Research › Search › Judgment

Andhra High Court · body

2002 DIGILAW 1129 (AP)

G. Gopal Rao v. Government Of A. P.

2002-09-18

body2002
B. SUDERSHAN REDDY, J. ( 1 ) THIS batch of writ petitions may be disposed of by a common order inasmuch as all of them are preferred against the common order of the Andhra Pradesh Administrative Tribunal dated 1-2-1999 made in O. A. No. 3497 of 1995 and Batch (particularly against the orders in O. A. Nos. 3289 and 3881 of 1994; 294 and 1293 of 1995; 6296 of 1996 and 5435 of 1997 ). The legality, correctness and validity of the said order are impugned in all these writ petitions. ( 2 ) THE sum and substance of the dispute is with regard to the promotion of Assistant Executive Engineers to the post of Deputy Executive Engineers in both the Roads and Buildings Department and Irrigation Department in the Government of Andhra Pradesh. The dispute essentially is in between the graduate and postgraduate engineers. The Assistant Executive Engineers with post-graduate qualification claim absolute preference over the graduates in the matter of promotion to the posts of Deputy Executive Engineers. The Government acceded to their request and accordingly issued orders in G. O. Ms. Nos. 28 to 31, Transport, Roads and Buildings (Ser. II) Department, dated 16-2-1994 and G. O. Ms. Nos. 300 to 308, Transport, Roads and Buildings (Ser. II) Department, dated 23-11-1994 applying the rule of absolute preference to the post-graduate Assistant Executive Engineers in the matter of promotion to the posts of Deputy Executive Engineers up to the year 1983-84. The Government vide the said orders accordingly issued necessary orders revising the lists of the officers for the panel years 1975-76, 1976-77, 1977-78, 1978-79, 1979-80 and 1980-81. The Government while issuing the said orders considered the eligibility criteria of the postgraduate Assistant Executive Engineers in respect of each panel year. They were admittedly treated as a separate class, and only after their claims were considered the cases of graduates have been considered and the selections have been made on the basis of merit and ability. Preference was accorded to the post-graduate Assistant Executive Engineers at every selection and after duly giving such preference, the claims of graduate Assistant Executive Engineers who were also eligible for further promotion have been considered. ( 3 ) THE graduate Assistant Executive Engineers challenged the said decision of the Government in the Andhra Pradesh Administrative Tribunal in O. A. No. 3497 of 1995 and Batch (particularly in O. A. Nos. ( 3 ) THE graduate Assistant Executive Engineers challenged the said decision of the Government in the Andhra Pradesh Administrative Tribunal in O. A. No. 3497 of 1995 and Batch (particularly in O. A. Nos. 3289 and 3881 of 1994; 294 and 1293 of 1995; 6296 of 1996 and 5435 of 1997 ). The Tribunal allowed the said Original Applications filed by the graduate engineers and accordingly quashed the impugned governmental orders. ( 4 ) BEFORE adverting to the question as to whether the Tribunal committed any error in quashing the decision of the Government, it may be necessary to briefly notice the relevant facts alone without going into the details of the claims and counter claims of individual post-graduate and graduate engineers. ( 5 ) IN this writ petition, for the sake of convenience, we shall refer to the parties as post-graduate engineers and graduate engineers throughout this order. We shall also refer to the facts very briefly stated in W. P. No. 8002 of 1999 in order to appreciate the true nature and purport of the controversy between the parties and the issue that arises for our consideration. ( 6 ) THE petitioners therein were appointed as Assistant Executive Engineers (Junior Engineers) in the Roads and Buildings Department on 22-8-1971 and 7-11-1969 respectively after completing their post-graduation in Engineering on temporary basis under Rule 10 (a) (i) of the State and Subordinate Service Rules. The petitioners thereafter appeared and passed the Special Qualifying test conducted by the Andhra Pradesh Public Service Commission in 1975 and were regularised under G. O. Ms. No. 208, dated 19-3-1977 with effect from the date of their joining in the department. ( 7 ) THERE is no dispute whatsoever that the service conditions of the Assistant Executive Engineers including their promotions to the next higher posts are governed by the Rules known as "andhra Pradesh (Roads and Buildings) Engineering Service Rules, 1967" issued in G. O. Ms. No. 1023, Public Works (F1) Department, dated 27th June, 1967 (for short the Service Rules ). The post of Assistant Executive Engineer is in the category-VI of the said Service Rules. The next promotion from the post of Assistant Executive Engineer is to the post of Deputy Executive Engineer in category-V of the Service Rules. No. 1023, Public Works (F1) Department, dated 27th June, 1967 (for short the Service Rules ). The post of Assistant Executive Engineer is in the category-VI of the said Service Rules. The next promotion from the post of Assistant Executive Engineer is to the post of Deputy Executive Engineer in category-V of the Service Rules. ( 8 ) AS per Rule 3 (a) of the Service Rules one of the promotion channels to the post of Deputy Executive Engineer is from the post of Assistant Executive Engineer. Rule 5 provides that no person shall be eligible for appointment to the category and by the method mentioned in columns 1 and 2 respectively of the table unless one possesses the qualifications prescribed in the corresponding entry in column 3 thereof. Note-1 to Rule 5 mandates that preference to be given to the candidates possessing post-graduation qualification for promotion as Deputy Executive Engineer. The said note reads as follows:"post Graduate qualification of an Indian or of a Foreign University shall be treated as an additional qualification and preference shall be given to such candidates in the matter of direct recruitment, promotion or recruitment by transfer to the post of Assistant Engineer. "however, the Government vide G. O. Ms. No. 568, dated 27-12-1983 amended the above Note as follows:"the extent to which a Post Graduate has to be given preference in the matter of promotion to the post of Deputy Executive Engineer is as