APHC010628732023 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3460] THURSDAY, THE THIRTIETH DAY OF OCTOBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY WRIT PETITION NO: 32443/2023 Between: 1. O PENCHALAIAH, AGED 59 YEARS, OCC. ASSISTANT ENGINEER, O/O ENGINEER-IN-CHIEF, RWS AND S DEPARTMENT, GOLLAPUDI, VIJAYAWADA, R/O. 19-69, FLAT NO. 503, K.M. PLAZA, MAHENDRA NAGAR, GOLLAPUDI, VIJAYAWADA-521225. ...PETITIONER AND 1. THE GOVERNMENT OF ANDHRA PRADESH, REPRESENTED BY ITS PRINCIPAL SECRETARY, PANCHAYAT RAJ AND RURAL DEVELOPMENT DEPARTMENT, SECRETARIAT BUILDING, VELAGAPUDI, GUNTUR DISTRICT. 2. THE ENGINEERINCHIEF, PANCHAYAT RAJ ENGINEERING DEPARTMENT, M.G. ROAD, VIJAYAWADA. ...RESPONDENT(S): Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a writ, order or direction, preferably a writ of certiorari, call for the records in relating to the impugned proceedings Memo No.Ser.III (2)/15943/2000, dated 09.11.2023 issued by the 2nd respondent as arbitrary, illegal and contrary to the scheme formulated by the Government of Andhra Pradesh in G.O.Ms.No.15 and 68 and violative of the petitioner's fundamental right guaranteed under Article 14, 16 and 21 of the Constitution of India and quash the same and consequently direct the respondent No.2 to sanction special grade increments to the petitioner on completion of 16 2 years, 18 years and 24 years as recommended by the Superintendent Engineer, Panchayat Raj Circle, SPSR Nellore District in the post of Assistant Engineer, Panchayat Raj Department, Government of Andhra Pradesh and pass such other order. IA NO: 1 OF 2023 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to direct the respondent No.2 to sanction special grade increments to the petitioner on completion of 16 years, 18 years and 24 years on par with the other employees i.e., 1. Sri G. Venkat Reddy, Assistant Engineer, 2. Sri V. Ch. Rama Rao, Assistant Engineer and 3. Sri. O.Sreedhar, Assistant Engineer, as recommended by the Superintendent Engineer, Panchayat Raj Circle, SPSR Nellore District in the post of Assistant Engineer, Panchayat Raj Department, Government of Andhra Pradesh pending disposal of the Writ Petition and pass such other order. IA NO: 1 OF 2025 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant leave to file a Counter Affidavit. Counsel for the Petitioner: 1. MUTHINENI KOTESWARA RAO Counsel for the Respondent(S): 1. GP FOR SERVICES IV The Court made the following: 3 HON’BLE SRI JUSTICE NYAPATHY VIJAY WRIT PETITION No.32443 of 2023 ORDER: 1. The present Writ Petition is filed questioning the impugned Proceedings vide Memo No.Ser.III(2)/15943/2000, dated 09.11.2023, issued by Respondent No.2, as illegal and arbitrary. 2. The facts in brief are as follows; The Petitioner obtained Diploma in Licentiate Electrical Engineering (LEE) from the Government Polytechnic College, Nellore (A.P. State Board of Technical Education & Training) and had joined as Supervisor in M/s. Hyderabad Allwyn Limited (for short “HAL”), a State Government undertaking, in the year 1987. Consequent on the closure of HAL in the year 1993, the erstwhile employees of HAL were deployed in various Government organizations. The Petitioner’s service was absorbed in Panchayat Raj Department on 03.05.1993. After bifurcation of the State, the Petitioner was allotted to the Respondent-State and continuing as Assistant Engineer as on date. 3. It is stated that the Petitioner is fully qualified to hold the next promotional post of Deputy Executive Engineer in the Department. Initially, the Petitioner was absorbed as Supervisor in Panchayat Raj Engineering Department against the supernumerary post. Subsequently, the Petitioner was absorbed in PRED as Assistant Engineer and was 4 allotted to Zone-III by the Engineer-in-Chief, PR, Hyderabad vide Proceedings No.OP.I/2628/2009, dated 23.04.2010 and the Petitioner is eligible for the post of Deputy Executive Engineer. 