IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE ELEVENTH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 26338 of 2008 Between: Sri C. Sivandam S/o. Late Basavayya H.No. 16-2-169, Malakpet Paltan, Hyderabad. ..... PETITIONER AND Government of Andhra Pradesh, (Transport), rep. by Transport Commissioner, Hyderabad, Andhra Pradesh. .....RESPONDENT 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 call for the records from the respondents herein by issuing a Writ Order or Direction more particularly one in the nature of writ of Certiorari by quashing the Order dt. 11-10-2007 in O.A No. 2148 of 2003 in so far petitioner is concern by declaring the proceedings R.No. 40754/CI/89 dt. 20-2-2003 as perverse, illegal, unjust contrary to law and also in violation of Articles 14 and 21 of the Constitution of India and to pass Counsel for the Petitioner:MR.P.SRIDHAR RAO Counsel for the Respondent No.: GP FOR TRANSPORT The Court made the following : THE HONOURABLE SRI JUSTICE GHULAM MOHAMMED AND THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO. 26338 OF 2008 ORDER: (Per the Hon’ble Sri Justice Ghulam Mohammed) 1. This writ petition is filed by the petitioner seeking to quash the order, dated 11-10-2007 in O.A.No.2148 of 2003 and consequently to declare the Proceedings R.No. 40754/C1/89, dated 20-2-2003 as perverse and illegal. 2. The brief facts of the case are:- The petitioner was originally appointed as attender on 23- 4-1974 subsequently passed S.S.C. in October, 1980 The respondent by his Proc. Dated 16-11-1989 promoted the petitioner as Junior Assistant subject to the condition that he should pass two Departmental tests to be conducted by the A.P.Public Service Commission as per Rule 3 (14) (A) of A.P. Ministerial Service Rules. As things stood thus, in the year 1992 the respondent sought to revert the petitioner along with two other employees namely Sri T. Ganesh, Junior Assistant and Sri Satyanarayana Junior Assistant. They filed O.A No. 5952/1992 on the file of Tribunal and the Tribunal originally granted interim order dated 13-9-1992 against the orders issued by the respondent in reverting the petitioner along with two others from the Post of Junior Assistant to that of Attender/Shroffs. By virtue of interim orders granted by the Tribunal the petitioner and others were continued till final order have been passed in 2002. However, the respondent issued Proceedings R.No. 40754/C1/89, dated 20-2-2003 reverting the petitioner as attender with retrospective effect from 23-9- 1992. Assailing the Proc.R.No.40754/C1/89, dated 20-2-2003 the petitioner filed O.A.No.2148 of 2003. The Tribunal granted interim direction as prayed for on 9-4-2003. The petitioner further averred that in pursuance of the interim order, the petitioner have been continued as Junior Assistant till attaining the superannuation on 28-2-2005. The stand taken by the petitioner before the Tribunal was that promotion was given in the year 1989 and by virtue of experience and continuation as Junior Assistant itself amounts to gaining of sufficient experience in the category of Junior Assistant. 3. Per contra, the defence taken by the respondent is that the petitioner was promoted as Junior Assistant under the impression that the A.P. Public Service Commission would conduct the 2 Paper Tests every year and the petitioner has to pass 2 Paper Test. As the petitioner did not pass 2 Paper Test the matter was referred to the Government, Government issued Memo No. 1131/Tr.1(1)/91-3, dated 16-9-1992 stating that the promotions of the petitioner was irregular and directed to revert the petitioner. Accordingly, the revision orders were issued on 23-9-1992. However the petitioner did not fulfill the eligibility criteria of passing 2 Paper tests or acquiring the degree. Therefore, the respondent contends that the petitioner is liable to be reverted. 4. The Tribunal after considering the facts and circumstances of the case held that as per Rule 3 sub clause 14(a) the members of A.P. Last Grade Service and Members of other services shall not be eligible for appointment by recruitment by transfer for the post of Junior Assistant in the office of the Head of the department and Directorates, unless they hold a degree from a competent University and unless they have put in not less than 5 years of regular service in such categories. As per the proviso under the said rule the persons appointed in these categories in the offices specified in the above rule prior to 31st October, 1980, shall be eligible for appointment as Junior Assistant even if they do not possess a Degree of a University, but, they must possess the minimum general educational qualification and pass in the 2 Paper Test held by the A.P. Public Service Commission for recruitment to the post of Junior Assistant and put in not less than 5 years of regular service in the categories. As per Rule 3 (14)(b) the members of A.P. Last Grade Service cannot be appointed by recruitment by transfer to the post of Junior Assistant in Subordinate Offices and the Tribunal dismissed the O.A. Aggrieved by the said order of the Tribunal, this writ petition is filed. 