IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY THE TWENTY SECOND DAY OF APRIL TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE D.S.R.VARMA & THE HON'BLE MR JUSTICE K.C. BHANU WRIT PETITION No.19668 of 2005 Between: T. Bal Raj S/o. Late T. Narsoji Special Court Constituted Under the A.P. Land Grabbing (P) Act, B.R.K.R. Bhavan, Tank Bund, Hyderabad, ..... PETITIONER AND 1 The Principal Secretary, Revenue/Special Chief Secretary to overnment (A & R) Secretariat Buildings, Hyderabad, 2 The Secretary to Government, Finance and Planning (Surplus Man Power) Secretariat Buildings, Hyderabad, 3 The Registrar, Special Court Under the A.P. Land Grabing (P) Act, B.R.K.R. Bhavan, Tank Bund, 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 be pleased to issue rule nisi calling for the entire records leading upto and inclusive of the order in Memo No. 20966/A & R/02 dt. 30-8- 2005 of the 1st Respondent herein and quash the same by issuing an appropriate writ, order or direction, in the nature of certiorari; and pass such further or other orders as this Honourable Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner: MRSYED SHAREEF AHMED Counsel for the Respondent No.: GP FOR REVENUE The Court made the following: Form-NIC-OGS/WP{VSMI} THE HON'BLE MR JUSTICE D.S.R.VARMA & THE HON'BLE MR JUSTICE K.C. BHANU WRIT PETITION No.19668 of 2005 ORDER: (per the Hon’ble Sri Justice K.C.Bhanu) The writ petition is filed to quash the order of the 1st respondent in Memo No.20966/A&R/02/dt.30.08.2005. 2. The brief facts that are necessary for disposal of the present writ petition may be stated as follows: 3. The petitioner was appointed by transfer to the Special Court as Assistant Section Officer, and thereafter, promoted to Court Officer, later promoted to the post of Assistant Registrar. The post of Assistant Registrar is a feeder post of the Deputy Registrar as being followed in the High Court of Andhra Pradesh, the Andhra Pradesh State Administrative Tribunal, the Lokayukta and Upa-Lokayukta as well the draft rules framed by the Chairman under the powers vested in him under Sec.10-A (2) of Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 (hereinafter referred to as ‘the Act’). 4. It is stated that in the absence of Registrar, the Chairman is facing difficulty to place incharge Registrar, as there was no post of Deputy Registrar and badly affecting the routine business of the office. In this regard, in a meeting comprising of Chairman and Members, it is resolved and requested to upgrade one of the post of Assistant Registrar to that of Deputy Registrar on 21.01.1997. It is stated that as there was stagnation in the post of Assistant Registrar, the petitioner is entitled for the automatic advancement increment as recommended by the Pay Revision Commission, on completion of 8 years, 16 years and 24 years. Since there was stagnation, the petitioner made representations dated 14.09.2001 and 08.10.2001 requesting respondent Nos.1 and 2 to sanction the Special Grade Promotion Scale as well as release of the increment under the Automatic Advancement Scheme as his promotion channel was marred. Thereafter, the 1st respondent directed the 3rd respondent to send specific proposals for conversion and upgrading the post of Assistant Registrar to that of Deputy Registrar, by letter dated 03.01.2002 on administrative grounds and in public interests. Accordingly, respondent No.3 on the very same day sent proposals, duly enclosing the statement of hierarchy post in the High Court and the other judicial institutions and requested to approve the same as the same was recommended by the Chairman, invoking powers under Regulation 12 of the Regulations framed under the Act. 5. Having received the proposals, and having issued orders in G.O.Rt.No.1490 Revenue (A&R) Department, dated 07.08.2003, the respondents failed to pass any orders, and subsequently without application of mind, passed orders negativing the proposals submitted by the 3rd respondent, stating that creating a channel to a non-existing post does not serve any purpose. Then the petitioner filed W.P.4551/2002 before this Court, and this Court by order dated 11.04.2005, directed the respondents to consider and dispose of the representations of the petitioner. Pursuant to the said orders, the impugned order is passed by the respondents. Hence the writ petition. 