S BHEEM PRASAD Vs. STATE OF A P

JUDGEMENT

(1.) THESE batch of writ petitions are filed by the petitioners seeking a Writ of Certiorari to quash the common judgment dated 28. 7. 2008 passed in O. A. No. 562 of 2007 and batch on the file of Andhra Pradesh administrative Tribunal and the impugned government Memo No. 8477/ser. 1. 2/2006-9, dated 20. 1. 2007 with a direction to the respondents to consider the case of the petitioners for promotion to the post of deputy Executive Engineer and other higher categories basing on the ranking assigned in APPSC.

(2.) THESE batch of writ petitions are disposed of by this common order as the cause in all these writ petitions is same.

(3.) BRIEF facts of the case are that the petitioners are direct recruitees as Assistant executive Engineers, on selection by the a. P. Public Service Commission in the year 1989 and 1990. Subsequently, they were promoted as Incharge Deputy Executive engineers. It is stated that the petitioners were not indicated that they need to pass the departmental test in their appointment orders and that the department commenced their probation w. e. f. 3. 5. 89 and 7. 2. 1990 etc. It is submitted that the petitioners have passed their departmental test on 12. 1. 1993, 20. 1. 1997 etc. The Government issued a memo on 20. 1. 2007 altering the date of commencement of probation of the petitioners by invoking Rule 16 (h) of A. P. State and Subordinate Service Rules, 1996 read with Rule 6 of A. P. Departmental Test rules, 1965. In the said memo the date of commencement of probation of the petitioners was altered by two years anterior to the date of passing their departmental test. As per Rule 8 of A. P. Engineering service Rules, every person appointed by direct recruitment as Assistant Executive engineer shall within the period of probation pass the Accounts Test for PWD Officers and Subordinates. According to Rule 6 of a. P. Engineering Service Rules, the period of probation will be two years within continuous period of three years. Under note to Rule 8 (c) of A. P. Engineering Service rules any Assistant Executive Engineer on probation shall not be discharged for failure to pass the test within the period of his probation, but his probation shall be extended and he will not earn increments till he passes the test. According to A. P. State and subordinate Service Rules, a probationer has to pass the departmental test during the period of probation. According to Rule 16 (f) (i), a person who did not pass the departmental test during the period of probation shall be discharged from service unless the period of probation is extended under Rule 17 (b) of a. P. State and Subordinate Service Rules and the appointing authority may extend the period of probation of a probationer who fails to pass the departmental test during the period of probation. In other words, the said power is discretionary. It is stated that u/s 17 (b), appointing authority is having powers to extend the period of probation not exceeding one year. It is further stated that if a person fails to pass the departmental test even during the extended period of probation, he or she shall be discharged from service under Rule 16 (f) (i) and there is no power to extend the probation thereafter. However, the Government in exercise of the powers conferred under Rule 31 of A. P. State and Subordinate Rules can relax the rules relating to period of probation and can extend the period of probation in relaxation of rules. Where the period of probation was extended by the Government in relaxation of rules, his date of commencement of probation will be altered by invoking Rule 16 (h) of A. P. State and Subordinate Service Rules. It is averred that Rule 16 (h) is applicable only when the period of probation is extended by the Government in relaxation of rules, but the said rule is not applicable to Assistant executive Engineers. As per note to Rule 8 of A. P. Engineering Service Rules, the period of probation of the Assistant executive Engineers shall stand extended automatically till they pass the test. It is emphatically stated that the question of relaxation of rule by the Government does not arise in so far as Assistant Executive engineers are concerned. It is further stated that the Assistant Executive Engineers are not liable to be discharged from service on failure to pass the departmental test and when there is no order of Government relaxing the rule extending the period of probation, the question of applying Rule 16 (h)does not arise. Hence, the impugned memo of the Government is illegal, bad and arbitrary. In those circumstances, the petitioners approached the Tribunal by filing o. A. No. 562 of 2007, which was dismissed on 6. 8. 2007 on the ground that the provisional seniority list was issued and as such the petitioners can raise their objections to the provisional seniority list. Aggrieved thereby, the petitioners filed W. P. No. 18529 of 2007, whereby and where under this Court set aside the order of the Tribunal and remanded for fresh disposal on merits. The main contention of the petitioners in the tribunal was that Rule 16 (h) is applicable only when the Government exercises its powers under rule 31 relaxing the Rule and that in so far as Assistant Executive engineers in Irrigation Department are concerned, there is no necessity to relax the rule for continuing them in service without discharging as the special rules permits the assistant Executive engineers to continue in service without discharge. The Tribunal held that the Special Rules do not prescribe the specific period for extension of probation. It was further contended that according to special Rules the probation stands extended automatically till he passes the departmental test. The Tribunal held that note to rule 8 of the Special Rules has to be read in conjunction with Rule 17 (b) of A. P. State and Subordinate Service Rules. It was further contended before the Tribunal that the powers vested with the appointing authority under rule 17 (b) are discretionary and that the appointing authority may discharge the probationer for not passing the departmental test without extending the period of probation and that the power under Rule 17 (b) is only for a limited extension of one year and beyond that the appointing authority has no jurisdiction and that note under Rule 8 is clear that the probation shall be extended till passing of the test, and the only condition is that the increment will be stopped during the said period. The Tribunal held that there is no provision for extending the period of probation beyond one year except by way of relaxation of power under Rule 31. Ultimately, the Tribunal has come to the following conclusions: