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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