indicated below:- 9th vacancy in 9 vacancies intended for appointment of Assistant Executive Engineer and compressed Diploma Holders (D. C. Es.) as Deputy Executive Engineers shall however be earmarked for Post Graduate Assistant Executive Engineers. " ( 9 ) WE may have to notice that the un-amended Note-1 to Rule 5 of the Service Rules remained in operation with effect from 27-6-1967 until its amendment on 27-12-1983. It is the case of the petitioners that zone-wise seniority list in the category of Assistant Executive Engineers was not finalised up to 1982 and the promotions to the category of Deputy Executive Engineer were being made on temporary basis by taking the relevant date as the date of joining as Assistant Executive Engineers only. Since the promotions were being made on temporary basis, the post graduation preference was not taken into account and the petitioners were not promoted by taking their post graduation qualification into account. Since the promotions were being made on temporary basis, the post graduation preference was not taken into account and the petitioners were not promoted by taking their post graduation qualification into account. ( 10 ) THE first petitioner filed R. P. No. 2036 of 1982 in the Andhra Pradesh Administrative Tribunal seeking directions to consider his case for promotion as Deputy Executive Engineer in accordance with Note-1 to Rule 5 of the Service Rules by giving preference over the non-graduate engineers in terms of the clarification issued by the Government in its Memo No. 1193/ser-IV-2/77-11, dated 13-10-1978 with retrospective effect from the appropriate year after preparing year-wise panel of the post graduates and graduates as directed in the said Memo. The said R. P. was allowed on 15-3-1985. ( 11 ) THEREAFTER, the Government issued G. O. Ms. No. 478, dated 16-12-1985 rejecting the claim of the first petitioner for retrospective promotion as Deputy Executive Engineer on the ground that the claim of the first petitioner may have to be considered for the next vacancy in accordance with G. O. Ms. No. 568, dated 27-12-1983 in the 9th reserved vacancy. The first petitioner filed another R. P. No. 3086 of 1987 in the Tribunal for implementation of its earlier Judgment dated 15-3-1985 in R. P. No. 2036 of 1982 and to set aside G. O. Ms. No. 478, dated 16-12-1985. The said R. P. was allowed on 31-8-1988 duly directing the Government to consider the case of the first petitioner for appointment by promotion to the category of Deputy Executive Engineer in the vacancy that had arisen after November, 1976 till the amendment of Note-1 to Rule 5 of the Service Rules vide G. O. Ms. No. 568, dated 27-12-1983. The Government had accordingly issued G. O. Ms. No. 16, dated 17-1-1990 by providing the first petitioner his appropriate placement by revising the seniority list in accordance with Note-1 to Rule 5 of the Service Rules. ( 12 ) IT is the case of the first petitioner that he was eligible to be promoted as Deputy Executive Engineer in view of his post-graduation qualification as against the vacancies that occurred in the year 1976-77 and the second petitioner would be eligible for his promotion for the vacancies that occurred in 1975-76. ( 12 ) IT is the case of the first petitioner that he was eligible to be promoted as Deputy Executive Engineer in view of his post-graduation qualification as against the vacancies that occurred in the year 1976-77 and the second petitioner would be eligible for his promotion for the vacancies that occurred in 1975-76. For whatever reason, the petitioners were not given any preference as the said promotions were given on temporary basis without following the Special Rules. ( 13 ) THE dispute, centering around the interpretation of Note-1 to Rule 5 of the Service Rules in the matter of direct recruitment, landed in the Supreme Court in Civil Appeal No. 1710 of 1990 and batch dated 3-2-1993. The Supreme Court, according to the petitioners, has upheld the post-graduation preference rule and held that it is applicable to the promotions also. Thereafter, the Government issued G. O. Ms. No. 29, dated 16-2-1994. The graduate engineers challenged the same in Andhra Pradesh Administrative Tribunal resulting in passing of the impugned order. ( 14 ) IT is the case of the petitioners that the Government rightly issued the impugned Governmental Orders placing the post graduate engineers in their proper places in the panels as they were eligible and qualified to be included therein in accordance with Note-1 to Rule 5 of the Service Rules providing an absolute preference to the post graduates by taking the seniority amongst the eligible and qualified post graduates. ( 15 ) IT is an admitted fact that the zone-wise seniority lists in the category of Assistant Executive Engineer (Randb) were not finalised up to 1982 and promotions/recruitment by transfer to the category of Deputy Executive Engineer were made on temporary basis by taking the relevant date as the date of joining as Assistant Executive Engineers only. Admittedly, preference was not given to such of those Assistant Executive Engineers who were possessing post graduate qualification though Note-1 to Rule 5 of the Service Rules provides for such a preference. ( 16 ) THE panels that were prepared earlier to the judgment of the Supreme Court of India dated 3-2-1993 were not in accordance with Note-1 to Rule 5 of the Service Rules, 1967. They were admittedly prepared without considering the post-graduate qualifications as an additional qualification acquired by the Deputy Executive Engineers on the due date of preparation of panels. They were admittedly prepared without considering the post-graduate qualifications as an additional qualification acquired by the Deputy Executive Engineers on the due date of preparation of panels. ( 17 ) THE Government appears to have reviewed the panels after the judgment of the Supreme Court by providing preference to such of those candidates who were having post graduate qualification in their respective panels by treating the same as additional qualification in terms of Note-1. It is also clear from the record that the post graduate engineers are spread over in various panels along with graduate engineers on account of temporary promotions that were made without taking into consideration