ORDER : The above Writ Petition was filed seeking following relief : “….to issue an appropriate Writ order or direction more particularly one in the nature of Writ of Mandamus, declaring the action of the respondent No.2 in issuing Memo in RC.No.E2/15021/219/2020, dated 07.10.2020 re-fixing the seniority of the petitioner in the cadre of Junior Assistant w.e.f 18.02.2011 and Seniority Assistant w.e.f. 18.02.2014 and rejecting the claim of the petitioner for being appointed as Executive Officer, Grade-II by transfer of service from Senior Assistant instead of taking into consideration of actual promotion of petitioner as Junior Assistant w.e.f. 09.02.2004 and Senior Assistant w.e.f. 28.03.2007 relying on the inapplicable Amendment made to the Rule 39 (Annexure-III) of the Office holders and Servants Rules, 2000 (GO.O.Ms.no.888, dated 08.12.2000) as per G.O.MS.No.128, dated18.02.2011 contrary to the authoritative pronouncement made by Hon’ble Division Bench of this Hon’ble Court in 2002-1-Ald-537 as bad, illegal and arbitrary and Violative of article 14, 16, 21 and 300A of constitution of India, consequently direct the respondent No. 2 to appoint the petitioner as Executive Officer Grade-II by transfer of service as per The Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Subordinate Service (Non-Gazetted) Rules, 2002 by taking into consideration of the actual promotion of the petitioner as Junior Assistant w.e.f. 09.02.2004 and Senior Assistant w.e.f. 28.03.2007 and to grant all consequential service and monetary benefits to the petitioner and pass such other order or orders as deem fit and proper in the circumstances of the case. 2. The Petitioner was appointed as Record Assistant in Sri Venkateswara Swamy Temple, Eluru, on 01.03.1993. The Deputy Commissioner, Endowments Department, Kakinada fixed the cadre strength of Sri Venkateswara Swamy Temple, Eluru by proceedings D.Dis.No.B5/16125/2001, dated 28.08.2001. The Cadre Strength approved by the Deputy Commissioner of the Temple is one Senior Assistant, one Junior Assistant, two Record Assistants and one Night Watchman. Petitioner’s service was regularized as Record Assistant with effect from 01.04.1999. The Cadre Strength was revised by proceedings D.Dis.No.B5/3234/2004, Adm, dated 08.02.2004. 3. Petitioner was promoted as Junior Assistant on 09.02.2004. Thereafter, he was promoted as Senior Assistant on 28.03.2007. Petitioner, presently, is working as Senior Assistant. As per the Final Seniority List of Senior Assistants of Zone–II consisting of East Godavari, West Godavari and Krishna District, dated 22.04.2015, the petitioner’s name was shown at Sl.No.67. 4. 3. Petitioner was promoted as Junior Assistant on 09.02.2004. Thereafter, he was promoted as Senior Assistant on 28.03.2007. Petitioner, presently, is working as Senior Assistant. As per the Final Seniority List of Senior Assistants of Zone–II consisting of East Godavari, West Godavari and Krishna District, dated 22.04.2015, the petitioner’s name was shown at Sl.No.67. 4. Since the case of the petitioner was not considered for further promotion and juniors were promoted, he filed O.A.No.5508 of 2015 on the file of the Hon’ble APAT. Interim Orders were granted on 23.09.2015, directing the petitioner to submit representation. Petitioner submitted representation dated 06.10.2015 to the 2nd respondent. By Memo in Rc.No.E2/6589/2016-8, dated 21.02.2018, the claim of the petitioner was rejected on the ground that there was no channel of promotion from Record Assistant to Junior Assistant in the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Office Holders and Servants Punishment Rules, 2000, herein after referred to as ‘Rules’,. Channel was provided in the Rules by way of amendment as per G.O.Ms.No.128, dated 18.02.2011. As such, the petitioner cadre in the Junior Assistant was fixed from 18.02.2011 and promotion to Senior Assistant was reckoned from 18.02.2014 against actual promotion of Junior Assistant from 09.02.2004 and Senior Assistant from 28.03.2007, respectively. 