THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO W.P.No.2138 OF 1998 ORDER: This writ petition has been instituted seeking a declaration that the action of the respondents in not considering the case of the writ petitioner for promotion as Section Officer on the ground that he was not a party to W.P.No.5702 of 1992, as illegal and consequently to direct the respondents to grant him promotion as a Section Officer, with effect from the date on which his immediate junior was so promoted, with all consequential benefits. The writ petitioner joined the service of the Andhra Pradesh State Legislative Assembly as an English Typist in the year 1960. He was promoted as an Assistant Section Officer in the year 1976. Without considering his case for promotion to the next higher post of Section Officer, several of his juniors have been so promoted. Hence, he submitted a representation, after his retirement from service, seeking parity of treatment with his juniors, but however, the same was turned down through memo dated 19-12-1997, issued by the Special Secretary to the State Legislature. His case was rejected, as he was not a party to W.P.No.5702 of 1992. Hence, the present writ petition came to be instituted. Prior to the formation of State of Andhra Pradesh, former State of Madras framed Rules on 13-08-1951 and the former State of Hyderabad, Rajpramukh of Hyderabad issued the necessary Rules on 27.07.1953, regulating the conditions of service of the respective State Legislative Assemblies. Under both these sets of rules, the qualifications for a person to be promoted to the category of Superintendent, is the minimum general educational qualification, namely, a pass in S.S.L.C. Earlier, the post which was known as Superintendent came to be re-designated in the year 1967 as Section Officer, conferring gazetted status on it. For the first time, the Special Rules regulating the conditions of service of the Andhra Pradesh Legislative Service were promulgated through G.O.Ms.No.82, dated 04-09-1979. In Annexure – I against the post of Section Officers, included in Category - 1 in Clause – IV of the service, the sources of recruitment are indicated. In Annexure – II against the post of Section Officer, it was stipulated that a person must hold Degree of a University. Thus, for the first time, when Rules were promulgated through G.O.Ms.No.82, dated 04-09-1979, such of those employees, who possess graduate qualification alone are rendered eligible for seeking promotion for the post of Section Officer. Validity of these Rules were challenged. The High Court has quashed the same as these have been promulgated by the Governor of Andhra Pradesh without consulting the Hon’ble Speaker of the State Legislative Assembly and consequently, they were found to be not inconformity with the requirements of Article 187 of our Constitution. Thereafter, Ad-hoc Rules, regulating the conditions of service of the employees of the Legislature, have been issued through G.O.Ms.No.66, dated 19-10-1983. In respect of the post of Section Officers, these Ad-hoc Rules rendered only the graduates as eligible for promotion. Ad-hoc Rules promulgated through G.O.Ms.No.66, dated 19-10-1983, are para materia the same as those promulgated through G.O.Ms.No.82, dated 04-09-1979. However, Rule – 11 of these Ad-hoc Rules, provided for a saving clause, which mentioned that these Rules shall not adversely affect the interests of any person, who is a probationer or an approved probationer in any class or category on the date of coming into force of these Rules as regards the qualification, promotion and other conditions of service. Virtually, this saving clause sought to protect those, who have already been promoted from one class or category to another class or category or posts, even though they may not be possessing the requisite qualifications as prescribed under the Ad-hoc Rules. The effect of these Ad-hoc Rules promulgated through G.O.Ms.No.66, dated 19-10-1983, rendered non-graduate Assistant Section Officers not eligible for promotion as Section Officers. Amongst several Assistant Section Officers, five Assistant Section Officers were found to be non- graduates and on the ground that they did not possess the graduate qualification, several of their juniors were promoted. In those set of circumstances, the validity of these Ad-hoc Rules, was challenged by instituting W.P.No.4854 of 1986, which was dismissed by this Court and the Ad-hoc Rules have been upheld, inasmuch as they were inconformity with Article 187 of our Constitution. The writ appeals preferred there-against have also failed. However, the five non-graduate Assistant Section Officers appeared to have taken up the issue for consideration of the Hon’ble Speaker. In the mean time, to mitigate, appropriately, the hardship that is caused by the new set of Ad-hoc Rules, new saving clause came to be incorporated through G.O.Ms.No.41, dated 10-09-1987. The new saving clause is to the following effect: “ Nothing in these rules shall adversely affect the interests of any person who is a Probationer in any class or category on the date of issue of these rules i.e., 19th October, 1983 as to