PETITIONER:
BAQAR HUSAAIN AND ORS. ETC. ETC.
Vs.
RESPONDENT:
ZILLA PARISHAD, MEDAK ETC. ETC.
DATE OF JUDGMENT28/04/1992
BENCH:
FATHIMA BEEVI, M. (J)
BENCH:
FATHIMA BEEVI, M. (J)
SHARMA, L.M. (J)
CITATION:
1992 AIR 2028 1992 SCR (2) 862
1992 SCC Supl. (2) 400 JT 1992 (4) 34
1992 SCALE (1)1061
ACT:
A.P Panchayat Samithis and Zilla Parishads Act, 1959: Section
69.
A.P.Panchyat Samithis and Zilla Panshads Ministerial Service
Rules, 1965-Rule 4-Proviso-Interpretation of-Zilla Parishads
and Panchayat Samithis-Employees-Seniority and promotion-
Passing of Accounts Test made compulsory for promotion-Time
granted and extended for passing the Test-Employees
temporarily promoted prior to issue of Rules and passing the
Test within extended period-Employees promoted prior to
issue of Rules but passing the Test before extended period-
Seniority between-How reckoned.
HEADNOTE:
The Andhra Pradesh Panchyat Samithis and Zilla
Parishads Ministerial Service Rules, 1965 were issued on
15.3.1965. Rule 4 of the said rules prescribes the
qualifications for appointment to the various categories of
employees of Panchayat Samithis and Zilla Parishads. Under
this rule passing of Account Test was made a prerequisite
qualification from 15.3.1965 for the typists, lower division
clerks etc. working in the Telangana area for promotion to
the post of Upper Division Clerks, Superintendents and
managers. Since many employees had not acquired the test
qualification and were liable to be reverted, the Government
by its order NO. G.O.Ms.No. 487 granted two years time from
7.8.1967 to 7.8.1969 to enable them to pass the Account
Test. The time allowed for two year was extended from time
to time and finally up to November 1974. By a notification
No. G.O.Ms. No.822 P.R. dated 22.8.1977, Rule 4 was amended.
The first proviso to the amended rule provided that services
in the category of Upper Division Clerks and such of the
Lower Division Clerks who were temporarily promoted as Upper
Division Clerks and Senior Accountants prior to 15.3.1965
but passed the Account Test before 30th November, 1974 shall
be regularised from the date of their first temporary
promotion or from a subsequent date. Under second proviso
such regularisation was not to affect the seniority and
promotions to higher posts ordered in accord-
863
ance with rules in favour of those who passed the Account
Test before 7.8.1967.
The appellants, initially appointed as Lower Division
Clerks in Zilla Parishads, were promoted as Upper Division
Clerk during 1960 to 1963. They passed he Account Test after
7.8.1967 but before November, 1974. The respondents were
promoted as Upper Division Clerks before 1965 but they
passed the Test before 7.8.1967. In the seniority list the
appellants were placed above the respondents and in due
course were promoted as Superintendents and Managers. The
respondents claimed seniority and promotions over the
appellants on the ground that they have passed the Account
Test before 7.8.1967 while the appellants have passed the
Test after 7.8.1967 and therefore they were entitled for
promotion to the higher posts before the appellants.
The Administrative Tribunal allowed the respondents'
claim by holding that persons who were not qualified up to
7.8.1967 and who got the benefit of the notification dated
22.8.1977 have to be treated as juniors to those having
passed the Account Test before 7.8.1967 were fully qualified
for regular appointment as Upper Division Clerks irrespect
ive of whether such persons were appointed to the posts of
Upper Division Clerks regularly by 22.8.1977 or not.
In appeals to this Court it was contended on behalf of
the appellants that the interpretation placed on the 2nd
proviso to Rule 4 by the Tribunal is wrong; (2) since time
was granted for passing the prescribed test the appellants
who were promoted before passing the Account Test must be
deemed to have been qualified even at the time of the first
appointment on their passing the Account Test; (3) that the
respondents were also promoted as Upper Division Clerks
before they passed the test and their passing the test before
the extended time did not confer on them any right of
seniority when they were juniors to the appellants in the
category of Lower Division Clerks.
