ORDER
1. Questioning the correctness of Memo in Roc. No.TL2/26347/96 dated 22-4-1998 issued by the 1st respondent wherein the request of the petitioner for Special Grade Civil Surgeon scale on completion of 5 years as per G.O. Ms. No.537 M&H; (A2) dated 8-9-1981 was rejected, the petitioner filed this writ petition.
2. The factual matrix of the case is that the petitioner after taking her Post-Graduate Degree in General Medicine was appointed as a medical Officer in the 1st respondent Devasthanam on 18-6-1970. Thereafter she was promoted to the post of Civil Surgeon on 2-2-1985. Having put in 5 years of service in Civil Surgeon cadre she made a representation in the year 1996 to the Executive Officer of the Devasthanam seeking the Special Grade promotion scale as per G.O. Ms. No.537 M&H; (A2), dated 8-9-1981. The said request was rejected on the ostensible ground that the said GO is not applicable to the employees of the TTD. Thereafter, the petitioner filed another representation on 3-1-1998 duly bringing to the notice of the Executive Officer that one Dr. Harinath was given the Special Grade Scale by the TTD under the orders of the Superintendent, General Hospital Tirupathi dated 7-3-1995. Having received the said representation, the respondents did not act in the matter. Hence this writ petition.
3. In the counter filed, the respondents have taken the plea that the GO relied on by the petitioner is applicable to the Doctors working in Government Hospitals, but not to the doctors working in the TTD. When the case of Dr. Harinath was pointed out, they started contending that under G.O. Ms. No.117, Finance and Planning (FWPRC-I) dated 25-5-1981 Special Grade Promotions are limited to those employees who are drawing the pay in the Revised Pay scales, 1978 up to and including Grade-XVIII in schedule 1 to the A.P. Revised Scales ofPay Rules, 1978 i.e. scale of pay of Rs.1050-40-1250-50-1600 which was later revised in G.O. Ms. No.290, dated 22-7-1993 to Rs.4140-130-4400-160-5200-190-6150-230-7300-280-8140, and as the petitioner was drawing more than Rs.5,390/- as on that date, she cannot claim the benefit under G.O. Ms. No.537, M&H; (A2), dated 8-9-1981.
4. With regard to the first contention, suffice it to state that the Service Rules for TTD Employees were framed by the Government in exercise of its powers under Sections 35, 106 and 107 read with Section 153 of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 (Act No.30 of 1987) in supersession of the rules that were in force till then. They came into force on 24-10-1989. It is useful to extract Rule 4 which is as under:
Rule 4 : The Tirumala Tirupathi Devasthanams employees shall be govemed by the following rules add such of the orders and clarifications issued on these rules by Government of Andhra Pradesh in respect of the employees of State, Government from time to time insofar as they are not inconsistent with the act and the Rules made thereunder :
(i) The Fundamental Rules and the Subsidiary Rules issued thereunder;
(ii) The Andhra Pradesh Leave Rules, 1933;
(iii) The Andhra Pradesh Manual of Special Pay and Allowances including travelling Allowances Rules and the Subsidiary rules issued thereunder;
(iv) Andhra Pradesh Pension Code and the Andhra Pradesh Liberalized Pension Rules, 1961, A.P. Family Pension Rules 1964 and A.P. Revised Pension Rules, 1980;
(v) Andhra Pradesh Civil Services (Conduct) Rules, 1964;
(vi) Andhra Pradesh Civil Services (Classification Control and Appeal) Rules 1963;
(vii) Andhra Pradesh State and Subordinate Service Rules;
(viii) Andhra Pradesh Financial Code
(ix) Any other executive instructions and Government orders that are issued from time to time by the Government in respect of their employees which are not in consistent with the Act and Rules made thereunder.
5. From this it is crystal clear that the employees of the Tirumala Tirupathi Devasthanams shall be governed by the statutory rules and Executive instructions given by the State Government in so far it relates to its employees, which are not inconsistent with the Act and the Rules made thereunder and the same are mutatis mutandis made applicable to the employees of the TTD.
6. The learned Counsel for the respondents submits that unless the TTD adopts the Rules or the Executive instructions given by the Government by way of a resolution to its employees, the same cannot be made applicable to the TTD employees, and as the Board did not pass any resolution adopting the G.O. Ms. No.537, M&H; (A2) dated 8-9-1981, the question of payment of special grade promotion scales to the Doctors working in TTD does not arise. The very action of the TTD in giving special grade promotion to Dr. Harinath which has not been disputed by the respondents belies this contention. Further nowhere it is stated by the respondents that unless the Board adopts Statutory Rules or Executive Instructions issued by the Government, they cannot be made applicable to these employees. Nextly in the impugned Memo the request of the petitioner was not rejected on that ground. The Executive Officer of me Devasthanam simply stated that G.O. Ms. No.537 is not applicable to the Doctors working in the Tirumala Tirupathi Devasthanams. Now the respondents cannot be permitted to raise the new ground which has no legs to stand in the light of the statutory rules extracted supra in support of the impugned memo. For the above reasons, the first contention of the respondents is rejected.
7. The learned Counsel for the respondents tries to contend that these Rules came into force in the year 1989, whereas the Rules governing the appointments to special grade posts were promulgated in the year 1981. It is not the case of the respondents that in the rules that were superseded in the GO no provision was made to the effect that the statutory rules and Executive Instructions issued by the Government were not made applicable to the employees of the TTD. This contention is raised across the Bar to sustain the impugned order. I do not find any merit in the said contention also.
