N. VENKATESWARA RAO AND ORS.versusTHE COMMISSIONER AND SPECIAL OFFICER, VIJAYAWADA MUNICIPALITY, VIJAYAWADA AND ORS.

          N. VENKATESWARA RAO AND ORS.                                           A
                         v.
 THE COMMISSIONER AND SPECIAL OFFICER, VUAYAWADA
        MUNICIPALITY, VIJAYAWADA AND ORS.

                           FEBRUARY 10, 1994
                                                                                 B
             [KULDIP SINGH AND S.P. BHARUCHA, JJ.]

      Service Law:

     Andhra Pradesh Municipal Act, 1965/Andhra Pradesh Municipal                 C
Employees Service Rules:

      S. 73(3), 74/Rules 17 and 21-f'romotion-Preference to employees
reverted during probation-Promotees reverted since posts were
downgraded-Promoted again on upgradation-Treated as "Probationers
awaiting reappointment''-Held: entitled to preferential treatment-However        D
promotees against leave vacancies not entitled to such preferential treatment.

      The appellants and respondents 3 to 5 joined service as Lower
Division Clerks (LDCs) in the office of respondent No. 1. The Director of
Municipal Administration of the State accorded sanction for the conver·
                                                                           E
sion and upgradation of the ten posts of LDCs to that of Upper Division
Clerks (UDC) in the respondent· Municipality. The Panel Committee of
the municipality prepared a panel of LDCs for the purpose of promotion
to the post of UDCs, and the appellants were included in the said panel.
Since respondents 3 to 5 were not eligible, their names were not included.
Appellant 1 to 6 were promoted as UDCs against the newly created posts, F
and Appellants 7 to 13 were promoted as UDCs against leave vacancies.

       On a representation to the Government questioning the jurisdiction
of the Director of Municipal Administration to upgrade the posts of LDCs
to UDCs, the Government called for the report of the Director.
                                                                                 G
      Pending final decision by the Government, the Director down-graded
the ten posts • earlier upgraded by him and as a consequence reverted the
appellants as LDCs. Later the Government approved the order of the
Director and by order dated December 20, 1978 the appellants were again
promoted as UDCs. Respondents 3 to 5 challenged the same before the H
                                    849
    850                  SUPREME COURT REPORTS                  (1994] 1 S.C.R.

A   State Administrative Tribunal, on the ground that. though the respondents
    were also eligible for promotion as UDCs, yet they were not considered.
    The Tribunal quashed the order dated December 20, 1978 promoting the
    appellants as UDCs. Hence this appeal.

           It was contended that the provisions of rule 21 of the Andhra
B   Pradesh Municipal Employees Service Rules were not applicable to the
    appellants and that respondents 3 to 5, being senior to the appellants in
    the cadre of LDCs and despite being eligible, were arbitrarily left out and
    the appellants were promoted without considering the cases of the respon-
    dents.
c         Disposing of the appeal, this Court

          HELD: 1. The promotion of appellants 1 to 6 made on October 15,
    1977 was regular promotion in accordance with the rules. Admittedly,
    respondents 3 to 5, having not passed the requisite test, were not eligible
D   to be considered for promotion in the year 1977. Since appellants 1 to 6
    had already rendered satisfactory service as LDCs for more than three
    years they were not required to undergo the probation prescribed under
    the rules. In any case their promotion being on regular basis they would
    be treated to be probationers for the purpose . of rule 21 read with rule 17
E   of the Andhra Pradesh Municipal Employees Service Rules. Appellants 1
    to 6 were reverted because the posts were down-graded by the Director.
    They were again promoted by the order dated December 20, 1978. Although
    respondents 3 to 5 had become eligible to be considered for promotion in
    December 1978, they could not have been promoted • despite they being
    senior to the appellants • for two reasons. Firstly they had not been
F   brought on promotion-panel by the Panel Committee under Section 74 of
    the Andhra Pradesh Municipal Act, 1965 and secondly, the appellants
    being "probationers awaiting for reappointment" were entitled to
    preference under rule 21, of the rules. [855-E-G]

          2. Appellants 7 to 13 cannot be equated with appellants 1 to 6, as
G they were promoted against leave vacancies. They had not right to hold the
  posts. They cannot be considered to be probationers for the purpose of
  rute 21. Appellants 7 to 13 were reverted from the posts of UDCs which           +-
  they were holding against leave vacancies. They were not "probationers
  awaiting for reappointment" under the rules. They could not be promoted
H again on December 20, 1978 without considering respondents 3 to 5 who
        N.V. RAO v. COMMR. & SPL. OFFICER (KULDIP SINGH, J.J            851

were admittedly senior to. them. A fresh panel should have been drawn up      A
by the Panel Committee by considering appellants 7 to 13, respondents 3
to 5 and other eligible LDCs. The Tribunal rightly held that r~spondents
3 to 5 should have been considered for promotion along with appellants 7
to 13. (856-A-C]

