Judgment Ghulam Mohammed 1. This writ petition is filed seeking a writ of certiorari declaring the order dated 15-12-2009 passed in O.A.No.6364 of 2009 on the file of the A.P. Administrative Tribunal, Hyderabad (for brevity ‘the Tribunal’), as illegal, arbitrary and contrary to the Andhra Pradesh Administrative Tribunal Non-gazetted Service Rules, 1981 (for short ‘1981 Rules’) issued in G.O.Ms.No.541, dated 15-10-1981 and against the judgment of the Supreme Court in The District Registrar, Palghat and another Vs. M.B.Koyakutty 1979 (1) SLR 628= 1979 (2) S.C.C 150 . 2.Brief facts of the case are as follows: The petitioner was initially appointed as Attender on 08-02-1983 in A.P. Administrative Tribunal and later promoted to the post of Record Assistant by proceedings dated 18-10-1989. Subsequently, he was promoted to the post of Junior Assistant by order dated 30-03-1992. His services were regularised in the said post vide proceedings of the 1st respondent dated 23-10-1993. In the provisional seniority list dated 27-10-2004 of the Junior Assistants (Lower Division Clerks (LDCs)), his name was shown at Sl.No.8 and whereas the names of the respondents 3 and 4 stood at Sl.Nos.10 and 12, respectively. He is qualified for promotion to the post of Senior Assistant (Upper Division Clerk (UDC)) by virtue of his seniority and eligibility. He passed departmental tests required for promotion as per the Rules. The 2nd respondent issued ad-hoc rules in G.O.Ms.No.541General Administration (SPF.B) Department, dated 15-101981 governing the non-gazetted posts in the Tribunal. As per Rule 4 of the 1981 Rules, the post of senior assistant (UDC), has to be filled by promotion from the post of care taker or by promotion from the post of Junior Assistant (LDC) and typist in the ratio of 3:1 and that qualification of degree is not prescribed for promotion to the post of senior Assistant from the post of Junior Assistant. Further, as per Rule 6 (1) (b) of the 1981 Rules, a degree in Arts or Science or Commerce or Law of a university in India is required only for direct recruitment to the post of junior assistant (LDC). Except for the direct recruitment to the post of Junior Assistant under the 1981 Rules, there is no requirement of possessing degree qualification for promotion to the post of senior Assistant. Except for the direct recruitment to the post of Junior Assistant under the 1981 Rules, there is no requirement of possessing degree qualification for promotion to the post of senior Assistant. Recruitment to the post of senior assistant is only by way of promotion from the feeder categories of junior assistant, typist and caretaker and the 1981 rules have not prescribed direct recruitment to the category of senior assistants. 3. When vacancies in the category of senior assistants arose, the petitioner along with one A.Venkatesh submitted a representation on 24-04-2009 to the Hon’ble Chairman, Tribunal, to consider their case for promotion to the post of senior assistant in the said vacancies. Without considering their representation, the 1st respondent vide proceedings dated 12-05-2009 promoted respondents 3 and 4 along with two others. Challenging the said order, the petitioner filed O.A.No.6364 of 2009 before the Tribunal. The Tribunal by interim order dated 10-06-2009, directed the respondents to consider his case for promotion to the post of senior assistant as per Rules, eligibility and suitability, observing that the qualification of graduation for the post of UDC was not prescribed anywhere in the Rules. The respondent No.1 did not implement the orders dated 10-06-2009 and further gave a show cause notice dated 07-07-2009 for cancellation of 16 years promotion scale granted to the petitioner on the ground of non-possession of graduation qualification. Aggrieved by the same, he filed C.A.No.538 of 2009. He also filed another O.A.No.7999 of 209 challenging the show cause notice dated 07-07-2009. The Tribunal by common order dated 15-12-2009, dismissed both the O.A.s along with C.A. holding that graduation qualification is required to get the promotion to the post of senior assistant. 4. As per Rules issued in G.O.Ms.No.541, dated 15-10-1981, there is no prescription of possessing degree qualification for being promoted to the post of senior assistant. It is only on the basis of seniority in the category of junior assistants, promotions have to be effected subject to, however, passing of departmental tests prescribed in Rule 6 (2) (a) of the Rules. When the petitioner got eligibility for promotion to the post of junior assistant, it was rightly given to him vide proceedings dated 30-03-1992, therefore, there cannot be any impediment for his promotion to the post of senior assistant as there is no requirement of possessing degree qualification for promotion to senior assistant. When the petitioner got eligibility for promotion to the post of junior assistant, it was rightly given to him vide proceedings dated 30-03-1992, therefore, there cannot be any impediment for his promotion to the post of senior assistant as there is no requirement of possessing degree qualification for promotion to senior assistant. Without disposing of the representation made by him, the 1st respondent promoted his juniors i.e., respondents 3 and 4. 