THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NO.6440 OF 2008 O R D E R (Per the Hon’ble Sri Justice G.Chandraiah) This writ petition is ﬁled for a writ of mandamus declaring the action of the 1st respondent – State of A.P. represented by its Secretary, General Administration (Services – C) Department, Secretariat, Hyderabad in issuing ad hoc Rule 5 in G.O.Ms.No.225 General Administration (Service C) Department dated 18.5.1999, as illegal and arbitrary and consequently declare that the said Rule 5 is made applicable only to the employees who are required to pass the departmental tests for further promotion, notwithstanding the fact that the employees who got one promotion from the initial appointment for which no departmental test is prescribed. 2. The case of the petitioner as set out in the aﬃdavit ﬁled in support of the writ petition and in the additional aﬃdavit is that he was appointed as Attender, Category 5, Division No.III, in the year 1982 for which the 7th class is the prescribed qualiﬁcation and subsequently, in the year 1988, he was promoted to the post of Record Assistant, which is a category 3© Division – III Post, for which 10th class is the minimum qualiﬁcation and seniority is required and after completion of graduation i.e., B.A. (Lit), he was promoted to the post of Assistant in the year 1994, which is a category-4 Division-II (non-gazetted) post. The 1st respondent – Government, with an intention that every employee gets one promotion without writing any departmental test who crosses 45 years of age, issued G.O.Ms.No.165 General Administration (Services. C) Department dated 22.4.1997, exempting those employees from passing the departmental tests, special tests prescribed in the special rules/ad hoc rules, for the purpose of promotion to the next higher category only i.e., the promotion or appointment by transfer to a post above the one held by him/her, if they could not pass the same. Subsequently, the Government have issued G.O.Ms.No.225 General Administration (Services.C) Department dated 18.5.1999 incorporating ad hoc Rule 5 with eﬀect from 22.4.1997 wherein it was stated that the persons who already got promotion once where no tests are prescribed for higher posts, the exemption is not applicable to him/her if he/she is to be considered for further promotion to the next higher category where tests are required. The case of the petitioner is that he got promotion from the post of Attender to that of Record Assistant and subsequently to the post of Assistant, only by virtue of possessing academic qualiﬁcation and seniority and that no departmental test is required to be passed. The necessity of passing the departmental test will arise only from the stage of Assistant. His further case is that the ad hoc rule is silent from which post the rule is to be made applicable. On the ground that he had got two promotions earlier from the stage of Attender, if the exemption granted under G.O.Ms.No.165 is not made applicable to him, though he had crossed 45 years, he will not get further promotion unless he passes the departmental test and the same is contrary to the intention of the Government. Therefore, he seeks a direction to the Government to the eﬀect that the rule comes into operation from the stage where the test is required to be passed notwithstanding the fact that the employee got earlier promotion by virtue of the his requisite academic qualiﬁcation without qualifying any departmental test. 3. Both the respondents ﬁled counter aﬃdavits to the eﬀect that the Government with an intention that the employees who have crossed 45 years of age and who have not secured a promotion at all in their service and who are not in a position to pass departmental tests at that age for securing promotion to the next higher post, issued G.O.Ms.No.165 General Administration (Services. C) Department dated 22.4.1997, exempting them from passing the departmental tests for the purpose of promotion to the next higher category. The said G.O. did not envisage or intend an enablement in favour of an employee to secure promotion after he crosses 45 years of age even though he had already secured promotion in his service with or without reference to passing departmental tests for earlier promotion. Therefore, it gave necessity for the Government to issue a clariﬁcation and accordingly Cir.Memo.No.10922/Ser.C/1998 General Administration (Ser.C) Departent dated 26.3.1998 was issued and the same was challenged in W.P.No.26310/1988 and this court by order dated 23.10.1998 allowed the writ petition. Subsequently, in order to ensure that the rule is applied for the beneﬁt of the persons intended, Government issued the impugned ad hoc rule 5 in G.O.Ms.No.225 General Administration (Ser.C) Department dated 18.5.1999 removing the ambiguity in the earlier rule, which clearly indicates that the Government employees who have crossed 45 years of age to secure at least one promotion during their service without requiring them to pass departmental tests prescribed for the promotional post, got exempted. It is stated that the petitioner had already secured two promotions one in the cadre of Record Assistant and another in the cadre of Assistant and, therefore, he is not entitled to the exemption from passing the departmental tests to the next promotion on the ground that he has crossed 45 years of age. It is stated that the Full Bench of this court in W.P.No.4337/2007 examined the true and correct interpretation of the adhoc rule notiﬁed in G.O.Ms.No.165, General Administration(Ser.C) Department dated 22.4.1997 as recast and notiﬁed in G.O.Ms.No.225 and held that the ﬁrst proviso to the ad hoc rule notiﬁed in G.O.Ms.No.225 restricting the beneﬁt of exemption, only to those who have not been promoted even once after their initial appointment in public service, would apply both to selection and non-selection posts. Therefore, in the counters it is stated that the issued involved in the present writ petition is no longer res integra and further the 2nd respondent denying the averment of the writ petitioner that similarly situated employees have been promoted by extending the exemption under G.O.Ms.No.225, sought for dismissal of the writ petition. 