Andhra HC (Pre-Telangana)
Govt. Of A.P., Legal Affairs, Law (N) ... vs M. Venkateswarlu, Govt. Pleaders ... on 18 July, 2007
Equivalent citations: 2007(5)ALD579, 2007(5)ALT129
Author: Ramesh Ranganathan
Bench: G.S. Singhvi, Ramesh Ranganathan
JUDGMENT Ramesh Ranganathan, J.
1. This writ petition is filed against the order in O.A. No. 1388 of 200G dated 27-12-2006 whereby the Andhra Pradesh Administrative Tribunal (for short, 'the Tribunal'), following the Division Bench judgment of this Court in Rednam Satyanarayana Murthy v. The District Tribunal Welfare Officer, East Godavari District, held that the respondent-applicant is entitled for promotion to the post of Senior Assistant.
2. The Division Bench, before which this petition was listed, observed in its order dated 20-03-2007 that in J. Parvathalu v. Andhra Pradesh Administrative Tribuna 2002 Suppl. (1) ALD 430 (D.B.), which constitutes the basis of the judgment in Rednarn Satyanarayana Murthy v. The District Tribal Welfare Officer, East Godavari District (1 supra) the only question considered by the Division Etench was whether a person, promoted by grant of exemption in terms of the notification dated 22-04-1997, could be reverted retrospectively by applying the subsequent amendment made vide G.O. Ms. No. 225 dated 18-05-1999 and the issue raised in O.A.No. 1388 of 2006 was neither considered nor decided in that case. The Division Bench, while observing that the view taken in Rednam Satyanarayana Murthy (1 supra) requires reconsideration as it ran contrary to the plain language in the notification dated 22-04-1997 (as amended), directed that the writ petition be listed before a larger bench of three judges for a true and correct interpretation of the amendment made under the rules vide notification 22-04-1997.
3. For deciding the reference, it will be useful to briefly notice the facts and contentions urged on either side. The office of the Government Pleader, High Court of Andhra Pradesh, Hyderabad, in its order dated 01 -07-1968, promoted Sri K. Padmanabham from the post of Peon to that of Attender and appointed he respondent as Peon with effect from 01.7.1968. The respondent, vide letter dated 05.08.1970, requested that he be given a chance to work as Attender in the Government Pleader's office. Thereafter, vide proceedings dated 06-08-1970, the Principal Government Pleader, High Court of Andhra Pradesh promoted the respondent as Attender with effect from 06-08-1970. At the request of the All Andhra Pradesh Government Class IV Employees Association, Hyderabad, the Government issued G.O.Ms. No. 377 General Administration (Ser. D) Department, dated 28-03-1972 and directed that the designation of "Peon" and "Attender" be changed to "Attender" and "Record Assistant" respectively. Thereafter, the A.P. Last Grade Service Rules and the A.P. General Subordinate Service Rules were amended vide G.O. Ms. No. 117 dated 22-03-1973 and for the word "Peon", wherever it occurred in the Rules, the word "Attender" was substituted and similarly for the word "Attender" the word "Record Assistant" was substituted.
4. In exercise of the powers conferred under Rule 27 of the A.P. Last Grade Service Rules, the Advocate General, vide proceedings No. 83/Admn/74 dated 07-11 -1974, relaxed Rule 6 in favour of certain persons, including the respondent, and appointed them on a regular basis with effect from the date of their original appointment. On the next day i.e. 08-11 -1974, the Advocate General issued another order and promoted the respondent, then a Record Assistant, as Lower Division Clerk (Junior Assistant).
5. The Special Officer, Government Pleader's Office, in his proceedings No. 107/ Admn.l/97, dated 07-05-1997 exempted certain Junior Assistants in the office, who had crossed 45 years of age, from passing the departmental tests prescribed under the Special Rules for the post of Senior Assistant. Among those who were exempted from passing the departmental tests, of (1) Civil Judicial Test (containing two parts); and (2) Accounts Test for Subordinate Officers Part-I, was the respondent herein. The Special Officer also directed that necessary entries be made in the service registers of these individuals.
6. However, when a vacancy arose in the cadre of Senior Assistant, the respondent's case was not considered on the ground that he did not pass the departmental tests prescribed for promotion to that post. In the original application filed by him, the respondent claimed that he was entitled to be exempted from passing the departmental tests and that, as a matter of fact, vide proceedings No. 107/Administation. I/97, dated 07-05-1997 he was exempted from passing the departmental tests prescribed as qualification for promotion to the post of Senior Assistant. He further pleaded that the representation made by him for promotion was arbitrarily rejected vide memo dated 09-01-2006.