5. The Tribunal dismissed the O.As. on the ground that A.P. Ministerial Service Rules, being the special rules for non-gazetted employees are applicable to non-gazetted posts in the Tribunal, and the 1981 Rules issued by the government in G.O.Ms.No.541 are silent, ambiguous and not exhaustive. The Tribunal held that as per APMS Rules and the 1981 Rules for direct recruitment to the post of junior assistant, the prescribed qualification is degree and there cannot be two different educational qualifications for different methods of appointment to the same post, therefore, educational qualification of possession of degree prescribed in 1981 rules for direct recruitment equally applies in the case of promotion to the post of senior assistant and in the absence of any direct recruitment to the post of senior assistant and prescription of any educational qualification to the said post, it implies that the educational qualification required for the purpose of promotion to the post of senior assistant is possession of degree apart from special qualifications of passing the departmental tests and rejected the contention of the petitioner that there is no prescription of qualification of degree for promotion to the post of senior assistant. The file relating to promotion of petitioner to the post of Junior Assistant was not produced before the Tribunal. The file relating to promotion of petitioner to the post of Junior Assistant was not produced before the Tribunal. The Tribunal, however, on the basis of the contents of letter of the 1st respondent dated 15.7.2009 rejecting the request of the petitioner for promotion as senior assistant assumed that petitioner was promoted to the category of junior assistant, though he has not possessed the qualification of degree, under the proviso to Rule 22 of the APMS Rules, 1966 which provided that those who were already appointed in the offices of the Heads of Departments and Directorates prior to 15th December, 1984 and those appointed in the Offices other than Heads of the Departments and Directorates prior to 29th October, 1987 shall be eligible for appointment as junior assistants etc., if they have passed SSC or any equivalent examination and such benefit of relaxation cannot be extended for the purpose of promotion to the higher posts like senior assistants, superintendents and that the General Rules for the State and Subordinate Service shall apply to the members of the service in the Tribunal and the rule confined such benefit only for the purpose of appointment to the post of junior assistant, not for the purpose of promotion to higher posts. The Tribunal further held that since there is no special modification to the qualification to the post of junior assistant in the 1981 rules, the qualifications prescribed for direct recruitment would apply to the promotes also. Since the petitioner has not possessed the qualification of degree which is required for the post of junior assistant by direct recruitment, the Tribunal dismissed both the O.As. Hence, the present writ petition. 6. Heard Sri J.Sudheer, learned counsel for the petitioner as well as Sri T.Suryakaran Reddy, learned counsel for the respondents 3 and 4. 7. Sri J.Sudheer, learned counsel for the petitioner contended that this is a case of a small employee of the Tribunal fighting for his rights, where ignoring his rights, his juniors were promoted. The ad-hoc rules issued in G.O.Ms.No.541 are framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India by the Governor of Andhra Pradesh for the temporary non-gazetted posts in the Tribunal, which have come into force with effect from 06-07-1976. The ad-hoc rules issued in G.O.Ms.No.541 are framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India by the Governor of Andhra Pradesh for the temporary non-gazetted posts in the Tribunal, which have come into force with effect from 06-07-1976. He further contended that the General Rules for the State and sub-ordinate services shall apply to the members of the service subject to the modifications specified in the ad hoc rules. He further contended that this is a clear case of misinterpretation of Rules by the Tribunal. While interpreting the Rules, the words cannot be added or deleted and even the ‘cama’ or ‘full stop’ cannot be changed and that any words should not be mixed or added or misinterpreted so as to destroy the harmonious construction of the Rules. He further contended that graduation qualification is required for the direct recruitment whereas for promotion, there is no requirement of possessing graduation qualification. The Tribunal has misinterpreted the Rules. He has drawn our attention to Rule 3 of the 1981 Rules, which deals with the constitution of non-gazetted service of the Tribunal. It provides that temporary non-gazetted posts viz., Librarian, UDCs, LDCs and typists in the Tribunal shall constitute a temporary addition to the corresponding categories in the A.P. Ministerial Service. Rule 4 of the 1981 Rules deals with the appointment to the posts mentioned in column No.1 viz., Librarian, U.D.Cs., L.D.Cs, Typists and Caretaker shall be made in the manner specified against them in column No.2 thereof and that the petitioner’s case is concerned with U.D.Cs. only. He further contended that qualifications are prescribed for direct recruitment but not for the promotion. With regard to the promotions are concerned, the Rules are silent and petitioner was promoted to the category of Junior Assistant from other categories of Tribunal ie General Subordinate Service. In support of his contention, he relied upon a judgment of the Apex Court in Delhi Financial Corpoation Vs. Rajiv Anand 2004 (1) S.C.C. 625 , wherein the Apex Court held as follows: “17. In support of his contention, he relied upon a judgment of the Apex Court in Delhi Financial Corpoation Vs. Rajiv Anand 2004 (1) S.C.C. 