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2001 DIGILAW 563 (AP)

P. Nagabhushana Rao v. Commissioner and Director of Municipal Administration, A. P. , hyderabad

2001-06-11

S.B.SINHA, V.V.S.RAO

body2001
S. B. SINHA, CJ, J. ( 1 ) THIS writ petition is directed against a judgment dated 10-9-1999 passed by the Andhra Pradesh Administrative tribunal in OA No. 2681 of 1998. ( 2 ) THE petitioner filed the said original application before the learned tribunal praying to quash the proceedings dated 15-1-1998 passed by the second respondent herein and the consequential memo dated 17-3-1998 passed by the first respondent herein as also to declare that the petitioner herein is entitled for promotion/appointment by transfer to the post of Junior Assistant with effect from the date on which the fourth respondent herein was promoted thereto. The learned Tribunal has dismissed the said original application by the impugned order. Challenging the. same, the present writ application is filed. ( 3 ) AT the outset, we may also refer to the earlier orders passed by the learned tribunal dated 4-5-1998 disposing of the said OA 2681 of 1998 whereagainst a writ application being WP No. 1753 8 of 1998 was filed before this Court and a Division bench of this Court allowed the said application by order dated 28-7-1998 on the ground that the respondent has not put on notice prior to passing of the said order dated 4-5-1998 by the learned Tribunal. The learned Division Bench remitted back the matter for reconsideration of the same by the learned Tribunal. The learned Tribunal, upon reconsideration of the matter, having regard to the provisions of Rule 3 (14) (b) of the Rules, by the impugned order dated 10-9-1999, held that the appointment of the fourth respondent is not illegal and consequently dismissed the original application. ( 4 ) THE basic fact of the matter is not in dispute. The petitioner herein was appointed as an Attender in 1993 in the office of the second respondent after due selection. He acquired the degree qualification (graduation) in the year 1996 and his services have been regularised in the cadre of Attender. ( 5 ) ACCORDING to the petitioner, as per the A. P. Municipal Ministerial Subordinate service Rules, the sixth vacancy was earmarked for the feeder category of Attender and the eighth vacancy, for Drivers. He acquired the degree qualification (graduation) in the year 1996 and his services have been regularised in the cadre of Attender. ( 5 ) ACCORDING to the petitioner, as per the A. P. Municipal Ministerial Subordinate service Rules, the sixth vacancy was earmarked for the feeder category of Attender and the eighth vacancy, for Drivers. ( 6 ) THE learned Counsel for the petitioner, when questioned, very fairly stated that the only question that arises for consideration in this writ petition is interpretation of Rule 3 (14) (b) of the said rules, which reads thus:"3 (14) (B): Record Assistants and members of equivalent categories in other services and members of A. P. Last Grade Services and members of other services shall not be eligible for appointment by recruitment by transfer to the post of Junior Assistants, typists and Junior Stenographers in the subordinate Offices viz. , Offices other than the Heads of Departments and Directorates unless they possess the qualification of pass in Intermediate Examination and the other qualifications prescribed and put in not less than five years of regular service in such categories. Provided that those appointed prior to 29-10-1987, may be considered for appointment by recruitment by transfer to the posts mentioned above, if they possess minimum General Educational Qualification and put in not less than five years of regular service. " ( 7 ) IT is not in dispute that the fourth respondent was appointed as Driver on 19-10-1987. He possessed 10th Class qualification prior thereto. It was, however, submitted by the learned Counsel for the petitioner that the said respondent had passed Matriculation in March, 1997 and in this connection our attention has been drawn to the following paragraph of the counter-affidavit. According to the above rule position those appointed prior to 29-10-1987 and possessed 10th Class (Minimum General Qualification) either before 1987 or after 1987 and put in not less than five years of regular service are eligible for promotion since there is no clear indication that they should pass 10th Class prior to 1987. Therefore, Sri Ch. Tirumala Rao, who has been appointed on 19-10-1987 and passed 10th Class in march, 1997 and eligible as per Government memo No. l287/ser. B/93-lgad (Ser. B) dated 29-10-1983 has been promoted. According to the above rule position sri Ch. Therefore, Sri Ch. Tirumala Rao, who has been appointed on 19-10-1987 and passed 10th Class in march, 1997 and eligible as per Government memo No. l287/ser. B/93-lgad (Ser. B) dated 29-10-1983 has been promoted. According to the above rule position sri Ch. Tirumala Rao was appointed as driver in the fourth respondent office prior to 29-10-1987 i. e. , on 19-10-1987 and completed 5 years of service and passed 10th Class. He is eligible for promotion as junior Assistant as per Government memono. l287/ser. B/93-l GAD (Ser. B), dated 29-10-1983 and as per Rule 14 (b) of a. P. Ministerial Services Rules. ( 8 ) THE learned Counsel would contend that having regard to various clarifications issued by the State as also the Municipal commissioner, it appears that the possession of the said qualification as on that date was a sine qua non for consideration of the case of an employee for being appointed by way of transfer to the post of Attender. The petitioner, as noticed above, has challenged the proceeding Roc No. 111/98- al dated 15-1-1998 wherein it has been recorded:"sri Ch. Tirumala Rao, Driver of this office in his representation 3rd read above has requested the Regional Director-cum- appellate Commissioner of Municipal administration, Visakhapatnam to kindly promote him as Junior Assistant as he has passed 10th Class Examination and also completed 10 years of service in the cadre of driver as per G. O. 1st read above and as per the Government Memo 2nd read above and also as per the clarification issued by the commissioner and Director of Municipal administration, Andhra Pradesh Hyderabad in the ref. 4th read above. " ( 9 ) THE learned Tribunal also in its order impugned in this writ petition has arrived at a finding of fact that the fourth respondent possessed the requisite qualification for being appointed in the said post in terms of proviso to Rule 3 (14) (b) of the Rules. So far as the averments made in the counter-affidavit affirmed by the second respondent are concerned, we are of the opinion that the same have to be read as a whole and so read, there cannot be any doubt whatsoever that a typographical error has crept in and in place of march 1987 , march 1997 has been mentioned. So far as the averments made in the counter-affidavit affirmed by the second respondent are concerned, we are of the opinion that the same have to be read as a whole and so read, there cannot be any doubt whatsoever that a typographical error has crept in and in place of march 1987 , march 1997 has been mentioned. In any event, having read the proviso the Rule 3 ( 14) (b) of the Rules, we are of the opinion that the possession of the said qualification prior to cut-off date was not a pre-requisite. ( 10 ) THE object and purport of inserting proviso to the said rule may be considered having regard to the fact that the same was substituted by G. O. Ms. No. 512 G. A. (Ser. B), dated 29-10-1987. The said proviso was inserted for protecting the rights of those who were appointed prior to 29-10-1987. It is thus evident that the possession of the minimum General Educational Qualifications must be had prior to the date when he is considered for promotion/appointment by way of transfer and not on the cut-off date namely, 29-10-1987. ( 11 ) FOR the reasons aforementioned, we do not find any merit in this writ petition. It is dismissed accordingly.