5. The petitioner submitted representation dated 26.01.2019 to the Minister of Endowments along with other similarly placed persons to re-fix their seniority by considering the actual date of promotion as Junior Assistant, Senior Assistant and to appoint the petitioner as Executive Officer, Grade–II by transfer of service from Senior Assistant. The 3rd respondent submitted a Report vide proceedings No.226025/2019, dated 03.06.2019 and requested the 2nd respondent to issue necessary orders. Since, nothing has been taken place, the petitioner filed W.P.No.4161 of 2020 and the same disposed of, directing 2nd respondent to consider the 3rd report of the respondent dated 03.06.2019 and pass appropriate orders within a period of four weeks from the date of receipt of a copy of said order. C.C.No.781 of 2020 was filed for non-implementation of the orders in W.P.No.4161 of 2020. C.C.No.781 of 2020 was filed for non-implementation of the orders in W.P.No.4161 of 2020. Pending C.C.No.781 of 2020, the 2nd respondent by Memo in Rc.No.E2/15021/219/2020, dated 07.10.2020, disposed of the representation holding that the temporary promotion of the petitioner as Junior Assistant on 09.02.2004 is without there being a channel in Rules as also the further promotion to Senior Assistant on 29.03.2007 is against the statutory Rules and hence, the temporary promotion is regularized in terms of G.O.Ms.No.128, dated 18.02.2011 in the cadre of Junior Assistant w.e.f. 18.02.2011. Consequently, the petitioner’s further promotion as Senior Assistant is reviewed and fixed w.e.f. 18.02.2014 i.e., the date of completion of minimum service of three (03) years from the date of promotion as Junior Assistant. Aggrieved by the same, the above Writ Petition is filed. 6. Counter affidavit was filed by 2nd respondent. In the counter affidavit it was contended that as per G.O.Ms.No.888, dated 08.12.2000, the method of appointment to the post of Junior Assistant is by way of Direct Recruitment; by loan of services of Junior Assistants from Endowments Department or by transfer of Conductor. There is no channel of promotion to the Junior Assistants from the category of Record Assistants in the Rules issued in G.O.Ms.No.888, dated 08.12.2000. Subsequently, channel of promotion was created to Junior Assistant from Record Assistant vide G.O.Ms.No.128, Revenue (Endowments – I) Department, dated 18.02.2011. Accordingly, the seniority of Junior Assistants who were temporarily promoted as Junior Assistants from the category of Record Assistants, was taken into consideration from 18.02.2011. 7. Petitioner claimed Seniority from the date of his appointment as was done in the case of Sri K. Vidyasagar, Junior Assistant. The case of the said K. Vidyasagar, Temple Junior Assistant was reviewed and orders were issued vide Memo No.A1/1284549/2018, dated 21.12.2018 and show cause notice was issued to the individual as to why the said orders shall not be cancelled and fixing seniority from the date of issuance of G.O.Ms.No.128, dated 18.02.2011. After explanation from the individual, an order was passed vide Memo in Rc.No.E2/COE-15021/208/2020, dated 11.05.2022 and thus prayed to dismiss the Writ Petition. 8. Reply affidavit was filed by the petitioner. In the reply affidavit, it was contended that the amendment in Annexure–I, Rule 39 vide G.O.Ms.No.128, 18.02.2011 does not apply to the case of the petitioner and thus prayed to allow the Writ Petition. 9. 8. Reply affidavit was filed by the petitioner. In the reply affidavit, it was contended that the amendment in Annexure–I, Rule 39 vide G.O.Ms.No.128, 18.02.2011 does not apply to the case of the petitioner and thus prayed to allow the Writ Petition. 9. Heard Sri D.V. Sasidhar, learned counsel for the petitioner and learned Government Pleader appearing for the respondents. 10. Learned counsel for the petitioner would contend that refixing of seniority was done after seven years without issuing any notice. He also would contend that G.O.Ms.No.128, 18.02.2011 has no application to the facts on hand. He would also contend that promotion of the petitioner is not illegal, and writ petitioner is qualified to be promoted from the post of Record Assistant to Junior Assistant and thereafter to Senior Assistant. He also submitted that the petitioner’s promotion to the cadre of Junior Assistant was made basing on the cadre strength fixed by the Deputy Commissioner. 