THE HON'BLE SRI JUSTICE GHULAM MOHAMMED and THE HON'BLE SRI JUSTICE K.G.SHANKAR WRIT PETITION Nos.24938 and 26675 of 2010 COMMON ORDER: (per Hon’ble Sri Justice Ghulam Mohammed) Both these Writ Petitions are filed assailing the legality and correctness of the order of the Andhra Pradesh Administrative Tribunal, Hyderabad in O.A.Nos.6470 and 6138 of 2010, dated 24.09.2010. Facts, in brief, are that the petitioners were initially appointed as Civil Assistant Surgeons on 14.08.1987 and in October, 1987 and they were promoted as Deputy Civil Surgeons on 20.07.2006 and 17.07.2006 respectively. The petitioners question the action of respondents in not considering their cases for promotion to the posts of Civil Surgeons before the Andhra Pradesh Administrative Tribunal, Hyderabad in O.A.Nos.6470 and 6138 of 2010. The petitioners state that as per the proviso to Category 3(a) of Rule 5 of the Andhra Pradesh Health and Family Welfare Service Rules, 2002 (for short ‘Special Rules’), a person, who completed 50 years of age as on the date of filling up of the vacancy, need not possess a Diploma in Public Health and, therefore, they are entitled to the said exemption. The petitioners contend that though they completed 50 years of age by September, 2010, they were not promoted and the panel was approved vide G.O.Ms.No.235 dated 31.08.2010. The petitioners filed the aforesaid O.As. to direct the respondents to consider their cases and promote them as Civil Surgeons in terms of the proviso appended to Category 3(a) of Rule 5 of the Special Rules and to include their names in G.O.Ms.No.235 dated 31.08.2010. By the impugned order, the Tribunal dismissed the O.As. holding that the petitioners had not attained 50 years of age even on the date of filling up of the vacancies. Dr. K.Lakshmi Narasimha, learned Counsel for the petitioners, drew our attention to the Andhra Pradesh Health and Family Welfare Service Rules, 2002 notified vide G.O.Ms.No.261, dated 28.06.2002. Learned Counsel contended that as per the proviso appended to Category 3(a) of Rule 5 of the Special Rules, the petitioners had completed 50 years as on the date of filling up of the vacancies and they need not possess the Diploma in Public Health. Learned Counsel contended that mere preparation of panels does not prohibit the cases of the petitioners’ being considered for promotion on the date of filling up of the vacancies and, therefore, preparation of panel does not tantamount to filling up of the vacancies. Learned Counsel further contended that the period for which the panel was prepared is irrelevant. Learned Counsel has drawn our attention to the judgment of the Supreme Court in Maya Mathew v. State of Kerala[1] to contend that the Tribunal has committed an error in relying upon the A.P. State and Subordinate Service Rules, 1996 (for short ‘General Rules’) since the Special Rules being subsequent to the General Rules, the subsequent rules would prevail over the General Rules. Learned Government Pleader for Services-I has also drawn our attention to Rule 5 of the Special Rules. Learned Government Pleader contended that as the dates of birth of petitioners were 10.05.1960 and 25.02.1960 respectively, both have completed 50 years of age only on 10.05.2010 and 25.02.2010 respectively and by the date of preparation of panel i.e.01.09.2009, neither they completed the prescribed age of 50 years nor they possessed the requisite Diploma in Public Health. Learned Government Pleader has also drawn our attention to Rule 6 of the General Rules to contend that it is a self-contained enactment dealing with preparation of panels, identification of eligible persons, approval of panels and also promotions. Learned Government Pleader contends that unless a panel is prepared, promotions/appointments cannot be made. Learned Government Pleader has also relied on Krishan Kumar v. State of Rajasthan[2] and British Airways Plc., M/s. v. Union of India[3] to contend that both the provisions of the General Rules and the Special Rules have to be read harmoniously to give effect to them. Before examining the rival contentions, it is necessary to extract certain provisions: Rule 6(a) to (c) of the General Rules reads thus: Method of preparation of panels: (a) The panel of approved candidates referred to in sub-rule (a) of rule 5 shall be prepared by the appointing authority or any other authority empowered in this behalf, in consultation with, the Departmental Promotion Committee in respect of posts outside the purviews of the Andhra Pradesh Public Service Commission and Screening Committee in respect of the posts within the purview of the Andhra Pradesh Public Service Commission to recommend the names to the Commission. The appointing authority shall make appointments of candidates from such panel/list, in the order in which the candidates in such panel are arranged in their order of preference. (b) The panel of candidates for appointment by transfer to a service or a class of service in any case, where the Commission is not consulted on the suitability of a candidate for such appointment under sub-clause (b) of Clause (3) of Article 320 of the Constitution of India or for promotion, shall be prepared ordinarily during the month of September every year on the basis of estimate of vacancies sent in terms of sub-rule (d). First September of the year shall be reckoned as the qualifying date to determine the eligibility of a candidate for such appointment, which shall cease to be in force on the afternoon of the 31st December of the succeeding year or till