Dismissed

T. Vijaya Kumar v. The State of A.P.

Telangana HC2 Mar 2012WP/11645/2011

Case brief

AI extract

What is this about?

Writ petition filed against the Administrative Tribunal's order issuing notices in a pending original application challenging seniority and promotion. The High Court held that issuing notices is not a decision refusing interim relief and refused interference, vacating prior interim stays.

What did the court decide?

Vacated interim orders in WPMP Nos. 14246 and 14247; dismissed writ petition and MP petitions; allowed vacate petitions against interim stays.

T. Vijaya Kumar Vs The State of A.P. — Pension and Retirement Benefits | Telangana HC (2012)

¶1

THE HON'BLE MR JUSTICE V ESWARAIAH

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THE HON’BLE MR JUSTICE K.G.SHANKAR

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WRIT PETITION NO. 11645 OF 2011

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DT.2.3.2012

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Between: T Vijay Kumar and others

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… Petitioners

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And State of A P rep by its Principal Secretary to Govt and others and others

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… Respondents

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Counsel for the Petitioner: Sri P.V. Krishnaiah

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Counsel for respondents:

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The Court made the following ORDER:

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THE HON'BLE MR JUSTICE V ESWARAIAH

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THE HON’BLE MR JUSTICE K.G.SHANKAR

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WRIT PETITION NO. 11645 OF 2011

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JUDGMENT : (Per Sri Justice V Eswaraiah)

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The petitioners numbering 6 are the applicants before the A.P. Administrative Tribunal (for short the Tribunal) in O.A No.2140 of 2011, seeking the main and interim reliefs as extracted below:

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MAIN PRAYER:

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In the circumstances, it is therefore prayed that this Hon’ble Tribunal may be pleased to grant appropriate relief, declaring the G.Os, G.O.Rt No. 491 Revenue (CT.III) Department Dated 29.03.1996, G.O.Rt No. 1198 Revenue (CT.III) Department dated 6.8.1996, G.O.Rt No. 952 Revenue (CT.III) Department dated 3.7.2004, G.O.Rt No. 1946 Revenue (CT.III) Department dated 2.12.2004, G.O.Rt No. 258 Revenue (CT.III) Department dated 9.2.2005 and G.O.Rt No. 711 Revenue (CT.III) Department dated 9.4.2007 issued by the 1^st respondent and consequential proceedings Rc.No.A3/557/97 dated 27.9.2007 issued by the 4^th respondent, as arbitrary, illegal, malafide and unconstitutional violating Article 14, 16 and 21 of the Constitution of India besides violating the principles of natural justice and set aside the same and consequently declare that the proceedings Rc No. A2/235/2008 dated 18.1.2011 issued by the 4^th respondent is equally arbitrary, illegal violating Article 14, 16 and 21 of the Constitution of India and set aside the same insofar as it relates to placing the name of the party respondents above the applicants is concerned, and issue consequential directions, directing the respondents to forthwith review the promotions in the cadre of Senior Assistants in terms of the final seniority list of Junior Assistants/Typists/ Stenos issued in proceedings No. A3/786/94 dated 11.10.1994 issued by the 4^th respondent and giving notional promotion and seniority in the cadre of Senior Assistants and consequently prepare the seniority list in the cadre of Senior Assistants for Zone VI in placing the name of the applicants above the name of the party respondents is concerned and consequently consider the case of the applicants for promotion to the post w.e.f. the date of availability of vacancies in the cadre of ACTOs with all consequents benefits and pass such other order or orders as it deems fit and proper in the circumstances of the case.

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INTERIM PRAYER:

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In the circumstances, it is therefore prayed that this Hon’ble Tribunal may be pleased to direct the respondents to consider and appoint the applicants by Transfer as Assistant Commercial Tax Officer in Zone-VI before promoting the party respondents, if necessary suspending the final seniority list issued in proceedings Rc No. A2/235/2008 dated 18.1.2011 issued by the 4^th respondent insofar as it relates to placing the party respondents above the names of the applicants is concerned, pending disposal of the O.A.”

¶21

The Tribunal on 15.4.2011, made the following order:

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“Admit. Issue notice to the respondents returnable within four weeks.”

¶23

Aggrieved by the said order, the applicants therein filed the present writ petition along with two interlocutory applications in W.P. M.P. No. 14246 of 2011 to suspend the operation of proceedings A2/235/2008 dated 18.1.2011 and W.P.M.P. No. 14247 of 2011 to direct the respondents to forthwith consider and promote them as Assistant Commercial Tax Officers before promoting the party respondents.