Disposing the Appeals, this Court,
Held : 1. The intention of the Government in issuing
the second proviso in G.O.MsNo.822 P.R. dated 22.8.1977 is
to protect only those who passed the Account Test before
7.8.1967 and whose services in the category of Upper
Division Clerks were regularised and promoted to the higher
864
posts by 22.8.1977. It is not intended to benefit those
persons who are not regularised or promoted even though they
had passed the Account Test before 7.8.1967. The crucial
words in the second proviso `the seniority and promotion to
higher posts ordered in accordance with rules in favour of
those who passed the Account Test before 7.8.1967'
contemplated an order of promotion taking into account the
test qualification acquired before 7.8.1967. If there had
not been an order of promotion, the mere passing of the test
before 7.8.1967 does not confer seniority to those Upper
Division Clerks over the category which had been granted the
concession.
[876 D-E, 873 F-G]
2. On a plain reading of the proviso in the light of
the various Government Orders, it is very clear that until
the Upper Division Clerks promoted before 15.3.1965 were
regularised and promoted to the higher post on their
acquiring the test qualification before 7.8.1967, they do
not get seniority over those who passed the test after
7.8.1967 but within the time granted and the latter do not
lose their seniority in favour of their juniors who acquired
the test qualification before 7.8.1967. [876 F-G]
3. Those temporary Upper Division Clerks who were
liable to be reverted for want of test qualification and who
had been conferred he concession by extending the time for
passing the test were entitled to be regularised on passing
the Account Test from the date of their first temporary
appointment or the subsequent date without affecting the
seniority of those persons who had secured promotion to
higher post in accordance with the rules on having passed
the Account Test before 7.8.1967. Thus the proviso clearly
indicates that as a matter of right the temporary Upper
Division Clerks who were liable to be reverted but had been
given the concession and had passed he Account Test within
the time granted could maintain their seniority over those
persons who had not been promoted by virtue of their test
qualification. The latter category who had already been
promoted had to be treated as senior to the former. Any
other interpretation of these provisos would make the second
proviso redundant. [873 H, 874 A-C]
4. The passing of the Account Test does not
automatically result in regularisation of the appointment as
Upper Division Clerks. The persons who were temporarily
promoted earlier had been granted concession to get
qualified and when they acquired such qualification they
stood in he same position as those who passed the test
earlier. The regularisation is not with
865
reference to the date of passing the test but with effect
from the date of first promotion in such cases. [877 B-C]
5. The protection under the latter part of the proviso
to Rule 4 is available to those Upper Division Clerks who
happened to be juniors and who had also acquired the test
qualification and had been promoted to the higher posts on a
regular basis though their senior acquired the test
qualification within the time allowed by he Government.
However, such protection is not available to those employees
who remained in the same category of Upper Division Clerks
and had been temporarily promoted as Upper Division Clerks
subsequent to the appellants though they had passed the test
before 7.8.1967 [877 F-G]
Chandrakant v. State of Gujarat, [1977] 2 S.L.R. 605,
referred to.
6. The Tribunal overlooked the true scope of the
proviso in the light of the Government order dated 7.8.1967
and uniformly applied the protection afforded in the second
proviso to all those persons who had acquired the test
qualification before 7.8.1967 irrespective of the fact that
they had been regularised and promoted to higher posts
before 1977. The seniority list shall be prepared in all the
cases in the light of the above findings and the
consequential relief be granted to the appellants. [876 F,
878-A]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 4085 &
4086 of 1984.
From the Judgment and Order dated 10.7.1984 of the
Andhra Pradesh Administrative Tribunal, Hyderabad in R.P.
NO. 51/77 and R.P. NO.451 of 1981.
WITH
C.A. NOs. 1303/88, 3347 & 3350/83, 3192/85 AND 1808/92.
K. Madhava Reddy, G. Prabhakar, Ms. Malini Poduval,
B.Kanta Rao. C.S. Panda, A. Subba Rao and R.N. Keshwani for
the appearing parties.
The Judgment of the Court was delivered by
FATHIMA BEEVI, J. Spcial Leave granted.