qualifications, promotion and other conditions of service.” Significantly, this new saving clause brought about by G.O.Ms.No.41 of 10-09-1987 sought to protect the interests of the existing employees, who are probationers not merely as to the qualifications possessed by them, but also with regard to their right to seek promotion and other conditions of service. Thus, the door for consideration of the cases of the non-graduate Assistant Section Officers for promotion to the category of Section Officers has been opened by virtue of the orders passed through G.O.Ms.No.41, dated 10-09-1987. Taking all these aspects into consideration, the Hon’ble Speaker has taken a decision to enable the non-graduate Assistant Section Officers to be promoted as Section Officers and, as a result, orders have been issued through G.O.Ms.No.35, dated 17-05-1988. Some of the graduate Assistant Section Officers have challenged the validity of the orders passed in G.O.Ms.No.35, Legislature (OP-I) Department, dated 17-05-1988 by instituting W.P.No.10067 of 1989. After elaborate consideration of the entire issue, the said writ petition came to be dismissed by this Court on 20-04-1992. The two writ appeals preferred there-against, have also been dismissed. In the mean time, pursuant to an interim order passed on 24-04-1986 in W.P.No.4854 of 1986, the petitioner herein and his immediate junior by name Sri J. Sreeramachandra Murthy, who is also a non-graduate Assistant Section Officer, were both promoted as Sections Officers by an order dated 03-07-1986. However, that interim order dated 24-04-1986, has been vacated and hence, the orders of promotion issued in favour of the present writ petitioner as well as his immediate junior Sri J. Sreeramachandra Murthy, were cancelled through O.O.Rt.No.244/OP.I/86, dated 17-07- 1986. Significantly, W.P.No.4854 of 1986 came to be dismissed by this Court on 31-07-1986, thus, upholding the Rules issued through G.O.Ms.No.66, dated 19-10- 1983. Thus, the promotion order issued to the writ petitioner as a Section Officer did not enure to his benefit for long. To complete the factual narration, the writ petitioner came to be appointed, by transfer, as an Estate Officer, on 01-08-1989 and subsequently, he was promoted as Section Officer, with effect from 01-07-1992 and also retired from service on attaining the age of superannuation on 31-07-1993. Even after dismissal of W.P.No.10067 of 1989 on 20-04-1992, thus, upholding the validity of the amendment made to the Ahoc Rules through G.O.Ms.No.35, dated 17-05-1988, the cases of the non- graduate Assistant Section Officers have not been taken up for consideration. Hence, Sri J. Sreeramachandra Murthy and Sri V.V. Subrahmanya Sarma, who are non- graduate Assistant Section Officers, have instituted W.P.No.5702 of 1992. By a Judgment rendered on 15- 06-1993, a learned single Judge of this Court allowed the said writ petition and directed the respondents to consider their cases for promotion as Section Officers from the date on which their juniors were so promoted. As a measure of implementation of this Judgment rendered in W.P.No.5702 of 1992, Sri J. Sreeramachandra Murthy came to be promoted as a Section Officer with effect from 03-07-1986 and Sri V.V. Subrahmanya Sarma, with effect from 01-09-1986, through Office Order No.294/OP.I/94, dated 11-05-1994. It will be appropriate to notice that when W.P.No.10067 of 1989 has been instituted by the graduate Assistant Section Officers challenging the validity of G.O.Ms.No.35, dated 17-05-1988, making provision for consideration of the cases of the non- graduate Assistant Section Officers for promotion as Section Officers, a justification was offered in the counter affidavit filed therein pointing out that there are only five non-graduate Assistant Section Officers in service as at the time the Ad-hoc Rules were promulgated through G.O.Ms.No.66, dated 19-10-1983 and, in fact, two of them have already retired and there were only three remaining in service and therefore, the orders passed through G.O.Ms.No.35, dated 17-05-1988, will not gravely impact the other Graduate Assistant Section Officers. Therefore, the entire question boils down, as to whether the case of the petitioner for promotion on par with his junior Sri J. Sreeramachandra Murthy, to whom the benefit of promotion with effect from 03-07-1986, was conferred, is also liable to be considered or not. It will also be appropriate, right at this stage, to notice that it is specifically pleaded in the additional counter affidavit that the post of an Estate Officer and the post of a Section Officer are the initial gazetted posts in the same service and they carry identical status and scales of pay and that the writ petitioner has been promoted as an Estate Officer on 01-08-1989. By virtue of the Special Rules promulgated, initially, through G.O.Ms.No.82, dated 04-09-1979, for the first time, graduation qualification has been prescribed for promotion to the post of Section Officer. Prior thereto, the post of Superintendent was sought to be filled in by candidates possessing minimum general educational qualification, namely, a pass in S.S.L.C. Till such time these Special Rules, promulgated