IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE ELEVENTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE G. CHANDRAIAH WRIT PETITION NO : 6547 of 1999 Between: P.V.Sharma S/o.late Sri.P.V.Somayajulu Department, Hyderabad ..... PETITIONER AND 1 Government of Andhra Pradesh rep.by its Prl. Secretary TR&B Department, Secretariat Buildings Hyderabad 2 The Engineer in Chief (R&B) Department, Errummanzil, Hyderabad, AP 3 The Registrar A.P.Administrative Tribunal, Hyderabad .....RESPONDENT(S) 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 to issue a writ of certiorari or any other appropriate writ, order or direction calling for the records in OA.No.658/91 Dt.25/02/1999 on the ﬁle of the A.P.Administrative Tribunal, Hyderabad and quash the same so for as it relates to the interpretation of GO.Ms.No.627, GAD Dt.21/12/1993 as illegal, and as a consequence thereof direct the respondents 1 and 2 to grant me the ﬁrst place in the regular panel year 1981-82 and pass such other order. Counsel for the Petitioner: MR.K.V.SATYANARAYANA Counsel for the Respondent No.: GP FOR SERVICES II The Court made the following : ORDER: (Per Sri Justice GHULAM MOHAMMED) This Writ Petition has been ﬁled seeking writ of Certiorari calling for the records in O.A.No. 658 of 1991 dated 25.2.1999 on the ﬁle of the A.P. Administrative Tribunal, Hyderabad and quash the same so far it relates to the interpretation of G.O.Ms.No. 627, GAD dated 21.12.1983, as illegal. The petitioner herein after completing his graduation in Engineering from the R.E.C, Warangal, joined as Junior Engineer, in R& B Department of the Government of A.P on 8.9.1977. His appointment order is dated 29.8.1977 and his salary has been ﬁxed at Rs. 530/- per month. It is stated that the second respondent vide proceedings dated 19.5.1981 declared his probation of two years on duty as an Assistant Executive Engineer on 19.10.1979. It is also stated that he ﬁled O.A.No. 658 of 1991 seeking a direction to the respondents to consider his case for promotion to the post of Deputy Executive Engineer in accordance with note (1) of Rule 5 of A.P. Roads and Buildings Engineering Service Rules. After that he ﬁled M.A.No. 1087 of 1994 by which his prayer was permitted to be amended. By the amendment, he prayed for a direction to the respondents to consider him for promotion from 8.9.1980 placing reliance upon G.O.Ms.No. 627, GAD, dated 21.12.1983,which has replaced G.O.Ms.No. 85, GAD., dated 12.2.1979. While the O.A. was pending, the Supreme Court disposed of C.A.NO. 1710 of 1990 dated 3.2.1993, by which absolute preference for Post-graduates in case of promotion has been upheld. In the process of implementing the judgment of Supreme Court in C.A.No. 1710 of 1990 dated 3.2.1993 the ﬁrst respondent has issued orders in G.O.Ms.No. 308, TR & B (S.II) Department dated 23.11.1994 by which his name has been directed to be included in Zone VI at the top of the regular panel year 1983-84 of Deputy Executive Engineer’s (R&B) on the ground that he had completed ﬁve years of service as Assistant Executive Engineer by 8.9.1982. The Tribunal held that as the relief asked for by the applicant namely to give him notional date of promotion as DEE in terms of the decision of the Supreme Court in C.A. No. 1710 of 1990 dated 3.2.1993, has already been given, no further orders are necessary in the O.A., and accordingly disposed of the O.A as no orders are necessary. Aggrieved by the same, he filed the Writ Petition. The learned counsel appearing for the petitioner contended that he is a Post Graduate candidate and absolute preference has to be given to him for promotion to the post of Deputy Executive Engineer as held by the Supreme Court in C.A.No. 1710 of 1990 dated 3.2.1993. He also contended that the Tribunal has misinterpreted the provisions and ruling contained under proviso to Article 309 of the Constitution, which contained under G.O.Ms.No. 627 dated 21.12.1983 erroneously. He further contended that the authority instead of including his name for promotion for the panel of DEEs for the year 1980-81, included wrongly in the panel of DEEs for the year 1983-84 as he had