625 , wherein the Apex Court held as follows: “17. In support of the submission that the legislature did not intend to apply Section 32G to a surety, reliance was placed upon the case of P.K. Unni v. NirmalaIndustries wherein it has been held that the court must proceed on the assumption that the legislature did not make a mistake and that it intended to say what it said. It was held that assuming there is a defect or an omission in the words used by the legislature, the court cannot correct or make up the deficiency. It was held that the court cannot add words to a statute or read words into it which are not there, especially when a literal reading thereof produces an intelligible result. It was held that the court is not authorised to alter a word or provide a casus omissus. Reliance was also placed on the case of Union of India v. ElphinstoneSpg. and Wvg. Co. Ltd. which is to a similar effect. There can be no dispute with these propositions. It is on this basis that this Court is holding that words cannot be added in Section 32-G. To accept Mr Mehta’s submission would require this Court to add words to Section 32-G to the effect “due from the industrial concern” after the words “amount due to the financial corporation”. It is presumed that the legislature made no mistake when it omitted to use these words. It is presumed that the legislature intended what it said, namely, that Section 32-G is to apply wherever any amount is found due to the financial corporation.” Sri Sudheer further contended that even otherwise also, the case of the petitioner is covered by the decision of the Supreme Court in B.Koyakutty’scase (1 supra) referred to supra and petitioner is entitled to be considered for promotion to the category ofsenior assistants. 8. 8. On the other hand, the learned counsel for the respondents 3 and 4 contended that since Rule 3 of 1981 Rules deals with the constitution which says that temporary non-gazetted posts viz., librarian, UDCs, LDCs and typists in the Tribunal shall constitute a temporary addition to the corresponding categories in the A.P. Ministerial Service, the petitioner has to possess intermediate qualification even for the purpose of promotion to senior assistant, as per Rule 6 (2) of the APMS Rules unless he possesses intermediate qualification, he is not eligible for appointment to any post in the service either by direct recruitment or by appointment by transfer or by promotion including conversion. Rule 6 (2) of the AP Ministerial Service Rules, 1998 (for brevity ‘APMS Rules’), reads as follows: “Rule 6 (2): No person shall be eligible for appointment to any post in the service either by direct recruitment or by appointment by transfer or by promotion, including conversion, unless he possesses the intermediate qualification and where higher educational qualification is prescribed for such post.” Provided that that those who were already in service prior to 15th December, 1984 and those appointed in Offices other than the Heads of Departments and Directorates prior to 29.10.1987 shall be eligible for appointment as Junior Assistant etc., if they passed SSC or any equivalent examination. As contemplated by the Rule making authority, the petitioner has to qualify intermediate. Since the petitioner has possessed only S.S.C., he is not entitled to be promoted to the category of senior assistant. He further contended that the 1981Rules have to be read along with the APMS Rules. The 1981 Rules cannot be read in isolation. It has to be read together with the APMS Rules. Therefore, he has to possess intermediate qualification as prescribed under Rule 6 (2) of the APMS Rules. Hence, the petitioner is not entitled for promotion as senior assistant and the writ petition is liable to be dismissed. 9. The points that arise for consideration to resolve the controversy are: 1) Whether A.P.Ministerial Service Rules, 1998 are applicable to the case of the petitioner for the purpose of promotion to the category of Senior Assistants? Hence, the petitioner is not entitled for promotion as senior assistant and the writ petition is liable to be dismissed. 9. The points that arise for consideration to resolve the controversy are: 1) Whether A.P.Ministerial Service Rules, 1998 are applicable to the case of the petitioner for the purpose of promotion to the category of Senior Assistants? 2) If the answer to Point No.1 is in the negative, how the case of the petitioner is to be dealt with in the absence of prescription of a rule like 6(2) of APMS Rules in the Special Rules issued in G.O.Ms.No.541 dated 15.10.1981 dealing with non-gazetted posts of the Tribunal Service? And 3) Whether the decision of the Supreme Court in The District Registrar, Palghat and another vs. M.B. Koyakutty has application to the case of the petitioner? 10. Point No.1: The members of non-gazetted service of A.P. Administrative Tribunal are governed by the Rules issued by the Governor of Andhra Pradesh in exercise of the powers conferred under Article 309 of the Constitution of India in G.O.Ms.No.541 General Administration (SPF.B) Department dated 15.10.1981. These Rules are called the Andhra Pradesh Administrative Tribunal Non-gazetted Service Rules, 1981 and they may be termed as Special Rules for non-gazetted posts of the Tribunal. Rule 2 of the said Rules which specifies about the applicability of General Rules for the State and Subordinate Services reads as follows: “The General Rules for the State and Subordinate Services shall apply to the members of the service subject to the modifications specified in these rules.” 