*THE HON’BLE SRI JUSTICE GHULAM MOHAMMED & THE HON’BLE SRI JUSTICE G. CHANDRAIAH WP Nos 3834 OF 2010 and 3835 OF 2010 % 29.10.2010 Between: P. Venkat Reddy, S/o.P.Narayan Reddy .... Petitioner And 1. High Court of AP rep. by its Registrar General, Hyderabad & others ...Respondents N. Purushotham Reddy, S/o.N. Shankar Reddy ……Petitioner And 1. High Court of AP rep. by its Registrar General, Hyderabad & others …Respondents ! COUNSEL FOR THE PETITIONER: - SRI JR MANOHAR RAO ^ COUNSEL FOR RESPONDENTS:- > Head Note: ? CITATIONS: IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FIRIDAY THE TWENTY NINE DAY OF OCTOBER TWO THOUSAND AND TEN PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED & THE HON'BLE MR JUSTICE G.CHENDRAIAH WRIT PETITION NO.3834 OF 2010 Between: P. Venkat Reddy, S/o. P. Narayan Reddy ..... PETITIONER AND 1 High Court of AP represented by its Registrar General, Hyderabad & others .....RESPONDENTS WP 3835 OF 2010 Between: N. Purushotham Reddy, S/o.N. Shankar Reddy Petitioner…. & 1. High Court of AP represented by its Registrar General, Hyderabad & another Respondents… THE HON’BLE SRI JUSTICE GHULAM MOHAMMED & THE HON’BLE SRI JUSTICE G. CHANDRAIAH WRIT PETITION Nos.3834 OF 2010 & 3835 OF 2010 Common Order: ( per the Hon’ble Sri Justice Ghulam Mohammed ) Writ Petition No.3834 of 2010 is filed seeking a writ of mandamus to direct the 1st respondent to consider the case of the petitioner for promotion to the post of Assistant Registrar and revert respondents 2 to 20 as they are not eligible to be promoted as Assistant Registrars/Deputy Registrars. 2. The facts stated are:- the petitioner was initially appointed as Assistant on 01-4-1983 and promoted as Assistant Section Officer on 07-1-1997, later promoted as Deputy Section Officer on 11-2-2002 and thereafter further promoted as Section Officer on 11-3-2005 and since then he has been working as such. Respondents 2 to 20 were initially appointed as Court Masters, a post included in Category-6 of Division-I of Rule 3 of the Andhra Pradesh High Court Service Rules, 1975, for short “the Rules”. According to Schedule-I appended to the Rules, to hold the post of a Court Master, under Category-6, one must have passed Government Technical Examination with a speed of 180 words per minute (wpm) in shorthand and Typewriting Higher Grade. It is stated that the 1st respondent-Registrar General has communicated seniority list of officers of the posts under Categories-2 to 4 of Division-I, working in High Court of Andhra Pradesh as on 1-7-2009. The case of the petitioner is that he came to know from said list that respondents 2 to 20 did not fulfil the requisite qualification of 180 words per minute in Shorthand as per Schedule-I of the Rules, and hence stated that they are not entitled to be appointed as Court Masters and further promoted as Assistant Registrars/Deputy Registrars, respectively. It is also his case that promotions of respondents 2 to 20 as Assistant Registrars/Deputy Registrars are contrary to the Rules as their initial appointment as Court Masters itself was contrary to the Rules. 3. It is further stated that according to Rule 8 of the Rules, no person shall be eligible for appointment as a ‘Full Member’ in the Categories 1 to 4 of Division-I, unless he qualifies himself in the Accounts Test for Executive Officers within the period of probation. The respondents 2 to 4, 6 and 13 to 18 did not pass the Accounts Test for Executive Officers so far. According to Rule 11 (2) of the Rules, if a probationer fails to pass the prescribed Special Tests, the appointing authority shall by order discharge him unless the period of probation is extended under Rule 12. It is stated that no extension was granted to respondents 2 to 20 to pass the test. That even assuming if extension was granted, the period of probation cannot extend beyond a period of one year under Rule 12 of the Rules. Therefore, said respondents who have not passed the Accounts Test are liable to be discharged or reverted to the lower post. But contrary to the Rules, the respondents 2 to 20 were allowed to continue in the category of Assistant Registrars/Deputy Registrars and as such, the petitioner is deprived of promotion as Assistant Registrar. Hence, the writ petition. 