¶24

This Court by order dated 25.4.2011 while admitting the writ petition, granted interim suspension of proceedings A2/235/2008 dated 18.1.2011 and directed the respondents to consider the case of the petitioners for promotion.

¶25

The official respondents i.e. respondents 1 to 4 filed a vacate petition in W.V.M.P No. 2362 of 2011 to vacate the interim order in WPMP No. 14246 of 2011. The unofficial respondents filed two vacate petitions in W.V.M.P. No. 1951 and 1952 of 2011 to vacate the interim orders in W.P.M.P. No. 14246 and 14247 of 2011 respectively dated 25.4.2011. The third parties i.e., Mohd.Qubtubuddin and Abdul Rawoof filed an Implead petition in W.P.M.P. No. 21017 of 2011 together with a vacate stay petition in W.V.M.P. (SR) No. 84195 of 2011. The matter underwent about 5 adjournments and finally on 24.2.2012 counsel appearing for both the parties have advanced their arguments in the main writ petition itself.

¶26

The official and unofficial respondents have raised a preliminary objection about the maintainability of the writ petition on the ground that there is no order passed by the Tribunal and the present writ petition is filed only against the order of the Tribunal in issuing notices to the respondents in the stay application, therefore the question of judicial review against the issuance of notice dated 15.4.2011 does not arise. It is stated that issuance of notices in the stay application cannot be termed as an order either granting or refusing to grant the stay and the said aspect of considering the interim relief would be considered upon service of the notice on the respondents. It is also submitted that the case on hand is not one of those rarest of rare or

¶27

exceptional cases nor any malafides are attributed on the Government. It is stated that the applicants are not entitled to the relief sought for unless various Government Orders which are questioned in the Original Application are held to be illegal and unconstitutional and ultimately set aside, which is the subject matter of the Original Application which cannot be decided at the interlocutory stage. It is submitted that unless the Government Orders impugned in the Original Application are set aside the presumption is that the Government Orders are legal and valid and the final seniority list dated 18.1.2011 is only a consequential proceedings, therefore, the petitioners are not entitled to interim relief either by the Tribunal or by this Court.

¶28

Briefly stated the facts of the case are that the first and fifth applicants were appointed on 4.6.1987, the third applicant was appointed on 5.6.1987 as Junior Assistants through District Selection Commission, the fourth applicant was appointed as Typist on 4.6.1987 through District Selection Commission and the second applicant was initially appointed as Junior Assistant on 28.5.1988 on compassionate grounds. The sixth applicant was initially appointed as Junior Assistant in other department on 4.6.1987 and came to Commercial Tax Department by transfer on 1.6.1989.

¶29

The unofficial respondents 5 to 11 were appointed as Record Assistants/Attenders in various Commercial Taxes Divisions in Hyderabad city and were promoted as Junior Assistants by the respective Deputy Commissioners during the years 1985 and 1987 with a condition to regularize their services in the cadre of Junior Assistants after completion of five years of service from their date of appointment as per Rule 3 (14) (b) of the A.P. Ministerial Service Rules, which prescribe that every first vacancy of the six vacancies is to be filled by appointment by transfer to the post of Junior Assistant from the category of Attenders/Record Assistants. The then Deputy Commissioner promoted the Record Assistants to the post of Junior Assistants who did not have 5 years of service on condition that they shall not acquire any right in the post of Junior Assistant or claim seniority till such time in spite of their promotion on adhoc basis. Accordingly, respondents 5 to 11 were promoted on 27.12.1985 under Rule 3 (14) (b) of the A.P. Ministerial Service Rules i.e., in the sixth vacancy provided under every six vacancies. Therefore, the petitioners were obviously shown as seniors to the unofficial

