearance for a departmental test is not a criteria for considering a candidature for promotion. It is further stated that though the vacancies are available from 2003 onwards, the Government vide Memo No.3868/Ser.VIII.A1/2007 dated 22.2.2007, clarified that the vacancies that are available before issuance of new rules shall be filled up with the qualification and eligibility of the candidates as prescribed in the new rules issued in G.O.Ms.No.89, dated 12.10.2006. As per the new rules, out of six posts of Research Officers, 50% of the posts i.e., 3 posts have to be filled up by EEs of I&CAD and balance 3 posts are to be filled up from the core cadre of APERL and hence, the rule of reservation is not applicable for filling up three posts pertaining to core cadre post of AP Engineering Research Laboratories. It is further stated that O.A.No.2699 of 2004 filed by the applicant for application of rule of reservation has been disposed of by the Tribunal as infructuous and the other O.As are still pending. Apart from that, the applicant has passed Master’s Degree in second division only and therefore, he is also not possessing the required qualification and hence, the question of considering his case, does not arise. On hearing the rival contentions of both the parties and relying upon the Judgment of the Apex Court in Y.V. Rangaiah Vs. G. Sreenivasa Rao[1], wherein it was held that the posts, which fell vacant prior to the amended rules, would be governed by the old rules and not by new rules, and having observed that passing of Accounts Test is not compulsory under the old rules, the Tribunal allowed the O.A. directing the respondents–authorities to identify the vacancy of Research Officer (SML), which remained vacant at the time of drawing the list by DPC for the year 2006-07 and fill up the post as per the old rules contained in G.O.Ms.No.2052 PWD dated 12.10.1970 and consider the case of the applicant for promotion to the post of Research Officer w.e.f. 5.2.2003 with consequential benefits, within a period of three months from the date of receipt of the copy of the order. Having been aggrieved by the same, the authorities filed the present writ petition. The learned Government Pleader for Services contended that the applicant is eligible for promotion to the post of Research Officer from the date of passing of the Accounts Tests for Public Works Department Officers viz., from 24.1.2007, the date on which results were declared and not from the date of appearance to the tests i.e.., on 10.9.2006, on which of course, even the old rules are applicable to his case and apart from that, as per new rules, he is not possessing first class Master’s Degree in Engineering, though he passed the accounts test. It is further contended that as per Rule 7 of the Rules, the person recruited to the post of Assistant Research Officer by transfer from the Category of Research Assistant is required to pass departmental test i.e., Account test for Public Works Department Officers, within four years from the date of his appointment as Assistant Research Officer and it does not mean that the account test is not required for promotion to the Research Officer post and that the applicant was exempted from passing the test due to crossing of 45 years of age as on 13.7.2006 and this exemption is only for one promotion, but not for the further promotions to such employees and therefore, the Tribunal is not justified in allowing the O.A. Heard the learned Government Pleader and the learned Counsel appearing for the 1st respondent and perused the material available on record. At the first instance, it has to be examined as to whether the applicant has fulfilled the requisite qualification and the eligibility criteria for promotion to the post of Research Officer. According to the applicant, the passing of departmental test is not essential for promotion to the posts of Research Officers whereas it is the contention of the authorities that the applicant is exempted from passing the test for one promotion only as he crossed 45 years and this benefit cannot be extended to the consequential promotions and further, the applicant though passed the departmental test, the results were declared subsequent to the DPC meeting and therefore, his case cannot be considered for promotion. In this regard, it is pertinent to note G.O.Ms.No.2052 PWD dated 10.12.1970, wherein the qualifications to the post of Research Officer by promotion are prescribed: i) Must possess a Degree in Engg., from any University in India, established or incorporated by or under a Central Act, Provincial Act or a State Act or an institution recognized by the UGC or its equivalent and ii) Must have rendered service as A.R.O. for a period of not less than three years, in the respective labs. Provided that preference will be given to those with PG qualifications in the subject pertaining to the lab for which the RO is required. According to the above G.O., the passing of departmental test is not requisite for promotion to the R.O. The fact that remains undisputed is that the applicant is exempted from passing test as he crossed 45 years. Thus, it is clear that he is fully eligible for promotion to the post of Assistant Research Officer from Research Assistant. At this stage, it is relevant to note that the authorities have failed to place any rule position to the effect that the benefit of exemption from passing the required test, cannot be extended to the future promotions. That being the case, once he was allowed to get one promotion by giving exemption and to render services as such, there is no othergo except to hold that the Tribunal is justified in considering the claim of the applicant. In this regard, it is also pertinent to mention G.O.Ms. No.270 GA (SER.A) Department, dated 30.4.1984, wherein a clarification was issued, which reads as follows: Ruling under FR 26(a) reads as follows: (2) In cases where the passing of an examination or test confers on the Government Servant, the title to any right, benefit or concession, such title should be deemed to have accrued on the day following the last day of the examination or test, which he passed. In cases where the examination or test can be passed in instalments, the title to the right, benefit or concession will be deemed to have accrued on the day following the last day of the examination in the subject or subjects in which he has passed etc. Note: The right conferred by passing the examination is the right to draw an increment from the day following the last day of the examination, provided that the person concerned is otherwise eligible for the increment. (3) The Andhra Pradesh Administrative Tribunal, in a case has observed that the ruling under Fundamental Rule 26 (a) cannot be interpreted to effect adversely the rights which accrued to another person in service, who had been validly promoted under rules. In fact, it cannot be stretched to reverse seniority of or the right accrued to any particular individual. The ruling under FR 26 (a) has to be in consonance with the principles of natural justice and cannot have the result of reversing the seniority of a person validly promoted under the rules. (4) the aforesaid ruling (2) under Fundamental Rule 26(a) prescribed the conditions for the grant of increments. It is now a settled principle of interpretation that the context in which a provision is made should not be lost sight of. In view of this, ruling (2) under FR 26 (a) should not be read in isolation and it has to be confined only to the sanction of the increments and its scope cannot be widened out of context to matters relating to seniority, promotions etc., The above G.O. itself throws away the contention raised by the authorities that the appearance of the date of examination cannot be taken into consideration for promotion and declaration of results only can be taken into consideration. Apart from that, the spirit of the above G.O makes it clear that the rule of passing tests has to be confined only to the sanction of increments and its scope cannot be widened out of context for matters relating to seniority, promotion etc. In view of the foregoing discussion, there is no doubt that the applicant is eligible for promotion according to the old rules. Now, it has to be examined as to the rules, which are relevant for consideration in respect of the posts kept vacant prior to the amended rules. In this regard, the guidelines laid by the apex Court in the above citation as to the applicability of the old rules in respect of the posts vacant prior to the amended rules, have become final and therefore, the case of the applicant shall be considered within the parameters of the above decision. In the present case on hand, the vacancies arose in 2003 and the DPC meeting was held on 23.9.2006, prior to the amended rules, which came into force from 12.10.2006. Therefore, the application of the new rules would be contrary to the principles laid down by the Apex Court. In view of the foregoing discussion and in the light of the principles laid down by the Apex Court, We feel that the order of the Tribunal does not suffer from any irregularity or illegality warranting interference of this Court and hence, the writ petition is liable to be dismissed. Accordingly, the W.P. 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 : 20186 of 2008 (Order delivered by Hon’ble Sri Justice Ghulam Mohammed) 22.09.2008 [1] AIR 1983 SC 852