the next panel is prepared whichever is earlier and for the purpose of preparing the said panel, the zone of consideration shall be in the ratio of 1:3. The period from 1st September of the year to the 31st August of the succeeding year shall be reckoned for purpose of determining the number of vacancies during the panel. Provided further that if the number of candidates to be included in the panel falls short of the number of vacancies estimated, such shortfall shall be made good by considering the claims of the other qualified and eligible candidates, if any, in the seniority list placed immediately below. Provided also that the panel of candidates so prepared shall be reviewed after a period of six months reckoned from the date of approval of the panel, for the purpose of considering the cases of such other persons whose names were not included in the panel prepared earlier for not passing the prescribed tests or for not having special qualifications prescribed under the rules, if they have subsequently passed those tests or acquired the said qualifications and are otherwise found suitable for inclusion in the panel of the year. No such review of list of approved candidates shall, however, be undertaken where no tests or special qualifications are prescribed under the rules as condition precedent for promotion or appointment by transfer: Provided also that no panel of candidates need to be prepared: (i) if vacancies are not available for the particular panel period subject to the appointing authority recording a certificate to that effect; or (ii) where the appointing authority does not consider it necessary: Provided also that the Government may order preparation of panel of candidates as frequently as may be necessary in the exigencies of administration. (c) The panel of candidates for promotion or appointment by transfer to a service or class of a service, in ay case where it is necessary to consult the Commission on the suitability of candidates for such appointment shall be prepared ordinarily in the month of September every year reckoning 1st September of the year as the qualifying date for such appointment, which shall cease to be in force on the afternoon of the 31st December on the succeeding year or till the next panel is to be prepared whichever is earlier. The period from 1st September of the year to 31st August of the succeeding year shall be reckoned for purpose of determining the number of vacancies during the panel. Rule 5 of the Special Rules defines ‘qualification’ to mean that no person shall be eligible for appointment to the category specified in column (1) of the following Table by the method specified in the corresponding entry in column (2) unless he possess the qualifications specified in column (3) thereof. Class & Category Method of Recruitment Qualifications (1) (2) (3) Category-(3)(a): Civil Surgeon M u s t possess the following qualifications: (i) M.B.B.S. degree or an equivalent qualification as entered in the Schedule to the Indian Medicinal Council Act, 1956 as subsequently amended. ( i i ) Diploma in Public Health or B.S.Sc or an equivalent qualification. (iii) Must have completed 45 years of age on the date of filling up of the post. Provided that those who have completed 50 years of age on the date of filling up of the vacancies need not have the Diploma in Public Health qualification. It is evident from the above table that to acquire promotion, a person need not possess the Diploma in Public Health provided he/she had completed the prescribed age of 50 years as on the date of filling up of the vacancies. The petitioners have acquired the qualifications provided under item Nos.1 and 3. Their grievance is that as per the proviso to item No.3 since they had crossed 50 years of age by the date of filling up of the posts, they are entitled to the exemption under the said proviso and need not possess the qualification prescribed under item No.2. The contention that the petitioners are entitled to exemption under the proviso to Category 3(a) of Rule 5 of the Special Rules cannot be accepted as they have not completed 50 years of age on the date of preparation of panels. Rule 6(a) of the General Rules stipulates that the appointing authority shall make appointments of candidates from such panel/list, in the order in which the candidates in such panel were arranged in the order of preference. Rule 6(b) thereof stipulates that the 1st September of the year shall be reckoned as the qualifying date to determine the eligibility of a candidate for such appointment and it shall cease to be in force in the afternoon of 31st December of the succeeding year or till the next panel is prepared. The judgment of the Supreme Court in Maya Mathew (1 supra) relied on by the petitioners’ counsel is of no avail to them as it was relied on to contend that the proviso to Category 3(a) of Rule 5 of the Special Rules, which were enacted subsequently, would prevail over Rule 6 of the General Rules but, in the case on hand, the petitioners’ have neither acquired necessary qualification nor had acquired the prescribed age on the date of preparation of panels. In so far as the contention that the proviso to Category 3(a) of Rule 5 of the Special Rules would prevail over Rule 6 of the General Rules is concerned, even as on the date of preparation of panels for promotion to the posts of Civil Surgeons, the petitioners have not completed the age of 50 years and would acquire the prescribed age only on 10.05.2010 and 25.02.2010 respectively and, therefore, both the General