4. The High Court of Andhra Pradesh represented by the Registrar General-1st respondent has filed counter affidavit. It is stated in the counter that respondents 5, 7 to 16, 18 and 20 were initially appointed in various departments and they were selected and appointed by transfer in Andhra Pradesh High Court Service, whereas respondents 2, 4, 6, 17 and 19 were appointed directly as Court Masters in AP High Court Service. As per the gradation list furnished to the employees working in Category-4 of Division-I, respondents 2, 3, and 5 to 20 did not possess required qualification, i.e., pass in Shorthand 180 words per minute. It is denied that respondent No.4 did not possess the required qualification, i.e., pass in Shorthand 180 words per minute. Respondents 6, 9 to 11, 14 and 17 are concerned, they possessed Shorthand 150 wpm at the time of their selection and respondents 12, 15 and 20 have acquired Shorthand 150 wpm qualification after their selection as Court Masters. Other respondent Nos.2, 3, 5, 7, 8, 13, 16, 18 and 19 passed the shorthand higher qualification of 120 words per minute at the time of selection. 5. It is further stated in the counter affidavit of first respondent that the usual procedure for selection of Court Masters in the High Court is that the Registry will place a note before the Hon’ble the Chief Justice bringing to His Lordship’s notice about the vacancies in the category of Court Masters; and as a practice, Hon’ble the Chief Justice will nominate a Committee of Hon’ble Judges for the selection process of Court Masters. Thereafter, as per the directions of the Committee of Hon’ble Judges, the Registry issues a publication in Newspapers, calling for applications from aspiring candidates who are having required qualifications, that is, pass in Shorthand Higher, Shorthand 150 wpm and Shorthand 180 wpm besides higher grade in typewriting and a degree in any discipline. Similarly, a circular will also be sent to all the District Courts informing the Unit Heads to obtain and forward applications of candidates who are having the above said qualifications for considering their names to the post of Court Masters, by transfer. The Committee of Hon’ble Judges constituted for the purpose of selection process select the candidates who have qualified in the separate test conducted by the High Court in Shorthand 180 wpm, though they did not possess shorthand 180 wpm pass certificate as required for appointment to the post of Court Master. That as per the selection made by the Committee of Hon’ble Judges, successive Hon’ble Chief Justices used to approve the list of selected candidates by giving relaxation to the selected candidates exempting from possessing the requisite qualification i.e., pass in shorthand 180 wpm under Rule 23 of the Rules. Accordingly, the candidates who were qualified in the tests conducted by the Registry were being appointed as Court Masters. Respondents 2, 3 and 5 to 20 were also exempted from passing shorthand 180 wpm at the time of their selection, and by virtue of their seniority they are being promoted to higher posts. It is submitted that there is dearth of qualified candidates for the post of Court Masters and whenever the Registry had issued the notifications calling for applications for the post of Court Masters, there were very few candidates, who have applied for the post having a pass in Shorthand of 180 wpm., that to avoid inconvenience to the Hon’ble Judges which, in fact, would result in hampering administration of justice, the Registry used to conduct the tests under the supervision of the Committee of the Hon’ble Judges and that based on the tests, the qualified candidates were being selected by relaxation of the Rule, i.e., pass in Shorthand English 180 wpm., by the Hon’ble Chief Justice. 6. It is also submitted in the counter that as per Rule 7(5) (a) of the Rules, an employee working in the Registry in Category 6 of Division-I is eligible for promotion, if he holds a Degree in Law of University in India and there is no specific rule requiring the employees who are working in Category 6 of Division-I to acquire a pass in Departmental Test, i.e., Accounts Test for Subordinate Officers, Part-I. Hence, initiation of action against the respondents as per Rules 11(2) and 12 of the Rules does not arise and the said Rules have no application in the matter. It is submitted that as per Rule 8 of the Rules, no person shall be eligible for appointment as a Full Member in categories 1 to 4 of Division-I, unless he qualifies himself in Accounts Test for Executive Officers within the period of probation, provided that the person who has already passed Part-I of the Accounts Test for Subordinate Officers shall not be required to pass the Accounts Test for Executive Officers. Every employee working in the Registry in the Category of 4 of Division-I shall have to pass the Accounts Test for Subordinate Officers- Part-I, to become a Full Member of the Registry. However, the promotions are being effected in the Registry from Category-6 to Category-4 even though the concerned individual does not pass the Accounts Test for Subordinate Officers-Part-I, as the said condition is only for declaring an employee as a ‘Full Member’ of the Registry, but not for considering their candidature for promotion to higher posts. 