THE HON'BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION Nos.10075, 10268, 10293, 10355, 10356 and 12390 of 2009 COMMON ORDER: (Per GMJ) Since the issue involved in all these writ petitions is one and the same, they are being disposed of by this common order. W.P.No.10075 of 2009 is filed seeking to declare order dated 31.03.2009 passed in O.A.No.2428 of 2008 (rendered along with O.A.No.2200 of 2008 and batch) on the file of the Andhra Pradesh Administrative Tribunal, Hyderabad, as arbitrary and illegal, and to hold that the service rendered by the petitioners for more than one year earlier to the Mandal Revenue Inspector’s Training and during the period of Mandal Revenue Inspector’s Training as Assistant Section Officers (ASOs) with effect from 22.04.2005 and 24.04.2005 respectively, as Secretariat Service in pursuance of the observations made at para 26 of the impugned order while answering Point No.1. O.A.No.2428 of 2008 filed by the second respondent herein for consideration of her name for promotion as Section Officer for the panel year 2007-2008, and assailing inclusion of the names of the petitioners and respondent Nos.3 and 4 herein in the panel for promotion as Section Officer, was allowed by the Tribunal and the first respondent was directed to remove the names of the petitioners and respondent Nos.3 and 4 herein from the panel year 2007- 2008 for promotion as Section Officers and to consider the case of the second respondent for promotion by conducting a Review DPC, if she is within the zone of consideration and eligible for promotion and pass necessary orders within a period of eight weeks from the date of receipt of that order. W.P.No.10268 of 2009 is filed seeking to declare order dated 31.03.2009 passed in O.A.No.4844 of 2008 (rendered along with O.A.No.2200 of 2008 and batch) on the file of the Andhra Pradesh Administrative Tribunal, Hyderabad, as arbitrary and illegal, and to hold that the service rendered by the petitioner for more than one year earlier to the Mandal Revenue Inspector’s Training and during the period of Mandal Revenue Inspector’s Training as ASO with effect from 22.04.2005 as Secretariat Service in pursuance of observations made at para 26 of the impugned order while answering point No.1. O.A.No.4844 of 2008 filed by the second respondent herein assailing the action of the first respondent relaxing Rule 8 of the Andhra Pradesh State & Subordinate Service Rules, 1996 (for short ‘1996 Rules’), in favour of the petitioner and respondent Nos.3 and 4 herein and to consider him for promotion was allowed by the Tribunal and the first respondent was directed to remove the names of the petitioner and respondent Nos.3 and 4 herein from the panel year 2007- 2008 for promotion as Section Officers and to consider the case of the second respondent for promotion, if he is in the zone of consideration and eligible for promotion as Section Officer by conducting a Review DPC and to issue orders within a period of eight weeks from the date of receipt of the order. W.P.No.10293 of 2009 is filed seeking to declare order dated 31.03.2009 passed in O.A.No.4114 of 2008 (rendered along with O.A.No.2200 of 2008 and batch) on the file of the Andhra Pradesh Administrative Tribunal, Hyderabad, as arbitrary and illegal, and to hold that the services rendered by the petitioners for more than one year earlier to the Mandal Revenue Inspector’s Training and during the period of Mandal Revenue Inspector’s Training as ASOs with effect from 22.04.2005 and 24.04.2005 respectively as Secretariat Service in pursuance of the observations made at para 26 of the impugned order while answering point No.1. O.A.No.4114 of 2008 filed by the second respondent herein to consider her case for promotion for the panel year 2007-2008 and assailing the action of the first respondent in including the names of the petitioners and respondent Nos.3 and 4 herein was allowed by the Tribunal and the first respondent was directed to remove the names of the petitioners and respondent Nos.3 and 4 herein from the panel year 2007- 2008 for promotion as Section Officer and to consider the case of the second respondent for promotion, if she is in the zone of consideration and eligible for promotion as Section Officer by conducting a Review DPC and to issue orders within a period of eight weeks from the date of receipt of that order. W.P.No.10355 of 2009 is filed seeking to quash common order dated 31.03.2009 passed in batch of O.A.Nos.2200, 2428, 3446 of 2008 with M.A.Nos.417 and 496 of 2008, O.A.Nos.3655, 4114, 4844 and 4966 of 2008 to the extent of finding on point No.1 “whether the period of training as Revenue Inspector can be treated as Secretariat Service within the meaning of Rule 6 of the Andhra Pradesh Secretariat Service Rules” at paras 25 and 26 of the impugned