These appeals raise identical question involving the
interpretation of the Andhra Pradesh Panchayat Samithis And
Zilla Parishads Ministerial
866
Service Rules 1965 in relation to seniority and promotion.
The Rules under the Andhra Pradesh Panchayat Samithis And
Zilla Parishads Act 1959 were issued under G.O.Ms.No. 303
P.R. dated 15.3.1965. The service consist of categories of
posts of under:-
Category I : Managers etc. Zilla Parishads.
Category II : Superintendents in Zilla Parishads and
Panchayat Samithis.
Category III : Secretarial Assistants, Revenue Officers,
Endowment Officers, Upper Division Clerks
and Senior Accountants in Zilla Parishads
and Panchayat Samithis.
Category IV : Loan Inspectors, Lower Division Clerks and
Junior Accountant-cum-Store Keepers etc.
Rule 3 so far as material reads thus:-
“3. Appointment:- Appointment for the categories
specified in column (1) below shall be made by the method
specified in the corresponding entry in column (2) thereof.
————————————————————
Category Method of Appointment
————————————————————
1 2
————————————————————
I. (i) & (ii) Managers in By promotion from Category II
Zilla Parishads and Panchayat Note : (i) Assistants
Samithis working in Andhra Pradesh
secretariat shall also be
eligible to hold the posts on
deputation for a specified
period to be prescribed by
the Government.
II. Superintendents, Zilla By promotion from classes (i)
Parishads and Panchayat to (iv) in Category III.
Samithis
III. Classes (i) to (iv) By promotion from classes (i)
to (iv) in Category V.”
————————————————————
Rule 4 prescribes the qualification for appointment to
the various categories. Under this rule, Account Test for
the employees of local bodies or an equivalent test in
addition to the general educational qualification
867
specified is prescribed against categories 1, 2 and 3. As
the Account Test became a new test from 15.3.1965 to the
employees of Panchayat Samithis and Zilla Parishads working
in Telangana area, the Government granted two years time
from 7.8.1967 to 7.8.1969 to enable them to pass the Account
Test. The period was extended by two more years in 1969 and
for a further period of two years in 1971. Finally, the rule
itself was amended extending the time up to November 1974.
Proviso to Rule 4 as amended reads thus:-
“Provided further that the services in the category of
Upper Division clerks of such or the Lower Division
Clerks working in Panchayat Samithis and Zilla
Parishads who were temporarily promoted as Upper
Division Clerks and Senior Accountants prior to 15th
march, 1965, but passed the prescribed Account Test
before 30th November, 1974 i.e. within the time granted
to them by executive orders issued from time to time by
the Government to pass the said Account Test shall be
regularised from the date of their first temporary
promotion or from a subsequent date:
Provided also that the regularisation of service under
the foregoing proviso shall not affect the seniority
and promotions to higher posts ordered in accordance
with rules in favour of those who passed the said
Account Test before the 7th August, 1967.”
Appellants in Civil appeals Nos.4085 & 4086 of 1984
were appointed as Lower Division Clerks in Zilla Parishad,
Medak during the period of 1959 to 1961. They were promoted
to the regular vacancies of Upper Division Clerks during the
period of 1960 to 1963. The respondents were also appointed
as Upper Division Clerks before 1965.
The appellants who were promoted as Upper Division Clerks
before 15.3.1965 passed the Account Test within the extended
period after 7.8.1967. The respondents, however, acquired
the qualification by passing the test before 7.8.1967. The
appellants were in due course promoted as Superintendent
and Manager.
Seniority list of Upper Division Clerks was prepared by
proceedings
868
dated 5.6.1975. In the seniority list, the appellants were
placed above the respondents. In February 1976, the
appellant No. 1 was promoted as Superintendent along with
two other and subsequently they were further promoted as
Managers. On 1.7.1976, appellant No. 2 and appellant No. 3
were promoted as superintendents. Proceedings of promotion
given to the appellants were challenged by the respondents
before the Administrative Tribunal by filing R.P. No. 51 of
1977 on the ground that they have passed the Account Test in
1966-1967 while the appellants have passed the said test
only after 1967 and, therefore, the respondents were
entitled for promotion to the higher posts before the
appellants. Similar petitions were filed by other parties.