7. It is further stated in the counter that the petitioner while working as Deputy Section Officer he was promoted to the post of Section Officer on 11-3-2005, that at the time of his promotion as Section Officer, there were 118 Section Officers above him and that the case of the petitioner would be considered to the post of Assistant Registrar whenever his turn comes after the promotion of his seniors, who are eligible for promotion as per the seniority. The petitioner questions appointment/recruitment of respondents 2 to 20 made over decades back and, therefore, cannot lay such a claim at this belated stage. Any challenge to recruitment/appointment at a belated stage has to be rejected, as it seeks to distort the vested right and promotions which have accrued to the individuals during the intervening period resulting in complications in administration. Moreover, it is also the prerogative of the Hon’ble the Chief Justice to grant exemptions to any individual person or members of Andhra Pradesh High Court Service in matters of appointments/promotions etc., from possessing requisite qualifications, and the petitioner has no locus standi in this regard. Hence, it is stated that the writ petition is liable to be dismissed in limine. 8. A common counter affidavit has been filed on behalf of respondents 2, 4, 6, 7, 10, 12 to 15 and 20. It is submitted that the said respondents appeared for the Shorthand Tests conducted by the High Court at various speeds and on satisfaction of their performance, they were appointed as Court Masters, after relaxation of Rules by the Hon’ble Chief Justice, exercising powers under Rule 23 of the Rules, long back. The probation of the said respondents was declared long back, by relaxing the condition of passing 180 wpm in English Shorthand, and they were subsequently promoted as Assistant Registrars and some of them were promoted later as Deputy Registrars and hence the writ petition, filed at this point of time, is liable to be dismissed in limine, on account of laches. By virtue of the promotion of the respondents from time to time, the petitioner is estopped to question their promotion. Further, the writ petition as framed is not maintainable, as the orders of appointment, orders of regularization of services or orders declaring probation or orders of promotion of the said respondents have not been challenged by the petitioner. With regard to applicability of Rule 8 of the Rules, it is stated that one must pass the Accounts Test, during the period of his probation only for declaring him/her as a Full Member of the Registry, but not for considering the candidature for promotion to the higher post and that as per the Rules, even an approved probationer is entitled for being considered for promotion to the higher post. The petitioner has not challenged the power conferred on the Hon’ble the Chief Justice under Rule 23 of the Rules to relax the conditions and hence the petitioner has no locus standi to question the authority of the Hon’ble the Chief Justice in giving promotions/appointments by relaxing the relevant rules. Moreover, the petitioner is not an affected candidate. As per Rule 5 of the Rules, for promotion to the categories in Division-I, Assistant Registrars and above, one must be in the feeder category and should hold a degree of law of a recognized University in India. 9. Respondents 3, 9, 11, 16, 17 and 19 have filed separate counter affidavits inter alia on the same lines, as in the counter affidavit filed on behalf of respondent Nos. 2, 4, 6, 7, 10, 12 to 15 and 20, and submitted that there is no merit in the writ petition and the same is liable to be dismissed. 10. Respondent No.3 in her counter affidavit specifically submitted that promotion of respondents 2 to 20 as Assistant Registrars/Deputy Registrars has nothing to do with the petitioner, since there are two channels of promotion to the post of Assistant Registrar, i.e., Section Officers/Court Officers/Scrutiny Officers and Accounts Officers falling under Category 5, and Court Masters/ Personal Secretaries to Hon’ble Judges and Registrars falling under Category-6. In a unit of three promotional posts, the first two posts are to be filled up from category 5 and the third promotional post has to be filled from members belonging to category 6. Since the petitioner is working as Section Officer, he cannot challenge the promotions effected from the members belonging to category 6, i.e., respondents 2 to 20. 