and Special Rules would operate in a different and distinct manner. There is no repugnancy between both the provisions and they have to be read harmoniously so as to avoid ambiguity. I n British Airways Plc. (3 supra), the Supreme Court observed thus: “While interpreting a statute the Court should try to sustain its validity and give such meaning to the provisions which advance the object sought to be achieved by the enactment. The Court cannot approach the enactment with a view to pick holes or to search for defects of drafting which make its working impossible. It is a cardinal principle of construction of a statute that effort should be made in construing the different provisions so that each provision will have its play and in the event of any conflict a harmonious construction should be given. The well-known principle of harmonious construction is that effect shall be given to all the provisions and for that any provision of the statute should be construed with reference to the other provisions so as to make it workable. A particular provision cannot be picked up and interpreted to defeat another provision made in that behalf under the statute. It is the duty of the Court to make such construction of a statute which shall suppress the mischief and advance the remedy. While interpreting a statute the Courts are required to keep in mind the consequences which are likely to flow upon the intended interpretation.” (emphasis supplied) In Krishan Kumar (2 supra), the Supreme Court observed thus: “There appears to be some apparent conflict between S. 100(4) and S. 217(2) (e) of the Act. While Section 217(2)(e) permits finalisation of a scheme in accordance with S. 100 of the new Act sub-sec. (4) of S. 100 lays down that a scheme if not finalised within a period of one year shall be deemed to have lapsed. If the appellant's contention is accepted then S. 217(2)(e) will become nugatory and no scheme published under S. 68-C of the old Act could be finalised under the new Act. On the other hand if the period of one year as prescribed under S. 100(4) is not computed from the date of publication of the scheme under S. 68-C of the old Act instead the period of one year is computed from the date of commencement of the Act both the provisions could be given full effect. It is settled principle of interpretation that where there appears to be inconsistency in two sections of the same Act, the principles of harmonious construction should be followed in avoiding a head on clash. It should not be lightly assumed that what the Parliament has given with one hand, it took away with the other. The provisions of one section of statute cannot be used to defeat those of another unless it is impossible to reconcile the same. In Venkataramana Devaru v. State of Mysore[4], this Court observed: "The rule of construction is well settled that when there are in an enactment two provisions which cannot be reconciled with each other, they should be so interpreted that, if possible, effect should be given to both. This is what is known as the rule of harmonious construction." The essence of harmonious construction is to give effect to both the provisions. Bearing these principles in mind it is legitimate to hold that S. 100(4) prescribed period of limitation of one year in respect of the scheme proposed under the provisions of the new Act, while in the case of a scheme under 8. 68-C of the old Act, pending on the date of enforcement of the new Act, namely, 1-7-1989, the period of one year as prescribe prescribed under. 100(4) should be computed from the date of commencement of the new Act. This interpretation would give full effect to both the sections - S. 100(4) and S.217(2)(e) of the new Act.” (emphasis supplied) Though the proviso to Category 3(a) of Rule 5 of the Special Rules stipulates that those who have completed 50 years of age as on the date of filling up of the vacancies need not possess the Diploma in Public Health, the contention of the learned Counsel for the petitioners that mere preparation of panels does not include filling up of the vacancies and the actual date of filling up of the vacancies shall be taken as the qualifying date cannot be accepted. A reading of Rule 6(b) of the General Rules would go to show that the 1st September of the year shall be reckoned as the qualifying date to determine the eligibility of a candidate for appointment. The petitioners have not completed the prescribed age of 50 years by the date of preparation of the panel for the year 2009-10 i.e. 01.09.2009. The qualifying date is to be taken as the date of preparation of panels and not the date of filling up of the vacancies. Thus, the contention of the learned Counsel for the petitioners that the petitioners are entitled to exemption under the proviso to Category 3(a) of Rule 5 of the Special Rules does not merit acceptance. It is clear from Rule 6(a) of the General Rules that the appointing authority shall make appointments of candidates from such panel/list, in the order in which the candidates in such panel are arranged. Therefore, there is no repugnancy between these two provisions and they have to be read in a harmonious manner. For the aforesaid reasons, we do find any merit in the order of the Andhra Pradesh Administrative Tribunal, Hyderabad in O.A.Nos.6470 and 6138 of 2010, dated 24.09.2010. The Writ Petitions fails and are accordingly dismissed. No order as to costs. GHULAM MOHAMMED,J K.G.SHANKAR,J Dt:01.03.2011 usd [1] 2010(4) SCC 498 [2] AIR 1992 SC 1789 [3] AIR 2002 SC 391 [4] AIR 1958 SC 255