IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWELFTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE G.BHAVANI PRASAD WRIT PETITION NO : 24695 of 2008 Between: K. Madduleti, S/o. K.C. Jammanna, Office of the Deputy Electrical Inspector, Nizamabad, Nizamabad District. ..... PETITIONER AND 1 Government of Andhra Pradesh, Rep. by its Principal Secretary, Energy Department, Secretariat, Buildings, Hyderabad. 2 The Chief Electrical Inspector to Government, Stone Building, Mint Compound, Hyderabad. 3 S.P. Badrinath, Accounts Officer, O/o. Chief Electrical Inspector to Government of Andhra Pradesh, Hyderabad. .....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 any Writ, order or direction particularly one in the nature of CERTIORARI calling for the records from Andhra Pradesh Administrative Tribunal, Hyderabad in connection with the records in O.A.No. 4425/2004, dt. 29-9-2006 as arbitrary, illegal and by nullifying the order to an extent of denying the relief of treating the head office and sub offices as single unit, allow the O.A. as prayed for and consequently direct the respondents to promote the petitioner to the post of Superintendent and all further promotions as Assistant Accounts Officer as per the revised common single seniority list with all consequential and other benefits and pass Counsel for the Petitioner:DR.P.B.VIJAY KUMAR Counsel for the Respondent No.: GP FOR SERVICES I The Court made the following : ORDER: (Per Sri Justice GHULAM MOHAMMED) This Writ Petition is filed in the nature of a writ of Certiorari calling for the records in O.A.No. 4425 of 2004 dated 29.9.2006 from Andhra Pradesh Administrative Tribunal, Hyderabad and to declare the same as arbitrary and illegal by nullifying the order to the extent of denying the relief. O.A.No. 4425 of 2004 was filed with the following prayer: “To declare that the seniority list in the cadre of Senior Assistant should be recast as per the judgment of the Hon’ble Supreme Court in Civil Appeal Nos. 7633-7635/1997, dated 16.9.2003 treating the Head Office and Sub offices as one unit, promotions already made to the categories of Superintendent and Assistant Accounts Officers be reviewed, and basing on such review all the unqualified persons be reverted and then probations be effected as per the revised seniority list which is recast as per the judgment of the Hon’ble Supreme Court to the posts of superintendent and Assistant Accounts Officer.” The Tribunal after going through the entire material on record directed the respondents to review and recast the seniority list in the cadre of Senior Assistants as per the judgment of the Supreme Court in Civil Appeal Nos. 7633-7635 of 1997 dated 16.9.2003 by taking into consideration the date of passing of Accounts Test for Subordinate Officers, Part-I, as the said test is necessary for promotion to the post of Senior Assistant from Junior Assistant, in view of the undisputed fact that the A.P. Ministerial Service Rules of 1966, are applicable. The brief facts of the case are that the applicant is presently working as Senior Assistant in the Office of the Electrical Inspector, Kurnool. He was initially appointed as Junior Assistant on 7.7.1987 and subsequently promoted as Senior Assistant on 2.11.1990. He has passed the Accounts Text for Subordinate Officers, Part-I on 29.11.1987 and the Departmental Test for non-technical staff of A.P. Electrical Inspectorate Services on 7.1.1995. The third respondent has passed the Accounts Test in December 1989 and the Departmental Test on 24.11.2001. Therefore, according to the applicant, he has passed both the tests earlier to the 3rd respondent. It is further submitted that a seniority list was originally drawn up and the third respondent was promoted as Superintendent. The Third respondent did not pass the Accounts Test for Subordinate Officers by then. When he was sought to be reverted on this ground, he filed R.P.No. 30321 of 1989 in the erstwhile Tribunal contending that one need not pass the Accounts Test for Promotion as Superintendent and for further promotion as Assistant Accounts Officer. In fact, as per the rules issued in G.O.Ms.No. 116, Energy Forests Environment Science and Technology (Ser.I) Department, dated 16.4.1991, it is a mandatory requirement to pass the Accounts Test. The third respondent obtained interim orders in the aforesaid R.P., to the effect that his case should be considered for promotion, even though he did not pass the Accounts Test for Subordinate Officer. Accordingly, he was promoted on the condition that he should pass the said test within a particular period. As he did not pass the test, he was sought to be reverted and he filed O.A. 1542 of 1992, wherein the Tribunal passed the following orders: “It is brought to our notice that the contemnor (R2) issued orders dated 27.4.1995 promoting certain Senior Assistants. It is not known as to how the second respondent can act in indecent haste when the matter is subjudice before the Court particularly when he is facing contempt proceedings and a deep prior to promotion he appeared before the Court. Yesterday only we had occasion to see the two seniority lists produced before us. When the applicant in the main case was shown in the seniority list of Senior Assistants of Subordinate Officers, it was pointed that this action in showing the applicant in the subordinate Office is contrary to the rules and contrary to the instructions of the Government and the orders of the Tribunal, the 2nd respondent took time till today and in the meanwhile he issued these proceedings dt. 27.4.1995. As already pointed, these proceedings were issued in indecent haste and he should have awaited for the orders that may be passed by the Court. In that view of the matter, we suspend the impugned orders of promotion dt. 27.4.1995 promoting certain Senior Assistants until further orders of the Tribunal.” Pursuant to the said directions, the third respondent was further promoted as Superintendent, vide Memo dated 16.9.1995, stating that such promotion would be subject to the final result of the aforesaid O.A. The third respondent was further promoted as Assistant