The appellants also filed a petition as R.P. No. 451 of 1981
seeking a relief that the settled final seniority list of
Upper Division Clerks should not be disturbed and promotions
given on that basis should not be disturbed. The Tribunal by
a common judgment dated 10.7.1984 disposed of these
petitions.
The respondents’ petition was allowed by the Tribunal
holding that persons who were not qualified up to 7.8.1967
and who got the benefit of the amendment issued under G.O.
Ms. No. 822 dated 22.8.1977 have to be treated as juniors to
those having passed the Account Test before 7.8.1967 were
fully qualified for regular appointment as Upper Division
Clerks irrespective of whether such persons were appointed
to the posts of Upper Division Clerks regularly by 22.8.1977
or not.
The Tribunal adopted the reasoning that a person who
has passed the Account Test is entitled to be appointed
regularly to the post of Upper Division Clerk and person who
has not passed such Account Test cannot be held to be
entitled to such regular appointment until either they
passed the Account Test or are exempted from passing such
test. The Tribunal held that because of the test
qualification such persons were eligible for regular
appointment and those who have not acquired the
qualification are to be treated as unqualified persons until
7.8.1967 the date on which the relevant orders giving them
the necessary concessions were issued. In this view, relief
was granted in all the petitioners before it by the
Tribunal. Aggrieved by the decision of the Tribunal, the
appeals have been preferred on special leave granted by this
Court.
Learned counsel for the appellants has taken us through
the Government orders, the relevant rules and the other
material papers and the
869
judgment of the Tribunal. He contended that the
interpretation placed on the 2nd proviso to Rule 4 by the
Tribunal in the light of the other Government Orders is
wrong, that on prescribing the test qualification for
promotion to the cadre of Upper Division Clerks since time
has been granted for acquiring the qualification, the
appellants who have been promoted before passing the Account
Test must be deemed to have been qualified even at the time
of the first appointment on their passing the Account Test.
It was submitted that the respondents have also been
promoted as Upper Division Clerks before they acquired the
test qualification and merely because they have passed the
test before the time was extended by the Government, it did
not confer any right of seniority when they were juniors to
the appellants in the category of Lower Division Clerks. It
is also pointed out that the seniority list finalised in
1975 was not objected to and the promotion made on the basis
of that list could not be assailed. Counsel for the
respondents, on the other hand, maintained that until the
appellants passed the Account Test, they were not qualified
for being promoted as Upper Division Clerks. Their Temporary
promotion did not confer any right on them and their regular
appointment can be deemed to have been made only when they
passed the Account Test and that being subsequent to the
date on which the respondents qualified themselves, they
lost their seniority and, therefore, the Tribunal was right
in its conclusions.
In order to appreciate these arguments, it is necessary
to refer to the relevant Government orders. The proviso to
Rule 4 deals with the service in the Category of Upper
Division Clerks and such of the Lower Division Clerks who
were temporarily promoted as Upper Division Clerks prior to
15.3.1965 but passed the Account Test before 30th November
1974 and they are to be regularised from the date of their
first temporary promotion or from the subsequent date. Such
regularisation shall not affect the seniority and promotions
to higher posts ordered in accordance with the rules in
favour of those who passed the said Account Test before 7th
August, 1967.
The Andhra Pradesh Panchayat Samithis and Zilla
Parishads Act 1959 came into force on 18.9.1959. Under Rule
4, District Cadre Staff includes both governments and non-
governments servants. Qualification prescribed by the
Government for similar posts were followed as per G.O.Ms.
No. 2107 dated 2.8.1961 in Telangana. Appointments made
after 1.12.1959 by the District Selection Committee was to
be treated as regular
870
service and their services will be regularised after issue
of rules and promotions may be made on emergency basis
pending issue of rules on the basis of date of first
appointment. The Andhra Pradesh Panchayat Samithis and Zilla
Parishads Ministerial Service Rules were issued by the
Governor of Andhra Pradesh in exercise of the powers
conferred under Section 69 of the Act on 15.3.1965. The
qualifications are prescribed in Rule 4. The Account Test
became obligatory from 15.3.1965 to the employees of
Panchayat Samithis and Zilla Parishads working in Telangana
area also.