7. The petitioners herein, in their counter-affidavit before the Tribunal, stated that as per Rule 6 of the A.P. Ministerial Service Rules the qualification of a pass in the intermediate examination was necessary for promotion to the post of Senior Assistant, that Rule 11 provided that a candidate was eligible for promotion to the post of Senior Assistant in the Government Pleader's office if he passed the Civil Judicial test and Accounts test for subordinate officers and that, according to the ad hoc rule in G.O.Ms. No. 225 dated 18-05-1999, a government employee, who had crossed 45 years of age, was entitled for exemption from passing the departmental tests prescribed in the special rules for promotion to a higher post if he could not get even one promotion after their initial appointment and that persons, who had already got promotion earlier, were not entitled to claim exemption, from passing the departmental tests, for further promotion to the next higher cadre. It was further pleaded that the ad hoc rules do not apply to the applicant's case because he had already got one promotion and that he is not entitled to promotion as Senior Assistant because he has not passed the departmental tests prescribed under the A.P. Ministerial Service Rules.
8. The Tribunal, in its order in O.A.No. 1388 of 2006 dated 27-12-2006, held that the issue which arose for consideration is squarely covered by the judgment in Rednam Satyanarayana Murthy (1 supra), wherein the Division Bench of this Court held that the benefit of exemption can be denied only where the post is required to be filled by selection and not where promotion was based purely on seniority and that the respondent herein is entitled to be promoted as Senior Assistant.
9. Before us, learned Government Pleader for Services-ll would submit that, since the respondent-applicant had already been promoted twice to higher posts, initially from the post of Peon to that of an Attender, and then as Junior Assistant, he is not entitled to claim exemption from passing the departmental tests for promotion as Senior Assistant and that the ad hoc rule in G.O.Ms. No. 165 dated 22-04-1997, and G.O.Ms. No. 225 dated 18-05-1999, would not enure to his benefit. Learned Government Pleader would refer to Rule 6(a) and (i) of the A.P. State and Subordinate Service Rules to contend that the requirement of preparation of panels applies both for selection and non-selection posts and that the view taken by the Division Bench in Rednam Satyanarayana Murthy (1 supra) that the requirement of passing the departmental tests was necessary only for promotion to selection posts is contrary to the plain language of the rules. According to the learned Government Pleader, both the Division Bench judgments in Rednam Satyanarayana Murthy (1 supra) and J. Parvathalu (2 supra), needed reconsideration. Learned Government Pleader would further contend that the ad hoc rule in G.O.Ms. No. 165 dated 22-04-1997, recast in G.O.Ms. No. 225 dated 18-05-1999 with retrospective effect from 22-04-1997 is in the nature of concession given to certain categories/class of employees and the same cannot be claimed as of right.
10. Sri M. Panduranga Rao, learned Counsel for the respondent-applicant, on the other hand, would submit that the law laid down by Division Benches in Rednam Satyanarayana Murthy (1 supra) and J. Parvathalu (2 supra) does not need reconsideration.
11. We have considered the respective submissions. Rule 6 of the A.P. Ministerial Service Rules prescribes the qualifications for appointment to posts in the service, and Sub-clauses (2) and (5) thereof read thus:
(2) No person shall be eligible for appointment to any post in the service either by direct recruitment or by appointment by transferor by promotion, including conversion, unless he possesses the Intermediate qualification and where a higher educational qualification is prescribed for such post, such higher ualification:
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 Directorates prior to 29-10-1987, shall be eligible for appointment as Junior Assistant etc., if they passed SSC or any equivalent examination.
(5) No member of the service shall be eligible, for appointment to the posts of Superintendents, Senior Assistant or Junior Assistant or Assistant-cum-Typist in the Office of the concerned Head of the Department or Directorate, as the case may be, by transfer from its Subordinate Offices, under Notes (1)(2) and (4) under Rule 3, unless he holds a Degree of a University in India established or incorporated by or under a Central Act, Provincial Act or a State Act or of an Institution recognized by the University Grants Commission or any of the equivalent qualification.
12. Rule 11, which prescribes passing of tests/acquisition of qualifications as eligibility for promotion to certain posts, reads thus:
11. Tests: - (a) A person appointed by direct recruitment shall pass such tests as may be prescribed by the Government from time to time in respect of the relevant category.
(b) No person shall be eligible for promotion or appointment by transfer to the posts mentioned in Annexure II unless he has passed the tests or acquired such qualifications, as are prescribed in the said Annexure.
(c) Where a test is newly prescribed for appointment to a category or grade, the members holding post in the said category or grade, shall, within a period of two years from the date of prescribing the test, pass the said tests failing which their annual increments in the category or grade shall be stopped without cumulative effect, and their confirmation shall also be withheld till such time that he passes the test.
13. The qualifications prescribed for promotion to the post of senior assistant, in the government pleader's establishment, as prescribed in Annexure - II, are as under:
Government Pleader's Establishment Superintendents including Managers and Senior Assistants (1) Civil Judicial Test.
(2) Accounts Test for Subordinate Officers, Part I. N.B.: - Persons who have passed the Bachelor's degree in Law with Civil Procedure Code will not be required to pass the Civil Judicial Test.
14. For better appreciation of the plea of the respondent that even though he has not passed the departmental tests prescribed for the post of Senior Assistant, he is entitled to be promoted by being given the benefit of exemption, it is necessary to note the contents of G.O. Ms. No. 165 dated 22-04-1997 and G.O. Ms. No. 225 dated 18-05-1999 in their entirety.
