S.S.M. QUADRI, J.

(1) THE petitioners in these two writ petitions, eight in number, are employees of the Andhra Pradesh State electricity Board (for short "the Board") and are working as Additional Assistant Engineers (Civil ). They challenge the proceed ings of the Board, the first respondent, herein, in b. P. Ms. No. 223 dated 3-8-1991. promoting respondents 5 to 49 in W. P. No. 10195 of 1991, who were also working as Assistant engineers/additional Assistant Engineers, to the post of Assistant Executive Engineers (Civil), as arbitrary, illegal and violative of articles 14 and 16 of the Constitution of india and seek a consequential direction to the first respondent to promote them as assistant Executive Engineers by relaxing the requirement of qualifying service on par with respondents 5 to 49

(2) THE petitioners were initially appointed as Draughtsman of the Board some time in 1988 and were regularised in 1989 respondents 5 to 23 are Engineering graduates. They were directly appointed as assistant Engineers by the Board Writ petition No. 10195 of 1991 was not pressed against respondents 5 to 23. therefore, it would not be necessary to refer to them any more in the course of this judgment. Respondents 24 to 49 (hereinafter referred to as "the contesting respondents") are diploma-holders. They were appointed as Additional assistant Engineers (Civil) in Irrigation department of the Government of Andhra pradesh and were sent on deputation to the board. At their request, they were absorbed in the service of the Board by orders issued by the Board in B. P. Ms. No 1352 dated 28-12-1989. The grievance of the petitioners is that though by virtue of the said orders respondents 24 to 49 are placed below the petitioners in the seniority' list, yet ignoring the seniority, they were illegally and arbitrarily promoted to the post of Assistant Executive engineers by proceedings of the Board in b. P. Ms. No. 1523 dated 3-8-1991. It is this order that is questioned in these writ petitions.

(3) A common counter-affidavit is filed on behalf of respondents 1 to 4. It is admitted that the petitioners are working as Additional assistant Engineers (Civil) with effect from 14-3-1988 and that their probation was declared on 1-8-1989. It is stated that the posts of Assistant Executive Engineers (Civil) are filled up from among the eligible candidates working in the cadre of Assistant engineers (Civil) and Additional Assistant engineers (Civil) in the ratio of 4:1 It is clarified that the persons who were working as Assistant Engineers should possess degree in Engineering whereas those working as additional Assistant Engineers are holders of diploma in Engineering. It is admitted that 40 Additional Assistant Engineers (Civil) belonging to Irrigation Department of the government of Andhra Pradesh who were working on deputation with the Board were absorbed subject to certain terms and conditions mentioned in B. P. Ms. No. 1352 dated 28-12-1989 and accordingly respondents 24 to 49 were placed below the petitioners in the inter-se seniority list of Additional Assistant engineers (Civil) prepared by the Board. The recruitment to the post of Assistant Executive engineer (Civil) is governed by the Andhra pradesh State Electricity Board Service rule Part. The appointment to that post can be either by direct recruitment or by promotion and the ratio between Assistant engineers (Civil) and Additional Assistant engineers (Civil) is 4:1. Under the rules, for promotion to the post of Assistant Executive engineers (Civil), the Assistant Engineers should have five years of service and the additional Assistant Engineers should have ten years of service. Having regard to the large number of vacancies, the Board relaxed the condition relating to length of service by one year which was applicable to both assistant Engineers as well as Additional assistant Engineers. The Departmental promotion Committee met on July 27, 1991 and considered the cases of all the candidates, recommended the promotion of respondents 5 to 48 and accordingly they were promoted as Assistant Executive Engineers; the 49th respondent was not promoted as Assistant executive Engineer. The petitioners do not satisfy the requirements prescribed for promotion to the post of Assistant Executive engineer (Civil) as they were not having the required length of service, therefore they were not promoted as Assistant Executive engineers. Respondents 24 to 48 had put in the required length of service as Additional assistant Engineers and they were eligible, as such they were promoted as Assistant executive Engineers. Merely because they were placed below the first petitioner in the inter-se seniority list after their absorption in board's service, the sen-ices rendered by them as Additional Assistant Engineers with the Board could not be ignored while considering their eligibility for promotion since the petitioners were working only from 1988 as Additional Assistant Engineers and did not fulfil the service eligibility criteria, they were not promoted as Assistant Executive engineers. In the circumstances, it is prayed that the writ petitions be dismissed.

