ORDER :

1. Heard learned Government Pleader for Services-I, appearing for petitioners and Sri S. Gopal Rao, learned counsel for the respondents.

2. The respondents were working as Junior Analysts in Medical Colleges and Hospitals attached to the Medical Colleges. The post of Lab Assistant in Medical Colleges was organised as Category-1 of Class-XI of Andhra Pradesh Medical Subordinate Services Branch.III General-Special Rules, notified vide G.O.Ms. No. 565 Medical and Health Department, dated 27.08.1979 (1979 Rules). The post of Junior Analysts was organised as Category-1 of Class-A of Andhra Pradesh Health Laboratories and Food (Health) Administration Subordinate Service Rules, notified vide G.O.Ms. No. 459 Health Medical and Family Welfare (L1) Department, dated 08.09.1994 (1994 Rules). Rule-3 of the 1994 Rules prescribes the method of appointment and appointing authority to various posts. As per the said rules, the posts of Junior Analyst can be filled up by promotion of Laboratory Technician Grade-I. If no qualified candidate is available in the Laboratory Technician Grade-I cadre, it can be filled up by promotion of Senior Technical Assistant. If no qualified candidate is available in any of the above mentioned posts, it can be filled up by promotion of Laboratory Technician Grade-II including Chemist (Cholera), Technical Assistant and Sample Custodian. According to respondents, the post of Laboratory Technician in medical colleges should also be included as one of the feeder categories to Junior Analyst as they possess requisite qualifications. Further, as they do not have any avenue of advancement in service, promotional avenue has to be created to get promotion to the post of Junior Analyst. Such course would redress both aspects of their grievance.

3. The respondents herein filed O.A. No. 1278 of 2001 before the Andhra Pradesh Administrative Tribunal, Hyderabad Bench. Before the Tribunal, the respondents herein have contended that the post of Laboratory Assistant held by them was equivalent to the post of Laboratory Technician Grade-I and the scales of pay of both the posts were also same. Accepting the plea of the applicants, the Tribunal declared the post held by them as equivalent on all aspects to that of Laboratory Technician Grade-I, which is the feeder category for promotion to the post of Junior Analyst. The Tribunal further held that no person can stagnate in the post and there has to be promotional avenue and directed the Government to make suitable amendments to Rules notified vide G.O.Ms. No. 459 dated 08.09.1994, providing the post of Lab Assistant as a feeder cadre to the post of Junior Analyst. The Tribunal also directed to amend as “by incorporating the words ‘including Lab Assistants’ under Rule 3 of method of appointment against the post of Junior Analyst.” The Tribunal further directed that after issuance of said amendment, the petitioners herein were directed to consider the case of the applicants against the four posts of Junior Analysts which were already ordered to be kept unfilled and further directed that those posts should remain unfilled till final orders are passed by the government carrying out the above directions.

4. In other words, the Tribunal stepped into the shoes of the employer to amend the Rules, leaving no discretion to the employer to deal with the channel of promotion and prescription of eligibility criteria to fill up the posts.

5. Article 309 of the Constitution of India requires State to take steps to make law to regulate conditions of service by an Act of State Legislature. The proviso appended to the Article enables the State to exercise power of Legislature to make Rules in the absence of a statute made by the Legislature. In exercise of this power, the State can make Rules regulating the conditions of service, conduct and discipline and also recruitment to various categories of posts. In exercise of those powers, the State notified Rules vide G.O.Ms. No. 459 dated 08.09.1994,