6. The 3rd respondent filed counter, stating that the representations of the petitioner were forwarded to the Government and the Government informed the 3rd respondent that any upgradation of post should be on administrative grounds and on public interest but not on personal consideration, and requested the 3rd respondent to send specific proposals for upgradation of the post of Assistant Registrar to the post of Deputy Registrar, if considered necessary, on administrative grounds and in public interest. Later, the 3rd respondent sent proposals to the Government for upgradation of the post of Assistant Registrar to that of Deputy Registrar. The Government negatived the proposals, vide letter No.860/A&R-2/2002-1, dated 12.04.2002, stating that creation of channel to a non-existing post does not serve any purpose. Existing of a similar post in sister organization is not a valid ground. It is further stated that the writ petitioner filed a writ petition for upgradation of one of the post of Assistant Registrar to that of Deputy Registrar and for considering his representations, and the Government through Memo No.2096/A&R/2002, dated 30.08.2005 rejected the request of the petitioner, and the Full Court meeting was held and resolved for upgradation of one of the post of Assistant Registrar to that of Deputy Registrar, and on the proposals sent by the 3rd respondent, a post of Secretary to Chairman in the rank of Deputy Registrar of Andhra Pradesh High Court Services was sanctioned, and therefore, this Court may pass appropriate orders. 7. Heard both sides. 8. The factual matrix is not in dispute. The petitioner was promoted to the post of Assistant Registrar w.e.f.01.01.1992 in the Special Court under A.P.Land Grabbing (Prohibition) Act, Hyderabad. This Court in W.P.4551/2002 by order dated 11.04.2005, directed the Government to dispose of the representation of the petitioner for upgradation of the post of Assistant Registrar to that of Deputy Registrar, and that representation of the petitioner was considered by the Government and passed the impugned memo No.20966/A&R/02, dated 30.08.2005, rejecting the upgradation of the post of Assistant Registrar to that of Deputy Registrar. Challenging the same, the present writ petition is filed. 9. The approved cadre strength of the Special Court is as follows: Category-I Registrar 1 Category-II Deputy Registrar -- Category-III (a) Asst.Registrars (b) Private Secretary to the Chairman in the cadre of Asst.Registrar 2 1 Category-IV (a) Section Officers (b) Court Officers (c) Accounts Officer 3 4 1 Category-V (a) Court Master & (b) Personal Asst.to Chairman 3 10. The learned counsel for the petitioner contended that in spite of specific proposals by the 3rd respondent by invoking the provisions of Sec.10-A (2) of the Act and Regulation-12, the Government, in spite of creating a post of Deputy Registrar by converting one post of Assistant Registrar, rejected the same without any reasons and the 3rd respondent is bound to implement the recommendations of the Chairman and the power vested in the Chairman of the Special Court is akin to the power of the Chief Justice of India under Article 229 (2) of the Constitution of India and hence he prays to set aside the impugned order and direct the Government to issue a Mandamus to upgrade one of the post of Assistant Registrar to that of Deputy Registrar. 11. The learned counsel, appearing for respondent Nos.1 and 2, is opposed the same, on the ground that as there was no post of Deputy Registrar available in the cadre strength, the question of upgradation does not arise. The Standing Counsel for 3rd respondent contended that the proposals of the Chairman have to be accepted. 12. Sec.10-A (2) of the A.P.Land Grabbing (Prohibition) Act, 1982 reads as under: “10A. Staff of the Special Court:- (1) The Chairman of the Special Court may appoint officers and other employees required to assist the Special Court in the discharge of its functions under this Act. (2) The categories of officers and employees who may be appointed under sub-section (1), their salaries, allowances and other conditions of service and the administrative powers of the Chairman of the Special Court shall be such as may be prescribed, after consultation with the Chairman.” 13. The learned counsel for the petitioner placed reliance on a decision reported in High Court of Judicature, Rajasthan v. Ramesh Chand Paliwal[1] wherein it is held that the power available to the Chief Justice of the High Court, under article 229, is akin to the power of Chief Justice of India under Article 146 of the Constitution of India. There is no dispute about the proposition of law laid down in the above said decision. 