(4) SN V. Srinivas. the learned counsel for the petitioners, contends mat respondents 24 to 48 are juniors, so they cannot be promoted as Assistant Executive Engineers before the promotion of the petitioners; in support of his contention, he relies on clauses (b ). (g) and (h) of paragraph 4 of B. P. Ms. No 1352 dated 28-12-1989. Further, submits the learned counsel, as they have also not put in ten years of service from the date of their absorption in the Board service, they arc also ineligible, under the Rules, for promotion to the post of Assistant Executive Engineers and as such the impugned order has to be quashed. Sri C. V Mohan Reddy, learned standing Counsel for respondents 1 to 4. supports the impugned order of promotion on the ground that on a correct interpretation of the relevant clauses in B. P. Ms. No. 1352. the contesting respondents are eligible to be considered for promotion along with the petitioners and that their experience as additional Assistant Engineers while working on deputation in the Board, has been taken into consideration for the purpose of service criteria, so the impugned order is perfectly legal and valid. Sri Ramanujam, the learned counsel for the contesting respondents, submits that from the date of their appointment and deputation to the Board, the contesting respondents had been working as additional Assistant Engineers with the board and this service must be taken into consideration for the purpose of service eligibility criteria under the Rules, as such it cannot be said that they have not put in the requisite length of service; having regard to great length of service as Additional Assistant engineers with the Board, they cannot be denied promotion counting their service from the date of absorption.

(5) IT will be useful to commence the discussion by making reference to Regulation 14 in part III of the Andhra Pradesh state Electricity Board Service Regulations (for short "board Regulations"), which reads as under:-"14. No person shall be eligible for appointment to the post and by the method mentioned in Annexure 111 and annexure VI unless he possesses the qualifications specified therein. "

(6) THE relevant entry in Annexure III is in the following terms:-

"annexure-III AP. S. H. BOARD ENGINEERING SERVICE (i) Must possess B. E. Degree Electrical or Civil or Mechanical or Telecommunication as the case may be of a University in India established or incorporated by or under a Central Act, provincial Act or a state act or any qualification recognised as equivalent there to and have served as Asst. Engineer for a period of not less than 5 years; OR (ii) (Not applicable) OR (iii) Must hold LEK, LCE or EME Diploma, as the case may be or any other qualification recognised as equivalent there to, and must have put in a minimum service of 10 years as addl. Asst. Engineeers; or (iv) (Not applicable) (V) (Not applicable) (VI) (Not applicable)"

if Regulation 14 is read with the above-quoted entry in the Annexure which deals with the post of Assistant Executive Engineer, it is evident that for promotion of an Additional assistant Engineer there are two criteria: (i) with regard to educational qualification, vi/. , the can did ate must hold L. C. E. . L. E. E. or L. M. E. diploma, or other qualifications recognised as equivalent thereto; and (ii) with regard to length of service, viz. , must have put in minimum service often years as Additional Assistant Engineers.

(7) FROM a reading of the above provisions, what follows is, that the contesting respondents are entitled to be considered for promotion to the post of Assistant Executive engineers only if they satisfy the above two requirements. As they arc juniors to the petitioners, their cases for promotion can be considered only after the cases of the other employees of the Board senior to them upto and inclusive Sn R. Pardhasaradhi, who are working as Additional Assistant Engineers, arc considered, since the promotion is on the basis of seniority subject to fitness.

(8) THE Departmental promotion committee noted that in terms of Regulation 8 (1) (ii) of the Service Regulations Part II, which provides for the zone of consideration and also mentions that in respect of the categories for which promotion shall be made on the basis of seniority only subject to fitness, the required number of candidates shall be selected in the order of seniority subject to fitness and accordingly forty five vacancies of Assistant Executive Engineers were filled up by considering twenty assistant Engineers and fifteen Additional assistant Engineers (Civil) in the order of seniority as mentioned in the annexure to the impugned B. P. M. S.