order as contrary to Rule 6 of the Andhra Pradesh Secretariat Service Rules, 1998 (for short ‘1998 Rules). W.P.No.10356 of 2009 is filed seeking to quash the common order dated 31.03.2009 passed in batch of O.A.Nos.2200, 2428 and 3446 of 2008 with M.A.Nos.417 and 496 of 2008 and O.A.Nos.3655, 4114, 4844 and 4966 of 2008 to the extent of finding on point No.1 “whether the period of training as Revenue Inspector can be treated as Secretariat Service within the meaning of Rule 6 of the Andhra Pradesh Secretariat Service Rules” at paras 25 and 26 of the impugned order as contrary to Rule 6 of 1998 Rules. W.P.No.12390 of 2009 is filed seeking to declare the finding of the Tribunal in order dated 31.03.2009 in O.A.No.4844 of 2008 (rendered along with O.A.No.2200 of 2008 and batch) in so far as paras 25 and 26 are concerned as arbitrary and illegal. In W.P.Nos.10075, 10268 and 10293 of 2009, which are similar, the petitioners, apart from challenging the impugned order, seeking to count their training period as Secretariat service, and W.P.Nos.10355, 10356 and 12390 of 2009, which are similar, are filed questioning the finding at paras 25 and 26 of the impugned order. W.P.Nos.10075, 10268 and 10293 of 2009: The case of the petitioners in these writ petitions is that they belong to Scheduled Tribe Community and were initially appointed as Typists- cum-Assistants by way of direct recruitment through Andhra Pradesh Public Service Commission under a limited recruitment in April, 2002. They were promoted as ASOs in April, 2004. They claim that they are entitled to regular promotion as ASOs upon completion of three years service in the feeder category i.e., Typists-cum-Assistants, which period was completed in April, 2005 but, before that only they were temporarily promoted as ASOs. While working as ASOs, they were sent for Mandal Revenue Inspector Training in August, 2006. The probation period in the ASO category is one year as per Rule 11(b) of the Andhra Pradesh Secretariat Service Rules, 1997. Therefore, the period of probation in ASO category was completed in April, 2006. As per Rule 18(b)(i) of 1996 Rules, any extension of probation shall be taken within a period of eight weeks after the expiry of the prescribed period of probation of one year, however, no extension of probation was made in respect of the petitioners in ASO category. As per Rule 18(b)(ii) of 1996 Rules, a person is deemed to have completed the period of probation with retrospective effect even though no formal order is issued. Therefore, the petitioners are deemed to be approved probationers with effect from April, 2006. Having regard to the declaration of probation with effect from April, 2006, the period spent by them on training in respect of Mandal Revenue Inspector training shall be treated as the service rendered in the A.P. Secretariat, thereby they are fully eligible for their promotion as Section Officers (SOs) upon completion of two years of minimum service in ASO category counting the same with effect from April, 2005 as per Rule 6 of 1998 Rules. The petitioners were promoted as SOs in October, 2008 as their names were included in panel year 2007-2008. While the matter stood thus, the second respondent in each of these three writ petitions filed O.A.Nos.2428, 4844 and 4114 of 2008 respectively, before the Tribunal, challenging the promotion of the petitioners to the post of SOs stating that they were not eligible for such promotion as the service rendered by them during training cannot be treated as Secretariat service and they were not having two years of service as ASOs for including their names in the panel year 2007-2008 and consequently for promotion to the post of SOs. Along with the petitioners, Sri P. Krishna Mohan and Sri D. Golya, respondents herein, were also shown as party respondents in the O.As. and their promotion as SOs was also challenged. The said two employees were sent for training on 28.12.2005 and 24.10.2005 respectively, even before their completion of period of probation i.e., one year, while their dates of commencement of probation in ASO cadre is with effect from 05.05.2005. But the petitioners were sent for training after completion of the period of probation. Thus, there is difference in respect of the said two employees and the petitioners herein. However, the Tribunal directed to remove their names from the panel year 2007-2008. Therefore, the petitioners filed W.P.Nos.10075, 10268 and 10293 of 2009. The first respondent in these three writ petitions filed counter- affidavits stating that without completing the prescribed period of three years in Typists-cum-Assistants category, the petitioners and others were promoted as ASOs subject to the condition that their date of probation in ASO category will commence only after completion of the required minimum