GOVERNMENT OF ANDHRA PRADESH ABSTRACT PUBLIC SERVICES - Passing of the Departmental Test/Special Tests -Exemption from passing of Test prescribed in the Special Rules in respect of employee who crossed 45 years of age - Orders - Issued.
GENERAL ADMINISTRATION (SERVICES) DEPARTMENT G.O. Ms. No. 165. Dated 22-04-1997 Read the following:
1. G.O. Ms. No. 189, G.A. (Ser.C) Dept., Dt. 28-07-1970
2. G.O.Ms. No. 475, G.A. (Ser.C) Department, dt. 20-09-1994.
3. From the Secretary, Andhra Pradesh, Public Service Commission, letter No. 1503/RR/2/97, dated 17-04-1997.
**** ORDER:
1. In the G.O. first read above orders were issued, inter alia to the effect that employees appointed as on 1 -11 -1956 in the former Andhra State and State of Hyderabad and allotted to the Government of Andhra Pradesh shall be exempted from passing the Departmental Tests, if they have completed 45 years of age forpromotion to higher categories.
2. In the G.O. Second read above it was ordered that where the Special Rules prescribe passing of a test as a precondition for drawal of increments/ declaration of probation, for the employees who crossed 45 years of age and if they have not passed the prescribed tests, the Annual rate increments may be released.
3. Representations have been made by several Non-Gazetted Officer's Organisations requesting that the condition of passing of Departmental Tests/Special Tests may be removed in respect of employees who have crossed 45yearsofagefor getting one promotion.
4. Government have examined the aforesaid issue and it has been decided that the Government employees who have crossed 45 years of age be exempted from passing of Departmental Tests/Special Tests prescribed in the Special Rules/Adhoc Rules for the purpose of promotion to the next higher category only (i.e.) the promotion or appointment by transfer to a post above the one held by him/her, if they could not pass the same.
5. The following Notification will be published in the Andhra Pradesh Gazette.
NOTIFICATION In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India and of all other powers here unto enabling, the Governor of Andhra Pradesh here by makes the following Adhoc rule namely, ADHOC-RU'LE Notwithstanding anything contained in the Andhra Pradesh State and Subordinate Service Rules orthe Special Rules or in Adhoc Rule, the Government employees who have crossed 45 years of age shall be exempted from passing the Departmental Tests prescribed in the Special Rules for the purpose of promotion to the next higher category i.e., promotion/appointment by transfer to a post above the one held by him/her if they could not pass the same.
(BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH) M.S. RAJAJEE CHIEF SECREATRY TO GOVERNMENT.
GOVERNMENT OF ANDHRA PRADESH ABSTRACT PUBLIC SERVICES - Passing of the Departmental Test/Special Tests -Exemption from passing of tests prescribed in the Special Rules in respect of employee who crossed 45 years of age - Adhoc Rule - reissued.
GENERAL ADMINISTRATION (SERVICES) DEPARTMENT G.O.Ms. No. 225. Dated 18-05-1999 Read the following:
1. G.O.Ms. No. 165, G.A.(Ser.C) Dept., Dt. 22-04-1997.
2. Cir. Memo. No. 49152/Ser.C/97, GA (Ser.C)Dept.Dt. 28-07-1997.
3. Cir.Memo No. 10922/Ser.C/98, GA (Ser.C) Dept., Dt. 26-03-1998.
4. U.O. Note No. 37275/Ser.C/98, GA (Ser.C) Dept., Dt. 22-07-1998.
5. From the Secretary, APPSC., letter No. 1036/RR/2/99, dt. 13-05-1999.
ORDER:
In the reference first read above an adhoc rule was issued as follows:
Notwithstanding anything contained in the Andhra Pradesh State and Subordinate Service Rules or in the Special Rules or in Adhoc Rules, the Government employees who have crossed 45 years of age shall be exempted from passing the Departmental Tests prescribed in the Special Rules/ Adhoc Rules forthe purpose of promotion to the next higher category (i.e.) promotion/ appointment by transfer to a post above the one held by him/her if they could not pass the same.
In the reference second cited to fourth read above clarifications were issued on the applicability of the adhoc rule.
2. The policy of the Government enunciated in the adhoc rule, is to exempt the employees from passing of the departmental tests/special tests, in respect of those who crossed 45 years of age, for the purpose of promotion/ appointment by fransferto the immediate next higher post, above the one held by the employee if the employee could not pass the same. This concession was to consider the employee for only one promotion after initial appointment to public service, taking into consideration the fact that the individual in spite of his or her best efforts to qualify himself or herself, could not pass the same owing any personal reasons.