The appellant in Civil Appeals No. 4085 & 4086 of 1984
were appointed in the Panchayat Samithis and Zilla
Parishads, Medak, as Lower Division Clerks during the period
of 1958 to 1961 of selection made by District Selection
Committee. These appellants 1 to 9 Baqar Hussain,
Ameeruddin, S. Vittal, Ghosuddin, C.H. Jagannatham, G.
Tulasidas, Y. Vittal Das, Mallaiah Gupta and J.Janardhan
Reddy were promoted to the regular vacancies of Upper
division Clerks during the period of 1960 to 1963. The rules
which came into force on 15.3.1965 prescribed Account Test
for regularisation of the employees in the cadre post. These
appellants passed the Account Test after 7.8.1967 but before
November 1974.
The respondents Venkatesam and Ballaiah were promoted
as Upper Division Clerks on 16.11.1964 and 21.10.1963
respectively. Venkatesam passed the Account Test in 1966 and
Ballaiah passed the Account Test in 1967.
Baqar Hussain was promoted as Superintendent along with
Zakir Hussain and Srinivas Rao On 7.2.1976. They were
further promoted as Managers on 1.7.1967. Ameeruddin was
also promoted as Manager. These promotions were questioned
by the respondent claiming seniority over these persons on
the ground that they have passed the Account Test in 1966
and 1967.
In Civil Appeals Nos. 3347 & 3350 of 1983, respondents
challenged the seniority list dated 28.1.1976.
Civil Appeal No. 13003 of 1988 arises from R.P.No. 242
of 1978. The appellants were appoints were appointed as
Lower Division Clerks during the period of 1957 to 1959 and
promoted as Upper Division Clerks between 1961 to 1964
before the rules came into force. The respondents were
promoted as Upper Division Clerks subsequent to the
promotion of the appellants and
871
after the rules came into force. The respondents had passed
the Account Test prior to 7.8.1967. The appellants were
further promoted as Superintendents and Managers during the
period 1978 to 1982.
By the G.O. Ms. No. 2107 dated 2.8.1961, the Government
directed that pending issue of rules prescribing
qualifications to each post under the Andhra Pradesh
Panchayat Samithis Act 1959, the rules obtaining in the
different District Boards should be followed. It was also
ordered that wherever such District Board rules are not
available in respect of any post included in the District
Cadre i.e. Panchayat Samithis and Zilla Parishads, the
qualifications prescribed for similar post should be
followed. In Andhra area, under the Andhra District Board
Rules, the Account Test for the local bodies employees was
prescribed for promotion of Lower Division Clerks as Upper
Division Clerks. In Telangana area, no such Account Test was
prescribed as a prerequisite qualification for promotion of
Lower Division Clerks as Upper Division Clerks. No specific
instructions were issued by the Government that the Lower
Division Clerks or the Junior Accountants in the lower
category should pass the Account Test for holding the post
of Upper Division Clerks in Panchayat Samithis and Zilla
Parishads in the Telangana area.
With effect from 15.3.1965, passing of Account Test for
the employees of local bodies or an equivalent test in
addition to general qualification was prescribed in the
Andhra Pradesh Panchayat Samithis and Zilla Parishads
Ministerial Services Rules as a prerequisite qualification
for the Typists, Lower Division Clerks etc. for promotion to
the post of Upper Division Clerks, Superintendents, Managers
Panchayat Samithis and Zilla Parishads. The test thus became
obligatory in Telangana area with effect from 15.3.1965.