service of three years in the lower category of Typists-cum- Assistants in terms of instructions issued vide Government Memo dated 09.01.2001, as per which the petitioners’ probation in ASO category commenced from May, 2005. It is further stated that the petitioners, while working as ASOs in A.P. Secretariat, on their own request, were permitted to undergo training as Mandal Revenue Inspectors on deputation from August, 2006. This training is outside Secretariat service and is covered under A.P. Ministerial Service, which is under the administrative control of Chief Commissioner of Land Administration, Hyderabad. After completion of two years training period from August, 2006, they were repatriated to Secretariat service and they were posted as SOs. Therefore, they had worked as ASOs from April, 2005 to August, 2006 in A.P. Secretariat and rest of the period from August, 2006 to August, 2008 under the administrative control of Chief Commissioner of Land Administration. As such, the petitioners had worked as ASOs for a period of one year and four months and they have not completed the requisite period of minimum service of two years in ASO category. Though the Departmental Promotion Committee (DPC) in its meeting dated 04.02.2008 considered the names of the petitioners along with other ASOs for promotion as SOs for panel year 2007-2008, subsequently it was noticed that the names of the petitioners were erroneously included in the approved panel as they have not completed minimum two years period in ASO category. It is stated that as per Rule 8 of 1996 Rules, for appointment to a higher post either by promotion from one category to another within a service or by appointment by transfer from one service to any other service, a member of a service or class of a service, shall have satisfactorily completed his probation in the category from which he is proposed to be promoted or appointed by transfer to such higher post; as per Rule 6 of 1998 Rules, unless otherwise specified elsewhere in these rules, no person shall be eligible for appointment by transfer or promotion unless he has put in not less than three years of service but in no case shall it be less than two years, in the category from which promotion or appointment by transfer is made. Provided that in the case of appointment by transfer of ASOs including ASO (SC) or Special Category Stenographers in the Andhra Pradesh Secretariat Subordinate Service, the minimum service of three years shall be exclusive of any period of service rendered in any Non-Secretariat Department; as per instructions in G.O.Ms.10 dated 22.01.1993, foreign service including service on deputation does not count for probation in the parent department and therefore, the probationer sent on deputation suffers from the fact that, even though he puts in considerable period of service under foreign service organization, his interest in the parent department cannot be safeguarded by declaration of his probation unless rules are relaxed. Instructions were also issued in Government Circular Memo dated 12.10.1976 to the effect that only approved probationers need be sent on deputation/foreign service; and that as per clause (c) of Rule 6 of 1996 Rules, 1st September of the every year should be reckoned as the qualifying date to determine one’s eligibility for promotion to higher posts either in Selection posts or in non- selection posts. In view of the above, according to the first respondent, as the petitioners had worked as ASOs only for a period of one year four months, they are not eligible for inclusion of their names in the panel of ASO fit for promotion to the post of SO for the panel year 2007-2008 as they have not completed the prescribed minimum service of two years in the feeder category i.e., ASOs as required under Rule 6 of 1998 Rules as on the qualifying date i.e., 01.09.2007. Therefore, it is stated that the names of the petitioners were erroneously included in the panel of ASOs fit for promotion to the post of SOs for the panel year 2007-2008. In the circumstances, the Tribunal in O.A.Nos.2428, 4844 and 4114 of 2008 ordered to remove their names from the panel year 2007-2008 for promotion as SOs. The first respondent stated that though the petitioners are deemed probationers in ASO category, they have not fulfilled the minimum service of two years in ASO category for promotion as SO as per Rule 6 of 1998 Rules. The learned counsel for the petitioners submitted that the Tribunal erroneously answered point No.1 “Whether the period of training as Revenue Inspector can be treated as Secretariat Service within the meaning of Rule 6 of A.P. Secretariat Service Rules?”, in favour of the second respondent herein and it erred in observing that petitioners and respondent Nos.3 and 4 herein were not approved probationers when they