11. Respondent No.9 in his counter affidavit submitted that the Hon’ble the Chief Justice is the appointing authority for Category-6 of Division-I. One of the qualifications prescribed for the said recruitment to Category-6 is ‘a pass certificate in Government Technical Examination with a speed of 180 wpm in English Shorthand’. As there had been dearth of candidates possessing such high speed qualification, and to meet exigencies of service, candidates possessing the qualification in English Shorthand @ 120 wpm were made eligible to apply. In the recruitments, competitive tests in English Shorthand with varying speeds viz., 120 wpm, 150 wpm and 180 wpm were conducted and the Hon’ble the Chief Justice invited top rankers of such competitive tests for interview either by the Hon’ble the Chief Justice himself or by a Committee of Hon’ble Judges constituted for that purpose. The Hon’ble the Chief Justice or the Committee of Hon’ble Judges so constituted for the purpose, after screening confidential files and service registers, in the case of candidates belonging to any service, and examining their knowledge and mental abilities would make final selection and appointment, and that so far as direct recruits are concerned, those who were selected in the written examination and oral test/interview would be recruited, upon verification and satisfaction about the reports received from Police as to their antecedents. It is stated that there were instances where even those who were holding certificate of a pass in shorthand 180 wpm could not succeed in the competitive tests conducted by the High Court. It is only on the basis of a pass in the speed test of English Shorthand 180 wpm conducted by the Hon’ble High Court, the Hon’ble the Chief Justice, in his prerogative, would be pleased to grant exemption from passing the high speed examination conducted by the Board. The power to relax the Rules, vested with the Hon’ble Chief Justice under Rule 23 of the Rules, is an absolute power and it has been exercised in the best interests of the administration and it cannot be questioned by the petitioner. In case of appointment as ‘Full Member’ to categories 1 to 4 of Division-I, qualification of pass in “Accounts Test for Executive Officers” is prescribed. However, power to grant the exemption can be exercised by the Hon’ble the Chief Justice in the matter of appointment as Full members to the said categories, if persons concerned are otherwise eligible to be appointed/promoted to those categories in the opinion of the Hon’ble the Chief Justice. 12. Respondent No.16 in his counter affidavit submitted that the condition to the extent of obtaining a certificate is only relaxed, but the eligibility regarding the speed in Shorthand 180 wpm has been tested by the High Court by conducting a test in 180 wpm and only after due satisfaction as to the speed possessed by him and others in the said test, were appointed as Court Masters, by relaxing the Rule by the Hon’ble the Chief Justice, in exercise of the power under Rule 23 read with Rule 8(1)(b) of the Rules and Article 229 of the Constitution of India. The order of appointment issued to him by the High Court, vide proceedings in Roc.No.2005/91-Estt.1, dt.27.5.1992, itself clearly states that Rule 8 of the Rules to the extent of possessing speed of 180 wpm in English shorthand was relaxed by the Hon’ble the Chief Justice. With regard to pass in Accounts Test for Executive Officers is concerned, respondent No.16 submitted that he has passed the said test in June, 1987 itself as also the Accounts Test for Subordinate Officers Part-I in November, 1989 and he has also passed the Translation Test from English to Telugu and Telugu to English and that the entries to the said effect were made in his Service Register also, but the Registry while communicating the Gradation List dated 29.7.2009 of all the Officers belonging to Categories 2 to 4, has not mentioned the said entries. 13. A reply affidavit has been filed by the petitioner to the counter affidavit filed by the first respondent – High Court of Andhra Pradesh. It is submitted that though first respondent has stated in its counter affidavit that the Hon’ble the Chief Justice used to approve the list of selected candidates by giving relaxation to the selected candidates exempting from possessing the requisite qualification, there is no mention about the orders passed by the Hon’ble the Chief Justice relaxing the Rules in favour of respondents 2 to 20. It is submitted that it cannot be a general relaxation from possessing the basic qualification. Once the Rules prescribe a special qualification, the same cannot be relaxed. For declaring the employee as Full Member of the service, one must pass Accounts Test and failure to pass the said test leads to discharge from service under Rule 11(2) of the Rules, and the respondents, who failed to pass the Accounts Test for Executive Officers during the period of probation, shall be discharged. It is stated that a reading of Rules 2(5) and 8(1) of the Rules makes it clear