the rule of preference. ( 18 ) THE zone-wise seniority list in the category of Assistant Executive Engineers was not finalised up to 13th May, 1982. The promotions to the category of Deputy Executive Engineer were being made on temporary basis by taking the date of appointment into the category of Assistant Executive Engineers as relevant date. However, the regular panels of 1975-76 to 1980-81 of Deputy Executive Engineers were approved in 1989 vide G. O. Ms. No. 130, dated 30-5-1989 in which it is clearly stated that the approval of the said panels is subject to final outcome of the cases pending in the Supreme Court/a. P. A. T. /high Court. ( 19 ) IT is only after the final settlement of the issue relating to the preference to post graduate candidates vide the judgment of the Supreme Court dated 3-2-1993 and on the strength of the representations made by the post graduate engineers, the Government issued orders in G. O. Ms. Nos. 28 to 31, dated 16-2-1994 and G. O. Ms. No. 305, dated 23-11-1994 giving the post graduates their appropriate placement in the panels against the vacancies which arose in 1976 to 1983. ( 20 ) SRI D. Prakash Reddy, learned Additional Advocate General appearing on behalf of the State contends that the impugned G. Os. , issued by the Government are in accordance with the law declared by the Supreme Court in Govt. of A. P. V. Dilip Kumar. The decision of the Tribunal quashing the impugned G. Os. , issued by the government providing absolute preference to the post graduate engineers is contrary to the judgment of the Supreme Court in Dilip Kumar (1 supra ). of A. P. V. Dilip Kumar. The decision of the Tribunal quashing the impugned G. Os. , issued by the government providing absolute preference to the post graduate engineers is contrary to the judgment of the Supreme Court in Dilip Kumar (1 supra ). It is also contended that the judgment of the Tribunal is self-contradictory. It is submitted by the learned Additional Advocate General that the panels prepared earlier to the judgment of the Supreme Court in Dilip Kumar (1 supra) were not in accordance with the provisions under Note-1 to Rule 5 of the Service Rules and the candidates who figured in those panels have no right to commence their probation for the purpose of seniority from those dates as they were not promoted and appointed as per the rules. The view taken by the Tribunal that the belated implementation of Note-1 to Rule 5 of the Service Rules would result in lot of disturbance in the seniority of Deputy Executive Engineers, according to the learned Additional Advocate General, is unsustainable for the simple reason that the seniority of the Deputy Executive Engineer commences from the date of his appointment on promotion provided such promotion was in accordance with law. Temporary promotions so made without giving effect to the Note-1 to Rule 5 of the Service Rules itself would not confer any enforceable right upon the graduate engineers, is the submission. ( 21 ) SRI P. Suresh Reddy and Sri M. Surender Rao, learned counsel appearing on behalf of the post-graduate engineers adopted the submissions made by the learned Additional Advocate General. Sri P. Balakrishna Murthy, learned counsel appearing on behalf of the graduate engineers submits that Note-1 to Rule 5 of the Service Rules merely provides that the post graduation qualification shall be treated as an additional qualification and preference shall be given to such candidates thereby meaning that preference can be given only when the other things being equal, such as merit, ability and suitability. It is submitted that Note-1 to Rule 5 of the Service Rules does not speak of any absolute preference. The contention urged in this regard as if the Note provides for an absolute preference, according to the learned counsel, is misnomer. It is submitted that Note-1 to Rule 5 of the Service Rules does not speak of any absolute preference. The contention urged in this regard as if the Note provides for an absolute preference, according to the learned counsel, is misnomer. It is also submitted that Note-1 to Rule 5 of the Service Rules providing preference to the post graduate engineers in the matter of direct recruitment, promotion or recruitment by transfer remained in dormant inasmuch as the post graduate engineers never claimed or asserted their right for such preference, and its implementation at this point of time would virtually lead to an anarchy upsetting the settled rights of the graduate engineers. It is contended that the implementation of the said rule would result in utter chaos and confusion. It is submitted that the seniority of the graduate engineers would get adversely affected resulting in grave injustice. Sri M. Ratna Reddy, learned counsel for the respondents graduate engineers also made similar submissions. ( 22 ) SHORN of all the details and embellishments - the short question that falls for consideration is as to what is true meaning and purport of Note-1 to Rule 5 of the Service Rules. What is the meaning of the expression preference used in Note-1 and how it is to be operated? that is all the question that falls for consideration. The Government admittedly treated the post graduate engineers as a separate class and their cases were considered first in the order of their seniority in each panel and only after the consideration of their cases, the cases of ordinary graduates have been considered and selections have been made on the basis of merit and ability. Preference was given to the post-graduates at every selection and after giving such preference the claims of engineering graduates have been considered. ( 23 ) BEFORE adverting to the question as to whether the Government committed any error in adopting such procedure, we may have to notice the view taken by the Tribunal. The Tribunal held:"post Graduate Engineers are entitled to absolute preference in the matter of promotion also. Under the guise that Post Graduate Engineers are entitled for absolute preference, they are sought to be adjusted by the Government in different panels causing lot of disturbance regarding the seniority. The Tribunal held:"post Graduate Engineers are entitled to absolute preference in the matter of promotion also. Under the guise that Post Graduate Engineers are entitled for absolute preference, they