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Manohar Prajapat vs State Of M.P on 11 December, 2013
State Of U.P.&Ors vs Manohar on 15 December, 2004
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Tapan Kumar Chowdhury vs Registrar Of Companies And Anr. on 24 April, 2003
S/Shri Birendra Kumar Mishra vs Union Of India on 5 September, 2013

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Supreme Court of India
Subba Rao And Ors vs The Secretary To Govt.Panchayat ... on 27 February, 1996
Equivalent citations: 1996 AIR 1489, JT 1996 (2) 756
Author: M S V.
Bench: Manohar Sujata (J)

PETITIONER:

SUBBA RAO AND ORS.

Vs.

RESPONDENT:

THE SECRETARY TO GOVT.PANCHAYAT RAJ & RURAL DEVELOPMENT,GOVE

DATE OF JUDGMENT: 27/02/1996

BENCH:

MANOHAR SUJATA V. (J)

BENCH:

MANOHAR SUJATA V. (J)

AHMADI A.M. (CJ)

VENKATASWAMI K. (J)

CITATION:

1996 AIR 1489 JT 1996 (2) 756

1996 SCALE (2)443

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

Mrs. Sujata V. Manohar,

The petitioners were originally employees of Zilla Praja Parishads of various Districts in the State of Andhra Pradesh. The petitioners are the children of deceased employees of the respondents. In or around December 1983 they were appointed by the respondents on compassionate grounds as Watchmen etc. under the quota for deceased employees' children on a consolidated pay. In December 1988 they were appointed as regular employees in the Zilla Praja Parishad on a regular scale of pay. In 1991-1992 they were promoted to the post of Junior Assistants. In April 1993 a show-cause notice was issued to the petitioners to show-cause why they should not be reverted to their Last Grade Post since five years' service in the Last Grade Post is required for promotion to the post of Junior Assistant. The petitioners had worked for hardly three years in the Last Grade Post. The petitioners submitted their explanation relying upon G.O Ms. No.627 of 21st of December, 1983. They contended that for promotion to the post of Junior Assistant the minimum qualifying service was ordinarily three years and in no case less than two years. In view, however, of the provisions of the Andhra Pradesh Ministerial Service Rules, 1966 as amended by G.O.Ms.No.589, dated 19th of November 1986, which requires a minimum of five years service in the Last Grade for promotion to the post of Junior Assistant, the contentions raised by the petitioners were rejected by the respondents by an order dated 29.5.1993 issued by respondent No.2. The petitioners were reverted to their original post. Being aggrieved by this order the petitioners filed applications before the Andhra Pradesh Administrative Tribunal challenging their order of reversion. These applications have been dismissed by the Andhra Pradesh Administrative Tribunal. The present petitions challenge the order passed by the Andhra Pradesh Administrative Tribunal. The question is whether the petitioners need to have five years' service as Watchmen, Attenders etc. for appointment as Junior Assistants. The petitioners have placed reliance on G.O.Ms. No.627 dated 21st of December, 1983. This Government order is issued by the General Administration Department in connection with certain Special/Ad hoc-Rules relating to various State and Subordinate Services. It states that in Special/Ad hoc Rules relating to State and Subordinate Services a provision is made to the effect that a member of the service should ordinarily put in a period of five years of service in the lower category from which promotion is to be made to the next higher category in the same service or when an appointment is to be made by transfer from any other service (underlining ours). The Government with a view to avoiding administrative difficulties had issued an Ad hoc Rule set out in G.O.Ms. No.85 dated 12.2,1979 reducing "ordinarily five years in the lower category" to three years of which at least two years' service was required to be in the category, class or grade from which promotion was to be made. As the wording of the Rule was considered defective, it was decided to make a fresh Ad hoc Rule in its place. Accordingly a Notification (G.O.Ms.No.627) was issued on 21.12.1983 framing an Ad hoc Rule superseding the earlier Ad hoc Rule issued in G.O.Ms.No.85 dated 12th of February, 1979. The new Ad hoc Rule was deemed to have come into force on 12th of February, 1979. It is to the following effect:-

"Notwithstanding anything contained

in the relevant Special Rules or

the Adhoc rules for the State and

Subordinate Services, the minimum

period of "Ordinarily five years of

service" wherever prescribed in the

said Rules for appointment of a

member of services from the lower

category, class or grade, to the

next higher category, class or

grade whether such appointment is

made either by promotion in the

regular line or by recruitment by

transfer from any other service,

that period shall be reduced to

"ordinarily three years, but in no

case shall it be less than two

years, in the category, class or

grade from which such promotion or

transfer is made."

[underlining ours]

(N.B.: The comma after the phrase

"less than two years" has been

added by an amendment made in 1989

to clarify the position).

The Ad hoc Rule deals only with promotions within the Service and transfers. It applies to a member of a Service when he is promoted from a lower post to a higher post in the same Service. It also applies when the appointment is by transfer from another Service. It does not, however, deal with promotions/appointments from a lower grade Service to a post in a higher grade Service.