Prior to the issue of the rules certain employees
including the appellants were promoted as Upper Division
Clerks on temporary basis in accordance with the orders and
general rules issued. Most of them had not acquired the
Account Test qualification and, therefore, they are liable
to be reverted. The Government examined the question and by
G.O.Ms. No. 487 dated 7.8.1967 directed the two years time
from the date of the issue of the orders shall be allowed to
those employees who were promoted as Upper Division Clerks
prior to the issue of the rules to pass the Account Test
prescribed under the rules. It was further provided that the
services
872
of the employees referred to shall be regularised with
reference to the date of their appointment as Upper Division
Clerks provided they passed the Account Test within the time
of two years allowed, and others who do not acquire the
above qualifications within the time allowed shall be
reverted. This concession was not applicable to the
employees who were promoted after 15.3.1965. it was further
directed that the employees who acquired the age of 45 years
on or before 15.3.1965 shall be exempted from passing the
Account Test, and when so exempted they shall be eligible
for promotion along with others who acquire such
qualifications. The time allowed for two years was extended
from time to time and finally up to November 1974. A
Notification was issued on 22.8.1977 and the proviso was
inserted which reads thus:-
“Provided further that the Services in the category of
Upper Division Clerks of such of the Lower Division
Clerks working in Panchayat Samithis and Zilla
Parishads in the Districts of Hyderabad, Adilabad,
Medak, Warangal, Nizamabad, Khammam, Nalgonda,
Karimnagar, who were temporarily promoted as Upper
Division Clerks and Senior Accountants prior to 15th
March, 1965, but passed the prescribed Account Test
before 30th November, 1974, i.e. within the time
granted to them by executive orders issued from time to
time by the Government to pass the said Account Test
shall be regularised from the date of their first
temporary promotion or from a subsequent date.”
“Provided also that the regularisation of services
under the foregoing proviso shall not effect the
seniority list and promotions to higher posts ordered
in accordance with rules in favour of those who passed
the said Account Test before 7th August 1967.”
The latter proviso is clear that the regularisation of
services of the employees who were temporarily promoted as
Upper Division Clerks prior to 15.3.1965 but passed the
prescribed Account Test within the time granted was to be f
rom the date of their fist temporary promotion or from the
subsequent date and subject to seniority of those employees
who had been promoted to higher posts in accordance with the
rules on their having passed the Account Test before
7.8.1967. The concession in G.O.Ms. No. 487 dated 7.8.1967
was conferred on those Upper Division Clerks who were
873
holding the post temporarily and were liable to be reverted
for want of the test qualification only subject to the
second proviso. The latter proviso refers to the employees
who had passed the Account Test before 7.8.1967 and by
virtue of such qualification they had been promoted to
higher posts in accordance with the rules. That definitely
refers to those Upper Division Clerks who had been appointed
as Upper Division Clerks on a regular basis and such of them
who had been promoted to the higher post after having
acquired the necessary test qualification. Their seniority
over those employees who had not passed the Account Test
before 7.8.1967 is secured by this proviso. It is only when
the promotion to higher posts had been ordered in accordance
with the rules in their favour after having acquired the
test qualification, before 7.8.1967 the proviso becomes
applicable. Even if the Upper Division Clerks had acquired
the test qualification before 7.8.1967 but had not been
promoted to the higher posts and before they were promoted
the other persons who had been temporarily appointed as
Upper Division Clerks had also acquired the test
qualification within the time granted, their regularisation
from the date of the first temporary promotion entitles them
to retain the original seniority. They lose the seniority
only in favour of Upper Division Clerks who passed the
Account Test before 7.8.1967 and had been promoted to higher
posts in accordance with the rules, even though they might
have been junior to the category who passed the Account Test
after 7.8.1967 but within the time granted. This is the
effect of the proviso. it benefits only the Upper Division
Clerks who had been promoted to higher posts by virtue of
their test qualification. So long as such promotions had not
been ordered, they remained in the same category as those
who had been granted the concession up to November 1974.