11. Rule 3 of the 1981 Rules provides that the temporary non-gazetted posts in the Andhra Pradesh Administrative Tribunal shall constitute a temporary addition to the corresponding categories in the Andhra Pradesh Ministerial Service. Like the applicability of the General Rules to the 1981 Rules, there is no mention about the applicability of A.P. Ministerial Service Rules which consists of various classes and categories of posts of various departments in A.P. Ministerial Service Rules. Like the applicability of the General Rules to the 1981 Rules, there is no mention about the applicability of A.P. Ministerial Service Rules which consists of various classes and categories of posts of various departments in A.P. Ministerial Service Rules. The Tribunal found that since under sub-rule (a) of Rule 1 of the General Rules for the State and Subordinate Services, the gazetted and non-gazetted posts under the State Government shall be constituted into various State and Subordinate Services and they shall be governed by the Andhra Pradesh State and Subordinate Service Rules (General Rules) and Special Rules as well as the 1981Rules issued by the Government and since the APMS Rules being the Special Rules for non-gazetted employees, they are also applicable to the non-gazetted posts in the Andhra Pradesh Administrative Tribunal wherever the 1981 Rules issued in G.O.Ms.No.541 are silent or ambiguous or not exhaustive. We are unable to agree with this. No doubt Rule 3 of the 1981 Rules provided that temporary Non-gazetted posts in the Tribunal constitute a temporary addition to the corresponding categories in the APMS Service. But the Rules, however, did not specify that wherever the 1981Rules are silent or ambiguous or not exhaustive, the APMS Rules will fill the gap though in the case of general rules, the same were made applicable subject to modifications in the 1981 Rules. Though the 1981 rules are ad hoc in nature, they are to be treated as special rules for the purpose of non-gazetted posts of A.P. Administrative Tribunal; therefore, the APMS Rules cannot fill the gap in the 1981 Rules. If the rules are not exhaustive, it is for the authority to take necessary steps to meet the situation by seeking amendment of the 1981 Rules. Therefore, in the absence of any provision in the 1981Rules issued in G.O.Ms.No.541 making APMS Rules also applicable to the Tribunal non-gazetted Service, the APMS Rules have no application to the case of the petitioner. The point is answered accordingly. 12. Points 2: Rule 4 of the 1981 Rules, which deals with the ‘appointment’ of various posts in the Tribunal so far as it relates to Junior Assistants (LDC) and Senior Assistants (UDC) reads as follows: 13. Rule 6 of the 1981 Rules, dealing with ‘qualification’ reads as follows: “6. The point is answered accordingly. 12. Points 2: Rule 4 of the 1981 Rules, which deals with the ‘appointment’ of various posts in the Tribunal so far as it relates to Junior Assistants (LDC) and Senior Assistants (UDC) reads as follows: 13. Rule 6 of the 1981 Rules, dealing with ‘qualification’ reads as follows: “6. QUALIFICATION:- “(1) Appointment to the posts mentioned in column (1) of the Table below shall be made in the manner specified against them in column (2) thereof:- THE TABLE (1) General:-No person shall be eligible for appointment by direct recruitment to the post of:- (a) Librarian, unless he holds a diploma in Library Science awarded by a University established or incorporated by or under a Central Act or a State Act, or by a State Government or Board. (b) Lower Division Clerk unless he holds a degree in Arts or Science or Commerce or law of a University in India established or incorporated by or under a Central Act, provincial Act or a State Act or from any other institution recognized by the University Grants Commission. (c)Typist, unless he possesses the minimum general educational qualification that may be prescribed for admission, into the Andhra Pradesh Ministerial Service. (d) No person shall be eligible for promotion from the post of Care Taker to the post of Upper Division Clerk in the Andhra Pradesh Administrative Tribunal unless he holds a degree in Arts, Science or Commerce or Law of a University in India established or incorporated by or under a Central Act, Provincial Act or a State Act or from any other institution recognized by the University Grants Commission. (2) Special :- (a) No person shall be eligible for appointment by promotion to the post of Upper Division Clerk unless he has passed the Civil Judicial Test and Accounts Test for Subordinate Officers Part – I. (b) No person shall be eligible for appointment by transfer or by promotion to the post of Lower Division Clerk unless he has passed the Civil Judicial Test or possesses such other qualification as may be considered by the Chairman to be equivalent to the said qualification or unless the Chairman considers such person otherwise fit for the post. Provided that a person appointed by direct recruitment shall pass the special test within the period of probation, if he has not already passed to the said test. Provided that a person appointed by direct recruitment shall pass the special test within the period of probation, if he has not already passed to the said test. Note: The holders of a degree in Law of a University in India established or incorporated by or under a Central Act, Provincial Act or a State Act or an Institution recognized by the University Grants Commission shall not be required to pass the Civil Judicial Test. (c) No person shall be eligible for appointment by direct recruitment or by transfer or by promotion to the post of typist unless in addition to the qualification prescribed in sub-rule (1), he has passed the Government Technical Examination in Typewriting by High Grade.” 