are sought to be adjusted by the Government in different panels causing lot of disturbance regarding the seniority. We are of the considered view that absolute preference has to be given to the Post Graduates for a particular panel year in which they were not given preference while being included in that panel. In that case the Post Graduates appearing in the panel of that particular year have to occupy the top rankings and leave balance to the graduates. Therefore, the Post Graduates of a particular panel year if they are below in that panel will go up in the panel above the Graduates. In view of the above referred view, the respondents/government is directed to review all the G. Os. , and show-cause notices issued in the light of the above directions and give absolute preference to the Post Graduates in that particular panel year only, if they have not given preference under the rules. " ( 24 ) AS rightly contended by the learned Additional Advocate General, the view taken by the Administrative Tribunal is self-contradictory. The Tribunal having held that the post graduates are entitled to absolute preference in the matter of promotion also observed that the absolute preference has to be given to the post- graduates for a particular panel year in which they were not given preference while they were being included in the panel. The post -graduates of a particular panel year if they are below in that panel will go up in the panel above the graduate engineers. This is totally unacceptable. It is entirely a different matter if the post-graduate engineers are not entitled for any preference whatsoever. ( 25 ) WE may also require to notice as to in what manner the Government of Andhra Pradesh understood Note-1 to Rule 4 of the Service Rules, which is the subject matter in W. P. No. 25929 of 1999, (Note-1 to Rule 4 is applicable in case of Irrigation Department, which is exactly the same as Note-1 to Rule 5 of 1967 Rules) as early as in the year 1978. The Government vide its Memo No. 1193/ser. IV-2/77-1, dated 13th October, 1978 observed that "the rule is not conditional or limited. The Government vide its Memo No. 1193/ser. IV-2/77-1, dated 13th October, 1978 observed that "the rule is not conditional or limited. Hence, for any particular year, the list of eligible candidates with Post Graduate qualification shall be first considered in the order of their seniority and only after such a list is considered the cases of ordinary graduates shall be considered and selection has to be made on the basis of merit and ability. " ( 26 ) IT is further clarified:"the expression "preference shall be given" occurring in the said rule would mean that, other things such as passing of prescribed tests, relating merit, suitability, fitness etc. , being equal, preference shall be given, at every selection or preparation of panel for appointment as Assistant Engineers to the holders of post graduate qualifications, and after giving the said preference the claims of less qualified candidates who are also eligible for appointment would be considered such preference is not conditional or limited. "in our considered opinion, the interpretation placed by the Government even before the judgment of the Supreme Court in Dilip Kumar (1 supra) is perfectly in conformity with the view taken by the Supreme Court in Dilip Kumar (1 supra ). ( 27 ) WE may also notice, as is evident from the record, that one K. Venkateshwar Rao, a post graduate engineer filed W. P. No. 2568 of 1982 in this Court questioning the selection made by the Andhra Pradesh Public Service Commission to the posts of Assistant Executive Engineers in the A. P. Engineering Service by direct recruitment in the year 1982 and prayed for grant of appropriate directions directing the respondents therein to consider his claim on the basis of rule of preference to the post graduates. This Court after an elaborate consideration of the matter held:"so far as the interpretation of Rule 4 (Rule 5 in respect of Randb) and its implementation contained in the note to Rule 4, I am clearly of the opinion that the post-graduates will have to be preferred as a class. This is also supported by the memo of the Government and the decision of the Supreme Court and the High Court. This is also supported by the memo of the Government and the decision of the Supreme Court and the High Court. So long as the rule of preference stands, I do not see any justification for watering down of the said Rule in the way in which the commission has done by reducing it only to the cases where there is equivalence of marks between a post-graduate and graduate. The very object of the preferential treatment is defeated by this procedure. " ( 28 ) THIS interpretation of Rule 4 (Rule 5 in respect of Randb) received the approval of the Supreme Court in Dilip Kumar (1 supra ). The Supreme Court in Dilip Kumar (1 supra) in categorical terms upheld the view taken by this Court that "the post graduates should be treated as a preferred class and so long as the post graduates who had secured the minimum qualifying marks were available, they were to given preference to graduates notwithstanding the fact that the latter may have secured higher percentage of marks in the written as well as oral test/interview. Only when qualified post-graduates are not available could the names of the graduates be entered in the Select List on the basis of their inter se merit. " The Supreme Court upheld the contention of the post-graduates that"in implementing the rule of preference in the matter of direct recruitment, the Public Service Commission should first exhaust candidates having post graduate qualifications if they have secured the minimum qualifying marks and if they are not available in sufficient number, then and then only, graduates should be selected on merits from among those who have secured the minimum qualifying marks and above. " ( 29 ) THE Supreme Court considered the scope and ambit of the instructions issued through Memo dated 13th October, 1978. The Supreme Court in categorical terms observed that "the combined reading of paragraphs 2 and 3 gives the impression that cases of post-graduates found entitled to promotion had to be first considered and only after their absorption would it be permissible to consider the claims of ordinary graduates i. e. less