8. Coming to the second contention, it is a known fact that in late 70's the Government with a view to avoid frustration to the employees due to lack of promotional opportunities, promulgated this automatic promotion scheme under which the employees are given the benefit of higher scales of pay depending on the number of years of service they have put in. It is true that in G.O. Ms. No.117, dated 25-5-1981, the Government has evolved a scheme for granting higher scales of pay after a specified period of service as per the demands of the Service organisations, but the same was limited to the employees who are drawing pay in the Revised pay scales of 1978 upto and including Grade-XVIII in schedule-I to the A.P. Revised Scales of Pay Rules, 1978 and also other categories of persons. This is a general GO and it has nothing to do with the Doctors working in Government or the Instrumentalities of the State. As far as the Doctors are concerned, the Government has issued instructions in Memo No.4420/A2/ 79-11, M&H; dated 1-9-1980 for identifying and creating required number of special grade Civil Surgeon posts. Under this memo, out of 120 Doctors working on General side, 18 posts have to be created for giving special grade promotion scales. But subsequently the Government issued a notification under proviso to Article 309 of the constitution of India in G.O. Ms. No.537, M &H; (A2) dated 8-9-1981 in supersession of the earlier memo and in the statutory rules a distinct category in Class-I in Branch-I of A,P. Medical Service was constituted and in Rule 3, the method of appointment is prescribed. From the method of appointment, it is seen that the Doctors working on general side and speciality side were treated differently. No higher limit for giving special grade scales was specified in this GO.
9. On the other hand, in note-1 it is clearly stated that the selection for promotion to the special grade, shall be decided on the basis of seniority in the cadre of Civil Surgeon. Under note-2 it is stated that the appointments have to be made on the basis of merit and ability, seniority being considered only where merit, ability and qualification are approximately equal. Rule 4 speaks of qualification, which is as under:
No person shall be eligible for appointment to the said posts unless he/she puts in a minimum period of five years of service in any of the feeder categories of posts referred to in Rule 3.
10. From this it is seen that the persons working in a particular category for a minimum period of 5 years are eligible for consideration for claiming the special grade promotion scale without any inhibitions. I have already taken the view that G.O. Ms. No.537 is automatically applicable to the Doctors working in TTD by virtue of Rule 4 of TTD Employees Service Rules.
11. When once the legal position is clear, from the facts of the case, it is seen that the petitioner was promoted as Civil Surgeon on 2-2-1985 and she had completed 5 years of service by 2-2-1990 and she being the senior most Medical Officer, is entitled to claim special grade promotion scale,
12. Secondly the Counsel for the respondents contended that out of 100 posts not more than 15 posts can be created in the, special grade promotion scale as contained in Memo dated 1-9-1980. I do not find any merit in the said contention also for the simple reason that this Memo was replaced by statutory rules in G.O. Ms. No.537, M&H; (A2), dated 8-9-1981, wherein this memo was also referred to. At any rate the Executive instructions cannot override the statutory rules. Even assuming for arguments sake that such an upper limit is prescribed, out of 100 posts, 15 posts have to be created in the special grade promotion scale and the case of the petitioner is that there are 5 posts of Civil Surgeons in TTD and on that basis, the percentage works out to 0.75. Under General Clauses Act any fraction over and above 0.5 has to be treated as one. On that ground also the respondents are bound to create one post in the special grade promotion scale.
13. The other contention raised by the learned Counsel for the respondents that as per G.O. Ms. No.117, dated 25-5-1981, the special grade promotion scales have to be limited to persons who are drawing pay in the revised pay scales 1978 upto Grade-XVIII in Schedule-1 to the A.P. Revised Scales of Pay 1978 also do not hold water for the simple reason that the said GO deals with the ministerial staff. Whereas G.O. Ms. No.537 specifically deals with the case of the Doctors working in the Government as well as In the Instrumentalities of the State. It is a well-settled proposition that special provisions shall override the general provisions if any. Hence the respondents cannot take shelter under G.O. Ms. No.117. Accordingly all the contentions raised by the respondents are rejected.
14. The learned Counsel for the respondents lastly contended that under G.O. Ms. No.537 no scale was given for the special grade promotion post to be created under the said GO. But from the G.O. Ms. No.129, dated 8-3-1994 and the orders of the Director of Health A.P. Hyderabad in proceedings No.A1/9859/94 dated 24-4-1994, it is seen that the Doctors working in the time scale of pay of Rs.5390-6150-230-7300 were placed in Rs.5770-190-6150-230-7300-280-9260. Therefore, I hold that on the same analogy, the respondents have to extend the time scale of pay to the petitioner also.
15. In view of the findings recorded supra, the impugned memo cannot be sustained in law and it is accordingly quashed. The respondents are directed to consider the case of the petitioner for special grade promotion scale in terms of G.O. Ms. No.537, M&H; (A2), dated 8-9-1981 duly keeping in view the interpretation placed by this Court in the judgment. The respondents shall complete the exercise within a period of 2 months from the date of receipt of a copy of (his order and the arrears shall be paid within one month thereafter.
16. The writ petition is accordingly allowed. There shall be no order as to costs.