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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

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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

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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.

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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

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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.

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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

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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.

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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

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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

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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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876

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

877

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

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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

878

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