11. Learned Government Pleader on the other hand would contend that method of appointment to the post of Junior Assistant is by way of Direct Recruitment, by loan of services of Junior Assistant from Endowments Department or by transfer of Conductor as per G.O.Ms.No.888, dated 08.12.2000. By issuing G.O.Ms.No.128, dated 18.02.2011, channel of promotion was created from Record Assistant, as feeder category, to Junior Assistant on promotion. G.O.Ms.No.128, dated 18.02.2011 operates prospectively. The promotions effected in between, have been treated from the date of issuance of G.O.Ms.No.128, dated 18.02.2011. Learned Government Pleader would also submit that the promotion from Record Assistant to Junior Assistant, Junior Assistant to Senior Assistant is against statutory Rules. Hence, the promotion of the petitioner was re-fixed as per G.O.Ms.No.128, dated 18.02.2011. 12. The point for consideration is whether the petitioner’s seniority in the cadre of Senior Assistant is to be reckoned from 28.03.2007 or from 18.02.2014? 13. The un-disputed facts, as per the material on record, is the petitioner was initially appointed as Record Assistant on consolidated pay in Sri Venkateswara Swamy Temple, Eluru by proceedings dated 01.03.1993. The petitioner’s service was regularized as Record Assistant w.e.f. 01.04.1999 and time scale was also granted. He was promoted as Junior Assistant on 09.02.2004. 13. The un-disputed facts, as per the material on record, is the petitioner was initially appointed as Record Assistant on consolidated pay in Sri Venkateswara Swamy Temple, Eluru by proceedings dated 01.03.1993. The petitioner’s service was regularized as Record Assistant w.e.f. 01.04.1999 and time scale was also granted. He was promoted as Junior Assistant on 09.02.2004. The proceedings filed along with the Writ Petition i.e. promoting petitioner from Record Assistant to Junior Assistant would disclose that, pursuant to the order of the Deputy Commissioner, Endowments Department, Kakinada, the cadre strength was fixed to the group temples and petitioner was promoted as Junior Assistant in the time scale. 14. Nothing was indicated in the proceedings that the promotion of the petitioner, as junior assistant, is temporary, as contended at Para No.7 of the Counter Affidavit of the 2nd respondent. Petitioner was promoted to the post of Senior Assistant vide proceedings Rc.No.26/2007, dated 28.03.2007. While promoting the petitioner as Senior Assistant temporarily, it was mentioned in the proceedings that the petitioner must pass Departmental tests within two (02) years and if the petitioner fails to pass Departmental tests, he will be reverted. However, as can be seen from the material, petitioner seems to have passed departmental tests and thus, possessed all the requisite qualification. 15. 1st respondent issued G.O.Ms.No.888, dated 08.12.2000 in exercise of powers conferred under Sec 35(4) read with Sec 153 of Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987. These rules are called as Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Office Holders and Servant Service Rules, 2000. 16. Annexure-III to the Rules was prepared in consonance with Rule 39 of the G.O.Ms.No.888, dated 08.12.2000, which prescribes qualification. Category–4 of Annexure–III refers to Junior Assistants. Initially, when G.O.Ms.No.888 was Gazetted, to the post of Junior Assistant method of recruitment prescribed is, (1) by Direct Recruitment and (2) by loan of services of Junior Assistants from Endowments Department by Issuing G.O.Ms.No.1159 dated 3-9-2007 transfer from Category-I of Conductor of Class VIII i.e. Transport Branch was included. Later, by G.O.Ms.No.128, dated 18.02.2011 promotion channel was created from Record Assistant to Junior Assistant. 17. The petitioner, as noted supra, was promoted from Record Assistant to Junior Assistant by proceedings dated 09.02.2004 after G.O.Ms.No.888, dated 08.12.2000 came into operation. Later, by G.O.Ms.No.128, dated 18.02.2011 promotion channel was created from Record Assistant to Junior Assistant. 