14. The petitioner was initially appointed as Attender in the Tribunal on 08-02-1983 and promoted as Junior Assistant by proceedings dated 30-03-1992, with effect from 01-04-1992, which reads as follows: “Under Rule 4 (1) (3) (iii) of the AP Administrative Tribunal Non-Gazetted Service Rules issued in the G.Os., cited, Sri G.Venkateswar Rao, Record Assistant is promoted as Junior Assistant with effect from 01-04-1992 FN in the time scale of pay of Rs.910-1625 with usual allowances, in the vacancy caused due to promotion of Smt. R.Vimala Kumari, junior Assistant as Senior Assistant.” 15. The petitioner has been appointed to the post of Junior Assistant by promotion from the post of Record Assistant from the General Subordinate Service with effect from 01-04-1992 under Rule 4 (1) (3) (iii) of the 1981 Rules, extracted supra. Rule 6 (1) (b) of the 1981 Rules, provides that no person shall be eligible for appointment by direct recruitment to the post of LDC unless he holds a degree in Arts or Science or Commerce or Law of a University in India established or incorporated by or under a Central Act, provincial Act or a State Act or from any other institution recognized by the University Grants Commission. The 1981 Rules have not prescribed qualification for the purpose of promotion to the category of LDC from the Andhra Pradesh General Subordinate Service or the Last Grade Service. The petitioner does not possess the qualification of Graduation at the time he was promoted as LDC. The 1981 Rules have not prescribed qualification for the purpose of promotion to the category of LDC from the Andhra Pradesh General Subordinate Service or the Last Grade Service. The petitioner does not possess the qualification of Graduation at the time he was promoted as LDC. Question then arises how the petitioner came to be promoted as Junior Assistant from the Andhra Pradesh General Subordinate Service as the official respondents failed to produce the record relating to the promotion of the petitioner as Junior Assistant before the Tribunal on the ground that it is not available. Obviously, the petitioner must have been promoted keeping in view the position that under Rule 12 (2) of the General Rules the minimum general educational qualification is a pass in SSC examination or equivalent examination. 16. Rule 4 (1) (2) of the 1981 Rules deals with promotion to the category of UDC. Clause (ii) thereof under the method of appointment provides promotion from the post of LDC and typists in the ratio of 3:1. Admittedly, the petitioner was promoted to the category of Junior Assistant with effect from 01-04-1982 and his name was shown at serial No.8 in the seniority list of junior assistants. 17. A perusal of the 1981 Rules clearly postulates that the qualification prescribed under Rule 6 (1) (b) of the 1981 Rules is only for the purpose of direct recruitment to the post of LDC. The 1981 Rules have not prescribed any qualification for promotion to the post of senior assistant which is the only source of recruitment, in respect of candidates who have been appointed to the category of junior assistants from other categories of Tribunal service. Appointment to the category of senior assistants is only by way of promotion. Since appointment to higher category of senior assistant is by way of promotion, seniority-cum-fitness is the only criteria for consideration of candidates working in the category of junior assistants for promotion to the category of senior assistants. The 1981 Rules have also not prescribed that persons who have been working as junior assistants having been promoted to the said category from other categories of Tribunal service with minimum general educational qualification are required to possess the qualification of graduation for the purpose of further promotion to the category of senior assistants. The 1981 Rules have also not prescribed that persons who have been working as junior assistants having been promoted to the said category from other categories of Tribunal service with minimum general educational qualification are required to possess the qualification of graduation for the purpose of further promotion to the category of senior assistants. Since the petitioner has already been promoted to the category of LDC from the post of record assistant, he is eligible to be considered for promotion under Rule 4 (2) (ii) of the 1981 Rules to the category of senior assistants on the basis of seniority subject to possessing of special qualifications prescribed under Rule 6 (2) (a), ie pass in civil judicial test and accounts test for subordinate officers Part-I though he has not possessed degree qualification. Admittedly, the petitioner has passed the said tests and thus, eligible to be considered for promotion to the category of UDC. As per the 1981 Rules, no other requirement is to be fulfilled by the petitioner. 