IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE FIFTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED AND THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION Nos.17401 AND 22646 of 1999 WRIT PETITION Nos.17401 of 1999 Between: P.Someswer rao S/o. Vishwanadha Sarma Madanagopal Swamy Temple Ballipadu, Attili Mandal W.Godavari dist. ..... PETITIONER AND 1 The Commissioner of endowments Govt of A.P, Tilk Road Hyderabad. 2 The State of A.P Rep by its Prl.Secretary Revenue (Endowments) Dept Secretariat , Hyderabad. 3 N.Venkateswara Rao Sri Manam Jaggammagari Choultry , Palakole W.G.Dist. 4 N.V.S.Suryanarayana Raju Pasalapudi Group Temples , Pasalapudi , Undragaravaram Mandalam , W.G.Dist 5 The A.P.Administrative Tribunal Rep by its Registrar Purana Haveli , Hyderabad. .....RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed herein the High Court will may be pleased to issue an appropriate writ or order or direction more particularly in the nature of writ of Mandamus calling for records relating to the orders of the A.P.Administrative Tribunal in O.A.No.7283 of 1997, dated 07-05-1999 and set aside the same by holding as illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India and pass such other order or orders. Counsel for the Petitioner :MR.M.JAGANNATHA SARMA Counsel for the Respondents : GP FOR SERVICES II WRIT PETITION NO : 22646 of 1999 Between: ..... PETITIONER AND .....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 Counsel for the Petitioner:MR.M.JAGANNATHA SARMA Counsel for the Respondent No.: MR.P.BALA KRISHNA MURTHY The Court made the following : THE HONOURABLE SRI JUSTICE GHULAM MOHAMMED AND THE HONOURABLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NOs.17401 AND 22646 OF 1999 COMMON ORDER (Per Hon’ble Sri Justice Ghulam Mohammed) Common questions of fact and law are involved and hence, both these writ petitions are disposed of together. Writ Petition No.17401 of 1999 was filed by one P.Someswer Rao, Executive Officer Grade-I, Madanagopala Swamy Temple, Ballipadu, Attili Mandalm, West Godavari District, after seeking leave, as he was not a party to the proceedings in O.A.No.7283 of 1997. Writ Petition No.22646 of 1999 was filed by the unofficial respondents in O.A.No.7283 of 1997. In both these writ petitions, the petitioners sought a writ of mandamus setting aside the order dated 07.05.1999 passed by the Andhra Pradesh Administrative Tribunal (for brevity, ‘the Tribunal’), Hyderabad in O.A.No.7283 of 1997 as illegal and arbitrary. The brief facts of the case are as follows: The petitioners and the unofficial respondents in both these writ petitions were working as Executive Officers in the Endowments Department at the relevant time. They were initially appointed in the years 1970 and 1971 as Executive Officers Grade-V and were governed by the Rules framed in G.O.Ms.No.182, Rural Welfare, dated 05.02.1953 (for brevity, ‘the old Rules’). Subsequently, the Government framed the A.P. Endowment Executive Officers Subordinate Service Rules (for brevity, ‘the new Rules’) vide G.O.Ms.No.378, Revenue (Endowments-III) Department, dated 16.02.1978 which came into force with retrospective effect from 26.01.1967. The petitioners and the unofficial respondents were promoted to the next higher posts as and when vacancies in higher posts arose after the advent of the new Rules. As per Rule 9 of the new Rules, passing of the Accounts Test for Subordinate Officers, Part-I and Endowments Departmental Test conducted by the Andhra Pradesh Public Service Commission was mandatory for promotion from the lower category to the next higher category. However, Rule 14 thereof posited that nothing contained in the new Rules shall adversely affect any person who was appointed as an Executive Officer before 26.01.1967, on and from which date the new Rules came into force and also any person appointed after 26.01.1967 but before the date of final publication of the new Rules. In other words, according to the petitioners, Rule 14 stipulated that persons can continue in the posts occupied by them even if they had not passed the tests required under Rule 9 of the new Rules, on the premise of their having passed the requisite tests under the old Rules. The petitioners in both the writ petitions were promoted from Executive Officer Grade-V to Executive Officer Grade-I by the years 1989 and 1990. The final seniority list of Executive Officers Grade-I of Zone-II was communicated on 16.11.1992 wherein the name of the petitioner in W.P.No.17401 of 1999 was shown at Sl.No.16 and the name of the petitioners in W.P.No.22646 of 1999 were shown at Sl.Nos.13, 17, 19 and 20 while the unofficial respondents were shown at Sl.Nos.16 and 44 in the seniority list of Executive Officers Grade-II. Aggrieved thereby, the unofficial respondents filed O.A.No.7283 of 1997 before the Tribunal seeking a direction to the first respondent therein to promote them to the post of Executive Officers Grade-I and to restore their seniority in the cadre of Executive Officers Grade-III, II and I with all consequential benefits and to direct the first respondent therein to include their names over the first petitioner in W.P.No.22646 of 1999 in the final seniority list issued by the first respondent on 16.11.1992. The contention of the unofficial respondents before the Tribunal was that as per the old Rules an Executive Officer has to pass the Accounts Test for Executive Officers and Endowments Department Tests I & II (Act & Rules) to get eligibility for promotion. Therefore, the unofficial respondents, having passed the Executive Officers Test in the years 1972 and 1975 and the Departmental Tests in 1972, 1974 and 1975 were exempt from passing the Accounts Test for Subordinate