qualified candidates. This method of grant of preference in the matter of promotion was changed by G. O. Ms. No. 180 of 1983 probably because it was causing avoidable hardships. Similar changes were introduced in the rules concerning other engineering services also. This method of grant of preference in the matter of promotion was changed by G. O. Ms. No. 180 of 1983 probably because it was causing avoidable hardships. Similar changes were introduced in the rules concerning other engineering services also. But this amendment instead of granting preference to post-graduates in the matter of promotion under the aforesaid Memo, the 9th vacancy in 9 vacancies was earmarked for a post-graduate. We fail to see how such a provision granting preference to post-graduates on the basis of their higher educational qualification be said to conflict with the equality clause when the post-graduates constitute a separate class. More of it later. " ( 30 ) IT is thus clear that the very instructions issued through Memo dated 13th October, 1978 were held to be in conformity with the Articles 14 and 16 of the Constitution of India. The provision granting preference to post graduates on the basis of their higher educational qualification cannot be said to be in conflict with the equality clause. The Supreme Court in categorical terms held that the post-graduates constitute themselves into a separate class. The Supreme Court while adverting to the word preference as understood in ordinary parlance held that "it means to preferring or choosing as more desirable, favouring or conferring a prior right. "it is observed that"there is no doubt that preference was sought to be granted under Note 1 to post-graduates in the larger interest of the administration. How would the interest of the administration be served by granting preference to post-graduates? It is obvious that it was thought that on account of their higher mental equipment the quality of performance that the State will receive from highly qualified engineers would be better and of a high order. . . . . . . . There is nothing arbitrary or unreasonable in the employer preferring a candidate with higher qualification for service. It is well settled by a catena of decisions that classification on the basis of higher educational qualification to achieve higher administrative efficiency is permissible under our constitutional scheme. We, therefore, do not agree that treating post-graduates as a class and giving them preference in this manner is violative of Articles 14/16 of the Constitution. We also do not see any vice in the relevant rule and in Note 1 as amended in 1983. We, therefore, do not agree that treating post-graduates as a class and giving them preference in this manner is violative of Articles 14/16 of the Constitution. We also do not see any vice in the relevant rule and in Note 1 as amended in 1983. " ( 31 ) THE learned counsel appearing on behalf of the graduate engineers, however, made an attempt to contend that the ratio of the Judgment of the Supreme Court in Dilip Kumar (1 supra) would be applicable for the post of Assistant Executive Engineers only in case of direct recruitment. The submission, in our considered opinion, is totally untenable and unsustainable. ( 32 ) AN analysis of the rule on its plain language makes it abundantly clear that it is applicable to all the three modes of recruitment, viz. , in the matter of direct recruitment, promotion or recruitment by transfer to the post of Assistant Executive Engineers. It is only after the amendment in 1983 the second part of the note indicates the extent to which a post-graduate is to be given preference in the matter of promotion to the post of Deputy Executive Engineer. The second part qualifies and explains the preference to be given to the post-graduates insofar as it considers promotion. It is thus clear that the un-amended Note-1 with which we are concerned for the present is applicable in the matter of direct recruitment, promotion or recruitment by transfer. No distinction as such can be drawn in applying the preference to the candidates with post-graduate qualification. The post-graduate qualification shall have to be treated as an additional qualification and preference shall have to be given to such candidates even in the matter of promotion. ( 33 ) IT is interesting to notice that it was urged in the Supreme Court in Dilip Kumar (1 supra) contending that the instructions issued through Memo dated 13th October, 1978 were applicable to cases of promotion only and had no application when it came to filling up of the posts by direct recruitment. The Court while adverting to the said contention observed that "after the amendment of Note 1 by the introduction of the second part earmarking the slot of 9th vacancy for post-graduates, the mode of implementing the preference in the matter of appointment by promotion underwent a change rendering the memo of 13th October, 1978 otiose. The Court while adverting to the said contention observed that "after the amendment of Note 1 by the introduction of the second part earmarking the slot of 9th vacancy for post-graduates, the mode of implementing the preference in the matter of appointment by promotion underwent a change rendering the memo of 13th October, 1978 otiose. But it can still be availed of as an aid to construction of Note 1 insofar as it concerns grant of preference in the matter of direct recruitment. Except for this limited use to which the Memo can be put, we are agreed that it related to grant of preference at the promotion stage only and has since become otiose. " (Emphasis is supplied ). ( 34 ) IT is thus clear that the instructions issued through Memo dated 13th October, 1978 not only received the approval of the Supreme Court but were also held to be applicable and related to grant of preference at the promotion stage. A plain reading of Memo would make it abundantly clear that the candidates with post-graduate qualification will have to be arranged in the order of their seniority and their claim shall be considered first and only after such a list is considered, the cases of ordinary graduates shall be considered and the selection be made on merit and ability. The expression preference shall be given used in Note-1 means the other things being equal, the holders of