were sent for training. He further contended that while considering point No.2 ”Whether the Respondents 2 to 5 are eligible for promotion as Section Officers for the panel year 2007-2008?”, the Tribunal factually committed error in observing that the petitioners and respondent Nos.3 and 4 herein were deputed for training as unapproved probationers in ASO category and as such, the period spent by them on training cannot be counted for probation. The learned Government Pleader for Services II for the first respondent contended that the petitioners had worked as ASOs for a period of one year and four months and they have not completed the requisite period of minimum service of two years in ASO category. He further contended that though the Departmental Promotion Committee (DPC) in its meeting dated 04.02.2008 considered the names of the petitioners along with other ASOs for promotion as SOs for panel year 2007-2008, subsequently it was noticed that the names of the petitioners were erroneously included in the approved panel as they have not completed minimum two years period in ASO category and therefore, their names were deleted from the panel. W.P.Nos.10355, 10356 and 12390 of 2009: The case of the petitioners in these writ petitions is that they filed O.A.Nos.4114, 2428 and 4844 of 2008 respectively seeking promotion as SOs in the panel year 2007-2008 while challenging inclusion of the names of the petitioners and unofficial respondents Nos.3 and 4 in W.P.Nos.10075, 10268 and 10293 of 2009 as contrary to Rule 6 of 1998 Rules and Rule 10 of the Andhra Pradesh Secretariat Subordinate Service Rules, 1997. It is stated that the petitioners herein filed representations dated 25.02.2008 to that effect to the first respondent, who in turn, stopped promotions. However, the first respondent relaxed the Rules for giving promotions to the petitioners and unofficial respondent Nos.3 and 4 in W.P.Nos.10075, 10268 and 10293 of 2009 and the Tribunal allowed the aforesaid O.As. However, they seek to quash the findings of the Tribunal at paras 25 and 26 of the impugned order. Respondent Nos.4 and 5 in W.P.Nos.10355 and 10356 of 2009 and respondent No.2 in W.P.No.12390 of 2009 filed common counter-affidavit in these three writ petitions stating that as per Rule 6 of 1998 Rules, one has to put in not less than two years of service in the category from which promotion or appointment by transfer is made. Further, proviso to the said Rule contemplates the service in the Secretariat and therefore, the service rendered outside the Secretariat is not countable. Hence, the minimum two years of Secretariat service is required to be put in by an ASO for his promotion as SO, but not three years. These respondents state that having regard to the completion of two years of Secretariat service rendered by them in the category of ASO by April, 2007, they are fully eligible for their promotion as SOs and accordingly their names were placed before the DPC and they were promoted as SOs in Aug/Oct,2008 and therefore, no relaxation is required for their case. The first respondent also filed counter-affidavits in W.P.Nos.10355, 10356 and 12390 of 2009 in similar terms of counter-affidavits filed in W.P.Nos.10075, 10268 and 10293 of 2009. The learned counsel for the petitioners submitted that the unofficial respondents have not completed the required period of service in ASO cadre to get promotion as SO and therefore, the petitioners challenged their promotions and while so, the unofficial respondents obtained interim orders from the Tribunal and got promotion as SO. The learned counsel for unofficial respondents contended that since they have completed the required period of service in ASO cadre, there is no need for relaxation insofar their case as alleged by the petitioners, for promotion as SOs. The learned Government Pleader for Services II appearing for the first respondent contended that for promotion of a serving candidate or for direct recruit, qualifications as prescribed in the related recruitment rule has to be followed strictly and they are following the same. The Rule position required to be considered for the purpose of disposal of these cases read as under: Rule 2(14) of 1996 Rules deals with “Duty” and person is said to be “on duty” as a member of a service: Rule 2(18) of 1996 Rules reads thus: “Member of a service” means a person who has been appointed that service and who has not retired or resigned, or who has not been removed or dismissed, or substantively transferred or reduced to another service, or who has not been discharged otherwise than for want of a vacancy. He may be a probationer, an approved probationer or confirmed member of that service.” Rule 2(30) of 1996 Rules reads thus: “Service” means a post or a group of posts or categories of posts classified by the