4. The petitioner ﬁled reply and denied the averments made in the counter affidavits and further reiterated the averments made in the writ petition. 5. From the above material the undisputed facts are that the petitioner was appointed as Attender in the year 1982 in the High Court of A.P. and he was promoted as Record Assistant and subsequently in the year 1994, he was promoted as Assistant. Therefore, his appointment to the post of Assistant is not by selection and it is by way of promotion i.e., he is holding a non- selection post. The Government issued G.O.Ms.No.165 General Administration (Services. C) Department dated 22.4.1997, exempting the employees who crossed the age of 45 years from passing the departmental tests, special tests prescribed in the Special Rules/Adhoc Rules for the purpose of promotion to the next higher category only i.e., the promotion or appointment by transfer to a post above the one held by him/her if they could not pass the same. As stated in the counter aﬃdavits the original rule did not envisage or intend an enablement in favour of an employee to secure promotion after he crosses 45 years of age even though he had already secured a promotion in his service either with or without reference to passing departmental tests for earlier promotion. Therefore, the Government issued earlier a circular in Memo NO.10922/Ser.C./1988 General Administration (Ser.C) Department dated 26.3.1988 and when the same was set aside in a writ petition in W.P.No.26310/1998 dated 23.10.1998, the Government issued G.O.Ms.No.225 General Administration (Ser.C) Department dated 18.5.1999 with ad hoc rule 5. The said rule 5 and the relevant portion of the proviso are extracted as under for better appreciation: “Not withstanding anything contained in the Andhra Pradesh State and Subordinate Service Rules or in the Special Rules or in adhoc rules, the Government employees who have crossed 45 (forty ﬁve) years of age, shall be exempted from passing the departmental tests prescribed in the special rules or the adhoc rules for the purpose of promotion to the next higher category i.e., promotion or appointment by transfer involving promotion to a post above the one held by him or her, if they could not get even one promotion after their initial appointment. Provided that the person who already got a promotion once whether no tests are prescribed for the higher post, the exemption is not applicable to him or her if he or she is to be considered for further promotion to next higher category where tests are prescribed. (This adhoc rule is applicable from the panel year 1997- 98). . . . . . .” 6. From the above rule 5 it is clear that the employees who have crossed 45 years of age, shall be exempted from passing the departmental tests prescribed in the special rules or the adhoc rules for the purpose of promotion to the next higher category i.e., promotion or appointment by transfer involving promotion to a post above the one held by him or her, if he could not get even one promotion after their initial appointment and the ﬁrst proviso to adhoc rule 5 clearly indicates what the persons who already got a promotion once where no tests are prescribed for the higher post, the exemption is not applicable to him if he or she is to be considered for further promotion to the next higher category where tests are prescribed. In the present case, the petitioner has already got two promotions i.e., to the Record Assistant and to the Assistant, for which no tests are required to be passed and hence in view of the proviso, he is not entitled for the exemption under ad hoc Rule5. Further this ﬁrst proviso to ad hoc rule in G.O.Ms.No.225 had fallen for consideration before a Full Bench of this court reported in GOVT. OF A.P. v. M.VENKATESWARLU [1] , in a reference made by the Division Bench of this court reported in REDNAM SATYANARAYANA MURTHY v. THE DISTRICT TRIBUNAL WELFARE OFFICER, EAST GODAVARI DISTRICT [2] . The Full Bench held that ﬁrst proviso to ad hoc rule notiﬁed in G.O.Ms.No.225 dated 18.5.1999 restricting the beneﬁt of exemption only to those not promoted even once after their initial appointment in public service applies both to selection and non-section posts. It was further held that the persons who secured promotion after their initial appointment in public service were disentitled, under the ad hoc rule notiﬁed in G.O.Ms.No.225 dated 18.5.1999, from claiming exemption from passing the departmental tests/special tests prescribed for further promotion to higher posts. Therefore, it is clear that the Full Bench of this court upheld the proviso to the adhoc rules. In view of the same, the issued raised by the petitioner is no longer res integra and the writ petition is liable to be dismissed. 7. For the foregoing reasons, the writ petition is dismissed. No costs. ------------------------------------ V.V.S.RAO,J ------------------------------------ G.CHANDRAIAH,J Date:30.07.2008 AVS [1] 2007(5) ALT 129 (FB) [2] W.P.NO.24912/2005 DAT ED 22.2.2006