3. Certain employees have challenged the adhoc rule and the clarifications thereon in the court of Law. The Andhra Pradesh Administrative Tribunal in its directions in O.A. No. 7612/1998 referred to the Judgment of the High Court of Andhra Pradesh and observed as follows:
The petitioners before the High Court in WP No. 26310/98 also got promotions from the category of LDCs to the category of Superintendents and the High Courtdirectedthattheir cases should be considered forfurther promotion to the post of Assistant Registrar/Assistant Controller/ Administrative Officer. Though the High Court has not specifically considered the legality of the clarification at SI. No. 5 in Memo. No. 10922/Ser.C/98, dated 26-03-1998 when it was contended thatthe petitioners in the Writ Petition are not entitled for exemption from passing Accounts Test as they were promoted earlieras Superintendents even though they did not pass Accounts Test, the High Court observed as follows:
The argument, that petitioners were promoted to posts of Superintendents though they did not pass the Accou nts Test and are not entitled to promotion to next stage, is also without merit. The promotion to the post of Superintendent was on basis of proceedings dated 27-12-1989, which confined promotion only to one stage. The petitioners are seeking benefit now of G.O.Ms. No. 165, dated 22-04-1997. This is independent of proceedings dated 27-12-1989. The G.O. does not exclude employee who has received benefit of proceedings of 1989. Hence the argument cannot be accepted.
The aforesaid observations show that, even persons who have got promotions earlier in the service are entitled for getting promotion to one higher post in terms of adhoc rule issued in G.O.Ms. No. 165, GAD., dated 22-04-1997.
4. Keeping in view of the above observations, it is decided to omit the wording "if they could not pass the same" occurring in the adhoc rule and to recast the adhoc rule to be clear and specific in depicting the policy of the Government. Accordingly, the following notification is issued.
5. The adhoc rule hereby made shall be deemed to have come into force with effect from 22nd April, 1997.
NOTIFICATION In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India and of all other Powers hereunto enabling, the Governor of Andhra Pradesh hereby makes the following Adhoc-rule namely:
ADHOC-RULE Notwithstanding anything contained in the Andhra Pradesh State and Subordinate Service Rules or in the Special Rules or in adhoc rules, the Government employees who have crossed 45 (forty five) years of age shall be exempted from passing the Departmental Tests prescribed in the Special Rules or the adhoc rules for the purpose of promotion to the next higher category i.e., promotion or appointment by transfer involving promotion to a post above the one held by him or her if they could not get even one promotion after their initial appointment.
Provided that the persons who already got a promotion once where no tests are prescribed for the higher post, the exemption is not applicable to him or her if he or she is to be considered for further promotion to next highercategory where tests are prescribed. (This adhoc rule is applicable from the panel year 1997-98).
Provided further that the exemption is applicable in case of departmental tests or special tests only, where they are prescribed asapre-requisiteforpromotion and this exemption shall not be applicable where like technical or academic qualifications are prescribed for promotion to the next higher category of post.
Provided also that the exemption shall not be applicable for declaration of probation, where passing of departmental tests or special tests is a pre-condition for declaration of probation.
(BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH) N.V.H. SASTRY SECRETARY TO GOVERNMENT
15. It is also necessary to note the factual context in which the judgments in J. Parvathalu (2 supra) and Rednam Satyanarayana Murthy(~\ supra) came to be passed and the law laid down therein.
16. In J. Parvathalu (2 supra), the petitioner was originally appointed as an Attender on 01 -08-1968. He was appointed by transfer to the post of Junior Assistant on 07-05-1987. Though he did not pass the prescribed departmental tests, the petitioner was promoted as Senior Assistant on 06-12-1997 on the basis of the ad hoc rule in G.O.Ms. No. 165 dated 22-04-1997, as he had crossed 45 years of age. After G.O.Ms.No. 225 dated 18-05-1999 was issued, the petitioner was reverted from the post of Senior Assistant to the post of Junior Assistant on 01-02-2000. He challenged the same before the Tribunal. The latter refused to grant relief on the ground that G.O.Ms. No. 225 date 18-05-1999 was made applicable only from the panel year 1997-98. He then approached this Court. It is in this factual matrix that the Division Bench observed:
...The petitioner, therefore, when appointed as Junior Assistant, the appointment was made by way of transfer and not by way of promotion. Furthermore, the post of Senior Assistant is a non-selection post as would appear from Rule 5 of the A.P. State and Subordinate Service Rules, which reads thus:
Selection Posts: - (a) All first appointments to a State Service and all promotions/appointments by transfer in that service shall be made on grounds of merit and ability, seniority being considered only where merit and ability are approximately equal, by the appointing authority as specified in sub-rule (a) of Rule 7 from the panel of candidates. Such panel shall be prepared as laid down in Rule 6 by the appointing authority or any other authority empowered in this behalf.
(b) Non-selection posts:- No non-Gazetted post should be treated as selection post. Promotion and appointment by transfer to higher posts other than those mentioned in sub-rule (a) shall be made in accordance with seniority-cum-fitness, unless:
(i) such promotion or appointment by transfer of a member has been withheld as a penalty; or
(ii) a member is given special promotion for conspicuous merit and ability.
In terms of the aforementioned rule, no non-Gazetted post is treated as a selection post. Promotion and appointment by transfer to a higher post other than the non-Gazetted post is required to be made in accordance with seniority cum-fitness.