The inter se seniority between these two categories is not
affected until their promotion. The crucial words in the
second proviso `the seniority and promotions to higher post
ordered in accordance with rules in favour of those who
passed the Account Test before 7.8.1967′ contemplated an
order of promotion taking into account the test
qualification acquired before 7.8.1967. If there had not
been an order of promotion, the mere passing of the test
before 7.8.1967 does not confer seniority to those Upper
Division Clerks over the category which had been granted the
concession. Those temporary Upper Division Clerks who were
liable to be reverted for want of test qualification and who
had been conferred the concession by extending the time for
passing the test were entitled to be
874
regularised on passing the Account Test from the date of
their first temporary appointment or the subsequent date
without affecting the seniority of those persons who had
secured the promotion to higher post in accordance with the
rules on having passed the Account Test before 7.8.1967. The
proviso clearly indicates that as matter of right the
temporary Upper Division Clerks who were liable to be
reverted but had been given the concession and had passed
the Account Test within the time granted could maintain
their seniority over those persons who had not been promoted
by virtue of their test qualification. The latter category
who had already been promoted had to be treated as senior
to the former. Any other interpretation of these provisos
would make the second proviso redundant. Those who acquired
the test qualification before 1967 and had been promoted to
higher post by virtue of such qualification are entitled to
seniority over those who acquired the test qualification
after 1967 and were regularised in the cadre of Upper
Division Clerks even if their first appointment as Upper
Division Clerks was prior to that of the earlier category.
This does not mean that those of the Upper Division Clerks
who acquired the test qualification before 1967 but remained
as Upper Division Clerks even when the seniors acquired the
test qualification would be entitled to seniority in the
category of Upper Division Clerks so long as they have not
been promoted to the higher post in accordance with the
rules on regularisation.
Sri S.K. Yousufuddin and seven other employees of Zilla
Parishads, karimnagar, claimed seniority over some of the
juniors who acquired the Account Test Qualification earlier
to the seniors promoted to the post of Upper Division Clerks
before 1965 and who had passed the Account Test within the
extended time granted by the government. Similarly, M.A.
Saleem, and six other employees of karimnagar Zilla Parishad
claimed seniority over the juniors who had passed the test
before 7.8.1967.
The Government by the order dated 23.1.1978 after
examining the question stated thus:-
“According to the amendment issued in G.O.Ms.
No. 822 P.R. dated 22.8.1977, the service of the
Lower Division Clerks in Telangana region who
were temporarily promoted as Upper Division
Clerks and Senior Accountants prior to
15.3.1965 but
875
passed the prescribed Account Test before
30.11.1974 i.e. within the time granted by the
Government shall be regularised from the date of
their first temporary promotion or from a
subsequent date provided that the regularisation of
services shall not affect the seniority and
promotion to the higher post ordered in accordance
with the rules in favour of those who passed the
said Account Test before 7.8.1967. It means that
the Lower Division Clerk who were promoted as Upper
Division Clerks temporarily prior to the issue of
the rules on 15.3.1965 but passed the Account Test
subsequently before 30.11.1974 are entitled to have
their services regularised retrospectively. But
however such of those employees who were promoted
temporarily as Upper Division Clerk prior to
15.3.1965 but passed the Account Test before
7.8.1967 and who have also been promoted to the
higher post in accordance with the rules shall not
be effected.”
In this view, the government directed that the services of
Sri Yousufuddin, Manager, who was promoted as Upper Division
Clerk temporarily from 3.5.1961 and passed the Account Test
in May 1967 and who was also promoted as Manager be
regularised with effect from 3.5.1961 in the category of
Upper Division Clerks and also in the category of Managers
with effect from the date of his promotion as he was fully
qualified to the post on that date as per the amendment
issued in G.O.Ms. No. 822 P.R. dated 22.8.1977. It was
further directed that the services of other who were
promoted as Upper Division Clerks earlier to Sri S.K.
Yousufuddin but passed the Account Test within the time
limit after 7.8.1967 and who were promoted to higher post of
Managers be regularised with effect from 3.5.1961 i.e. the
date on which the services of Sri S.K. Yousufuddin are to be
regularised and that they be placed below Yousufuddin in the
seniority of Upper Division Clerks.
The Government also directed that the services of the
other Lower Division Clerks who were promoted as Upper
Division Clerks temporarily prior to 15.3.1965 but passed
the Account Test subsequently before 30.11.1974 and who have
not been promoted to higher posts such as Superintendents
and Managers, on the date of issue of the amendment be
regularised from the date of regularisation of the services
of the individuals
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who had already been promoted. After regularising the
services of these temporary Upper Division Clerks promoted
prior to 15.3.1965, the services of those who were promoted
after 15.3.1965 be regularised.
