IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE SEVENTEENTH DAY OF DECEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH AND THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No: 2396 of 2007 BETWEEN: Dr. Chandra Prakash Reddy. ... PETITIONER AND The Government of Andhra Pradesh, rep. by its Principal Secretary, Department of School Education and another. ...RESPONDENTS Counsel for the Petitioner: Mr. M. Venkatram Reddy Counsel for the Respondents: GP for Services The Court made the following: ORDER: (per Hon’ble Sri Justice V. Eswaraiah) Petitioner is the applicant in O.A.No.5647 of 2004 dated 17.10.2006 before the Andhra Pradesh Administrative Tribunal, Hyderabad. 2. Petitioner is working as a Senior Lecturer in District Institute of Education and Training (DIET) in category IV of Class III of the Andhra Pradesh Educational Service Rules (for short ‘the Rules’) issued under G.O.Ms.No.505 Education (Services-I) Dated 16.11.1998. It is the case of the petitioner that for the post of District Educational Officer/Deputy Director the method of appointment must be only by way of promotion from the categories 1 to 5, 8, 10, 11 and 12 of Class III as prescribed under Rule 3 of the aforesaid Rules. But certain appointments were made under G.O.Ms.No.127 Education (SER.I) Department dated 05.10.2001 and other similar Government orders contrary to the said Rules issued under G.O.Ms.No.505 dated 16.11.1998. It is the further case of the petitioner that the DIET Staff Association submitted a representation dated 23.08.2004 to the Government seeking review of promotion of DEO’s/Deputy Directors but the said representation has not been considered and disposed. Aggrieved by the same, the petitioner herein preferred O.A.No.5647 of 2004 before the tribunal below seeking a direction to the respondents to review the promotions of District Educational Officers/Deputy Directors as to whether there are any deviations occurred keeping in view G.O.Ms.No.505 dated 16.11.1998 and consequently direct the respondents to recall the promotions, if any, made in violation of the said Rules and filling up such posts with Class III Offices in accordance with the aforesaid Rules by declaring the action of the respondents in not reviewing the promotions/appointment by transfer to the post of DEO’s/Deputy Directors as illegal and violative of Articles 14 and 16 of the Constitution of India. 3. The aforesaid OA was dismissed by the tribunal holding that the official respondents have followed the Rules contained in G.O.Ms.No.505 dated 16.11.1998 and none of the juniors to the petitioner have been appointed to the post of DEO and the petitioner being a junior cannot march over his seniors, who have been appointed to the post of DEO. 4. Learned counsel for the petitioner has relied upon the Rules referred to above and submitted that under Rule 3 promotion to the post of category 1 of class II i.e. District Educational Officer/Deputy Director is provided only by promotion from categories 1 to 5, 8, 10, 11 and 12 of class III. He, therefore, emphasizes that no other mode of filing up the said post in category 1 of class II is provided except by the aforesaid method. Consequently, he contends that the appointments as made under G.O.Ms.No.127 dated 05.10.2001 are not sustainable, as all the appointees are not holding the posts in any of the categories of class III as specified under Rule 3 above. 5. Learned Government Pleader, however, has submitted before the tribunal that the post of DEO/DD, categorized as category 1 in class II, is the feeder post for promotion to categories 1 to 3 in class I. The appointees under the impugned G.O.Ms.No.127 dated 05.10.2001 though are holding the post in categories 2 and 3 of class II, do not have any further channel of promotion to class I category. The Government, therefore, felt that the said employees holding categories 2 and 3 would stagnate in the said category alone whereas the person holding categories 1 to 5, 8, 10, 11 and 12 in class III alone will progress to category 1 of class II and further to class I. To avoid this stagnation of the officers holding categories 2 and 3, the aforesaid appointments were made under G.O.Ms.No.127 dated 05.10.2001 referred to above. 6. The aforesaid rival contentions, therefore, need to be considered in the light of the Rules aforesaid. 