18. In view of the above position, the finding of the Tribunal that the prescription of degree qualification prescribed in the 1981 Rules for the post of junior assistant by way of direct recruitment equally applies to the case of promotion to the post of senior assistant in the absence of prescription of any qualification for promotion is not correct. The prescription of degree qualification is required only when appointment is to be made by direct recruitment to the category of junior assistant. As already noted, the 1981 Rules have not placed any restriction in respect of candidates promoted as junior assistants from the other categories of Tribunal i.e. general subordinate service or last grade service for further promotion to the category of senior assistants. Under Rule 4 (1) (3) (ii) of the Rules, 1981, it is not required to possess degree for further promotion to the category of senior assistants. In the absence of any restriction or requirement of possessing graduation qualification by the candidates promoted to the category of LDCs from other categories of Tribunal, it cannot be said that the applicant has to possess degree qualification for the purpose of promotion to the category of UDC. In the absence of any restriction or requirement of possessing graduation qualification by the candidates promoted to the category of LDCs from other categories of Tribunal, it cannot be said that the applicant has to possess degree qualification for the purpose of promotion to the category of UDC. Further, as the direct recruit LDCs and departmental promotee LDCs integrated into the same class of employees ie Junior Assistants, there cannot be any classification between them for the purpose of promotion to the category of senior assistants. 19. Learned counsel for the respondents 3 and 4 contended that the 1981 Rules cannot be read in isolation and are required to be read together with APMS Rules. As per Rule 6 (2) of the APMS Rules, the petitioner is required to possess intermediate qualification for the purpose of promotion. In view of our conclusion on Point No.1, we find no merit in the said contention and for the same reason, the finding recorded by the Tribunal is not correct. 20. For a while we may assume that APMS Rules have application to the case of the petitioner and examine the same. The proviso to Rule 6 (2) (b) of the APMS Rules reads as follows: “Provided that those who were already in service prior to 15th December 1984 and those appointed in offices other than the heads of departments and directors prior to 29-10-1987 shall be eligible for appointment as junior assistant etc., if they passes S.S.C. or any equivalent examination.” 21. The proviso clearly says that those who were already appointed in service prior to 15th December, 1984 and those appointed in offices other than the heads of department and directors prior to 29-10-1987 shall be eligible for appointment as junior assistants etc., if they possess SSC or equivalent examination. Admittedly, the petitioner has been appointed to the service on 8.2.1983 and has been promoted to the category of junior assistant with effect from 01-04-1992. Since the 1981 Rules have not prescribed that a person who has been promoted to the category of junior assistant is required to possess degree qualification for the purpose of further promotion to senior assistant, the petitioner is entitled to be considered for promotion to the category of UDC. Since the 1981 Rules have not prescribed that a person who has been promoted to the category of junior assistant is required to possess degree qualification for the purpose of further promotion to senior assistant, the petitioner is entitled to be considered for promotion to the category of UDC. Therefore, even if the APMS Rules are applicable to the Tribunal service, in view of the proviso to Rule 6 (2) of the APMS Rules, petitioner is not required to possess degree qualification as he has been appointed to the service prior to 15.12.1984 and thus exempted from passing the Intermediate qualification. Further the respondents are taking different stands, while before the Tribunal it was contended that graduation qualification is required, before us it was argued that Intermediate qualification is the requisite qualification. 22. The finding of the Tribunal since there is no modification to the qualification to the post of LDC, the qualifications prescribed for direct recruits apply to the promotions also has also no merit for the reasons aforestated. The finding of the Tribunal that the proviso to Rule 22 of APMS Rules (un-amended) is only an exception to the main proviso of possession of degree for appointment to the post of UDC by any method of appointment and confines the eligibility to those who were appointed in the heads of departments prior to 15-10-1984 and it cannot be stretched for the purpose of promotion to the higher posts like senior assistants, superintendents, senior officers etc., has also no merit. The interpretation sought to be made by the Tribunal is not correct. As per the 1981 Rules, promotion to the category of senior assistant is only by way of seniority subject to fitness and eligibility as to the possessing of special qualifications. 23. Point No.3: The learned counsel for the petitioner has placed strong reliance on the decision of the Supreme Court in Koyakutty’s case (supra) and submitted that the facts and circumstances in the said case on all fours has application to the case of the petitioner herein. 24. Before we refer to the ratio laid down by the Supreme Court, it is necessary to refer to the facts in Koyakutty’s case. The respondent before the Supreme Court M.B. Koyakutty entered service of the former Madras State as a temporary Section Writer. 