IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY EIGHTH DAY OF OCTOBER TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.18533 of 2009 Between: The Government of A.P.represented by its Spl.Chief Secretary, Animal Husbandry, Dairy Development & Fisheries Department, Secretariat, Hyderabad and another ..... PETITIONERS AND M.Sudershan and another .....RESPONDENTS The Court made the following: THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.18533 of 2009 ORDER: (per Hon’ble Sri Justice Vilas V.Afzulpurkar) The petitioners who are respondents Nos.1 and 2 in O.A.654/2007 before the Andhra Pradesh Administrative Tribunal, Hyderabad (hereinafter referred to as “the Tribunal”) have challenged the order of the Tribunal dated 11.02.2009. 2. By the aforesaid order, the Tribunal had allowed the O.A. filed by the 1st respondent herein and declared the impugned memo dated 13.12.2006 of the 1st petitioner herein and consequential notice dated 29.01.2007 issued by the 2nd petitioner herein as unsustainable and quashed the same. 3. The facts in brief are as follows: The 1st respondent herein joined the service as Record Assistant on 09.07.1984. He was appointed by transfer as Junior Assistant on 23.11.1992, and as he was due for promotion as Senior Assistant, he was exempted from passing the Accounts Test, by order dated 15.02.1999, and he was promoted on 09.04.1999 as Senior Assistant. The said exemption that was granted to the 1st respondent herein by virtue of the policy of the Government vide G.O.Ms.No.165 General Administration (Ser.C) Department, dated 22.04.1997, as was clarified for further G.O.Ms.No.225 General Administration (Ser.C) Department dated 18.05.1999. The 1st respondent herein also claimed that seniority in the cadre of Senior Assistant was confirmed and his services as Senior Assistant were regularized vide proceedings dated 20.05.2000 and provisional combined seniority list of Senior Assistants/Stenographers as on 16.05.2001 show the names of the 1st respondent herein at Sl.No.18 and 2nd respondent herein at Sl.No.20. The 1st respondent also claimed that the 2nd respondent is admittedly junior to him and the said seniority was confirmed after rejecting the objections filed by the 2nd respondent herein. It was further claimed by the 1st respondent that even thereafter the 2nd respondent filed a representation before the 2nd petitioner herein dated 24.05.2005 objecting to the promotion of the 1st respondent as Senior Assistant by availing the exemption. Based on the said representation, the impugned memo dated 08.06.2005 was issued by the 1st petitioner herein holding that the 1st respondent herein was not entitled to avail the said exemption and consequently his promotion as Senior Assistant, based on the said exemption, was not sustainable and liable to be reviewed. Based on the said memo, the 2nd petitioner herein issued the impugned show cause notice dated 29.01.2007 to the 1st respondent calling upon him to submit his explanation. As mentioned above, questioning the memo and consequential show cause notice, the 1st respondent filed the aforesaid O.A. 4. The said O.A. was considered by the Tribunal in the light of G.O.Ms.Nos.165 and 225, referred to above, and in the light of the decision of the Division Bench of this Court in the case of J.Parvathalu vs. Andhra Pradesh Administrative Tribunal[1]. The Tribunal came to the conclusion that the exemption granted to the 1st respondent was in accordance with G.Os, referred to above, and the 1st respondent has already served more than seven years in the said promotional post, and accordingly allowed the O.A. by setting aside the impugned proceedings and held that the 1st respondent is entitled to all consequential benefits. Questioning the said order, the present writ petition is filed by petitioners Nos.1 and 2. 5. We have heard the learned Government Pleader, appearing for the petitioners and Smt.K.Rajyalakshmi, learned counsel appearing for the 1st respondent/applicant. 6. Though the proceedings impugned herein were initiated by the Government at the instance of the 3rd respondent in the O.A, she has neither appeared nor participated in the hearing before the Tribunal and though she is shown as party respondent herein, no relief is claimed against her. 7. The learned Government Pleader has contended that the Tribunal has totally misappreciated the G.O.Ms.No.165 dated 22.04.1997 and G.O.Ms.No.225 dated 18.05.1999. The learned Government Pleader has strongly relied upon the preamble in G.O.Ms.No.225 in support of his contention that the aforesaid scheme of the Government was only for the purpose of ensuring that an employee who remains in the same post in which he is recruited, without earning any promotion, should be able to get at least one promotion and for that purpose the exemption was specifically allowed at one point of time, at the stage of first promotion. The learned Government Pleader also contends that the 1st respondent was admittedly recruited as Record Assistant, and when he earned first promotion as Junior Assistant and thereafter further promotion as Senior Assistant. Thus, the post of Senior Assistant being not a post of first stage promotion of the 1st respondent, he is not entitled for the benefit of the exemption under the aforesaid G.Os. The learned Government Pleader relied upon the decision of the Full Bench of this Court in Government of A.P. and others v. M.Venkateswarlu[2] wherein the Full Bench has specifically answered the reference by holding as follows: “In the result, we answer the reference holding