Judgement

RAY, C. J. :- This is an appeal by special leave from the judgment dated 28 June, 1972 of the High Court of Andhra Pradesh.

2. The only question for consideration is whether the Government was right in confirming the respondent as senior to the appellant.

3. The appellant was appointed by promotion as Assistant Secretary on 1 June, 1956 in the Law Department. He was confirmed in the post of Assistant Secretary on 11 October, 1957. He was temporarily promoted as Deputy Secretary in the Law Department on 10 July 1961. His probation was declared on 23 July, 1962. Then he went to serve in the Law Commission as Deputy Secretary.

4. The respondent Naidu was appointed as District Munsiff in the State Judicial Service on 16 February, 1956. On 27 June, 1960 he was appointed as Under Secretary in the Law Department. With the concurrence of the High Court he was temporarily appointed on 10 July, 1961 as Deputy Secretary in the Law Department.

5. On 1 April, 1963 a substantive vacancy in the category of Deputy Secretary arose. The Government on 4, October, 1966 confirmed the respondent as a Deputy Secretary with effect from 1 April, 1963.

6. The post of a Deputy Secretary under Rule 2 of the Andhra Pradesh State Legal Service Rules (hereinafter referred to as the Rules) is a post of Class III in that Service. Rules 2 and 3 of the Rules enumerate four classes of officers in the State Legal Service. Class I is for Secretary to Government, Law Department and Legal Remembrancer of Legal Affairs. Class II consists of Draftsman to Government, Law Department. Class III consists of Deputy Secretary to Government, Law Department. Class IV consists of Assistant Secretary to Government, Law Department.

7. The appointment to Class III under the Rules shall be by promotion from among the Officers in Class IV or by recruitment by transfer of a full member or an approved probationer in the State Judicial Service in the post of Subordinate Judge or District Munsiff. The appointment to Class III is subject to two provisos. One is that an Assistant Secretary should ordinarily have put in a service for a period of not less than five years in that post for promotion as a Deputy Secretary. The other is that a member of the State Judicial Service so appointed as Deputy Secretary shall not, by reason of such appointment, cease to be a member of the service from which he was appointed, nor shall such appointment confer on him any claim for substantive appointment to Class III or to appointment thereto in any subsequent acting or temporary vacancy.

8. In answering the question as to whether the Government was right in confirming the respondent as senior to the appellant it is necessary to find as to whether the respondent as appointed as Deputy Secretary on 10 July, 1961 by promotion from Class IV or by transfer of a full member or an approved probationer in the State Judicial Service. The respondent was a District Munsif in the State Judicial Service. On 10 July, 1961, when the respondent was appointed as Deputy Secretary in Class III he did not cease to be a member of the State Judicial Service in the category of District Munsif. He was then serving in the Law Department as an Under Secretary with a lien on his post in the State Judicial Service. He could not have been promoted from Class IV to Class III because as an Under Secretary he had not completed five years service in the Law Department. The order appointing the respondent Naidu does not specifically mention whether he was promoted or whether he was appointed by transfer. According to the Rules he could not have been promoted. The other mode of appointment was by transfer. The trial Court held that the appointment of the respondent was by promotion. The High Court rightly set aside the finding and held that the appointment of the respondent was by transfer.

9. The proviso to Rule 29 (a) of the Andhra Pradesh State and Subordinate Rules provides that when more than one approved probationer are available