THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NO.8336 OF 2009 O R D E R (Per the Hon’ble Sri Justice Ghulam Mohammed) Heard both the counsel. 2. Aggrieved by the order in Dis.No.229/PR 15/ADM/DEK/2009 dated 22.1.2009 passed by the 1st respondent – Principal District and Sessions Judge, Karimnagar, in rejecting the case of the petitioner, who is working as Senior Assistant in the court of III Additional District and Sessions Judge, for promotion to the post of Superintendent on the ground that he did not pass the Criminal Judicial Test as per the amended A. P. Judicial Ministerial Service Rules, 2003, (for short ‘2003 Rules’) the present writ petition is filed. 3. The case of the petitioner as stated in the affidavit filed in support of the writ petition is that he was appointed as Copyist on 1.8.1979 and posted at District Court, Karimnagar and thereafter he was promoted as Junior Assistant on 1.7.1983 and he was further promoted to the post of Senior Assistant on 9.3.2001 and his probation in the said post was declared on 1.9.2003. The petitioner has passed the Translation Test in December, 2008 and became eligible for promotion to the next higher post of Superintendent and hence he made a representation to the 1st respondent, for consideration of his case for promotion to the post of Superintendent along with the copy of the judgment in W.P.No.11450/2005 dated 17.10.2008, wherein this court considering the averment of the petitioners for relaxation of educational qualifications as prescribed in 2003 Rules, for promotion to various category of posts, directed to consider the case of the petitioners therein, for promotion even though they do not have a pass in intermediate, if they are otherwise eligible and qualified by passing departmental tests as prescribed. Now the grievance of the petitioner is that by the impugned order, his case was rejected on the ground that he did not pass the Criminal Judicial Test, which is necessary for promotion to the post of Superintendent as per 2003 Rules. 4. The further case of the petitioner is that as on the date of his promotion to the post of Senior Assistant in the year 2001, the A. P. Judicial Ministerial Services Rules, 1964 (for short ‘1964 Rules’) were governing the service regulations and as per the said rules, passing of the criminal judicial test, was not necessary and as he satisfied the eligibility criteria under the 1964 Rules, he was promoted to the post of Senior Assistant and his probation was also declared on 1.9.2003. Subsequently the 1964 Rules were amended by 2003 Rules and they came into force with effect from 5.12.2003 and as per 2003 Rules, for promotion to the post of Senior Assistant, a candidate must pass Civil Judicial Test Part I and II, Criminal Judicial Test and Accounts Test for Subordinate Officers Part-I. Therefore, the case of the petitioner is that as on the date of his promotion to the post of Senior Assistant, as per 1964 Rules, passing of the Criminal Judicial Test was not required and accordingly he was promoted. The contention of the petitioner is that as per note 2 to Annexure I of 2003 Rules, it is clear that passing of the Criminal Judicial Test is not required for a candidate who has been promoted to the post of Senior Assistant under 1964 Rules, and to continue in the post of Senior Assistant. His grievance is that for promotion to the post of Superintendent, passing of the Transition Test is the only perquisite and as he passed the said test, insisting for passing of the Criminal Judicial Test, is arbitrary and illegal and contrary to Note 2 of Annexure I of 2003 Rules. Hence, he filed the writ petition. 5. The 1st respondent – Principal District and Sessions Judge filed counter affidavit and stated inter alia that at the time of promotion of the petitioner as Senior Assistant from the post of Junior Assistant in the year 2001, 1964 Rules were applicable and as per the said rules, for promotion to the post of Senior Assistant, passing of departmental tests viz., Civil Judicial Test Part I and II and Accounts Test for Subordinate Officer Part-I were required. Thereafter by amendment 2003 Rules were amended by inserting the requirement of passing of Criminal Judicial Test for promotion as Senior Assistant and, therefore, for promotion to the post of Superintendent, which is from Senior Assistant, passing of the Criminal Judicial Test and Translation Test apart from passing of the Civil Judicial Test Part-I and II and Accounts Test for Subordinate Officer Pat-I, is necessary and as the petitioner did not pass the Criminal Judicial Test, his case was rejected. 6. Adverting the judgment of the High Court, it is stated that there is no provision in 2003 Rules to dispense with passing of the departmental tests for promotion to the post of Superintendent. It is stated that as per Note 2 to Annexure – I of 2003 Rules, “a person appointed to a post in accordance with the rules applicable to him at the time of his appointment shall not be required to acquire higher qualifications prescribed for the post subsequent to his appointment”. In the present case, the writ petitioner passed intermediate, which is sufficient for the posts up to Superintendent level, but passing of the departmental tests, is not relaxed. With these averments, the writ petition was sought to be dismissed. 