24. Before we refer to the ratio laid down by the Supreme Court, it is necessary to refer to the facts in Koyakutty’s case. The respondent before the Supreme Court M.B. Koyakutty entered service of the former Madras State as a temporary Section Writer. Rule 29 of Madras Ministerial Service Rules provided that no person shall be eligible for appointment to the service in any higher post by direct recruitment or recruitment by transfer or promotion unless he possesses the minimum general educational qualification prescribed in the schedule to the General Rules, which provided passing of minimum general educational qualification ie Secondary School leave Examination or other equivalent examination. He did not possess the minimum general educational qualification. However, the State Government of Madras passed orders exempting him from possessing the said qualification for being appointed as a LDC in the Registration Department, relaxing Rules 28 and 29 of the Special Rules of the Madras Ministerial Service in his favour. On the reorganisation of the States, Koyakutty was allotted to the State of Kerala. The State of Kerala issued an order on 16.5.1961 in consultation with the Public Service Commission that all such persons who did not possess the minimum general education qualification and were appointed as LDCs after granting them exemption from that qualification may be allowed to sit for a qualifying test to be conducted by the Public Service Commission and in case they secure a certain minimum percentage of marks, they may be regarded as possessing the minimum general qualification of the SSLC standard for purpose of promotion to UDC and higher grades or continuance in the UDC cadre. In the gradation list of LDCs, Koyakutty was palced at S.No.1. When two vacancies in UDC cadre arose in 1966, two juniors of Koyakutty were promoted overlooking him. Koyakutty filed a writ petition before Kerala High Court contending that seniority should alone be the basis for promotion and promotion of his juniors amounted to denial of equitable treatment guaranteed under Articles 14 and 16 of the Constitution of India and that exemption granted to him by the Government removing the bar from being appointed in the Ministerial Service enured for all purposes. A learned single Judge rejected the contention opining that exemption granted to him was only for the limited object of enabling him to be appointed and continue in the post of LDC and did not remove the bar of pass in minimum general education qualification. On appeal, the Division Bench reversed the finding of learned single Judge and directed the Government and the District Registrar to treat Koyakutty as eligible for promotion as UDC. The Government carried the matter in appeal before the Supreme Court. The Supreme Court held that since no Special Rules relating to UDCs have been framed by Kerala State, the General Rules would continue to have application and that the general test has not been conducted for all the LDCs and that LDCs appointed granting exemption from possessing minimum general educational qualification have been singled out asking them to appear in the test. 25. Before the Supreme Court reliance was placed on the decision of Five Judge Constitution Bench of the Supreme Court in State of Jammu and Kashmir v. Triloki Nath Khosa AIR 1974 SC 1 to contend that the power of Government to prescribe selective test for promotion to higher service has been recognised by the Supreme Court. The Supreme Court rejected the contention of the appellant. Triolikinath’s case relates to Jammu and Kashmir Engineering Service. Appointment to the category of Assistant Engineers is by way of direct recruitment and promotion from the category of supervisors. Persons appointed directly and by promotion to the category of Assistant Engineers integrated into common class of Assistant engineers. Promotion to the post of executive engineers was from the category of Assistant engineers. A rule was made that only those Assistant engineers who possessed a bachelor’s degree in engineering are eligible to be promoted to the exclusion of diploma holders. Supreme Court held that though persons appointed directly and by promotion were integrated into a common class of Assistant engineers, they could, for purposes of promotion to the cadre of Executive Engineers, be classified on the basis of educational qualifications. Supreme Court held that though persons appointed directly and by promotion were integrated into a common class of Assistant engineers, they could, for purposes of promotion to the cadre of Executive Engineers, be classified on the basis of educational qualifications. The Supreme Court distinguished Trilokinath’s case from the case of Koyakutty and held that the statutory rule in question did not make any discrimination in relation to the source of recruitment and it simply provided that graduates alone shall go into the higher cadre of Executive Engineers irrespective whether they were appointed as Assistant Engineers directly or by promotion and that the impugned notification of Kerala State prescribed the qualifying test not for all but only for one category of persons with reference to the manner in which they initially entered service. The Supreme Court held that the post of Executive Engineer carried higher responsibility and duties of supervisory character requiring higher mental equipment and administrative skill and that such classification rested on intelligible differentia having a direct nexus to the object (administrative efficiency) to be achieved. With reference to Koyakutty’s case, the Supreme Court held that there is nothing on record to show that the duties discharged by the clerks of the upper division are substantially different from those in the lower division and lastly that the statutory rule does not warrant the classification made by the impugned government order and that the primary criterion for promotion to the upper division clerks prescribed by Rule is seniority if the person concerned is otherwise not unfit. 