post-graduate qualifications will be given preference and after that the claims of less qualified candidates would be considered for appointment. As observed by the Supreme Court, the use of the word after in both the paragraphs is significant and is indicative of the manner in which the preference clause is to be worked out. ( 35 ) IT is very well settled that the principles of contemporanea ex positio and executive construction throwing light on the construction can be availed of as an aid to construction of not only statutes but also Rules, and more particularly when such construction has received the approval in judicial decision. A contemporaneous ex position and the construction placed upon a statutory rule by the higher executive officers at or near the time of its making is a very useful and relevant guide to the interpretation of a statutory expression used in such a statutory instrument. A contemporaneous ex position and the construction placed upon a statutory rule by the higher executive officers at or near the time of its making is a very useful and relevant guide to the interpretation of a statutory expression used in such a statutory instrument. Such construction throwing light on the true meaning and purport of a statutory instrument even used as a contemporanea ex positio to interpret not only ancient but even recent statutes. (For the proposition see: Indian Metals and Ferro Alloys Ltd. , V. Collector of Central Excise and N. Suresh Nathan V. Union of India ). ( 36 ) IN the circumstances, we are of the considered opinion that the impugned Governmental Orders issued by the Government do not suffer from any legal infirmity or constitutional vice. They are perfectly in conformity with the instructions issued in Memo dated 13th October,1978. The construction of Note-1 to Rule 5 by the Government in the said Memorandum itself has received the approval of the Supreme Court. The impugned G. Os. , are in conformity with the law declared by the Supreme Court in Dilip Kumar (1 supra ). Sri P. Balakrishna Murthy, learned counsel for the graduate engineers, however, contends that the Government cannot alter the seniority and the panels already prepared after a long lapse of time. The learned counsel has gone to the extent of contending that the inter se seniority with regard to all the appointments made prior to 31-12-1982, either promotees or direct recruits, cannot be disturbed at all under any circumstances. Reliance, in support of the said submission, is placed upon the judgments of the Supreme Court in K. Siva Reddy V. State of A. P. and J. Chandrashekhar Reddy V. D. Arora, Chief Secretary, A. P. Government and Division Bench Judgments of this Court in W. P. No. 5834 of 1998 and Batch, dated23-7-1999 and M. Shyam Sunder and others V. Government of A. P. ( 37 ) THE submission, in our considered opinion, is totally devoid of any merit. The subject matter that had arisen for consideration in K. Siva Reddy (4 supra) and J. Chandrashekhar Reddy (5 supra) relates to inter se seniority between the direct recruit and promotee engineers. The subject matter that had arisen for consideration in K. Siva Reddy (4 supra) and J. Chandrashekhar Reddy (5 supra) relates to inter se seniority between the direct recruit and promotee engineers. The Supreme Court observed in the said decisions that "the regularisation made in respect of the promotees of the year 1972 to 1975 should not, at this point of time, disturbed. " The Supreme Court never intended to lay down any law that any dispute with regard to the inter se seniority or promotions of whatsoever nature could not be raised in the Randb department, as the case may be. It is very well settled that the judgments of the Supreme Court cannot be read as a statute. The ratio decidendi and the principle enunciated are required to be appreciated in the background of the set of facts and controversy involved. ( 38 ) THE judgment of this Court in W. P. No. 5834 of 1998 and Batch referred to hereinabove is also with reference to the dispute between the direct recruits and promotees in the cadre of Deputy Executive Engineers, in both the Roads and Buildings Department and Irrigation Department, for the period from 18-10-1975 to 31-12-1982. The seniority as fixed by the Government in various G. Os. , referred to therein was directed to be treated as final. Even the inter se seniority between the direct recruits and the promotees for the period up to 31-12-1982 was held to be final regardless of the fact that there was a violation of quota rule and that promotees were occupying the excess posts and even the posts meant for direct recruits. The Court while saying so upheld the orders issued in G. O. Ms. Nos. 314, 38 and 147 issued by the Government revising the very seniority list. The Government was accordingly directed to scrutinise the said G. Os. , again and if they were found to be in consonance with the directions in the said writ petition, they were directed to be treated as final. Even liberty was given to the Government to make necessary modifications, so that the same to be in tune with the directions issued from time to time by the Supreme Court as well as this Court. Even liberty was given to the Government to make necessary modifications, so that the same to be in tune with the directions issued from time to time by the Supreme Court as well as this Court. ( 39 ) THE decision of this Court in N. Kotam Raju V. Regional Deputy Director of Fisheries, Kakinada instead of supporting the case of the graduate engineers supports the plea advanced by the post graduate engineers. This Court in categorical terms held that "the question of inter se seniority must be governed by the rules as were existing at the relevant point of time. By reason of a subsequent amendment in rule and/or insertion of new rule whereby new rights and obligations are created, no one can be said to have derived any right to get the matter reopened after a long lapse of time. " ( 40 ) WE may have to notice that the panels prepared in the instant case and the promotions made were due to exigencies and were not made in accordance with rules. No panels were prepared and no promotions were made in accordance with Note-1 to Rule 5 of the Service Rules. They can be treated as panels lawfully made. ( 41 ) IN M. Shyam Sunder (6 supra), the