IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FIFTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE G.BHAVANI PRASAD WRIT PETITION NO : 19249 of 2008 Between: Dr.Mohd.Rafeeq S/o.Md.Ghouse O/o. Engineering Materials Lab., A.P. Engineering Research Laboratories, Himayathsagar, Hyderabad. ..... PETITIONER AND 1 The Government of Andhra Pradesh, rep. by its Secretary (Projects) I & CAD (CA-IV) Department, Secretariat, Hyderabad. 2 The Chief Engineer (C.D.O.) Andhra Pradesh Engineering Research Labs, Himayathsagar, 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 an appropriate Writ, order or direction preferably one in the nature of Writ of Mandamus, declaring the Memo.No.202180/Ser.VIII/2004-8, dated 4.1.2007 of the 1st respondent as well as the order dated 7.8.2008 made in O.A.No.353/2007 on the ﬁle of the A.P. Administrative Tribunal, Hyderabad as arbitrary, illegal and opposed to the Departmental Rules and consequently direct the respondents to consider the case of the petitioner for promotion to the post of Research Oﬃcer in the oﬃce of the 2nd respondent forthwith with all consequential beneﬁts and pass such other or further orders as are necessary. Counsel for the Petitioner:MR.J.KANAKAIAH Counsel for the Respondent No.: GP FOR IRRIGATION & COMM AREA DEV. The Court made the following : ORDER: (Per Sri Justice GHULAM MOHAMMED) This Writ Petition has been ﬁled seeking Mandamus declaring the memo No. 20180/Ser.VIII/2004-08, dated 4.1.2007 of the ﬁrst respondent as well as the order dated 7.8.2008 made in O.A.No. 353 of 2007 on the ﬁle of A.P. Administrative Tribunal, Hyderabad as arbitrary and illegal and direct the respondents to consider the case of the petitioner for promotion to the post of Research Oﬃcer in the oﬃce of the second respondent forth with, with all consequential benefits. O.A.No. 353 of 2007 was ﬁled under Section 19 of the Administrative Tribunals Act, 1985 praying the Tribunal to declare the memo dated 4.1.2007 of the ﬁrst respondent, wherein the ﬁrst respondent approved the minutes held on 23.9.2006 as illegal and set aside the same. Brief facts of the case are that the petitioner-applicant is working as Assistant Research Oﬃcer in the Oﬃce of Engineering Material Laboratory, A.P. Research Engineering Labs, Himayathsagar, Hyderabad. He passed M.Tech., (Structural Engineering) and also passed Ph.D., qualiﬁcation and a number of research articles were published by him in National and International Academic Journals. It is further stated that the post of Research Oﬃcer comes under A.P. Engineering Service (Research Branch (Branch-IV) Special Rules issued through G.O.Ms.No. 2052, PWs, dated 10.12.1970. Under Rule 3 of the said Rules, the post of Assistant Research Oﬃcer, which comes under Category –3 has to be ﬁlled up by way of direct recruitment or by appointment by transfer of Research Assistants, in the A.P. Engineering Subordinate Service Research Branch or by transfer from A.P. Engineering Service Branch I PWD (for Engineering Sections Only), if no qualiﬁed Research Assistant is available for recruitment by transfer to the category. It is stated that when a vacancy arose to hold the post of Research Oﬃcer in the Engineering Laboratory Section in the year 1997, the petitioner made a representation dated 31.12.2003 to consider his case for promotion to the post of Research Oﬃcer. As his case was not considered he ﬁled O.A.No. 108 of 2004 and the same was disposed of on 8.1.2004 directing the respondents to examine the case of the applicant as per the special rules keeping in view his higher qualiﬁcations and merit and pass appropriate orders in the matter of promotion to the post of Research Officer. When the orders were not complied with, he ﬁled C.A.No. 347 of 2004 and in that C.A, Government ﬁled a memo dated 30.4.2004 directing the second respondent to conduct the D.P.C. In view of the same, CC was closed on 3.9.2004 with an observation that review DPC will consider the claim of the applicant. It is submitted that once again the petitioner submitted a representation dated 7.8.2006 to the ﬁrst respondent stating that the term of the Screening Committee would expire on 23.6.2006 and requested to consider his case and for that he was informed through letter dated 2.9.2004 that his case will be considered. It is further submitted that in order to know the reasons for non-consideration of his case, he made a representation under Right to Information Act, 2005. Accordingly, the second respondent communicated a copy of minutes dated 22.6.2006 of the Departmental Promotional Committee along with letter dated 8.12.2006, wherein it was mentioned that his case was denied on the ground that he was involved in a disciplinary case. It is further submitted that till receipt of the letter-dated 8.12.2006, he was not aware of his involvement in the disciplinary case, as no show cause notice was received. As the applicant was not promoted consequent to the proceedings of the DPC held on 4.12.1999, the applicant approached the Tribunal to consider his case for promotion as Research Officer in the Engineering Material Laboratory in view of his qualification of Ph.D. Before the Tribunal respondents ﬁled counter stating that the vacancy of Research Oﬃcer in Engineering Material