26. In the case before us, there was no rule in the 1981 Rules that persons possessing graduation qualification will be preferred to the exclusion of candidates having no graduation qualification for promotion to senior assistants or that the junior assistants promoted from General Subordinate Service are required to possess graduation qualification. The only rule is that promotion to the category of UDCs from the direct recruit junior assistants and promotee junior assistants, constituting one class, shall be based on seniority in the category of junior assistants subject to fitness. Therefore, there cannot be any discrimination between the same class of persons. Also, there is nothing on record to show that the duties of Junior Assistants are substantially different from those of Senior Assistants. 27. Therefore, there cannot be any discrimination between the same class of persons. Also, there is nothing on record to show that the duties of Junior Assistants are substantially different from those of Senior Assistants. 27. Reliance was also placed before the Supreme Court in Roshan Lal v. Union of India AIR 1987 SC 1889 . This is a case dealing with the case of promotions in Railways to the category of Train Examiners (Grade C) from the category of Train Examiners (Grade D). A Five Judge Constitution Bench held that at the time when the petitioner and the direct recruits were appointed to Grade D, there was one class in Grade D formed of direct recruits and the promotees from the grade of artisans. The recruits from both the sources to Grade D were integrated into one class and no discrimination could thereafter be made in favour of recruits from one source as against the recruits from the other sources in the matter of promotion to Grade C. To put it differently, once the direct recruits and promotees are absorbed in one cadre, they form one class and they cannot be discriminated for the purpose of further promotion to the higher grade C. Applying the said ratio, the Supreme Court in Koyakutty’s caseheld that the decision in Roshan Lal’s case(supra) applies with greater force to the facts of Koyakutty’s casebecause here the classification made by the impugned order is not only unfair and irrational but also virtually amounts to abandonment of the test of seniority-cum-fitness provided in the rules and accordingly upheld the order of the Division Bench of the High Court. 28. The facts in Koyakutty’scase are almost similar to the facts on hand. While in Koyakutty’s caserelaxation for possessing minimum general educational qualification has been granted, in the case on hand petitioner possessed the minimum general educational qualification and in both the cases seniority-cum-fitness is the only criteria for promotion to UDCs. The direct recruit junior assistants and departmental promotees (appointed from the other categories of Tribunal service) constitute one class of service of Junior Assistants and the rule of promotion for both the categories ie direct recruit junior assistants and departmental promotee junior assistants is by way of seniority-cum-fitness subject to of course passing of special tests. The direct recruit junior assistants and departmental promotees (appointed from the other categories of Tribunal service) constitute one class of service of Junior Assistants and the rule of promotion for both the categories ie direct recruit junior assistants and departmental promotee junior assistants is by way of seniority-cum-fitness subject to of course passing of special tests. The writ petitioner herein who has already been promoted as junior assistant from general subordinate service and merged into the category of junior assistants cannot be discriminated for the purpose of promotion on the ground that he has not possessed graduation qualification since at the time of his promotion to the category of junior assistants he has possessed the requisite qualification of a pass in minimum general educational qualification as per the Generals Rules for the State and Subordinate Services. 29. When promotion to the category of senior assistants is from the category of junior assistants appointed by direct recruitment and by promotion, which constituted one class, is based on seniority-cum-fitness, subject to passing of special tests, the classification sought to be made by the Tribunal between the junior assistants appointed by direct recruitment and departmental promotes is unfair, arbitrary and irrational and violative of Articles 14 and 16 of the Constitution of India. 30. For the reasons aforesaid, the order of the Tribunal is set aside. We hold that denial of promotion to the petitioner to the category of senior assistants by the Tribunal either on the ground that he did not possess graduation qualification or Intermediate qualification is unfair, discriminatory and violative of Article 14 of the Constitution of India. The respondents 1 and 2 are hereby directed to consider the case of the petitioner for promotion to the category of senior assistant on the basis of seniority in the category of Junior Assistants subject to fitness and passing of tests prescribed in accordance with the 1981Rules issued in G.O.Ms.No.541 dated 15.10.1981 from the date his junior was promoted with all consequential benefits. 31. With the aforesaid directions, the writ petition is allowed. There shall be no order as to costs.