The respondents Venkatesam and Ballaiah claimed
seniority on the ground that they had passed the Account
Test before 7.8.1967.
The question whether the protection given by the second
proviso in regard to seniority applies to those persons who
were holding the rank of Upper Division Clerks on 22.8.1977
was considered.
The protection afforded applies only to the regular
Upper Division Clerk who have passed the Account Test before
7.8.1967 and promoted to higher posts and not to the Upper
Division clerks who have passed the Account Test before
7.8.1967 and not promoted to the higher posts.
The intention of the Government in issuing the second
proviso in G.O.Ms. No. 822 P.R. dated 22.8.1977 is to
protect only those who passed the Account Test before
7.8.1967 and whose services in the category of Upper
Division Clerks were regularised and promoted to the higher
posts by 22.8.1977. It is not intended to benefit those
persons who are not regularised or promoted even though they
had passed the Account Test before 7.8.1967
The Tribunal in disposing of the petitions has
overlooked the true scope of the proviso in the light of the
Government Order dated 7.8.1967 and had uniformally applied
the protection afforded in the second proviso to all those
persons who had acquired the test qualification before
7.8.1967 irrespective of the fact that they had been
regularised and promoted to higher post before 1977. On a
plain reading of the proviso in the light of the various
Government Orders, it is very clear that until the Upper
Division Clerks promoted before 15.3.1965 are regularised
and promoted to the higher post on their acquiring the test
qualification before 7.8.1967, they do not get seniority
over those who passed the test after 7.8.1967 but within the
time granted and the latter do not loose their seniority in
favour of their juniors who acquired the test
qualification.. before 7.8.1967. The Tribunal has in para 93
of the judgment held thus:-
“Consequently these persons who were not qualified up
to
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7.8.1967 and who got the benefit of the amendment
issued under G.O.Ms. No. 822 dated 22.8.1977 have
to be treated as junior to those who, having
passed the Accounts Test before 7.8.1967, were
fully qualified for regular appointment as U.D.Cs.,
irrespective of whether such persons were appointed
to the post U.D.C., regularly by 22.8.1977 or not.”
We do not agree with this proposition. The passing of
the Account Test does not automatically result in
regularisation of the appointment as Upper Division Clerks.
The persons who were temporarily promoted earlier had been
granted concession to get qualified and when they acquired
such qualification they stood in the same position as those
who passed the test earlier. The regularisation is not with
reference to the date of passing the test but with effect
from the date of first promotion in such cases. The
regularisation with effect from the date of first promotion
in such cases. The regularisation with effect from a
subsequent date is only in those cases where the juniors
have already been promoted to higher posts by virtue of
their test qualification. In such cases, the date on which
such juniors are regularised would be the relevant date for
the regularisation of the seniors who passed the test
subsequently (subsequent date mentioned in the proviso
covers only such cases). Once both categories are qualified
and become eligible for being regularised and considered for
promotion they are in the same stream and on par in all
respects. They then belong to the same class. Once the
appellants are eligible for regularisation under the rules,
they stand on the same queue as others according to
seniority vide Chandrakant v. State of Gujarat [1977] 2 SLR
605.
We agree with the Tribunal that the protection under
the latter part of the proviso to rule 4 is available to
those Upper Division Clerks who happened to be juniors and
who had also acquired the test qualification and had been
promoted to the higher posts on a regular basis though their
seniors acquired the test qualification within the time
allowed by the Government. We however hold that such
protection is not available to those employees who remained
in the same category of Upper Division Clerks and had been
temporarily promoted as Upper Division Clerks subsequent to
the appellants though they had passed the test before
7.8.1967.
We accordingly modify the judgment of the Tribunal to
this extent
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and direct that the seniority list shall be prepared in all
these cases in the light of our findings and direct that
consequential relief be granted to the appellants in all
these cases. The appeals are disposed of as above. In the
circumstances of the case, we make no order as to costs.
T.N.A. Appeals disposed of.
879