State Government as State or Subordinate Service, as the case may be: Provided that for the purpose of requirement, probation and transfer, each class included in the Andhra Pradesh General Service and the Andhra Pradesh General Subordinate Service shall be regarded as a separate service. Note: Where the context so requires “Service” means the period during which a person holds a post in accordance with these rules, special or Ad-hoc rules except Rule 10 or a lien on a post or is a member of a service as above defined.” Rule 8 of 1996 Rules reads thus: “8. Eligibility for promotion or appointment by transfer: For appointment to a higher post either by promotion from one category to another within a service or by appointment by transfer from one service to another service, a member of a service or class of a service, shall have satisfactorily completed his probation in the category from which he is proposed to be promoted or appointed by transfer to such higher post.” Rule 9(b) of 1996 Rules reads thus: 9. Appointment by agreement or contract:- “(b) A person appointed under sub-rule (a) shall not be regarded as a member of the service, in which the post to which he is appointed, is included and shall not be entitled by reason only of such appointment, to any preferential right to any other appointment in that or in any other service.” Rule 18(b)(ii) of 1996 Rules reads thus: 18. Declaration of probation:- (b)(ii) If no order as referred to in sub-rule (a) is issued within one year from the date of expiry of the prescribed or extended period of probation, the probationer shall, subject to another provisions of these rules, be deemed to have completed satisfactorily his probation with retrospective effect from the date of expiry of the prescribed or extended period of probation and a formal order to that effect may be issued for purpose of record: Provided that nothing in this sub-rule shall apply to a probationer who has been communicated a memorandum of charges during the prescribed or extended period of probation or who has failed to acquire the special qualifications or to pass the special tests, if any prescribed in the special rules or to acquire such other qualifications, as may be declared by the State Government or by the appointing authority with the approval of the State Government, to be equivalent to the said special qualifications or special tests, within the said period of probation. Rule 6 of 1998 Rules reads thus: “Minimum Service:- Unless otherwise specified elsewhere in these rules, no person shall be eligible for appointment by transfer or promotion unless he has put in not less than three years of service but in no case shall it be less than two years in the category from which promotion or appointment by transfer is made. Provided that in the case of appointment by transfer of Assistant Section Officers including Assistant Section Officer (SC) or Special Category Stenographers in the Andhra Pradesh Secretariat Subordinate Service, the minimum service of three years shall be exclusive of any period of service rendered in any Non-Secretariat Department.” F.R.9(6) of the Andhra Pradesh Fundamental Rules (for short ‘FR’) reads thus: (6) “Duty”- (a) Duty includes- (i) Service in India as a probationer or apprentice, provided that such service is followed by confirmation; (ii) Joining time (b) The State Government may issue orders declaring that, in circumstances similar to those mentioned below, a Government servant may be treated as on duty: (i) During a course of instrument or training in India; (ii) In the case of a student, stipendiary or otherwise, who is entitled to be appointed to the service of Government on passing through a course of training at an university, college or school in India during the interval between the satisfactory completion of the course and his assumption of duties. (ii-A) The State Government may declare that in the case of any particular class of Government stipendiary students, a period of training as a stipendiary before substantive appointment as a Government servant shall count for leave and increment of pay subject to any conditions which may be imposed in such declaration. (iii) During preparation in India for an examination in any oriental language. Subsidiary Rules under Rule 9(6), Sub-Clause (b)(i) of FR reads thus: 1. A list of authorized courses of instruction or training, of the Government servants who may be deputed and of the authorities competent to depute them is given in Annexure I. Under Rule 9(6), sub-clause (b)(iii) of FR reads thus: 2. The number of days actually required by a Government servant for proceeding to an returning from the station at which an obligatory departmental examination or an optional departmental examination which he is permitted to attend is held will be treated as