     3.1. The promotion of appellants 1 to 6 was rightly and legally made     B
by the order dated December 20, 1978 and they shall rank senior to
respondents 3 to 5 in the cadre of UDCs. (856-D]

      3.2. Appellants 7 to 13 have been holding the posts of UDCs since
their promotion under the interim orders of this Court. Therefore, the        C
order of their promotion dated December 20, 1978 cannot be set aside.
However, respondents 3 to 5 should be considered for promotion to the
post of UDC with effect from December 20, 1978 and if selected they be
given deemed promotion from the said date. In that eventuality they shall
rank senior to appellants 7 to 13 but junior to appellants .1 to 6.
                                                               . (856-E, F]   D
        CIVIL APPELLATE JURISDICTION: Civil. Appeal No. 280 of
1993.

      From the Judgment and Order dated 9.4.84 of the Andhra Pradesh
Administrative Tribunal, Hyderabad in Representation Petition No. 87 of       E
1979.

        A.D.N. Rao and A. Subba Rao for the Appellants.

     H.S. Gururaja Rao, T.V. Narasimhachari, Subodh Markandeya and
Mrs. Chitra Markandeya for the Respondents.                                   F
        The Judgment of the Court was delivered by

      KULDIP SINGH, J. 1. The appellants and respondents 3 to 5, in the
appeal herein, joined service as Lower Division Clerks (LDCs) in the office   G
of the Commissioner and Special Officer Vijayawada Municipality,
Vijayawada in the State of Andhra Pradesh. The Director of Municipal
Administration, Government of A.ndhra Pradesh exercisi~g the powers
delegated to him under Section 73(3) of the Andhra Pradesh Municipal
Act, 1965 (the Act) accorded sanction by his order dated August 6, 1977
for the conversion and upgradation of the ten posts of LDCs to that to        H
                                                                                    --4:


    852                   SUPREME COURT REPORTS                  [1994] 1 S.C.R.

A   Upper Division Clerks (UDC) in the Municipality at Vijayawada. The.
    Panel Committee of the Municipality prepared a panel on October 13, 1977
    of LDCs for the purpose of promotion to the post of UDCs. The appellants
    were included in the said panel. Since respondents 3 to 5 were not eligible
    their names were m~t included in the panel. Appellan~s 1 to 6 were
    promoted, by the order dated October 15, 1977, as UDCs against the newly
B   created posts. Appellants 7 to 13 were also promoted as UDCs on October
    17, 1977 against leave vacancies. It is thus obvious that appellants 1 to 6
    were promoted against substantive vacancies whereas appellants 7 to 13
    were promoted against the leave vacancies.

C         2. One S. Koti Suryaprakasa Rao Chowdary sent a representation to
    the Government, wherein it was stated that the Director of Municipal
    Administration had no jurisdiction to upgrade the posts of LDCs to UDCs
    by his order dated August 6, 1977. The Government by its memorandum
    dated January 24, 1978 called for the repo1t of the Director in the following
D   terms:

            "The Director of Municipal Administration is requested to ex-
            amine this point and submit a detailed report to the Government
            at a very early date. He is also requested not to give any ~irections
            in t~is regard, to the Commissioner of the Vijayawada Municipality
E           until the Government gives permission for upgradation of the posts
            of Revenue Inspectors to Upper Division ·cadre."