17. The petitioner, as noted supra, was promoted from Record Assistant to Junior Assistant by proceedings dated 09.02.2004 after G.O.Ms.No.888, dated 08.12.2000 came into operation. By the date of promotion of petitioner, of course, as stated supra, channel of promotion is not provided from Record Assistant to Junior Assistant. It is not the case of the respondent that petitioner mislead the authorities and got promotion. In fact, as indicated supra, when the petitioner was promoted to the post of Junior Assistant nothing was indicated in the order that the promotion is temporary and subject to fulfilment of certain conditions. 18. Rule-13 of G.O.Ms.No.888 dated 08.12.2000 deals with Promotion. As per Rule 13, no employee shall be eligible for promotion from a lower category to a higher category unless he has satisfactorily completed the probation and has put in service for a minimum period of three years but in no case it shall not less than two years in the category from which he has to be promoted. The Category, from which one will be promoted as mentioned in Rule 13, was incorporated in Annexure-III. 19. As mentioned supra, by date of promoting petitioner from Record Assistant to Junior Assistant, no promotion channel was provided from Record Assistant to Junior Assistant. However, by issuing G.O.Ms.No.128 dated 18.02.2011 such a channel is created. It is pertinent to mention here that competent authority promoted the petitioner from Record Assistant to Junior Assistant in the year 2004. By the date of promotion petitioner had possessed necessary service, required for promotion, as mandated in Rule 13 of the Rules. Thus, the promotion of the petitioner from the post of Record Assistant to Junior Assistant cannot be termed as illegal. At the most it can be termed as irregular. Later, petitioner further promoted as Senior Assistant and now the petitioner is requesting the authority to reckon the seniority from 2004 for further promotion on transfer. While considering the difference between illegal appointment and irregular appointment, the Hon’ble Apex Court observed as follows : 20. In State of M.P. and Ors. Vs. Lalit Kumar Verma, 2007 (1) SCC 575 after considering the Judgment of Constitution Bench of this Court in the case of State of Karnataka v. Umadevi, (2006) 4 SCC 1 , observed thus : 12. In State of M.P. and Ors. Vs. Lalit Kumar Verma, 2007 (1) SCC 575 after considering the Judgment of Constitution Bench of this Court in the case of State of Karnataka v. Umadevi, (2006) 4 SCC 1 , observed thus : 12. The question which, thus, arises for consideration, would be: Is there any distinction between “irregular appointment” and “illegal appointment”? The distinction between the two terms is apparent. In the event the appointment is made in total disregard of the constitutional scheme as also the recruitment rules framed by the employer, which is “State” within the meaning of Article 12 of the Constitution of India, the recruitment would be an illegal one; whereas there may be cases where, although, substantial compliance with the constitutional scheme as also the rules have been made, the appointment may be irregular in the sense that some provisions of some rules might not have been strictly adhered to. 21. As discussed supra Rule 13 of the Rules adumbrates promotion. Petitioner was promoted as Junior Assistant after completing necessary service in the post of Record Assistant as per Rule 13 of the Rules. Junior Assistant post is a sanctioned post in the temple and the same is vacant on the day of promotion of petitioner. Nothing was mentioned in the order that the promotion that the promotion of petitioner to the post of Junior Assistant from Record Assistant is subject to certain conditions. Thus, since the petitioner got necessary experience to get promotion and competent authority issued orders promoting the petitioner, though channel is not provided on the date of promotion of petitioner, such promotion at the most can be termed as irregular but not illegal. 22. Since this court concludes that promotion of petitioner from record assistant to junior assistant is irregular but not illegal, whether the petitioner service is to be reckoned from the date of actual promotion 28.03.2007 or from 18.02.2014 as refixed? 