Laboratory has arisen on 30.6.1997 due to retirement of Sri D. Chandrasekhar Reddy, B.E (Mechanical) Research Oﬃcer. By that time, the applicant has put up a service of 8 months only. As on the date of Departmental Promotion Committee, held on 4.12.1999, the applicant has not put up required period of three years of service in Engineering Material Laboratory stipulated in the A.P. Engineering Research Laboratories Special Rules. It is further submitted that special rules required that “one must have rendered service as Assistant Research Oﬃcer for a period of not less than three years in the respective laboratory”, for promotion to the post of Research Oﬃcer to be ﬁlled up under sub-clause (ii) of sub rule (2) of Rule 3 of G.O.Ms.No. 2052 PWD, dated 10.12.1970. The Tribunal after considering the entire material on record, dismissed the O.A holding that the applicant did not complete three years of service in the relevant branch stipulated as required under sub-rule even though the date of departmental promotion committee meeting i.e. 4.12.1999 taken into consideration. The learned counsel appearing for the petitioner contends that the petitioner was joined as Assistant Research Oﬃcer in Cuddapah on 24.10.1996, his case was not considered for promotion without following the earlier order of the Tribunal and it is stated that subsequently two more vacancies arose. On the other hand, the learned Government Pleader has drawn our attention to the statutory rules, proviso to Article 309 of the Constitution of India issued in G.O.Ms.No. 2052 dated 10.12.1970 for the post of Research Oﬃcer (i) by direct recruitment or (ii) for promotion from the category of Assistant Research Oﬃcer in the branch or (iii) by transfer from A.P. Services Branch I, if no ARO is available for promotion. However, in this context the learned G.P contended that since the petitioner does not possess the requisite qualiﬁcation as on the date when the BPC met and the vacancy arose on 30.6.1997. We have perused the order impugned. Copy of G.O.Ms.No. 2052 PWD, dated 10.12.1970 incorporating the amendments issued in G.O.Ms.No. 208 I P (Ser.I) Department dated 13.5.1981 and G.O.Ms.No. 527 Irrigation (Ser.V) Department dated 3012- 1982 reads as under: “In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India and in supersession of the cadre and recruitment rules of the Hyderabad Service of Engineers Published with Notiﬁcation No. 44 GAD-SRC/19-PWD/52, dated the 28th May, 1954, the Governor of Andhra Pradesh hereby makes the following Special Rules for the Andhra Pradesh Engineering Services. The rules hereby made shall be deemed to have come into force from 1st November, 1956. For category- 2, Research Oﬃcer, the method of recruitment is (i) by direct recruitment or (ii) by promotion from the category of Assistant Research Oﬃcer in the Branch; or (iii) by transfer from A.P. Engineering Service Branch I, if no ARO is available for promotion. For Research Oﬃcer, direct recruitment (i) Must possess a Master’s Degree in Engineering from any University in India. Established or incorporated by or under a Central Act. Provincial Act or a State Act or its equivalent in such subjects as may be considered suitable by the appointment authority. Preference will be given to those having a Doctorate (ii) Must have Engineering experience of not less than SIX years in a responsible position of which three years in Research. This recruitment may be relaxed in case of those possessing a Doctorate. (iii) Must have technical publications to his credit. Promotion: (i) Must possess a Degree in Engineering 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 P.G qualiﬁcations in the subject pertaining to the Lab for which the R.O is required.” A reading of the above provisions, it is clear that for the post of Research Oﬃcer, one must have rendered service as Assistant Research Oﬃcer for a period of not less than three years in respective laboratory to be eligible for promotion to the post of Research Oﬃcer. In this case a vacancy has arisen in the year 1997, with eﬀect from 30.6.1997. By that time, the petitioner has put up service of 8 months only. As on 4.12.1999 the date on which the Departmental Promotion Committee was convened, the petitioner has not put up the required period of three years service in the Engineering Material Laboratory. In the circumstances, we do not ﬁnd any illegality or irregularity in the order passed by the Tribunal. However, as it is stated by the learned counsel for the petitioner that subsequently two more vacancies arose for the post of Research Oﬃcer, as and when DPC is met, the case of the petitioner may be considered in accordance with law provided that he is otherwise eligible. With the above observation, the Writ Petition is disposed of. No order as to costs. _____________________________ GHULAM MOHAMMED ,J ___________________________ G.BHAVANI PRASAD, J Dt. 05.09.2008 KA ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 The Government of Andhra Pradesh, rep. by its Secretary (Projects) I & CAD (CA-IV) Department, Secretariat, Hyderabad. 2 The Chief Engineer (C.D.O.) Andhra Pradesh Engineering Research Labs, Himayathsagar, Hyderabad. 3. CC to GP FOR IRRIGATION & COMM AREA DEV., High Court of A.P. Hyderabad. 4. 2CD copies