completed three years of service as Assistant Executive Engineer to become eligible for promotion as Deputy Executive Engineer. On the other hand the learned Government Pleader submits that according to Rule 5 of the A.P. R&B Engineering Service Rules, an Assistant Executive Engineer has to put in a minimum ﬁve years of service to become eligible for promotion as Deputy Executive Engineer. The adhoc rule issued in G.O.Ms No. 627, GAD dated 12.12.1983 is applicable in cases where the special rules prescribe a service of “ordinarily 5 years” in the lower grade for the purpose of promotion or appointment by transfer to the higher categories. In this case as the Special Rules do not prescribe ordinarily 5 years of service in the category of Assistant Executive Engineers for promotion as Deputy Executive Engineer the adhoc rule is not applicable to the case of the applicant. As regards the request of the petitioner for application of the adhoc rule issued in G.O.Ms.No. 627, GAD dated 21.12.1983 and to promote him as Deputy Executive Engineer in the panel for 1981-82 based on that adhoc rule, merits no consideration and liable for rejection. He further submits that the Tribunal rightly disposed of the OA as no further orders are necessary in view of the decision of the Supreme Court in C.A.No. 1710 of 1990. Heard the learned counsel for the petitioner as well as the learned counsel appearing for the respondents. Under G.O.Ms.No. 627, General Administration (Ser- A) Department, dated 21.12.1983 the interpretation of Ad- hoc rules is as under: “Notwithstanding anything contained in the relevant Special Rules or the Ad-hoc rules for the State and Subordinate Services, the minimum period of “ordinarily” ﬁve years of service wherever prescribed in the said Rules for appointment of a member of a service from the lower category, class or grade to the next higher category, class or grade, whether such appointment is made either by promotion in the regular line or by recruitment by transfer from any other service, that period shall be reduced to ordinarily three years, but in no case shall it be less than two years, in the category , class or grade from which such promotion or transfer is made”. Be that as it may, the Supreme Court while disposing of C.A.No. 1710 of 1990 dated 3.2.1993 upheld the absolute preference for Post-graduates in case of promotion. The petitioner herein has completed his Post Graduation in Transportation Engineering from the R.E.C, Warangal, therefore, the preference should be given to the petitioner while eﬀecting promotion. In the process of implementing the judgment of the Supreme Court in C.A.No. 1710 of 1990 dated 3.2.1993 the ﬁrst respondent also issued order in G.O.Ms.No. 308, TR & B (S.II) Department dated 23.11.1994 by which his name has been directed to be included in Zone VI at the top of the regular panel year 1983-84 of Deputy Executive Engineer’s (R&B). The contention of the petitioner, that his name should be included at the top of the regular panel year 1981-82 because of the G.O.Ms.No. 627 GAD dated 21.12.1983 was not accepted by the Tribunal on an erroneous interpretation of the rule. Hence, as the petitioner completed his Post Graduation qualiﬁcation his name should be included in the regular panel year 1981-82. In the circumstances, the Writ Petition is allowed and the order impugned, in so far as it relates to the interpretation of G.O.Ms.No. 627 GAD dated 21.12.1993 is set aside and the petitioner’s name should be included at the top of the regular panel year 1981-82. It is needless to say that the petitioner’s pay shall be ﬁxed and he is entitled for all consequential beneﬁts. No order as to costs. _____________________________ GHULAM MOHAMMED ,J ___________________________ G. CHANDRAIAH, J Dt. 11.9.2008 KA ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 Government of Andhra Pradesh rep.by its Prl. Secretary TR&B Department, Secretariat Buildings Hyderabad 2 The Engineer in Chief (R&B) Department, Errummanzil, Hyderabad, AP 3. The Registrar A.P.Administrative Tribunal, Hyderabad 4. CC to GP for Services II , High Court of A.P. Hyderabad. 5. 2CD copies