(9) OF the above two requirements, there is no controversy with regard to the first requirement, namely, educational qualifications. However, the controversy is that respondents 25 to 48 do not possess the requisite length of service often years after absorption in the service of the Board and that their service in the Board before their absorption is of no avail. For this reliance is placed on clauses (b), (g) and (h) of B. P. Ms. No. 1352.

(10) IN view of the above contentions, it would be apt to set out here those clauses. Now clauses (a), (b) and (h) may be noted. "a) the absorption in Andhra Pradesh state Electricity Board is ordered at their request. b) their seniority after absorption in the board is fixed below Sri R. Pardhasaradhy, the juniormost regular Additional assistant Engineer/civil already working in the Board. (c) to (f) x x x x x (g) they, shall cease to be Government servants from the date of this ;order which is the date of their absorption in the a. P. State Electricity Board and shall be the employees of A.P. Elecy. Board with effect from this date, foregoing their lien and seniority in their parent department namely. Irrigation Department. (h) the service rendered by them in the government shall count for terminal and other benefits in the Andhra Pradesh state Electricity Board. "a perusal of the above extracted clauses, shows that the contesting respondents were absorbed in Andhra Pradesh State Electricity board at their request and they are placed in the seniority list below Sri R. Pardhasaradhy, who was the juniormost Additional Assistant engineers and that as from the date of absorption they ceased to be the employees of the government and become the employees of the Board and that they had foregone lien and seniority in the department, viz. Irrigation department; however, the service rendered by them shall count for terminal and other benefits in the Board. On a careful reading and examination of the above noted clauses, I am not persuaded to accede to the contention that the contesting respondents have lost their right to promotion in the Board after their absorption in the service of the Board. Even assuming that the expression 'other benefits" in clause (h) is employed to confer only such benefits as are in the nature of terminal benefits like payment of provident fund, compulsory life Insurance, encashment of earned leave etc. , to which an employee is entitled at the time of termination of service, the fact remains that the contesting respondents' right to be considered for promotion according to their seniority is not in any way impaired. But the real question is whether the service rendered by them in their capacity as additional Assistant Engineers while on deputation in the Board, would qualify for the purpose of service eligibility within the meaning of the Service Regulation, referred to above. It may be noticed that the Regulation only refers to minimum service often years as additional Assistant Engineers (Supervisors ). It does not say that the service should be in that capacity as permanent employees of the electricity Board. Therefore, service rendered by an Additional Assistant Engineer while on deputation in the Board would, in my view, meet the requirement of length of service contemplated by the Regulation.

(11) IN this connection, it will be useful to refer to the judgment of the Supreme Court in k. Madhavan And Another v. Union of India and Others (1) AIR 1987 SC 2291. In that case, the petitioners were directly recruited as deputy Superintendents of Police in Delhi special police Establishment in the Central bureau of Investigation in 1963. They were confirmed in 1967. The 5th respondent, who was the contesting respondent therein, was appointed as Deputy Superintendent of police in Rajasthan State Police in 1962. He was confirmed in 1967. Later he was sent on deputation to the S. P. E. in C. B. I, in July 1967. Petitioners 1 and 2 were promoted as superintendents of Police in the Central bureau of Investigation with effect from 21-10-1971 and 25-1-1972 respectively. The 5th respondent was appointed to the post of superintendent of Police on 28-10-1972. On 1-10-1979, in the seniority list of Superintendents of Police, the 5th respondent was shown below the petitioners. However, in the subsequent seniority list published by the 2nd respondent, the date of appointment of the 5th respondent was shown as 21-10-1971. notionally, instead of 28-10-1972 as shown earlier. It was that publication of the seniority list that gave rise to the writ petition. One of the contentions raised by the writ petitioners, was that the 5th respondent was not even eligible for promotion to the post of Superintendent of police as he did not complete eight years of service in the grade of Deputy superintendent of Police as per 1963 Rules, under which the promotion was made. Admittedly, at the time of the appointment of the 5th respondent as Superintendent of police in C.B., he had earned only four years of service. The Supreme Court observed that eight years service in the grade would mean eight years service in the grade of Deputy Superintendent of Police as the relevant rules did not provide that the period of eight years should be computed from the date of deputation to the Central Bureau of investigation and that in the absence of any such express provision, it must be held that the period during which one held the post of of Deputy Superintendent of Police in the state Police Service should also be taken into account for computing the period of eight years. Applying the said principle, it must be held that the service rendered by the contesting respondents in the post of Additional assistant Engineer with the Board while on deputation before their absorption in the service of the Board, has to be taken into consideration for the purpose of service eligibility because they worked not only as additional Assistant Engineers but they worked in that capacity with the Board itself. As indicated above, it is only their seniority in the Government service vis- a-vis the other employees that was lost pursuant to the order of absorption as Additional Assistant Engineers in the Board service.