23. In Narender Chadha v. Union of India, (1986) 2 SCC 157 the Hon’ble Apex Court observed as follows : “The officers were promoted although without following the procedure prescribed under the rules, but they continuously worked for long periods of nearly 15-20 years on the posts without being reverted. 23. In Narender Chadha v. Union of India, (1986) 2 SCC 157 the Hon’ble Apex Court observed as follows : “The officers were promoted although without following the procedure prescribed under the rules, but they continuously worked for long periods of nearly 15-20 years on the posts without being reverted. The period of their continuous officiation was directed to be counted for seniority as it was held that any other view would be arbitrary and violative of Articles 14 and 16. There is considerable force in this view also. We, therefore, confirm the principle of counting towards seniority the period of continuous officiation following an appointment made in accordance with the rules prescribed for regular substantive appointments in the service.” 24. In the case on hand, petitioner was initially promoted as junior assistant in the year 2004 and later as senior assistant on completion of 3 years in the year 2007. In view of the expression of the Hon’ble Apex Court referred to supra, respondent shall have to reckon the seniority of the petitioner from the date of his promotion as Junior Assistant 09.02.02004 and Senior Assistant in the year 28.03.2007. 25. Whether Rule 39 of the Rules, prescribing qualification, would apply to the petitioner? 26. It is pertinent to note that Rule 13, which deals with the promotion, prescribes service for a minimum period of three years and it shall not be less than two years in the category from which one must be promoted. As pointed out supra, Category–4 of Annexure–III, till 2011, deals with Junior Assistant. If the argument of learned counsel is to be accepted i.e. non applicability of Rule 39 and Annexure-III, there is no post of Junior Assistant is made available. In the absence of such a post, promoting petitioner to Junior Assistant does not arise and if any such promotion it amounts to illegal promotion. Thus, the contention of the learned counsel appearing for the petitioner that Annexure-III has no application falls to ground. On the facts of the case, since the promotion was affected long back and promotion is irregular but not illegal, this court is of the considered opinion that the proceedings impugned in the writ petition are liable to be set aside. 27. On the facts of the case, since the promotion was affected long back and promotion is irregular but not illegal, this court is of the considered opinion that the proceedings impugned in the writ petition are liable to be set aside. 27. In view of the discussion supra, respondents shall reckon the service of the petitioner from the date of his promotion as Junior Assistant on 09.02.2004 and later as Senior Assistant on 28.03.2007. Petitioner is also praying to consider his case for promotion to Executive Officer Grade-II. As per G.O.Ms.No.262 Revenue (Endowment-II) dated 20.05.2002 Executive Officer Grade-II, the method of recruitment is (1) by way of transfer from Category-3 and (ii) by transfer from category of Senior Assistants of Andhra Pradesh Ministerial Service in the Endowments Department and Senior Assistant working in the institutions published under Section 6(a), (b), (c) and (d) of the Act other than Regional Joint Commissioner and Deputy Commissioner cadre institutions. 28. Counsel for the petitioner would contend that petitioner is eligible to be promoted to the cadre of Executive Officer Grade-II if the seniority of the petitioner is reckoned from 28.03.2007 i.e. promotion of petitioner to Senior Assistant. Respondents shall consider the case of the petitioner if the petitioner is otherwise eligible to the post of Executive Officer, Grade-II on transfer. The respondents shall consider the case of petitioner strictly in accordance with law. 29. With the above observations, the writ petition is allowed. However no costs.