...It is, therefore, in our considered opinion, preposterous to argue that G.O. Ms. No. 225 which came into force on 18-5-1999 would be applicable in this case inasmuch as for the purpose of promoting an employee from the post of Junior Assistant to Senior Assistant no panel is required to be prepared. A panel is required to be prepared only when the promotion is effected on merit-cum-seniority basis. It is now a well settled principle of law that a rule made in terms of the proviso appended to Article 309 of the Constitution of India can be given retroactivity, and that the same shall not be inferred as to have given retrospective effect unless it has been so provided expressly or by necessary implication. Having regard to the fact that in terms of the proviso appended to G.O.Ms. No. 225, retroactivity has been given only in relation to such posts where panel is required to be prepared, we are of the opinion that the said G.O.Ms. No. 225, dated 18-5-1999 cannot be said to have any application whatsoever in the case of the writ petitioner herein. This aspect of the matter having not been considered by the learned Tribunal, the impugned judgment cannot be sustained. Furthermore, even if a rule made under the proviso appended to Article 309 of the Constitution of India is given retrospective effect the same cannot take away a vested right. In Chairman, Railway Board v. C.R. Rangadhamaiah: 1997 SCC (L&S) 1527, the Apex Court, while explaining the terminologies 'accrued right' and 'vested right' held:
It can, therefore, be said that a rule which operates in future so as to govern future rights of those already in service cannot be assailed on the ground of retroactivity as being violative of Articles 14 and 16 of the Constitution, but a rule which seeks to reverse from an anterior date a benefit which has been granted or availed of, e.g., promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively
17. In Rednam Satyanarayana Murthy (1 supra), the petitioner was initially appointed as a Watchman. His services were regularized in the Tribal Welfare Department with effect from 24-01-1982. On 31-08-1993 he was appointed by transfer as Junior Assistant. He filed O.A. No. 1985 of 1999 seeking a direction that he be promoted as Senior Assistant and, pursuant to an interim order of the Tribunal directing that his case be considered, the petitioner was promoted as Senior Assistant by order dated 15-05-1999, subject to the condition that he shall pass the departmental tests within two years from the date of his promotion. The petitioner did not acquire the prescribed qualifications within the stipulated period of two years, but took six years to do so. In the meanwhile, the 6th respondent, though junior to the petitioner in the cadre of Junior Assistant, passed the tests prescribed under Rule 11 (b) of the Rules and became eligible for promotion to the post of Senior Assistant. The second respondent, by order dated 12-08-2005, reverted the petitioner to the post of Junior Assistant. Aggrieved thereby, he filed O.A. No. 4516 of 2005 and, on the dismissal of the said O.A. by order dated 18-11-2005, he invoked this Court's jurisdiction. It is in this context that the Division Bench observed:
... It can be seen from the above extracted portion of the rule that while the benefit sought to be conferred under the G.O.Ms. No. 185 is continued in principle, certain limitations are now imposed under the amended rule, on the seekers of the benefit, viz., A person seeking to avail the benefit of crossing the age of 45 years can only claim the benefit only once i.e., the benefit is confined only to one promotion and any person, who had already been promoted once in service, cannot claim the benefit, conferred under the rule, for a second promotion. The proviso, however, in our view, qualifies the first part of the rule, that the limitation imposed on the first part of the amended rule would be applicable to those cases, where the second promotion sought is to that of a selection post. At any rate, that was the interpretation placed by a Division Bench of this Court, on the amended rule, in J. Paravathalu v. Andhra Pradesh Administrative Tribunal, Hyderabad 2002 Suppl (1) ALD 430 (DB).
The learned Counsel for the 6th respondent, however, argued that even on an application of the rule under G.O.Ms. No. 225, the petitioner is not entitled to be promoted as Senior Assistant as he had already secured a promotion in his service and the language of the rule framed thereunder, clearly excludes the persons like the petitioners, who had already been promoted once in their service, and therefore, even after 11 -06-2003, the petitioner's continuance as Senior Assistant, cannot be considered as legal.
The ad hoc rule framed under G.O.Ms. No. 225, no doubt, restricts the benefit to a limited class of seekers of promotion, i.e., those, who did not secure any promotion earlier in their service, but the language of the proviso to the said rule is construed by a Division Bench of this Court to mean that the exclusion of the benefit in the context of a second promotion is only in those cases, where the second promotion is to a post based on a process of selection, but not purely on seniority.
Admittedly, in the present case, the post of Senior Assistant is not a selection post, therefore, we do not see any merit in the submission of the learned Counsel for the 6th respondent (emphasis supplied)
18. Unlike in Rednam Satyanarayana Murthy (1 supra) and J. Parvathalu (2 supra), wherein an order reverting the petitioners from the post of Senior Assistant to that of Junior Assistant was under challenge, in the present case the respondent herein invoked the jurisdiction of the Tribunal seeking a direction that he be promoted. While a person promoted to a higher post may well claim to have a vested right to continue in the said post, no employee has vested right to be promoted to a higher post. He can, at best, claim a right to be considered for promotion in accordance with the rules.
19. What we are called upon to examine is the true and correct interpretation to be placed on the ad hoc rule notified in G.O.Ms.No. 165 dated 22-4-1997 as recast and notified in G.O.Ms. No. 225 dated 18-5-1999.