14. The learned counsel also placed reliance on another decision reported in State of Uttar Pradesh v. Section Officer Brotherhood & Anr.[2] wherein it is held that “a bare perusal of the aforementioned provision would clearly go to show that laying down the conditions of service applicable to the case of staff and officers of a High Court is within exclusive domain of the Chief Justice, but in case of any financial implication involving therein, the approval of the State Governor is imperative.” 15. The learned counsel for the petitioner placed reliance on a decision reported in The High Court Employees Welfare Assn., Calcutta v. State of W.B.[3] where in it is held that “The Governor under Article 229 (2) has the power to refuse grant of approval, provided there is “very good reason” for the same.” 16. The learned counsel also placed reliance on an unreported decision of this Court in W.P.191/2003, dated 06.11.2003 is in respect of the members of the Tribunals who have to be treated equally in matters of service conditions. 17. The above decisions have no application to the present facts of the case. 18. In the Full Court meeting of Land Grabbing, held on 21.01.1997, a resolution for upgradation to one of the post of Assistant Registrar to that of Deputy Registrar has been passed. It is not in dispute when Chairman sent draft service rules to the Government for its approval by exercising powers under Sec. 10-A (2) of the Act, the Government approved the Rules except the post of Deputy Registrar. So, admittedly, there was no sanctioned post in the category of Deputy Registrar. Creation of post is exclusively within the domain of the Government. When there was no post existing in the category of Deputy Registrar, the question of upgrading one Assistant Registrar post to that of Deputy Registrar post does not arise. 19. The further case of the petitioner is that he is entitled for Special Grade increments of automatic advancement increment of 8 years, 16 years and 24 years. The Government rejected his plea on the ground that the benefit of the automatic advancement increment scheme is intends for the persons who are eligible for further promotion, as per Rules. Further it is stated in the counter filed by the 1st respondent that the petitioner is not entitled for Special Grade increments under Automatic Advancement Scheme for the reason that he has attained the final Special Grade scale in 21st category enumerated in the Annexure attached to the G.O.Ms.(P) No.150, dated 01.09.199. One of the pleas of the Government is that the scheme of Automatic Advancement Scheme applies only to persons who are eligible for further promotion as per the Rules. Even according to the petitioner, he is not entitled for further promotion. Therefore, the question of granting automatic advancement increment scheme in respect of the petitioner does not arise. 20. There cannot be any dispute that the post of lower category can be upgraded in the higher category, provided there must be a post existing in the higher category. Admittedly, the post of Deputy Registrar is a non-existing post in the service rules governing the service conditions of the petitioner. Such is the case, the question of upgradation of one of the post of Assistant Registrar to that of Deputy Registrar which is non-existing post, does not arise. Admittedly, no proposals have been sent by the 3rd respondent for creation of post. Therefore, the 1st respondent rightly rejected the proposals of the 3rd respondent. Similarly, the 1st respondent has not sanctioned the automatic advancement increment, as the petitioner is not eligible for further promotion as per the rules. The impugned order does not suffer from any infirmities so as to call for interference by this Court. 21. The Writ Petition is devoid of merit and is dismissed. _____________________ D.S.R.VARMA,J ____________________________ K.C. BHANU, J Dated:22.04.2007 Dsr ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 The Principal Secretary, Revenue/Special Chief Secretary to overnment (A & R) Secretariat Buildings, Hyderabad, 2 The Secretary to Government, Finance and Planning (Surplus Man Power) Secretariat Buildings, Hyderabad, 3 The Registrar, Special Court Under the A.P. Land Grabing (P) Act, B.R.K.R. Bhavan, Tank Bund, Hyderabad, 4. 2CCs to 5. 2CD copies [1] AIR 1998 Supreme Court 1079 [2] 2004 (7) Supreme 739 [3] 2003 (8) Supreme 261