(12) I have perused the record of the departmental Promotion Committee. I have also shown the same to the learned counsel for the petitioners. A perusal of the same show s that the cases of the petitioners were considered as per their seniority but they were found ineligible for promotion as assistant Executive Engineers, for they did not put in the requisite length of service, viz. ten years, as Additional Assistant Engineers, because they were promoted as such only in 1988 and the consideration of their cases by the Departmental Promotion Committee was in July 1991 where as the contesting respondents have put in more than ten years of service as Additional Assistant Engineers by that date. Therefore, on that ground, in my view, the impugned order of promotion of the respondents cannot be said to be illegal.

(13) IT is next contended that the contesting respondents did not pass the Account test for promotion to the post of Assistant executive Engineer. I am unable to accept this contention. Regulation 14 read with the relevant entry in Annexure III, does not prescribe passing of Account Test as a condition precedent for promotion. However, reliance is placed on Regulation 15 of part III to substantiate that without passing the Account Test, promotion to the post of assistant Executive Engineer cannot be earned

(14) REGULATION 15 is in the following terms:-"tests and Training:- Persons appointed to the Classes of service whether by direct recruitment or by promotion or transfer in the categories or posts specified in Co. (l) of the Annexure IV shall pass the tests or undergo the training or acquire the qualifications specified in the corresponding entry in column (2) within the period stated or otherwise required by the corresponding entry in column (3) thereof. "a plain reading of the said Regulation makes it clear that it applies only to cases of appointment, etc. to the post mentioned in annexure IV. Annexure IV does not enumerate the post of Assistant Executive engineer. However, class III noted there in consists of categories 1 and 2, viz. Assistant engineers/additional Assistant Engineers (Civil) It requires that the candidate should pass Electricity Board Account test for the said post and that test should be passed within the period of probation. Further, note 3 (ii) appended to that entry makes it clear that the assistant Engineer/additional Assistant engineers (civil) recruited under Government service Rules and absorbed by the Board have to pass the relevant test prescribed by the board if they have not passed the Account test of P. W. D. Officers prior to February 1974. In tins case, the contesting respondents" case is that they had passed that test. In any event, that condition is to be complied with as a condition for absorption B. P. Ms. No. 1352, in which orders of absorption were issued, does not stipulate the condition of passing account Test on absorption as one of the conditions; this may be because they had already passed the Account Test. Reliance is also placed on clause (iii) of note 3. This clause says that the Public Works Department assistant Engineers/addl. Assistant Engineers (Civil) working in the Board on other duty have to pass the test prescribed by the Board if they are to become eligible for promotion to the Board's posts. This clause, in my view, applies if the employee is not absorbed in the service of the Board as much it has no application to the case of the contesting respondents.

(15) FROM the record, it appears that the contesting respondents have already passed the Account Test prior to 1974.

(16) IN the result, I do not find any substance in this contention, which is accordingly rejected.

(17) FOR the above reasons, I do not find any merit in these writ petitions and accordingly I dismiss them, but in the circumstances of the case, without costs.