4. The Petitioner gave a representation on 02.12.2022 for sanction of SPP-IA, SPP-IB & SPP-2 on completion of 16/18/24 years in the cadre of Assistant Engineer. As the said representation was not being considered, the Petitioner filed W.P.No.5317 of 2023 before this Court and the same was disposed of on 03.03.2023 directing the Respondents to consider the representation of the Petitioner within a period of six (6) weeks. Pursuant thereto, an interim order was passed rejecting the claim of the Petitioner on the ground that the Petitioner does not possess Degree or Diploma in Civil/Mechanical, which is requisite qualification to get promotion as Deputy Executive Engineer as per Panchayat Raj Engineering Department Service Rules, 1999 issued vide G.O.Ms.No.15, Panchayati Raj and Rural Development (Esst.III), dated 08.01.1999. Hence, the present Writ Petition is filed. 5. Learned counsel for the Petitioner Sri M. Koteswara Rao contended that the Petitioner has requisite qualification for appointment by transfer to the post of Deputy Executive Engineer as per the Rules and therefore the impugned order cannot be sustained. In support of his contentions, the learned counsel for the Petitioner relied on the Judgment of the Hon’ble Supreme Court in Amresh Kumar Singh & Ors. Vs. The 5 State of Bihar & Ors1 on the similar aspects, wherein it was mentioned that the qualification is not the criteria for grant of Special Protection Pay and the Special Scale can be granted without qualification of the promotional post taking note of the purpose of Special Scale. 6. Learned Assistant Government Pleader for Services-IV Sri Y.B. Ramesh would submit that the impugned order need not be interfered with since the Petitioner is not qualified for getting Special Protection Pay as sought in the representation, dated 02.12.2022. 7. Heard the respective counsels. 8. The Automatic Advancement Scheme was issued vide G.O.Ms.No.117, Fin & Plg (FW.PRC.I) Dept., dated 25.05.1981. Subsequently, the scheme was modified and the criteria for Automatic Advancement Scheme, is now governed by G.O.Ms.No.96, Finance (Pay Commission – II) Department, dated 20.05.2011 as per the Counter Affidavit filed by the Respondent-State. Paragraph No.7 thereof is extracted below; “7. Accordingly, the Government hereby order that Special Grade Post Scale (6 years) (i) An employee on completion of 6 years of service in a particular post shall be appointed to the Special Grade Post Scale which is the next higher scale above the pay scale of the post he/she is holding. Special Promotion Post Scale-I is divided into two parts as “A” & “B” 1 2023 SCC OnLine SC 496 6 Special Promotion Post Scale I-A (12 years) (ii) An employee on completion of 12 years of service in a particular post shall be appointed to the Special Promotion Post Scale I-A. It carries the pay scale of the post next above the post held by him which happens to be the promotion post in the regular line as prescribed in the Service Rules. For appointment to the Special Promotion Post Scale I-A he/she shall be fully qualified to hold that promotion post as prescribed in the Service Rules. In other words, such of the employees who have put in 12 years of service in one post without getting any promotion, shall be considered for appointment to Special Promotion Post Scale I-A, subject to the conditions laid down as above. Special Adhoc Promotion Post Scale I-A (12 years) (iii) In case, the Service Rules do not provide for any promotion, the employee on completion of 12 years of service in a particular post shall be appointed to the Special Adhoc Promotion Post Scale I-A which carries the next higher scale above the Special Grade Post Scale. Special Promotion Post Scale 1-B/Special Adhoc Promotion Post Scale 1-B (18 years) (iv) An employee on completion of 18 years service in a particular post, shall be allowed one increment in the Special Promotion Post Scale I-A or Special Adhoc Promotion Post Scale I-A as the case may be, which shall be called Special Promotion Post Scale 1-B/Special Adhoc Promotion Post Scale 1-B. Special Promotion Post Scale II (24 years) (v) An employee, on completion of 24 years of service in a particular post, shall be placed in the scale of the post applicable to the second level promotion post to the original post held by him. This is subject to the condition that he is fully qualified to be promoted to such promotion post as prescribed in service rules and also that such post should belong to the regular line and not outside the regular line. This scale shall be called Special Promotion Post Scale II. In other words, such of the employees who have put in 24 years of