  On receipt of the above said memorandum the Director down-graded the
  ten posts-earlier upgraded by him-and as a consequence reverted the
F appellants as LDCs by the order dated January 30, 1978. It seems that the
  matter remained under the consideration of the Government for quite
  some time and finally on December 18, 1978 the Government approved the
  order of the Director dated August 6, 1977 by which kn posts of LDCs
  were converted and upgraded to UDCs. Thereafter by the order dated
G December 20, 1978 the appellants were again promoted as UDCs. Respon-
  dents 3 to 5 challenged the order dated December 20, 1978 before the
  Andhra Pradesh Administrative Tribunal, inter alia, on the ground that on
  December 20, 1978 the respondents were eligible for promotion as UDCs
  but they were not. considered. The Tribunal by its judgment dated April 9,
  1984 allowed the petition and quashed the order dated December 20, 1973
H promoting the appellants as UDCs. This appeal by way of special leave -
             N.V. KAO v. COMMR. & SPL. OFFICER [KULDIP SINGH, J.)               853
.l,   is against the judgment of the Tribunal.                                        A
            3. It is not disputed that promotion as UDCs from amongst the LDCs
      is made from a panel prepared by a committee constituted under Section
      74 of the Act. Rule 21 of the Andhra Pradesh Municipal Employees
      Services Rules provides that "when candidates are required for employ-
      ment in any post in a unit preference shall be given to persons discharged      B
      or reverted from such posts in the unit.. ...... ".
-+           4. The post of UDC under the rules is a selection post and as such
      promotion to the said post is made on the basis of qualifications and merit.
      Seniority is taken into consideration only where the qualifications and merit
      are proximately equal. Every appointment under the rules is subject to
                                                                                      c
      probation for a period of two years on duty within a continuous period of
      three years. It is further provided that a LDC who has rendered satisfactory
      service for a total period of not less than three years in the lower division
      is not required to undergo the probation in the post of UDC.
                                                                                      D
           5. It would be useful to reproduce the operative part of the order
      dated December 20, 1978 which is as under:

              "The Government in their orders cited have accorded sanction for
              upgrading of ten L.D.R.I. posts to that of U.D.R.I. Posts. There·
              fore all the ten post of L.D.R.Is. are upgraded into that of U.D.R.i.   E
              posts for a period of one year with immediate effect.

              (2) The following postings are made to the above upgraded R.I.
              posts.

              (3) The following persons are in the panel of UDCs and are              F
              probationers awaiting for reappointment.

            6. The main contention raised before the Tribunal on behalf of
      Respondents 3 to 5 was that none of the appellants were probationers
      awaiting for reappointment and as such the provisions of rule 21 of the
      Rules were not applicable to them. The precise argument advanced before G
-t-   the Tribunal was that respondents 3 to 5 being senior to the appellants in
      the cadre of LDCs and despite being eligible - were arbitrarily left out and
      the appellants were promoted without considering the cases ,of the respon-
      dents. The Tribunal accepted the contention, set aside the promotion of
      the appellants on the following reasoning:                                   H
    854                SUPREME COURT REPORTS                  [1994] 1 S.C.R.

A         "In this context the learned Advocate for respondents 3 to 15
          conceded that rule 21 of the Municipal Employees Service Rules,
          has in the context of Rule 17 to which there is a reference in that
          rule, to be interpreted as applicable only to whom Rule 17 is
          applicable which includes permanent officers or servants who have
          not completed 30 years of service, approved probationers and
B         probationers. It was on this basis that the learned Advocate had
          contended that probationers who had been discharged from a post
          for want of a vacancy, cannot be treated as being similarly situated
          as persons who had not been appointed to the post at all and as
          such could h,e given preferential treatment without violating Ar-
c         ticles 14 <.:ad 16 of the Constitution.

               ln my opinion, before examining the validity of Rule 21 of the
           Municipal Employees Service Rules, it would first be necessary in
           this case to decide the question whether any of the respondents 3
D          to 15 could really be treated as probationers awaiting reappoint-
           ment. As pointed out by the learned Advocate for the petitioners
          none of these respondents had been specifically placed on proba-
          tion and there is no such mention in the orders of their initial
          appointments. It is only subsequently in their fresh appointment
           order dated 20.12.1978 that these respondents have be~n described
E          as probationers awaiting reappointment. Respondents 3 to 8 were
           appointed in the vacancies of the posts of L.D.C. which were
           upgraded temporarily to that of U.D.C. Respondents 9 to 15 were
           appointed as- U.D.Cs. only in temporary leave vacancies. In view
          of this I agree with the learned advocate for the petitioners that
F         there was no question of appointing any of them on probation and
          therefore these persons cannot b1e treated as probationers awaiting
          reappointment. Even the learned advocate for respondents 3 to 15
          has conceded that Rule 21 could be considered to be applicable
          generally to any persons who had been appointed earlier to higher
          posts, but to persons who had been so appointed on probation and
G         who were either probationers or approved probationers in posts
          from which they had been earlier discharged or reverted for want
          of vacancy. Hence it has to be held that even iii accordance with
                                                                                 +-
          the interpretation of Rule 21 by the learned Advocate representing
          respondents 3 to 15 those respondents are not entitled to get the
H         benefit of concession given in that rule, since they cannot be
          N.V. RAO v. COMMR. & SPL. OFFICER [KULDIP SINGH, J.)               855