7. An analysis of class I categories 1 to 3 would show that while an officer would progress to category 3 of class I from category 1 of class II, the said category 3 class I would be feeder post for higher categories in class I. Category 1 of class II, therefore, is important for all the categories in class II. The Rule 3 aforesaid also has to be read along with note 2 and explanation attached thereto. Note 2 to the extent relevant is as follows: “The Rule 3 provides for filling up of one category of a particular class by transfer from other categories of the same class which are equivalent in the scales of pay…” Explanation states as follows: “As per the Rule the posts of Category 2 of Class II may be filled by transfer from Category I of Class II. In this case the competent authority may transfer anyone from the Category I of Class II irrespective of seniority in the interest of administration or public interest provided he/she satisfies the qualification prescribed for Category 2 of Class II…” 8. The aforesaid rules read with explanatory notes mentioned above would make it clear that all the officers holding class II posts are grouped in one group as their pay scales were common. Since all the posts in various categories in class II are interchangeable as is specifically provided in the extracted note and the explanation as above, even if a person holding a post in other categories of class II is posted to hold the post of category 1 of class II the same would not amount to promotion in the strict sense and in reality it is only a transfer. The requirement under Rule 3 deals with the situation of a case of transfer from class III category to class II category. Strictly speaking, therefore, in the present case, we are of the view that no such promotion is, in fact, made inasmuch as the officers holding the same post in different categories in the same class are posted to hold category 1 of same class. The impugned G.O.Ms.No.127 dated 05.10.2001, therefore, though used the word promoted, we are of the view that in strict sense it is only a transfer. The contention of the learned counsel for the petitioner with reference to the mandate of Rule 3 is, therefore, liable to be rejected. 9. Learned Government Pleader also pointed out that though a review of all promotions/appointment by transfer to the post of District Educational Officer – referable to category 1 of class II - impugned G.O.Ms.No.127 dated 05.10.2001 is sought to be made indirectly by the petitioner in the OA, what actually is questioned by the petitioner is to declare the said G.O.Ms.No.127 dated 05.10.2001 as contrary to the Rule 3 referred to above. The relief sought for by the petitioner in the OA is, therefore, seeking to review all promotions/appointment by transfer and in the pleadings in the OA in Para 6(c), a reference is made to G.O.Ms.No.127 dated 05.10.2001 apart from other Government Orders. Learned Government Pleader, therefore, states that without making none of the officers mentioned in the said GO as parties, the petitioner is not entitled to any relief. It is also contended that as per the pleadings, the petitioner’s grievance is only against inaction of the Government in not considering the representation filed by the DIET Staff Association, as such the OA could have been filed by the said Association but not individually as no individual grievance is made out in the OA and as such, a review of the promotions at the instance of the petitioner cannot be granted. 10. We find sufficient force in the said contention of the learned Government Pleader. We have also perused the copy of the OA where the petitioner himself mentions that appointments to the post of DEO/DD are made under G.O.Ms.No.127 dated 05.10.2001 by temporary promotions from horizontal and equivalent categories of class II and there is no challenge to the said GO and no relief is sought for regarding the same. However, the manner in which the prayer is couched, it seeks a direction that all promotions/appointment by transfer to the category of DEO/DD be reviewed and declared as illegal, We are, therefore, of the view that without directly questioning the correctness of G.O.Ms.No.127 dated 05.10.2001, the petitioner has indirectly challenged the said order without making any of the said promotees as parties to the OA. It is also evident from the averment of the petitioner in the aforesaid paragraph 6(c) that the said promotions/appointment by transfer are made from the equivalent categories of class II. This clearly supports our conclusion reached in the paragraphs above that the said postings though called as promotions are, in fact, transfers within the same class from equivalent categories of class II. The aforesaid averment of the petitioner himself, therefore, supports our conclusion that Rule 3 on which the petitioner is placing reliance is not attracted and the said postings under G.O.Ms.No.127 dated 05.10.2001 do not get affected on account of Rule 3 above. 11. As mentioned above, the beneficiary officers under G.O.Ms.No.127 dated 05.10.2001 are not impleaded in the OA and in their absence, placing of such officers in category 1 of class II cannot be declared as illegal nor can there be a direction to review all such promotions/appointment by transfer as sought for by the petitioner. The tribunal, therefore, rightly dismissed the OA. The writ petition is accordingly dismissed. There shall be no order as to costs. ______________ V. ESWARAIAH, J _____________________ VILAS V. AFZULPURKAR, J December 17, 2009 DSK