service in one post without getting any promotion, shall be considered for appointment to the Special Promotion Post Scale-II, subject to the condition laid down as above. Special Adhoc Promotion Post Scale II (24 years) (vi) (a) In case, the Service Rules do not provide for promotion at second level, the employee on completion of 24 years of service shall be placed in the scale of pay, next above the scale applicable to the Special Promotion Post Scale I-A. This Scale shall be called Special Adhoc Promotion Post Scale II. (b) In case, an employee holding a post for which there is no promotion post under relevant service rules, he shall be placed on completion of 24 years in the scale of pay next above the scale applicable to the SAPP-I A. This Scale shall be called Special Adhoc Promotion Post Scale II. 7 Fixation of Pay on appointment to Automatic Advancement Scheme (vii) (a) The pay fixation on appointment to Special Grade/Special Promotion Post Scale-I-A/Spl. Promotion Post Scale-II/Special Adhoc Promotion Post I-A and Special Adhoc Promotion Post II shall be under FR 22(a)(i) read with F.R.31(2). (b) One increment shall be allowed in the existing scale on appointment to Special Promotion Post Scale 1-B/Special Adhoc Promotion Post Scale 1-B. Fixation of Pay on Promotion from Automatic Advancement Scheme Posts (viii) (a) In case of Promotions from the Special Grade and Special Promotion Post IA & IB, the pay shall be fixed under FR 22-B. (b) In case of promotions from Special Promotion Post Scale II, the pay shall be fixed under FR 22(a)(i) read with FR 31(2). 9. As per the above Rule, there cannot be any controversy for grant of Special Grade Post Scale on completion of 6 years in the Special Grade. The issue is only with regard to Special Promotion Post Scale in I-A and I-B on completion of 12 years and 24 years which states that the individual should have qualification for promotion for grant of additional pay. 10. The promotional post of the Petitioner is to the post of Deputy Executive Engineer and the qualification for the said post as per the Service Rules is as under; 5. Deputy Executive Engineer 1) By promotion Must possess BE (Civil) or B.E. (Mech) of any University in India established or incorporated by or under Central Act or a Provincial Act or a State Act or an Institution recognised by the University Grant Commission or a pass in Sec A and B of AMIE examination conducted by Institute of Engineers in Civil or Mech. Or AMIE and B.Sc., (Engg.) of Ranchi University or an equivalent qualification. 2) By appointment by Transfer Must possess LCE/LME/LAE/LAA or LSE awarded by the Andhra Pradesh State Board of Technical Education & Training or its equivalent qualification. 8 3) By promotion or by appointment by Transfer Must have passed Account Test for public works Department Officers and Subordinates. 11. As per the above Rule, the Petitioner claims that as he has qualification for consideration of appointment to the post of Deputy Executive Engineer by transfer, as it is equivalent qualification prescribed therein. The issue of equivalence in qualification is an issue to be considered by the Respondent-State as held by the Hon’ble Supreme Court in Amresh Kumar Singh’s case (1 supra). 12. Notwithstanding the above, the Hon’ble Supreme Court in Amresh Kumar Singh’s case (1 supra) held that the ACB/MACP Schemes have to be understood from the object and purpose of the Scheme i.e. to provide monetary benefit to avoid stagnation without obtaining any seniority or actually effectuating promotion. The qualification to hold the promotional post was held to be no relevance in schemes of this nature. The Paragraph Nos.15 to 20 thereof are extracted below; “15. In sum and substance, both ACP and MACP Schemes are schemes devised with the object of ensuring that the employees who are unable to avail of adequate promotional opportunities, get some relief in the form of financial benefits. Accordingly, the schemes provide for regular financial upgradation on completion of 12-24 years and 10 20-30 years of service without promotion. They are incentive schemes for the employees who complete a particular period of service but without getting promotion for lack of promotional avenues. The effect of the schemes must be judged keeping in view the object and the purport of the scheme. 