Officers Part-I prescribed under the new rules. To support their contention, they relied upon the earlier Judgments of the Tribunal in R.P.No.4160 of 1987 and O.A.No.3450 of 1997, wherein it was held that the passing of Accounts Test for Executive Officers under the old Rules was equivalent to passing the Accounts Tests for Subordinate Officers Part-I prescribed under the new Rules. The Tribunal, after considering the material placed before it and placing reliance upon its earlier Judgments referred to supra, allowed the O.A. filed by the unofficial respondents. Hence, the present writ petitions. Heard Sri Mr.M.Jagannatha Sarma, learned counsel for the petitioners, Sri P.Bala Krishna Murthy, learned counsel for the unofficial respondents and the learned Government Pleader for Services-II for the official respondents. The learned counsel for the petitioners submitted that the old Rules postulated passing of the Accounts Test for Executive Officers and Endowment Departmental Tests whereas Rule 9 of the new Rules speaks of passing of Accounts Test for Subordinate Officers Part-I and Endowment Department Tests for promotion from the lower category to the next higher category of Executive Officers and therefore, a person should pass the prescribed tests under the new Rules to get eligibility for promotion as against a vacancy that occurred on or after 16.02.1978, the date on which the new Rules were published. He submitted that Rule 14 of the new Rules did not exempt persons from passing the tests prescribed under the new Rules. He further submitted that the provisions of Rule 14 of the new Rules would be applicable to the persons already promoted to higher posts prior to 16.02.1978 and not otherwise. He also submitted that it was only academic bodies that can say that one test is equivalent to another and that the Government and the Tribunal had no jurisdiction to hold so. He therefore submitted that the Tribunal had failed to consider all these aspects in detail and on the other hand, it had erroneously placed reliance upon its earlier Judgments while allowing the O.A. He prayed that the impugned order may be set aside and the writ petitions may be allowed with consequential directions to the official respondents. Per contra, the learned counsel for the unofficial respondents submitted that the Tribunal had considered both the old and the new Rules, the material on record and placing reliance upon its earlier Judgments in R.P.No.4160 of 1987 and O.A.No.3450 of 1997, came to the definite conclusion that the passing of the Accounts Test for Executive Officers under in the old Rules was equivalent to passing the Accounts Tests for Subordinate Officers Part-I prescribed under the new Rules and accordingly allowed the O.A. Even G.O.Ms.NO.1799, General Administration (Ser.A) Department, dated 01.10.1965 indicates that a Government Servant who had passed the Accounts Test for Subordinate Officers Part-I and II shall be exempt from passing the Accounts Test for Executive Officers where such test is prescribed in the Special Rules. He therefore submitted that the well reasoned order passed by the Tribunal did not warrant any interference by this Court and more particularly, having due regard to the fact that except the second petitioner in W.P.No.22646 of 1999, all the petitioners and the unofficial respondents retired from service after attaining the age of superannuation. We have gone through the material placed before us. The finding of the Tribunal that the passing of the Accounts Test for Executive Officers under the old Rules was equivalent to passing the that of Accounts Test for Subordinate Officers Part-I prescribed under the new Rules, basing on G.O.Ms.No.1799, General Administration (Ser.A) Department, dated 07.10.1965, cannot be sustained. The reasoning that as the said G.O. exempted those who had passed the Accounts Test for Subordinate Officers – Part-I from passing the Accounts Test for Executive Officers did not necessarily mean that the converse would also be true. All the more so, as it is pointed out that the Subordinate Officers Test is more comprehensive with nine papers as compared to the Executive Officers Test, with six papers. Therefore, the inference of equivalence between the two tests based on G.O.Ms.No.1799 dated 07.10.1965 is totally misconceived. Therefore, that finding is set aside and this issue is left open to be considered in an appropriate case in future. However, taking into account the fact that all the petitioners, except the second petitioner in W.P.No.22646 of 1999, and the unofficial respondents have rendered service and have retired from service after attaining the age of superannuation and also taking due note of the fact that several orders were passed by the Tribunal in this context, which attained finality, we are not inclined to go into the facts and merits of the case at this length of time and disturb or unsettle settled matters which emerged as a consequence of such orders. Therefore, without reference to the merits of the case, we deem it proper and appropriate to direct the respondent authorities not to take any action against the petitioners or the unofficial respondents consequent to the setting aside of the finding of the Tribunal hereinabove. In the result, both these writ petitions are disposed of as indicated above. In the facts and circumstances of the case, there shall be no order as to costs. ------------------------------------- GHULAM MOHAMMED, J. ---------------------------- SANJAY KUMAR, J. 5th FEBRUARY, 2009 PGS THE HON'BLE MR JUSTICE GHULAM MOHAMMED AND THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION Nos.17401 AND 22646 of 1999 (Per Hon’ble Sri Justice Ghulam Mohammed) 5th FEBRUARY, 2009