7. In the present case before adverting to the contentions of the respective parties, few admitted facts are required to be noted. 8. It is not in dispute that as per 1964 Rules, for promotion to the post of Senior Assistant, passing of the Criminal Judicial Test was not necessary and only passing of departmental tests viz., Civil Judicial Test Part I and II and Accounts Test for Subordinate Officer Part-I was required. The petitioner passed the said tests and he was promoted to the post of Senior Assistant and his probation was declared on 1.9.2003. 9. The amended rules of 2003 came into force with effect from 05.12.2003 and as per the said rules, for promotion to the post of Senior Assistant, the employee shall pass the departmental tests (1) Civil Judicial Test Part-I and II, (2) Accounts Test for Subordinate Officer Part-I and (3) Criminal Judicial Test. 10. The petitioner became eligible by passing the relevant departmental tests for the post of Senior Assistant even before the new Rules of 2003 came into force and accordingly his case was considered and he was given promotion. The qualification for promotion to the post of Superintendent, under Annexure-I to Rule 8 of 2003 Rules, is as under: “Must have passed Translation Test i.e., (i) Translation from English to the Regional Language and (ii) Translation from Regional Language to English.” 11. As per the above rules, for promotion to the post of Superintendent, passing of Translation Test is the pre-requisite. In the present case admittedly the petitioner has passed the said test and as per 1964 Rules, passing of the Criminal Judicial test for the post of Senior Assistant was not necessary and, therefore, in our considered view, insisting the petitioner, who is an approved probationer in the category of Senior Assistant, for passing of the Criminal Judicial Test under 2003 Rules, for promotion to the post of Superintendent, is not justified, since the new rule cannot be made applicable retrospectively, in the absence of any specific provision. 12. With regard to the contention of the petitioner relying on the judgment of the Division Bench of this court in W.P.No.11450/2005 dated 17.10.2008 by referring to note 2 under Annexure I of 2003 Rules, is concerned, it is to be noted that under 2003 Rules, the qualifications prescribed for appointment to the post of Junior Assistant, either by direct recruitment or by promotion, passing of the Intermediate Examination conducted by A. P. State Board or Intermediate Examination or any equivalent examination, was an essential pre-requisite. But as per 1964 Rules, qualification required for appointment to the post of Junior Assistant was passing of 10th class. Therefore, in these circumstances, when the person who was appointed as Junior Assistant under the old rules, was required to acquire Intermediate qualification, he filed W.P.No.11450/2005 and similar writ petitions were filed for relaxation of educational qualifications, as prescribed in 2003 Rules for promotion to various categories of posts. This court disposed of the writ petition by order dated 17.10.2008 and directed the respondents to consider the case of the petitioners therein for promotion even though they did not have a pass in intermediate, if they are otherwise eligible and qualified by passing Departmental Tests as prescribed. The Registrar (Administration) issued circular in ROC.No.725/2009-C1 dated 1.5.2009 communicating the directions of the Division Bench in the batch of writ petitions to all the District Judges in the State. 13. The directions in the above judgment refers to the relaxation of educational qualifications and not with regard to the departmental tests. In the said direction it was made clear that the cases of the petitioners can be considered even though they do not have a pass in intermediate, if they are otherwise eligible and qualified by passing Departmental Tests as prescribed. Therefore, by referring to note 2 under Annexure I to Rule 8, the relaxation of the passing of the departmental tests, cannot be sought and furthermore, as stated in the counter affidavit, there is no provision under 2003 Rules, dispensing with passing of the departmental tests. 14. At the cost of repetition it is to be noted that the petitioner herein was an approved probationer in the category of Senior Assistant and as per the new rules of 2003, which came into force subsequently, passing of the criminal judicial test for promotion to the post of Superintendent is not required, and hence the rejection of his case on the said ground, cannot be sustained. 15. For the foregoing reasons, the impugned order in Dis.No.229/PR 15/ADM/DEK/2009 dated 22.1.2009 passed by the 1st respondent – Principal District and Sessions Judge, Karimnagar, is set aside and consequently, the 1st respondent is directed to consider the case of the petitioner for promotion to the post of Superintendent, if he is otherwise eligible. 16. The writ petition is accordingly allowed. No costs. --------------------------------------- GHULAM MOHAMMED,J ---------------------------------------- G.CHANDRAIAH,J DATE:29.06.2010 AVS