issue, once again, that had arisen for consideration is in relation to the inter se seniority among the direct recruit and promotee engineers. The Court declared that "the Government cannot exercise powers of review for the second time under the paragraph 13 of the Presidential Order. " one fails to appreciate as to how the said judgments have any application to the facts on hand and provide any assistance whatsoever to resolve the question that falls for consideration in the instant case. ( 42 ) IN Rabindra Nath V. Union of India, the Supreme Court held that "no relief can be given to the petitioners therein who, without any reasonable explanation, approach the Supreme Court under Article 32 of the Constitution after inordinate delay. " The Court took the view that "it could not have been the intention that Supreme Court would go into stale demands after a lapse of years. " The Court took the view that "it could not have been the intention that Supreme Court would go into stale demands after a lapse of years. " The Supreme Court made such observations in the context that the petitioners therein sought to challenge the seniority list fifteen years after the 1952 Rules were promulgated and effect given to them in the seniority list prepared on 1-8-1953. The Supreme Court observed that "it would be unjust to deprive the officers of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after the lapse of a number of years. " The said judgment, in our considered opinion, has no application to the facts on hand. ( 43 ) WE have noticed that the post-graduate engineers at every point of time have been asserting their preferential claims in the matter of promotions to the next higher posts. That apart, neither the panels prepared nor the promotions effected attained any finality as such, since the promotions themselves were made on temporary basis and only with reference to the date of entry into the service in the category of Assistant Executive Engineers. ( 44 ) THEREFORE, it is not possible to agree with the submission made by the learned counsel for the graduate engineers that the seniority of the graduate engineers as well as the post-graduate engineers had already been determined, panels were made and accordingly promotions were effected. May be, Note-1 to Rule 5 of the Service Rules, for whatever reasons, remained un-implemented. It is true that the very Note-1 to Rule 5 remained in dormant till the judgment of the Supreme Court in Dilip Kumar (1 supra) in spite of the instructions of the Government in Memo dated 13-10-1978. But, in our considered opinion, that itself would not be a ground not to give effect to Note-1 to Rule 5 of the Service Rules which is nothing but an integral part of the rule itself. But, in our considered opinion, that itself would not be a ground not to give effect to Note-1 to Rule 5 of the Service Rules which is nothing but an integral part of the rule itself. ( 45 ) YET another contention urged by the learned counsel for the graduate engineers and also by Sri A. Suryanarayana Murthy, learned counsel for the petitioner in W. P. No. 22685 of 1999 is that on account of long lapse of time Note-1 to Rule 5 of the Service Rules itself has become unworkable and its enforcement at this stage would adversely affect the vested rights of the graduate engineers. We are not impressed by the submission made in this regard. Note-1 to Rule 5 of the Service Rules cannot be regarded as a vague and indefinite in its sweep and ambit. The rights, if any, accrued in favour of the graduate engineers on account of non-implementation and not giving effect to Note-1 to Rule 5 of the Service Rules cannot be equated to that of vested rights. The graduate engineers, in our considered opinion, cannot take advantage of non-implementation of Note-1 to Rule 5 of the Service Rules by the authorities concerned. On the other hand, refusal to interfere in the matter and to give effect to the statutory rule may amount to perpetuating the illegality. The Government, in our considered opinion, rightly reviewed the whole situation and accordingly decided to put the Note-1 to Rule 5 of the Service Rules into operation by giving effect to the same. One of the most important reasons appears to have been taken into consideration by the Government is that the Supreme Court finally resolved the controversy regarding the true nature, purport and scope of Note-1 to Rule 5 of the Service Rules. Earlier, the Administrative Tribunal and this Court took divergent views as to the amplitude of Note-1 to Rule 5 of the Service Rules. The Government, in our considered opinion, did not commit any error or illegality in considering the representations of the post-graduate engineers to set right the injustice meted out to them by refusing to give preference in terms of Note-1 to Rule 5 of the Service Rules. The Government, in our considered opinion, did not commit any error or illegality in considering the representations of the post-graduate engineers to set right the injustice meted out to them by refusing to give preference in terms of Note-1 to Rule 5 of the Service Rules. ( 46 ) SRI P. Balakrishna Murthy, learned counsel for the graduate engineers, however, contends that whenever the Rule stipulates that the preference should be given to higher qualification, the only meaning it conveys is that some additional weightage has to be given to such candidates with higher qualification. It cannot be construed to mean that a person with a higher qualification is automatically entitled to be selected and appointed or promoted, as the case may be. Reliance is placed upon the decisions of the Supreme Court in Secretary (Health) Department of Health and F. W. , V. Dr. Anita Puri9 and Bibhudatta Mohanty V. Union of India. ( 47 ) IN Bibhudatta Mohanty (10 supra), the Supreme Court observed that "where any rule or guideline provides preference in respect of some higher qualification, it only means that all other requirements being equal, a person possessing higher educational qualification will be preferred. It cannot, however, be considered as the sole criterion for preference in selection and appointment. " But, we are required to appreciate that the Supreme Court in Dilip Kumar (1 supra) interpreted the very Note-1 to Rule 5 of the Service Rules and also the executive