20. The rules made under proviso to Article 309 are in nature of plenary legislation - B.S. Yadav v. State of Haryana A.I.R. 1981 561. Therefore, the general principles of statutory interpretation, which are applicable for interpreting law enacted by the competent legislature, would also apply to the interpretation of such rules. Even otherwise, in statutory interpretation, Courts, generally, show no disposition to distinguish between enactments and delegated legislation. Delegated legislation is construed on lines similar to those applicable in the case of enactments and is taken to have the same general intention as statutes. The same rules, principles, presumptions, linguistic canons and general common law principles of interpretation apply to them as in the case of statutes.
21. It is an elementary rule of construction to assume that the words and phrases of a legislation/rule are used in their ordinary sense and that phrases and sentences are to be construed according to the rules of grammar. It is desirable in al! cases to adhere to the words of a statute/rule giving to them that sense which is their natural import in the order in which they are placed. The rule of construction is "to intend the Legislature to have meant what they have actually expressed". The object of all interpretation is to discover the intention of the legislature but such intention must be deduced from the language used: for "it is well accepted that the beliefs and assumptions of those who frame Acts cannot make the law". Where the language is plain and admits of but one meaning, the task of interpretation can hardly be said to arise. Gurudevdatta VKSSS Maryadit v. State of Maharashtra (2001) 4 SCC 534.
22. It is a corollary to the general rule of literal construction that nothing is to be added to a statute/rule unless there are adequate grounds to justify an inference that the legislature/rule making authority intended something which it omitted to express. A construction which requires, for its support, addition or substitution of words, should be avoided. Gwalior Rayons Silk Mfg. (Wvg.) Co. Ltd. v. Custodian of Vested Forests AIR 1990 SC 1747, Shyam Kishori Devi v. Patna Municipal Corporation AIR 1966 SC 1678, A.R Antulay v. Ramdas Sriniwas Nayak (1984) 2 SCC 500, Dental Council of India v. Hah Prakash (2001) 8 SCC 61, J.P. Bansal v. State of Rajasthan (2003) 5 SCC 625 and State of Jharkhand v. Govind Singh 2005 (1) SCJ 187 : 2005(1) ALT (Cri.) 170 (SC) : (2005) 10 SCC 437. Courts should not, ordinarily, add words to a statute or read words into it which are not there, especially when a literal reading thereof produces an intelligible result. Delhi Financial Corpn v. Rajiv Anand (2004) 1 Scc 625.
23. The language used in the ad hoc rule, both as originally made and notified in G.O.Ms. No. 165 dated 22-41997, and as recast and notified in G.O.Ms.No. 225 dated 18-5-1999, admits of no ambiguity. There is nothing in the plain language of the first proviso to the ad hoc rule from which it can be inferred that the exclusion clause embodied therein is applicable only to selection posts.
24. The words "selection posts" are not used in the first proviso to the ad hoc rule. Therefore, we do not see any reason to add those words in the rule and limit the application of the exclusion clause to selection posts. The expression "this ad hoc rule is applicable from the panel year 1997-98" used in the ad hoc rules cannot be interpreted to mean that the same is applicable only to selection posts.
25. Even if the aforesaid words, "this ad hoc rule is applicable from the panel year 1997-98" were presumed to be capable of more than one construction, the interpretation which serves the purpose and object of the ad hoc rule must be given effect to.
26. A purposive construction of an enactment/rule is one which gives effect to the legislative purpose by following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose. The purposive-and-literal interpretation is the most common construction, for usually a literal construction and a purposive construction lead to the same result. Legislation, having a certain purpose, naturally seeks to express this in the words used. A construction is purposive-and-literal where the literal meaning is clear and reflects the I purpose (4 supra).
27. In interpreting a particular provision of law a duty is imposed on Courts to ascertain the meaning and intendment of the legislature and, in doing so, to presume that the provision was designed to effectuate a particular object or to meet a particular requirement. {M/s. Easland Combines v. Collector of Central Excise, Coimbatore AIR 2003 SC 843. Every statute is to be interpreted without violence to its language and, when an expression is capable of more than one meaning, Courts should attempt to resolve the ambiguity in a manner consistent with the purpose of the provision having regard to the consequences of the alternative construction. A.N. Roy, Commissioner of Police v. Suresh Sham Singh 2006 (8) SCJ 78. Statutes must be interpreted to advance the cause and not to defeat it. K. Anbazhagan v. Superintendent of Police (2004) 3 SCC 767.
28. In Chief Justice of A.P. v. L.V.A. Dixitulu (1979) 7 SCC 358, the Supreme Court observed:
...The primary principle of interpretation is that a constitutional or statutory provision should be construed 'according to the intent of they that made it' (Coke). Normally, such intent is gathered from the language of the provision. If the language or the phraseology employed by the legislation is precise and plain and thus by itself proclaims the legislative intent in unequivocal terms, the same must be given effect to, regardless of the consequences that may follow. But if the words used in the provision are imprecise, protean or evocative or can reasonably bear meanings more than one, the rule of strict grammatical construction ceases to be a sure guide to reach at the real legislative intent, in such a case, in order to ascertain the true meaning of the terms and phrases employed, it is legitimate for the court to go beyond the arid literal confines of the provision and to call in aid other well-recognised rules of construction, such as its legislative history, the basic scheme and framework of the statute as a whole, each portion throwing light on the rest, the purpose of the legislation, the object sought to be achieved, and the consequences that may flow from the adoption of one in preference to the other possible interpretation....