5. Learned counsel for the petitioner contends that the petitioner discharged the duties as Junior Assistant till he attained the age of superannuation and he further contends that the no test was conducted by the A.P. Public Service Commission at that relevant point of time and that being the reason he did not pass the 2 paper test. If the A.P. Public Service Commission would have conducted the 2 Paper Test he would have definitely passed the test. He placed reliance on the judgment of the Supreme Court in Sushil Kumar Yadunath Jha Vs. Union of India[1] wherein it was held as hereunder: “The Court must have regard to the circumstances in which the appellant accepted the terms of his fresh appointment which expressly stated that he would not be entitled to continuity in service. The appellant was in no position to bargain for a better deal and in the straightened circumstances in which he found himself he was compelled to accept whatever was dictated to him. This, however, does not mean that the sanctity of the contract between the parties should be given a go-by, but in the present case the subsequent conduct and the quality of his performance, of which high appreciation was recorded by his superiors, indicated that he should be relieved of the disadvantage suffered by him pursuant to that term in his contract of fresh appointment”. 6. In Om Prakash Sood Vs. Union of India[2], the Supreme Court has considered the effect of conditional acceptance of promotion. Employee, a Technical Assistant, accepting promotional post of Key Board Operator only conditionally. But, continuing to sign attendance register and drawing pay of lower post only. Held, he cannot be deemed to have accepted or served at the promotional post. Lower age of superannuation for the promotional post, therefore, inapplicable. Pension and retrial benefits directed to be paid accordingly. 7. In State of Kerala Vs. M. Mohammed Haneefa[3] , it was held that when once the writ petitioners had performed his duty as a teacher and he had been paid salary out of Government fund during the said period, the said period of services have to be treated as qualifying service for the purpose of computing pension. 8. We have perused the judgment of the Tribunal. The Tribunal dealt the issue elaborately and dismissed the O.A. However, it was observed by the Tribunal that pensionary benefits being a different cause of action, the petitioner has to file a separate O.A. for the release of his pensionary benefits. 9. On the other hand, learned Government Pleader contends that the petitioner has not passed the 2 Test Paper which is a condition precedent and the Tribunal has considered the matter in right perspective and the judgments relied upon by the petitioner is not applicable to the facts and circumstances of the case on hand. 10. We are of the considered opinion that petitioner has not fulfilled the condition precedent of passing 2 Paper Test conducted by the A.P. Public Service Commission and he also not acquired degree to be promoted as Junior Assistant and on the mistake Committed by the authority in promoting the petitioner as Junior Assistant, no mandamus can be issued to restore the illegality. 11. Having heard the counsel for both parties, we have given anxious consideration and this Court hold that the petitioner was wrongly promoted and he has not pass 2 Paper Test or he acquired a degree which are the minimum criteria to be promoted as Junior Assistant. If the A.P.Public Service Commission has not conducted the 2 Paper Test at the relevant point of time, the petitioner ought to have opted to secure the degree certificate which is a condition precedent for promotion to the post of Junior Assistant. The petitioner has not acquired the degree. However, under the guise of interim direction of the Tribunal, he was allowed to continue and draw the salary of Junior Assistant. The stand of the petitioner that as he worked as Junior Assistant and therefore, he should not be reverted has no merit since he did not acquire the necessary qualification to hold the promotional post. 12. In the circumstances we do not find any infirmity in the impugned order of the Tribunal warranting interference of this Court under Article 226 of the Constitution of India. 13. Accordingly, this writ petition is dismissed. No order as to costs. ____________________________ Justice Ghulam Mohammed ______________________________ Justice B. Seshasayana Reddy 11th December, 2008. KM THE HONOURABLE SRI JUSTICE GHULAM MOHAMMED AND THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO. 26338 OF 2008 11th December, 2008. [1] (1986) 3 Supreme Court Cases 325 [2] (2003) 7 Supreme Court Cases 473 [3] 2006(7) SLR 588