instructions issued by the Government in its Memo dated 13th October, 1978 and accordingly approved the memorandum of instructions issued by the Government to the authorities concerned as to how Note-1 to Rule 5 of the Service Rules is to be operated and implemented. In the circumstances, it is not open to this Court to take any different view other than the one taken by the Supreme Court in Dilip Kumar (1 supra ). This is the whole crux of the matter. We are bound by the Judgment of the Supreme Court rendered in Dilip Kumar (1 supra ). ( 48 ) SRI M. Surender Rao, learned counsel appearing on behalf of the petitioner in W. P. No. 5500 of 2000 contended that an employee on being appointed to the service is entitled to get his seniority determined on the basis of the Rules that exist on the date of his appointment. ( 48 ) SRI M. Surender Rao, learned counsel appearing on behalf of the petitioner in W. P. No. 5500 of 2000 contended that an employee on being appointed to the service is entitled to get his seniority determined on the basis of the Rules that exist on the date of his appointment. It is submitted that as on the date when the petitioner in W. P. No. 5500 of 2000 was appointed as Assistant Executive Engineer (Junior Engineer), the un-amended Note-1 to Rule 5 of the Service Rules was in existence and it continued till the said Note was amended in the year 1983. The submission of the learned counsel is that the legitimate right of the post-graduate engineers cannot be taken away on the ground that the Note remained un-implemented. The Government cannot take advantage of its own inaction in implementing the Note and precisely for that reason the Government having realised its mistake issued the impugned G. Os. , injecting life into the provisions. ( 49 ) THE Supreme Court in Arun Kumar V. S. E. Railway observed:"loss of seniority of a Government servant with consequent loss of promotional prospects, higher pay and emoluments is a matter of serious consequence to him that if a person has been promoted but not on the date on which he should have been promoted due to some administrative error then the employee should be assigned correct seniority vis a vis his juniors already promoted irrespective of the date of promotion. " ( 50 ) IN P. Mohan Reddy V. E. A. A. Charles the Supreme Court held that "even though an employee cannot claim to have a vested right to have a particular position in any grade, but all the same he has the right of his seniority being determined in accordance with the Rules which remained in force at the time when he was borne in the Cadre. The question of re-determination of the seniority in the cadre on the basis of any amended criteria or Rules would arise only when the amendment in question is given a retrospective effect. The question of re-determination of the seniority in the cadre on the basis of any amended criteria or Rules would arise only when the amendment in question is given a retrospective effect. Further a particular Rule of seniority having been considered by Court and some directions in relation thereto having been given, that direction has to be followed in the matter of drawing up of the seniority list until and unless a valid Rule by the Rule Making Authority comes into existence and requires otherwise. " ( 51 ) IT is thus clear that the seniority of the post-graduate engineers is required to be determined in accordance with Note-1 to Rule 5 of the Service Rules or Note-1 to Rule 4, as the case may be, which remained in force at the time when they were borne in the cadre. The Government is bound to implement and give effect to the law declared by the Supreme Court in Dilip Kumar (1 supra) in the matter of preparation of panels and drawing up of the seniority list of the Assistant Executive Engineers by duly giving preference to the post-graduates in terms of the instructions contained in Memo No. 1193/ser. IV-2/77-11, dated 13th October, 1978. Precisely, that is what has been done by the Government in issuing the impugned G. O. Ms. Nos. 28 to 31, dated 16-2-1994. The impugned G. Os. , therefore, in our considered opinion, do not suffer from any legal infirmity or constitutional vice. ( 52 ) THE post-graduate engineers cannot be deprived of their legitimate preferential right as envisaged in Note-1 to Rule 5 of the Service Rules in case of post-graduate engineers in Roads and Buildings Department and as well as Note-1 to Rule 4 in case of post-graduate engineers in Irrigation Department. There is no reason to hold that the said Note has become unworkable. The enforcement of the said Rule in no manner results in any injustice to the graduate engineers nor does it result in any infringement of any of the vested rights of the graduate engineers. None can take advantage of non-implementation of the said Note and on that count the post-graduate engineers cannot be deprived of their legitimate preferential right. The enforcement of the said Rule in no manner results in any injustice to the graduate engineers nor does it result in any infringement of any of the vested rights of the graduate engineers. None can take advantage of non-implementation of the said Note and on that count the post-graduate engineers cannot be deprived of their legitimate preferential right. The rights, if any, accrued to the graduate engineers on account of non-implementation of Note-1 to Rule 5 of the Service Rules cannot be equated to that of any vested rights or indefeasible rights. ( 53 ) FOR the aforesaid reasons, we are of the opinion that the Tribunal committed an error in allowing the Original Applications filed by the graduate engineers. The order of the Tribunal is vitiated by an error apparent on the face of the record and it runs counter to the law declared and principles enunciated by the Supreme Court in Dilip Kumar (1 supra ). ( 54 ) IN the result W. P. Nos. 8002, 8003, 8007 and 25929 of 1999 and 5500, 5973, 6611 and 6726 of 2000 are allowed by setting aside the order of the Andhra Pradesh Administrative Tribunal passed in the respective Original Applications. The impugned G. O. Ms. Nos. 28 to 31, dated 16-2-1994 are accordingly upheld. For the very reasons recorded supra, we do not find any merit whatsoever in W. P. No22685 of 1999 and the same shall accordingly stand dismissed. The parties to bear their own costs.