Accounts Officer vide Memo dated 26.6.1999, though he had not passed the departmental tests, as required under the rules, by then. While the matter stood thus, one Sri Mir Yawar Ali Khan and others filed O.A No. 2345 of 1999 and batch before the Tribunal, seeking a declaration that passing of the Accounts Test is necessary for promotion and making the 3rd respondent Senior Assistant, who was given promotion because of the contempt orders, as party respondent therein. In the said O.A, the Tribunal held that the passing of the Accounts Test is mandatory and the seniority should be based on the date of passing of the Accounts Test. Aggrieved by the same, the 3rd respondent filed Civil Appeal Nos. 7633-7635 of 1997 before the Supreme Court and the Supreme Court by its judgment dated 16.9.2003 held as under: “In that view of the matter, there cannot be any doubt whatsoever that the said rules were applicable in the case of the appellant throughout. Only because at a later stag a notification was issued by the Government of Andhra Pradesh to the effect that the Head of the Chief Electrical Inspectorate shall be the Chief Engineer in place of Chief Electrical Inspector, the same by itself would not mean that the Andhra Pradesh Ministerial Service Rules and in particular Rule 23 aforementioned, had specifically been made applicable in case of the employees of the Chief Electrical Inspectorate only thereafter. Once it is held that the office of the chief Electrical Inspector or the Chief Engineer, as the case may be was a Department of the Government of Andhra Pradesh, Rule 23 must be held to be applicable. In that view of the matter, the judgment of the High Court cannot be faulted, inasmuch as the date of passing of the examination would be the date for the purpose of reckoning the seniority of the employees concerned vis-à-vis the other employees in that view of the matter, the appellant was not entitled to be shown as senior to the respondents.” It is stated that pursuant to the judgment of the Supreme Court, the Department ought to have reverted the unqualified persons and re-drawn the seniority list. It is submitted that the applicant drawn the attention of the Government in this regard vide his representation dated 30.12.2003, seeking to implement the orders of the Tribunal, as confirmed by the Supreme Court and requested to prepare a common seniority list and revert the 3rd respondent. The respondents, instead of preparing a common seniority list, have taken a decision to prepare two seniority lists; one for the Directorate and the other for subordinate offices, after bifurcating the Department into two units. It is further submitted that keeping in view the directions issued in O.A.No. 5914 of 1995 dated 10.6.2003, the Government examined the proposals with reference to Rule 9 and presently Rule 13 of the A.P. Ministerial Service Rules, 1998 and directed to continue the Head of Department as one unit, and other than head of department as another unit, for the purpose of direct recruitment, promotion, appointment by transfer, seniority, discharge, reappointment and appointment as full member of service. The Government has taken a decision strictly in accordance with the various directions passed by the Tribunal in the earlier O.A. The Tribunal has considered the rival contentions and observed that the third respondent herein was reverted, on the ground that he was unqualified and that he did not pass the requisite tests within the prescribed period of two years. By virtue of the interim orders passed by the Tribunal in R.P.No. 30321 of 1989, the third respondent herein was directed to be considered for promotion, though he did not pass the requisite test. Again when he was sought to be reverted, the third respondent filed O.A No. 1542 of 1992. However, certain other individuals approached this Tribunal and sought a declaration that the passing of the Accounts Test is necessary for promotion, and the third respondent herein was also made a party respondent therein. Ultimately, the matter was taken to the Supreme Court and following the judgment of the Supreme Court, the Tribunal considered the matter and ultimately the Government has prepared a separate seniority list one for the Head of the Department and another for other than Head of the Department and communicated the same vide office memo dated 7/12.5.1999. The learned counsel appearing for the petitioner contended that right from the beginning they have been following the combined seniority list with regard to head offices and subordinate offices and they have effected promotion pursuant there to. The Tribunal has considered the matter objectively and directed the respondents to review and recast the seniority list in the cadre of Senior Assistants following the judgment of the Supreme Court in Civil Appeal Nos. 7633-7635 of 1997 dated 16.9.2003 by taking into consideration the date of passing of Accounts Test for Subordinate Officers, Part-I, as the said test was necessary for promotion to the post of Senior Assistant from Junior Assistant, in view of the undisputed fact that the A.P. Ministerial Service Rules of 1966, presently 1998 Rules are applicable. In view of the above and in view of the facts and circumstances of the case, we do not find any infirmity or illegality in the order passed by the Court so as to nullify the order passed by the Tribunal and further there is no error of jurisdiction warranting interference under Article 226 of the Constitution of India. Accordingly, the Writ Petition is dismissed. There shall be no order as to costs. _____________________________ GHULAM MOHAMMED, J ___________________________ G. BHAVANI PRASAD, J Dt. 12.11.2008 KA ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 Government of Andhra Pradesh, Rep. by its Principal Secretary, Energy Department, Secretariat, Buildings, Hyderabad. 2 The Chief Electrical Inspector to Government, Stone Building, Mint Compound, Hyderabad. 3 S.P. Badrinath, Accounts Officer, O/o. Chief Electrical Inspector to Government of Andhra Pradesh, Hyderabad. 4. 2 CCs to G.P. for Services I, High Court of A.P. Hyderabad, OUT. 5. 2CD copies