that the appointments of respondents 2 to 4, 6, 13 to 18 are not regular and when their appointments are not regular, as per the Rules, they have to be discharged from service under Rule 11(2). It is submitted that the persons who were not regularly appointed as Assistant Registrars are being promoted as Deputy Registrars without taking action in accordance with the Rules. As it is not the case of the respondents that probation of the respondents was extended in terms of Rule 11, the respondents have to be discharged immediately after period of one year from the date of promotion. If the period of probation is extended, the same can be only for a period of another year and therefore after more than two years, the Assistant Registrars cannot be continued in service when they have not passed the Accounts Test for Executive Officers. It is further stated that first respondent cannot continue the respondents who are to be discharged in accordance with the Rules and if the respondents are reverted from the post of Assistant Registrars, he will get promotion earlier. When an appointment is illegal and contrary to the Rules, the said appointments can be cancelled at any time. A person who do not possess the basic qualifications cannot be allowed to continue in service and therefore the question of delay does not arise. It is stated that merely the power or prerogative of the Hon’ble Chief Justice in relaxing the Rules under Rule 23 is not assailed that cannot be construed that all illegal appointments are deemed to be regularized in relaxation of the Rules. 14. We have heard at length the learned counsel Sri JR Manohar Rao, learned counsel for the petitioner, Smt. M. Bhaskara Lakshmi, learned Standing Counsel for Andhra Pradesh High Court, Sri MVS Suresh Kumar, learned counsel for respondents 2, 4, 6, 7, 10, 12 to 15 and 20, Sri G. Vidya Sagar, learned counsel appearing for respondent No.3, Sri Mohammed Abdul Hameed, learned counsel for respondent No.9, Sri G. Shyam Sunder Rao, learned counsel for respondent No.11, Sri N. Siva Reddy, learned counsel for respondent No.16, Sri Andapalli Sanjeev Kumar, learned counsel for respondent No.17, and Sri Ch. Srinivas, learned counsel for respondent No.19. 15. Sri JR Manohar Rao, learned counsel for the petitioner, strenuously contended that the respondents 2 to 20 did not fulfil the requisite basic qualification of pass in English shorthand 180 wpm test conducted by the Andhra Pradesh State Board of Technical Education, for appointment to the post Court Masters and Personal Secretaries to Hon’ble Judges and Personal Secretaries to Registrars, and therefore the appointments made are not in accordance with the Rules. Learned counsel stated that the notifications ought to have been issued only in accordance with the Rules. The notifications issued for recruitment to the said posts contemplate that candidates who have passed 120 wpm in shorthand (English) test, conducted by the State Board of Technical Education ‘also can apply for the posts’, ought not to have been permitted and unless the Rules are amended, the 1st respondent cannot indicate such a concession in the notifications contrary to Rule 8 of the Rules. He contended that though the basic qualification under Rule 7(2) (d) of the Rules, for the posts of Category 6 of Division-I, is degree in any discipline and a certificate of pass in English shorthand 180 wpm being a special qualification, which is necessary for the Court Masters, prescribed by the Rule making authority, having regard to the nature of duties to be undertaken by them cannot be relaxed en-masse. Learned counsel for the petitioner further contended that though Rule 23 of the Rules confers power on the Hon’ble the Chief Justice to grant relaxation, the same may be given in specific and individual cases, so as to avoid hardship or to give opportunity to get the candidates qualified in accordance with the Rules, but general relaxation is impermissible. 16. Learned counsel for the petitioner also contended that under Rule 8 of the Rules, no person shall be eligible for appointment as a Full Member in Categories 1 to 4 of Division – I, unless he qualifies in the Accounts Test for Executive Officers within the period of probation, and that the period of probation is one year and the same can be extended for one more year. It is his contention that though respondents 2 to 4, 6 and 13 to 18 have not passed the Accounts Test for Executive Officers so far, they are allowed to continue in the category of Assistant Registrars/Deputy Registrars. Under Rule 11(2) of the Rules, if within the period of probation a probationer fails to pass the prescribed special tests, the appointing authority shall by order discharge him, unless it extends the period of probation under