Decided on September 04,1972

M. RAGHAVULU Appellant


Gopal Rao Ekbote. C, J - (1.) These four appeals are filed by the appellants with the permission of this Court against a common order passed in W.P. 4229 of 1969, 3711 of 1969, 163 of 1970 and 1505 of 1970 by our learned brothif Vaidya J., on 3-3-1971, whereby the learned Judge gave some directions while disposing of the writ petitions. The facts in brief are that the Andhra Pradesh Panchayat Kaj Engineering Service Special Rules were brought into force.by G.O.M.S. No. 291 dated 23rd March, 196,3. According to Rule 2 of those Rules, appointment to the category of "Assistant Engineer" can be made either by direct recruitment or by transfer. The appointment by transfer can be made from among-(a) Junior Engineers., or (b) Supervisors of the Andhra Pradesh Pancbayat Raj Engineering Subordinate Service, or if no qualified and suitable candidates are available for recruitment by transfer under item (2), by transfer from any other service on tenure basis. According to Explanation (c) to Rule 2 (4) out of every 8 vacancies among Assistant Engineers, 3 shall be filled up or reserved to be filled up by direct recruitment on the results of the competitive examination and the remaining 5 by transfers; provided that fifty persent of the permanent vacancies to be filled up or reserved to be filled up by direct recruitment shall be reserved for Graduate Engineers who are commissioned in the Armed Forces on a temporary basis during the period the Proclamation of Emergency is in operation and are later released. Clause (d) of that provision is more relevant and reads : "So far as qualified and suitable candidates are available, out of every 3 vacancies successively arising otherwise that substantivcly among Asst. Engineers, (i) the first two vacancies shall be filed or reserved to be filled by transfer among Junior Engineers of the Andhra Pradesh Panchayat Raj Engineering Subordinate Service possessing B.E. (Civil) Degree, and (ii) the third vacancy shall be filled or reserved to be filled by transfer from among the supervison of the Andhra Pradesh Panchayat Raj Engineering Subordinate Service qualified for promotion under rule 4". Rule 4 then prescribes the qualifications for appoints amongst others for Assistant Engineers also. Sub-rule (4) of that Rule lays down that if an Assistant Engineer has to be appointed by direct recruitment, be must not have completed 28 years of age on the 1st July of the year in which selection is made. He must possess B.E. Degree (Civil) of any University in India or an equivalent qualification. There can also be appointment to the post of Assistant Engineer by transfer. Such appointment can be made either from the ranks of Junior Engineers possessing B. E. Degree (civil) of an University in India, or an equivalent qualification with 5 years service in that cateaory ' or such appointment by transfer can be made from the ranks of Supervisors, possessing Upper Subordinate or L C.E. Diploma or an equivalent qualification with 10 years of service, or Lower Subordinate with 20 years of service. Resting upon there provisions, originally three contentions were sought to be advanced before us by Sri T. Anantha Babu, the learned counsel for the appellants. His first contention was that the word "service" appearing in Rule 4(4) (ii) does not comprehend computation of temporary service. It was secondly argued that 10 years and 20 years service qualifications prescribed for the purpose of appointment by transfer in Rule 4 (4) (ii) must mean the service as Supervisors and cannot mean total service including service which a person has rendered in lower categories of posts. It was finally contended that Explanation (d) attached to Rule 2 (4) has not been properly construed by the learned single judge in two material respects. Firstly it was submitted that the opening words "so far as qualified and suitable candidates are available" cannot be given the meaning which the learned judge has given, the effect of which is that if qualified and suitable candidates are not available, the ratio prescribed therein would not apply. Secondly the learned judge has omitted from his consideration the phrase "reserved to be filled" employed in the said provision.
(2.) In so far as the first argument is concerned, the learned Advocate for the appellants subsequently told us that in view of the facts and circumstances of the case, be does not desire to press that point and would prefer it to be left to be argued in some other relevant case. We are therefore relieved from considering the first contention. We then turn to the second contention. While interpreting Rule 4 (4) (ii), our learned brother Vaidya J . bad said that appointment of Assistant Engineer by transfer from the ranks of Supervisors, possessing Upper Subordinate or L. C. E. Diploma or an equivalent qualification permits computation of 10 years' service not only which was rendered as Supervisor, but also service which be has rendered in the lower category of service. The same interpretation was put in regard to service of 20 years relating to Supervisors possessing Lower Subordinate Diploma. The contention of Sri Anantha Babu was that