S. B. SINHA, C. J. ( 1 ) HAVING heard the learned Counsel for the parties, we are of the opinion that the main writ petition itself could be disposed of. ( 2 ) THE petitioner was originally appointed as an Attender on 1. 8. 1968. On 7. 5. 1987 he was appointed by transfer to the post of Junior Assistant. ( 3 ) IN the year 1987, the Government of Andhra Pradesh issued G. O. Ms. No. 165 dated 22. 4. 1997 exempting Government employees who crossed 45 years of age from passing the Departmental Tests/special Tests prescribed in the Special Rules. Operative portion of the said G. O. reads thus:"notwithstanding anything contained in the A. P. State and Subordinate Service Rules or in the Special Rules or in Ad hoc Rules, the Government employees who have crossed 45 years of age shall be exempted from passing the Departmental Tests prescribed in the Special Rules/ad hoc Rules for the purpose of promotion to the next higher category (i. e. .) promotion/appointment by transfer to a post above the one held by him/her if they could not pass the same. "by virtue of the policy decision laid down in the said G. O. Ms. No. 165, dated 22. 4. 1997, although the petitioner did not pass the prescribed departmental tests, as he had crossed 45 years of age at that time, he was promoted to the post of Senior Assistant on 6. 12. 1997. The State Government, however, by G. O. Ms. No. 225, dated 18. 5. 1999 clarified its position to the effect 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 he or she is to be considered for further promotion to next higher category where tests are prescribed. (The ad hoc rule is applicable from the panel year 1997-98 ). " ( 4 ) ON or about 1. 2. 2000, pursuant to or in furtherance of the said G. O. Ms. No. 225, dated 18. 5. 1999, the petitioner was reverted from Senior Assistant to Junior Assistant. ( 5 ) QUESTIONING the said order of reversion an Original Application was filed by the petitioner before the teamed Tribunal. An interim order dated 7. 2. 2. 2000, pursuant to or in furtherance of the said G. O. Ms. No. 225, dated 18. 5. 1999, the petitioner was reverted from Senior Assistant to Junior Assistant. ( 5 ) QUESTIONING the said order of reversion an Original Application was filed by the petitioner before the teamed Tribunal. An interim order dated 7. 2. 2000 was passed suspending the said order of reversion-dated 1. 2. 2000 at the admission stage. ( 6 ) THE learned Tribunal, however, by reason of the impugned judgment dated 14. 6. 2001 refused to grant any relief in favour of the petitioner on the ground that the said G. O. Ms. No. 225 was made applicable for the pane! year 1997-1998. ( 7 ) MR. Surender Rao, learned Counsel appearing on behalf of the petitioner would submit that having regard to the fact that the petitioner had already been promoted as far back as 6. 12. 1997 as Senior Assistant, the vested right accrued in his favour could not have been taken away pursuant to G. O. Ms. No. 225, dated 18. 5. 1999. ( 8 ) MR. Samson Babu, learned Government Pleader for Services-III contends that a bare perusal of the aforementioned G. O. Ms. No. 225 would clearly show that the same has been given retrospective effect. ( 9 ) THE State Government, in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India framed the A. P. Ministerial Service Rules, 1966. No. 225 would clearly show that the same has been given retrospective effect. ( 9 ) THE State Government, in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India framed the A. P. Ministerial Service Rules, 1966. Clause (a) of sub-rule (14) of Rule 3 of the said Rules reads thus:"record Assistant and members of equivalent categories in other services and members of Andhra Pradesh Last Grade Services and members of other services shall not be eligible for appointment by recruitment by transfer to the post of Junior Assistants in the offices of Head of Departments and Directorates unless they hold a degree of a University in India established or incorporated by or under Central Act, Provincial Act, or a State Act or any other equivalent qualifications and unless they have put in not less than five years of regular service in such categories: provided that those appointed to these categories in the offices specified in this sub-rule prior to 15th December 1984 shall be eligible for appointment by transfer to the post of Lower Division Clerk even if they do not possess a degree of a University but they shall possess the following qualifications: (i) Minimum General Educational Qualifications: (ii) Pass in full test (two-paper test) held by the Andhra Pradesh Public Service Commission for recruitment to the post of Lower Division Clerk; (iii) Put in not less than five years regular service in such categories. " ( 10 ) THE petitioner, therefore, when appointed as Junior Assistant, the appointment was made by way of transfer and not by way of promotion. Furthermore, the post of Senior Assistant is a non-selection post as would appear from Rule 5 of the A. P. State and Subordinate Service Rules, which reads:"selection Posts :- (a) All first appointments to a State Service and all promotions/ appointments by transfer in that service shall be made on grounds of merit and ability, seniority being considered only where merit and ability are approximately equal, by the appointing authority as specified in sub-rule (a) of Rule 7 from the pane! of candidates. Such panel shall be prepared as laid down in Rule 6 by the appointing authority or any other authority empowered in this behalf. of candidates. Such panel shall be prepared as laid down in Rule 6 by the appointing authority or any other authority empowered in this behalf. (b) Non-selection posts :no non-Gazetted post should be treated as selection post-Promotion and appointment by transfer to higher posts other than those mentioned in sub-rule (a) shall be made in accordance with seniority-cum-fitness, unless: (i) such promotion or appointment by transfer of a member has been withheld as a penalty; or (ii) a member is given special promotion for conspicuous merit and absility. "in terms of the aforementioned rule, no non-Gazetted post is treated as a selection post. Promotion and appointment by transfer to a higher post other than the non-Gazetted post is required to be made in accordance with seniority cum-fitness. ( 11 ) IT is, therefore, in our considered opinion, preposterous to argue that G. O. Ms. No. 225 which came into force on 18. 5. 1999 would be applicable in this case inasmuch as for the purpose of promoting an employee from the post of Junior Assistant to Senior Assistant no panel is required to be prepared. A panel is required to be prepared only when the promotion is effected on merit-cum-seniority basis. It is now a well settled principle of law that a rule made in terms of the proviso appended to Article 309 of the Constitution of India can be given retroactivity, and that the same shall not be inferred as to have given retrospective effect unless it has been so provided expressly or by necessary implication. Having regard to the fact that in terms of the proviso appended to G. O. Ms. No. 225, retroactivity has been given only in relation to such posts where panel is required to be prepared, we are of the opinion that the said G. O. Ms. No. 225, dated 18. 5. 1999 cannot be said to have any application whatsoever in the case of the writ petitioner herein. This aspect of the matter having not been considered by the learned Tribunal, the impugned judgment cannot be sustained. Furthermore, even if a rule made under the proviso appended to Article 309 of the Constitution of India is given retrospective effect, the same cannot take away a vested right. This aspect of the matter having not been considered by the learned Tribunal, the impugned judgment cannot be sustained. Furthermore, even if a rule made under the proviso appended to Article 309 of the Constitution of India is given retrospective effect, the same cannot take away a vested right. In Chairman, Railway Board v. C. R. Rangadhamaiah, 1997 SCC (Lands) 1527, the Apex Court, while explaining the terminologies accrued right and vested right held:"it can, therefore, be said that a rule which operates in future so as to govern future rights of those already in service cannot be assailed on the ground of retroactivity as being violative of Articles 14 and 16 of the Constitution, but a rule which seeks to reverse from an anterior date a benefit which has been granted or availed of, e. g. , promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively. " ( 12 ) FOR the reasons aforementioned, we are of the opinion that the impugned judgment cannot be sustained and it is accordingly set aside. The writ petition is allowed. Having regard to our finding aforementioned, we do not intend to proceed with the contempt matter at this stage. It is accordingly closed, There shall be no order as to costs.