(emphasis supplied)
29. In District Mining Officer v. Tata Iron & Steel Co. (2001) 7 SCC 358 the Supreme Court held:
...A statute is an edict of the legislature and in construing a statute, it is necessary to seek the intention of its maker. A statute has to be construed according to the intent of them that make it and the duty of the court is to act upon the true intention of the legislature. If a statutory provision is open to more than one interpretation, the court has to choose that interpretation which represents the true intention of the legislature. This task very often raises difficulties because of various reasons, inasmuch as the words used may not be scientific symbols having any precise or definite meaning and the language may be an imperfect medium to convey one's thought or that the assembly of legislatures consisting of persons of various shades of opinion purport to convey a meaning which may be obsecure. It is impossible even for the most imaginative legislature to forestall exhaustively situations and circumstances that may emerge after enacting a statute where its application may be called for. Nonetheless, the function of the courts is only to expound and not to legislate. Legislation in a modern State is actuated with some policy to curb some public evil or to effectuate some public benefit. The legislation is primarily directed to the problems before the legislature based on information derived from past and present experience. It may also be designed by use of general words to cover similar problems arising in future. But, from the very nature of things, it is impossible to anticipate fully the varied situations arising in future in which the application of the legislation in hand may be called for and words chosen to communicate such indefinite referents are bound to be in many cases, lacking in clarity and precision and thus giving rise to controversial questions of construction. The process of construction combines both literal and purposive approaches. In other words, the legislative intention i.e. the true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed....
(emphasis supplied)
30. We must, therefore, ascertain the legislative intent or the purpose for which the ad hoc rule was made and notified in G.O.Ms. No. 165 dated 22-04-1997 and the mischief which the recast ad hoc rule, notified in G.O.Ms. No. 225 dated 18-05-1999, sought to redress.
31. A bare reading of G.O.Ms.No. 165 dated 22-04-1997 would show that the very purpose of making the ad hoc rule was to enable those government employees who had crossed 45 years of age to secure at least one promotion during their service without requiring them to pass the departmental tests prescribed for the promotional post. While deciding O.A. No. 7612 of 1998, the Tribunal held that G.O.Ms. No. 165 dated 22-04-1997 does not exclude from the purview of ad hoc rules the employees, who had secured promotion earlier. As a result of this verdict, even those employees, who got promotion during the service became eligible to get further promotion without passing the departmental tests Therefore, the ad hoc rule was recast and notified in G.O.Ms. No. 225 dated 18-05-1999 and it was clarified that the concession of exemption from passing the prescribed departmental tests/ special tests was restricted only to those government employees who had crossed 45 years of age and were unable to secure even one promotion after their initial appointment in public service owing to the fact that they did not qualify in the departmental tests/ special tests prescribed for promotion. Persons who secured promotion after their initial appointment in pubiic service were disentitled, under the ad hoc rule notified in G.O.Ms.No. 225 dated 18-5-1999, from claiming exemption from passing the departmental tests/special tests prescribed for further promotion to higher posts.
32. The ad hoc rule notified in G.O.Ms.No. 165 dated 22-04-1997 came into force from the date of its notification on 22-04-1997. The recast ad hoc rule, notified in G.O.Ms. No,225 dated 18-05-1999, was given retrospectivity with effect from 22-04-1997 i.e, the date on which the earlier ad hoc rule in G.O.Ms. No. 165 came into force. The rule making authority has, as a matter of abundant caution, used the words "this ad-hoc rule is applicable from the panel year 1997-98" to clarify that no employee was entitled to claim the benefit of exemption from passing the departmental tests/special tests and thereby be promoted to higher posts from a period anterior to 22-04-1997, the date on which the ad hoc rule notified in G.O.Ms.No. 165 became operative. Merely because the first proviso of the ad hoc rule, notified in G.O.Ms. No. 225 dated 18-05-1999, makes the ad hoc rule applicable only from the panel year 1997-98 it cannot be said that the restrictions prescribed therein are limited only to selection posts because, as noted above, the ad hoc rule was recast only to clarify that the exemption under the ad hoc rule could be claimed only by those government employees who had crossed 45 years of age and had not been promoted even once after their initial appointment in public service. The very purpose of recasting the ad hoc rule and the object it sought to achieve would be defeated if the restriction contained in the first proviso is interpreted as applicable only to selection posts. Therefore, the first proviso must be construed as applicable to selection posts as well as non-selection posts. Here, we may usefully make a reference to Clauses (a) and (b) of Rule 5 and Clauses (a) and (i) of Rule 6 of the A.P. State and Subordinate Services Rules, 1996, which read thus:
5. Selection posts:
(a) All first appointments to a State Service and all promotions/appointments by transfer in that service shall be made on grounds of merit and ability, seniority being considered only where merit and ability are approximately equal, by the appointing authority as specified in subrule (a) of Rule 7 from the panel of candidates. Such panel shall be prepared as laid down in Rule 6 by the appointing authority or any other authority empowered in this behalf.