that the first proviso to the ad hoc rule notified in G.O.Ms.No.225 dated 18.5.1999, 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 and the contrary view expressed by the Division Bench in Rednam Satyanarayana Murthy v. The District Tribal Welfare Officer, East Godavari District (supra), does not lay down correct law.” 8. The learned counsel for the 1st respondent, however, contends that the said decision and the ratio is not applicable to the present case inasmuch as the appointment of the 1st respondent as Record Assistant, though not in dispute, thereafter, he was appointed as Junior Assistant by transfer. The said post of Junior Assistant held by the 1st respondent therefore cannot be said to be a post held on promotion. She further contends that the said post of Junior Assistant being not a post availed on promotion, the post of Senior Assistant is the first promotional post of the 1st respondent and therefore, the exemption was rightly granted to him and he has enjoyed the said benefit for several years before it is sought to be withdrawn. In those circumstances, the 1st respondent is compelled to approach the Tribunal and the said impugned proceedings were rightly set aside by the Tribunal. She also contends that the 1st respondent has since retired and his terminal benefits may be already settled and paid. 9. We have considered the above contentions. We are of the view that the distinction sought to be placed by the learned counsel for the 1st respondent on the fiction of promotion and appointment by transfer to the higher post does not exist, if we carefully see the rule framed in G.O.Ms.No.225. For the sake of convenience, the said rule together with provisos is extracted herewith. “Notwithstanding anything contained in the Andhra Pradesh State and Subordinate Service Rules or in the Special Rules or in ad hoc rules, the Government employees who have cross 45 (forty five) years of age shall be exempted from passing the departmental tests prescribed in the Special rules or the ad hoc 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 persons who already got a promotion once where no tests are prescribed for the higher post, the exemption is not applicable to him or her if or she is to be considered for further promotion to next higher category where tests are prescribed. (This ad hoc rule is applicable from the panel year 1997-98). Provided further that the exemption is applicable in case of departmental tests or special tests only, where they are prescribed as a pre-requisite for promotion and this exemption shall not be applicable where like technical or academic qualifications are prescribed for promotion to the next higher category of posts. Provided also that the exemption shall not be applicable for declaration of probation, where passing of departmental tests or special tests is a pre-condition for declaration of probation.” 10. It will be evident from the above that the rule clearly specifies that exemption is extended for the purpose of promotion to the next higher category. These words are further explained by following phrase ”promotion or appointment by transfer involving promotion to a post above the one held”. This, therefore, clearly covers the case of not only promotions but also appointment by transfer to higher post. The 1st respondent was admittedly appointed by transfer to the post of Junior Assistant which is the next higher post to the post of Record Assistant, initially held by him. The same, therefore, satisfies as a first promotion for the purpose of the present rules. Thus, if the 1st respondent has already given first promotion, the very scheme under the G.O.Ms.No.225 is not available to him. 11. The provisos-(1) and (2), quoted above, further clarify that the exemption is not applicable where a person has got promotion once where no test was prescribed for the higher post. Thus, the crucial aspect of the matter is being whether the person has earned any promotion or not. So far as the 1st respondent is concerned, it is evident from the above that he has earned one promotion as Junior Assistant within the contemplation of G.O.Ms.No.225, and as such, he is obviously not entitled to claim the benefit of the said G.O. at the second set of promotion, namely, while seeking promotion to the post of Senior Assistant. 12. The Tribunal has not appreciated these aspects and particularly when the Full Bench judgment, referred to above, was available, but neither of the parties apparently have not brought it to the notice of the Tribunal. Therefore, the order of the Tribunal is not in conformity with the said Full Bench Judgment as well as the scheme of G.O.Ms.No.225 and cannot be sustained and is liable to be set aside. Though the 1st respondent has approached the Tribunal at the stage of show cause notice, since the 1st respondent himself has claimed before the Tribunal that in view of the Government Memo, the show cause notice and enquiry are being only an empty formality, the entire issue on merits was decided by the Tribunal in the impugned proceedings. Since we have heard and decided the matter entirely on merits, nothing further remains to be adjudicated and the petitioners therefore, shall be free to give effect to the impugned memo in the light of this judgment. 13. The Writ Petition is accordingly allowed by setting aside the order of the Tribunal. However, there shall be no order as to costs. _____________________ V.ESWARAIAH,J _______________________________ VILAS V. AFZULPURKAR,J Dated: 28.10.2009 Dsr [1] 2002 Suppl.(1) ALD 430 (DB) [2] 2007(5) ALD 579 (FB)