9 16. In Union of India v. G. Ranjanna reported in (2008) 14 SCC 721, the three-Judges Bench of this Court held that in situ promotions are made to remove stagnation of grade C and grade D employees by giving them certain monetary benefits. 17. It was further observed that fulfillment of educational qualifications prescribed under the recruitment rules for the purposes of promotion are not necessary for non-functional in situ promotion. In other words, educational qualification required for the purposes of promotion is not necessary for the grant of in situ promotion, i.e., only for extending the monetary benefit where there are no promotional avenues and the employees are likely to be stagnated. 18. In the aforesaid case, the employees were working as malis (Gardeners) and had claimed promotion in the higher pay scale. The Central Administrative Tribunal seized of the original applications observed that the employees cannot claim the scale of the next higher post by way of in situ promotion. On the matter being taken to the High Court by way of a writ petition, the contention of the employees was accepted and it was observed that the object of in situ promotion on non-functional posts, is to ensure that the group C and D employees are not stagnated in the same cadre/pay scale and that they should be provided with certain monetary benefits. Therefore, the rejection of the claim for such nonfunctional in situ promotion on the ground that the employees do not possess the necessary minimum qualification of matriculation as per the rules is not justified and renders the order erroneous in law. The view so taken by the Division Bench of the High Court was affirmed by this Court in the above referred Civil Appeals holding that the High Court has correctly analysed the object of the in situ promotion and fixation of pay scales to Group C and D employees to avoid stagnation. 10 19. In view of the aforesaid legal position coupled with the fact that the qualification of graduation prescribed is for the promotion to the post of Accounts Officer rather than for the grant of in situ promotion on the non- functional post or for extending the benefit of ACP which is purely and simply in the nature of grant of monetary benefit without actually effectuating any promotion to any higher post, we are of the opinion that the judgment and order of the Division Bench of the High Court impugned in the appeals cannot be sustained. It is accordingly hereby set aside and that the judgment of the writ court dated 28.11.2017 is restored. The appellants are extended the benefit of ACP, as directed by the writ court. 20. We have not considered it necessary to deal with the two cases on the basis of which the Single Judge has allowed the writ petitions and granted the benefit of the ACP to the appellants, as we have independently of those two decisions have considered and held that the appellants are entitled to financial upgradation under the ACP Scheme on completion of requisite regular service ignoring the higher qualification prescribed for the next higher post as grant of such benefit is not actually a promotion but only financial upgradation and if the higher qualification is insisted it would frustrate the purpose of the entire scheme.” 13. It is to be noted that for grant of Special Adhoc Promotion Post Scale-IA (12 years) and Special Adhoc Promotion Post Scale–1B (18 years) and Special Adhoc Promotion Post Scale-II (24 years), qualification is not required as there is no avenue of promotion. 14. In view of the above, Writ Petition is allowed with the following directions; 11 (i) The impugned Proceedings issued by Respondent No.2 vide Memo No.Ser.III(2)/15943/2000, dated 09.11.2023 is set-aside; (ii) The Respondents are directed to extend the benefit of SPP-IA, SPP-IB and SPP-2 to the Petitioner on completion of 16/18/24 years in the cadre of Assistant Engineer; (iii) Time calendared for compliance is six (6) months from the date of receipt of the copy of this order; (iv) No order as to costs. 15. As a sequel, pending applications, if any, shall stand closed. __________________ NYAPATHY VIJAY, J Date: 30.10.2025 IS 12 HON’BLE SRI JUSTICE NYAPATHY VIJAY WRIT PETITION No.32443 of 2023 Date: 30.10.2025 IS