The Ad hoc Rule which replaces the Ad hoc Rule framed in 1979 was promulgated to overcome administrative difficulties. These administrative difficulties have been spelt out in G.O.Ms.No.85 of 12.2.1979. It states that persons satisfying five years of service are not available and hence to avoid administrative difficulties and disputes it has been decided to reduce the existing period of five years' service to three years' service of which there should be service of a minimum period of two years in the class, category or grade from which promotion is made to the next higher category.

In the present case, the petitioners have been promoted as Junior Assistants. The post of Junior Assistant is governed by the Andhra Pradesh Ministerial Service Rules of 1966. Under Rule 1 of the Andhra Pradesh Ministerial Service Rules, 1966 the composition of the Ministerial Service is set out. It consists of the categories of posts which are set out in that Rule. Category 10 consists of Junior Assistants in the offices of the Heads of the Departments and Directorates; while Category 11 includes Junior Assistant in Subordinate Offices.

Rule 3 of these Rules deals with the method of recruitment to the various categories of posts enumerated in Rule 1. It also prescribes the necessary qualification for recruitment and promotion. By G.O.Ms. No. 589 of 19.11.1986 Rule 3 was amended by the insertion of Sub-rule (17) which is as follows:

"Rule 3 (17):

33.3% of the posts of Junior

Assistants in Panchayati Raj Bodies

are reserved for Record Assistants,

Attenders and other equivalent

categories who possess minimum

general educational qualification

and who have put in minimum

services of five years in that

category."

This is a specific Rule inserted in the Andhra Pradesh Ministerial Services Rules, 1966 by an amendment made on 19th of November, 1986, much later than the formulation of the Ad hoc Rule of 1983. This Rule specifically prescribes a minimum service of five years in the Last Grade Service as Record Assistants, Attenders and the like for promotion to the post of Junior Assistants in the Ministerial Service. This Rule applies to the petitioners. It is a later amendment which directly applies to the post in question and must prevail over any general Ad hoc Rule promulgated earlier.

Rule 4(2) of the Andhra Pradesh Ministerial Service Rules which deals with promotion within the Ministerial Services, provides that no member of the service shall on or after 12th of February, 1979, be eligible for promotion from the lower category or post to the next higher category or post unless he has ordinarily put in a service for a minimum period of three years in the category from which he is to be promoted but in no case shall it be less than two years in the category from which such promotion is made". This Sub- rule (2) has a clear nexus with G.O.Ms No.85 of 21.2.1979 and the subsequent G.O.Ms.No.627 of 21.12.1983, both of which came into effect from 12th of February, 1979. Rule 4(2) which was brought in by G.O.MS. NG.189 of 22.3.1984 thus appears to have incorporated the Ad hoc Rule set out in G.O.Ms.No.627 of 1983 in the Andhra Pradesh Ministerial Service Rules. This clearly indicates that G.O.Ms. No.85 dated 12th February, 1979 and the subsequent G.O.Ms. No.627 dated 21st of December, 1983 apply only to promotions within the Service, of members of the Service. This Rule has no application to recruitments made under Rule 3 when they are not by promotion under Rule 4 but by promotion from other lower grade Services. Rule 3(17) provides for recruitment to 33.3% of the post of Junior Assistants in Panchayati Raj Bodies from Record Assistants, Attenders and other equivalent categories in the lower grade service who have put in a minimum service of five years in that category. Rule 4(2) does not apply to such recruitment. In fact, in Rule 3, wherever in any category of posts, there is a provision for promotion under Rule 4, it is expressly so mentioned. For example, Rules 3(1) first part, 3(2) and 3(11) are as follows:

Rule 3: Method of Recruitment -

Special:

(l) : Besides promotion as provided

in Rule 4, the first vacancy out of

every eight successive clear

vacancies excluding leave vacancies

of Superintendents in the Offices

of the Heads of Departments and

Directorates shall, on or after

23rd December 1980, be reserved to

be filled by transfer of

Superintendents, Managers or Head

Clerks working in the Subordinate

Offices under the administrative

control of the concerned Head of

the Department or the Directorate,

as the case may be, or for special

reasons from any other service or

from any other Department in this

service.

........................

3(2): Besides promotion as provided

in Rule 4, the first vacancy out of

every four successive clear

vacancies, of Senior Assistants in

the Offices of Heads of Departments

and Directorates shall be reserved

to be filled only from among

suitable Senior Assistants, working

in the Subordinate Offices of the

concerned Head of the Department or

the Directorate. If any person so

appointed by transfer suffers

reversion. he shall be reverted to

has parent office or Department:

........................

3(11): Besides promotion as

provided in Rule 4, appointment to

the post of storekeeper in the

Information and Public Relations

Department shall be made by direct

recruitment if no suitable

candidate is available for

appointment by recruitment by

promotion or by transfer."

Rule 4 is not mentioned in respect of recruitment to the post of Junior Assistants. The contention, therefore, of the petitioners that they are entitled to the benefit of Rule 4 (2) or in the alternative, to the benefit of the G.O.Ms.No.627 dated 21st of December, 1983, cannot be accepted. Thus we uphold the conclusion of the Tribunal. In the premises, the special leave petitions are dismissed. In the circumstances, there will be no order as to costs.