the word "service" used in that provision would mean "service as Supervisor" and totaf service which a person has put in the department, Vaidya J. was more influenced by the omission of the words in that category which were used in clause (i) of Rule 4(4) (ii) and were omitted from clause (ii) of that provision. We are inclined to agree with his view not only for the reason which the learned judge has given but also because if 10 years or 20 years' service as Supervisors was intended, then nothing could have been simpler than to mention it as was done in the same provision earlier. Except in very few and rare cases, no Supervisor having the Upper Subordinate qualification could ever expect, to become Assistant Engineer after completng 10 years' service as such. The same reasoning but with greater tbrce applies to a Supervisor who has merely Diploma of Lower Subordinate It is not possible for many of the, to complete 20 years' of service as Supervisor with a view to get promotion as Assistant Engineer. The omission of the words in that category or service as such brings out the intention of the framers prominently that persons possessing lower qualifications should have more experience in order to earn I promotion to the post of Assistant Engineer. Thus, while a Graduate Engineer is required to put hi S years' service, a Supervisor possessing lower qualification is required to put in double or four times' service though not in the same category is Supervisor. On the last occasion, we requested the Government Pleader to find out what the intention was in framing Rule 4 (.4) (ii). He brought the Note File whereby the rules were framed for our pcrsual. The record clearly brings out the intention of the rule makers, that the totality of service of Supervisor as such was contemplated to be taken into account for the purpose of promotion to the post of Assistant Engineer. Apart from that file, the intention appears clear to us from the working of the Rule and the context in which the Rule is framed. We therefore, agree with the learned judge that 10 years or 20 years of service referred to in Rule 4 (4) (ii) do not mean service as Supervisors, but the.total service put by a person even from the lower category of service from where he was promoted as Supervisors.
(3.) That takes us to the third contention of the learned Advocate for the appellants. On interpreting Rule 2 (4) (d), Vaidya, J, gives the following directions: "While making appointments otherwise than substantively, the ratio of 2 : 1 between the junior Engineers and Supervisors can be given effect to only in case where eligible candidates are available. In case eligible candidates are not available to give effect to the aforesaid ratio from a particular category, eligible candidates from the other category will have to be taken into consideration, but the ratio of 2 :1 in such a case cannot be given effect to". the category from which on qualified and suitable candidate was for the time being available. As and when such qualified and suitable candidate is available, the person from the other category so promoted reserving the place to be filled by an appropriate candidate on the basis of ratio would be reverted and the qualified available person would be promoted. It is only by adopting that method that the ratio so determined would be put to continuous use. The essence of the provision is to maintain the ratio between the two categories. If it is remembered that promotions made under that Rule are all temporary, then it is not uncommon that as exigencies of service require, promotion even of a nonqualified person or a qualified person from other category is made, but the moment a qualified person or a qualified person from a particuarl category from where one should have been promoted is ovailable he would replace the person as he was non-qualified or because his promotion was made out of the ratio determined in the said Rule. In either case in order to maintain the proportion between the two categories, replacement of such a person by a qualified and suitable candidate from the appropriate category has to be made, Thus, although we agree substantially with the interpretation put by the learned Judge on the whole on that provision, in the said two respects, we find it difficult to agree with him. In out opinion, the opening words cannot be so interpreted as to make the ratio inapplicable in cases where qualified and suitable candidates are not available, and secondly, when they are not available, persons belonging to the other category may be promoted. Nevertheless, the place would be considered as reserved to be filled by persons belonging to the category whose turn for promotion was there. This seems to us to be the real and true meaning of the said provision. We would therefore modify the direction given by the learned Judge extracted above to the above effect. Since on other contention was raised, we would partly allow the apppeals as indicated above. In the circumstances of the case, however, we leave the parties to bear their own costs of this Court. Advocate's fee Rs.100/-in each case. K.S.R. Appeal partly Allowed.;

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