            considered to be probationers awaiting appointment. Consequent- A
            ly the dppointment of respondents 3 to 15 to the posts of U.D.Cs.
            on the ground of their alleged eligibility for preferential treatment
            on the basis of Rule 21 of A.P. Municipal Employees Service Rules,
            has to he held as vitiated and the impugned proceedings Cl-
            22744n7, dated 20.12.1978 appointing them as U.D.Cs. have to be
            held as illegal. The impugned proceedings dated 20.12.1978 issued
                                                                                  B
            by respondent No. 1 are therefore set aside."

           7. Appellants 1 to 6 were promoted as UDCs by the order dated
    October 15, 1977 to the posts which were created by the order August 6,
    1977 issued by the Director, Municipal Administration, Andhra Pradesh.          c
    The order did not mention that the posts were being created temporarily
    or for a limited period. Similarly, the order dated October 15, 1977
    promoting appellants 1 to 6 did not mention that the said promotions were
    temporary or on ad hoc basis. The appointment order clearly mentioned
    that appellants J to 6 were placed in the panel for promotion as UDCs by        D
    the Panel Committee by its Resolution No. 17 dated October 13, 1977 and
    as such they were being promoted and appointed as UDCs against the
    upgraded posts. We have no hesitation in holding that the promotion of
    appellants 1 to 6 on October 15, 1977 was regular promotion in accordance
    with the rules. Admittedly, respondents 3 to 5, having not passed the           E
     requisite test, were not eligible to be considered for promotion in the year
     1977. Since appellants 1 to 6 had already rendered satisfactory service in
     the lower division for more than three years they were not required to
     undergo the probation prescribed under the rules. In any case their promo-
     tion being on regular basis they would be treated to be probationers for
     the purposes of rule 21 read with rule 17 of the rules. Appellants 1 to 6.     F
     were reverted because the posts were down-graded by the Director. They
     were again promoted by the order dated December 20, J978. Although
     respondents 3 to 5 had become eligible to be considered for promotion in
     December 1978, they c.ould not have been promoted - despite they being
     senior to the appellanf.s - for two reasons. They had not been brought on      G
     promotion-panel by the Panel Committee under Section 74 of the Act and
i    secondly, the appellant' being "probationers awaiting for reappointment"
     were entitled to preference under rule 21 of the Rules. We are, therefore,
     of the view that the Tritunal fell into patent error in setting aside the
     promotion order dated October 20, 1978 to the extent it related to             H
    856                   SUPREME COURT REPORTS                  [1994} 1 S.C.R.

A   petitioners 1 to 6. The order of the Tribunal is thus liable to be set aside.

          8. So far as appellants 7 to 13 are concerned they cannot be equated
   with appellants 1 to 6. These appellants were promoted against leave
   vacancies. They had no right to hold the posts. They cannot be considered
   to ·be probationers for the purpose of rule 21. It is not disputed that
B appellants 7 to 13 were:reverted from the posts of UDCs which they were
 · holding against leave vacancies. They were not "probationers awaiting for
   reappointment" under the. rules. They could not be promoted again on
   December 20, 1978 without considering respondents 3 to 5 who were                +
   admittedly senior to them. A fresh panel should have been drawn up by
C the Panel Committee by considering appellants 7 to 13, respondents 3 to
   5 and other eligible LDCs. We are, therefore, of the view that no fault can
   be found with the judgment of the Tribunal to the extent that respondents
   3 to 5 should have been considered for promotion along with appellants 7
   to 13.

D        9. We allow the appeal, set aside the impugned judgment of the
    Tribunal and direct as under:

         (i) The promotion of appellants 1 to 6 was rightly and legally made
    by the 'order dated December 20, 1978 and they shall rank senior to
    respondents 3 to 5 in the cadre of UDCs.
E
           (ii) Appellants 7 to 13 have been holding the posts of UDCs since.
    their promotion under the interim orders of this Court. We, therefore, are
    not inclined to set aside the order of their promotion dated December 20,
    1978. We, however, direct that respondents 3 to 5 be considered for
    promotion to the post of UDC with effect from December 20, 1978 and if
F selected they be given deemed promotion from the said . date. In that
    eventuality they shall rank senior to appellants 7 to 13 but junior to
  . appellants 1 to 6. The appeal is disposed of in above terms. No costs.

    G.N.                                                    Appeal disposed of.



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