through G.O.Ms.No.82, dated 04-09-1979, are set aside by this Court, they held the field, hence, the writ petitioner cannot make a grievance out of non-consideration of his case as a Section Officer, for he lacks the qualification of graduation. Same is the case, in principle, when the Ad- hoc Rules have been promulgated through G.O.Ms.No.66, dated 19-10-1983, inasmuch as these Ad- hoc Rules have also prescribed graduation qualification for promotion as a Section Officer. In fact, the writ petitioner has joined along with others and challenged the validity of these Ad-hoc Rules by instituting W.P.No.4854 of 1986. That writ petition was dismissed by this Court on 31-07-1986. Therefore, the claim of the writ petitioner for promotion as a Section Officer could not have been legitimately undertaken at all, till these Ad hoc Rules are suitably amended. However, for the first time, a new savings clause has been incorporated by amending the Ad-hoc Rules through G.O.Ms.No.41, dated 10-09-1987, making it clear that nothing in the Ad- hoc Rules shall adversely affect the interests of any person, who is a probationer as regards the qualification, promotion and other conditions of service. Therefore, for the first time, a door for consideration for promotion has been opened up in favour of the non-graduate Assistant Section Officers as of 10-09-1987, thanks to G.O.Ms.No.41, dated 10-09-1987. This order was, subsequently, followed up by another order in G.O.Ms.No.35, dated 17-05-1988, making it explicitly clear insofar as consideration of non-graduate Assistant Section Officers for promotion as Section Officers. Therefore, no non-graduate Assistant Section Officer could have been promoted as a Section Officer any time prior to 10-09-1987, inasmuch as the Special Rules rendered them not eligible for such promotion at all. While giving effect to the Judgment rendered by this Court in W.P.No.5702 of 1992, the State Legislature has erroneously construed the legal-regime while passing orders through their Office Order No. 294/OP.I/94, dated 11-05-1994, by conferring promotion in favour of Sri J.S.R. Murthy (J. Sreeramachandra Murthy) from 03-07- 1986 and, on Sri V.V. Subrahmanya Sarma, with effect from 01-09-1986. In fact, they could not have earned any such promotion till the new saving clause has been introduced by way of amendment through G.O.Ms.No.41, dated 10-09-1987. Therefore, clearly, the Office Order No. 294/OP.I/94, dated 11-05-1994, is not inconformity with the legal-regime, which prescribed Graduation qualification for promotion of an Assistant Section Officer. Hence, I can not order for restoration of promotion in favour of the writ petitioner as a Section Officer with effect from 03-07-1986, the date assigned to Sri J. Sreeramachandra Murthy, though the said J. Sreeramachandra Murthy was junior to the writ petitioner herein. I will not be justified in ignoring the legal-regima, particularly, when W.P.No.4854 of 1986, instituted by the present writ petitioner and Sri J. Sreeramachandra Murthy, also has been dismissed by this Court by its Judgment dated 31-07-1986. Since, Sri J. Sreeramachandra Murthy and Sri V.V.Subrahmanya Sarma, are not parties to the present writ petition, I will not be justified in directing the respondents to rectify the Office Order No. 294/OP.I/94, dated 11-05-1994, appropriately. After all, no person shall be impacted behind his back. However, the fact remains that the writ petitioner herein has been promoted as an Estate Officer with effect from 01-08-1989. It was stated that the post of Estate Officer and that of a Section Officer occupy the same status and rank and also carry the same scale of pay. Therefore, between 17-05-1988, the date on which G.O.Ms.No.35, has been promulgated and 01-08-1989, if any junior graduate Assistant Section Officer, has been promoted as a Section Officer ignoring the claims of the writ petitioner herein, then he would be justified in making a grievance. In fact, the respondents could not have promoted any graduate Assistant Section Officer junior to the writ petitioner as a Section Officer on any day after 17-05-1988, for, by then, orders rendering non- graduate Assistant Section Officers as eligible for promotion have been issued through G.O.Ms.No.35, dated 17-05-1988. Hence, I am of the opinion that the relief, as prayed for in this writ petition, cannot be accorded. If the writ petitioner can demonstrate before the respondents that any junior to him in the rank of Assistant Section Officer has been promoted as a Section Officer between 17-05-1988 and 01-08-1989, he can seek restoration of the same date, to be assigned to him, with all consequential benefits, but not otherwise. Since, I do not find any justification to compel the respondents to commit an error, which they have committed by issuing Office Order No. 294/OP.I/94, dated 11-05-1994, by assigning 03-07-1986 as the date of promotion to Sri J. Sreeramachandra Murthy, I decline to grant the relief prayed for in writ petition. The Writ Petition stands disposed of in terms of what has been pointed out supra. No costs. --------------------------------- Nooty Ramamohana Rao, J mrk 19th March 2010