(b) Non-selection posts:- No non-gazetted post should be treated as selection post. Promotion and appointment by transfer to higher posts other than those mentioned in sub-rule (a) shall be made in accordance with seniority-cum-f itness, unless:
(i) such promotion or appointment by transfer of a member has been withheld as a penalty; or
(ii) a member is given special promotion for conspicuous merit and ability.
6. Method of preparation of panels.
(a) The panel of approved candidates referred to in sub-rule (a) of Rule 5 shall be prepared by the appointing authority oranyotherauthority empowered in this behalf, in consultation with the Departmental Promotion Committee in respect of posts outside the purview of the Andhra Pradesh Public Service Commission and Screening Committee in respect of the posts within the purview of the Andhra Pradesh Public Service Commission to recommend the names to the Commission. The appointing authority shall make appointments of candidates from such panel/list, in the order in which the candidates in such panel are arranged in their order of preference.
(i) Non selection posts:- Fornon selection posts referred to in sub-rule (b) of Rule 5 the appointing authority shall prepare a list of eligible employees every year i.e., from 1sl September of the year to 31st August of the succeeding year after considering the record sheet and the qualifications prescribed for the said post in the relevant Special Rules for promotion to next higher category of non-selection post.
33. Under Rule 5(b) no non-gazetted post is to be treated as a selection post. Rule 6, which prescribes the method of preparation of panels includes, under Clause (i), non-selection posts. As the method of preparation of panels, under Rule 6, includes non-selection posts, it is evident that the fetters placed by the first proviso to the ad hoc rule, notified in G.O.Ms.No. 225 dated 18-05-1999, are not limited only to selection posts, but would apply to non-selection posts as well.
In J. Parvathalu (2 supra), the Division Bench considered Rule 5 of the A.P. State and Subordinate Service Rules, but various clauses of Rule 6, which relate to method of preparation of panels, do not appear to have been brought to the notice of the Court. Therefore, that judgment cannot be read as restricting the applicability of the exclusion of exemption clause to selection posts.
34. In view of the above discussion, we hold that the interpretation of the first proviso to the ad hoc rule made by the Division Bench in Rednam Satyanarayana Murthy (1 supra) runs contrary to the plain language of the ad hoc rule notified in G.O.Ms.No. 225 dated 18-5-1999 and the same cannot be treated as laying down correct law.
35. Sri M. Panduranga Rao would, nonetheless, submit that, since the respondent had already been exempted from passing the departmental tests, vide proceedings dated 7-5-1997, he cannot be denied promotion to the post of Senior Assistant because he had not received any promotion earlier. Learned Counsel pointed out that the respondent was appointed as J unior Assistant by transfer and not promotion and, therefore, he is entitled to exemption from passing the departmental tests prescribed for promotion to the post of Senior Assistant. Learned Counsel would contend that, notwithstanding the nomenclature of his earlier appointment to higher posts being styled as "promotion", since the then rules provided only for appointment by transfer both to the posts of Record Assistant (hitherto the post of Attender), and Junior Assistant and, as the ad hoc rule in G.O.Ms. No. 225 dated 18-05-1999 does not rohibit an employee from claiming the benefit of exemption if his earlier appointment to a higher post is by transfer and not by promotion, the petitioner was entitled for the benefit of such exemption. In support of this argument, Sri M. Panduranga Rao relied on Rule 3(14)(c) of the A.P. Ministerial Service Rules, as amended vide notification in G.O.Ms.No. 779 G.A.D (Ser-B) dated 19-12-1980 and Rule 4 of the A.P. General Subordinate Service Rules as amended in G.O.Ms No. 32 G.A.D (Ser-B) dated 18-01 -1982. However, we do not propose to decide the question emerging from the contention of the learned Counsel because no such plea was raised before the Tribunal. In our opinion, ends of justice would be met by remanding the matter before the Tribunal forfresh adjudication of the original application in the light of our answer to the question referred to the Larger Bench.
36. In the result, we answer the reference holding that the first proviso to the ad hoc rule notified in G.O.Ms. No. 225 dated 18-05-1999, restricting the benefit of exemption, only to those who have not been promoted even once after their initial appointment in public service, would apply both to selection and non-selection posts and the contrary view expressed by the Division Bench in Rednam Satyanarayana Murthy v. The District Tribal Welfare Officer, East Godavari District (1 supra) does not lay down correct law.
37. In the normal course, we would have directed placing of the matter before the Division Bench, but, keeping in view the fact that the Tribunal has merely followed the decision in Rednam Satyanarayana Murthy (1 supra) in allowing the O.A, we consider it appropriate to set aside the order passed in O.A. No. 1388 of 2006 dated 27-12-2006 and remand the matter to the Tribunal for its adjudication afresh in accordance with law.
38. The writ petition is disposed of. However, in the circumstances, without costs.