¶30

respondents in the seniority list dated 11.10.1994. On representation made by respondents 5 to 11 to relax condition imposed under Rule 3 (14) (b) of the A.P. Ministerial Service Rules and to regularise their services from the date of original year of promotion i.e., from 1985, the Government in exercise of powers vested under Rule 31 of the A.P. State and Subordinate Service Rules issued various Government orders, which are impugned in the Original Application before the Tribunal. Pursuant to the relaxation orders, the Deputy Commissioner /4^th respondent issued proceedings in Ref No.A3/557/1997 dated 27.9.2007, where under the seniority of the respondents 5 to 11 was revised and they were assigned a new serial number and placed at serial Nos 665/1 to 665/6 respectively. The respondents 5 to 11 thus contends that they were promoted as Senior Assistants in the year 2000, 2001, 2004, 2005 and 2006 respectively prior to the date of the promotion of the writ petitioners. Thus, it is the case of the unofficial respondents that the revised seniority list dated 27.09.2007 in the cadre of Junior Assistants and the subsequent promotions in favour of the unofficial respondents as Senior Assistants which were much prior to the promotions given to the writ petitioners and the writ petitioners have never challenged the relaxation orders or the revised seniority list or promotional orders, as such the petitioners are not entitled to the relief sought for. It is further stated that after lapse of about ten years, the writ petitioners have filed the Original Application before the Tribunal, challenging the relaxation orders without filing any to condone the delay, as such, the Original Application is barred by limitation and not maintainable.

¶31

It is the case of the Government that the respondents 5 to 11 were appointed as Record Assistants /Attenders and they were promoted as Junior Assistants during the year 1985 and 1987 with a condition to regularize their services in the cadre of Junior Assistant after completion of 5 years of service from their date of appointment in terms of Rule 3 (14) (b) of A.P. Ministerial Service Rules. That after calling for the objections, the seniority list was finalised vide proceedings in RC No. A3/786/1994 dated 11.10.1994 and as per the said seniority list the respondents 5 to 11 were shown juniors to the petitioners but pursuant to the relaxation orders granted by the Government relaxing Rule 3 (14) (b) of the A.P. Ministerial Services Rules, the services of

¶32

the respondents 5 to 11 in the promoted post of Junior Assistant were regularised w.e.f. 20.12.1985. The respondents 5 to 11 are further promoted as Senior Assistants i.e., prior to the promotion of the petitioners and a show cause notice dated 15.12.2008 was issued calling for the objections and in fact, the writ petitioners have filed their objections stating that no notice was issued to them before the orders issued by the Government relaxing Rule 3 (14) (b) of the Ministerial Services Rules or the revised seniority given to the respondents 5 to 11 by the 4^th respondent and the final seniority list dated 18.1.2011. It is stated that the seniority of the respondents 5 to 11 was fixed based on the relaxation granted by the Government and no malafide intention was attributed by the petitioners. It is further stated that pursuant to the interim directions of this Court, the cases of the petitioners were considered and it was found that they are far juniors to respondents 5 to 11.

¶33

In fact, the first respondent also filed a counter before the Tribunal stating that respondents 5 to 11 are appointed as Record Assistants/attenders in various commercial tax divisions of Hyderabad city and they were promoted as Junior Assistants by the Deputy Commissioners during the year 1985 and 1987 with a condition to regularise their services in the cadre of Junior Assistants after completing 5 years of service from their date of appointment as per Rule 3 (14) (b) of the A P Ministerial Services Rules. As minimum period of five years for promotion post of Junior Assistant is necessary, the same was relaxed by the Government in various Government Orders and their promotion was regularised from the date of their promotion i.e., from the year 1985 and 1987. Thus, it is stated that the unofficial respondents are seniors to the writ petitioners, therefore the seniority list was revised vide proceedings of the 4^th respondent dated 27.9.2007. It is stated that the seniority list of Senior Assistants/Senior Stenos those who were promoted as Senior Assistants after 17.5.1994 to 31.12.2007 was prepared and a show cause notice dated 15.12.2008 was issued calling for objections and the applicants/writ petitioners have filed their objections stating that the orders issued by the Government relaxing Rule 3 (14) (b) of A P Ministerial Services Rules and revised seniority given in respect of respondents 5 to 11 vide proceedings dated 27.9.2007 are without

¶34

giving notice to them. However, without considering their objections, the seniority of Senior Assistants was finalized according to the date of regularisation and seniority revised in the cadre of Junior Assistant vide proceedings dated 18.1.2011.

¶35

As regards the contention that petitioners are entitled to notice before passing the relaxation orders in excise of powers vested in the Government under Rule 31 of the A.P. State and Subordinate Services Rules, it is contended that no notice is required while exercising the powers by the Government. For the sake of convenience, Rule 31 is extracted as under:

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“31. Relaxation of rules by the Governor:-Notwithstanding anything contained in these rules or in the special rules, the Governor shall have the power to relax any rules contained in these rules or special rules in favour of any person or class of persons, in relation to their application to any member of service or to any person to be appointed to the service, class or category or a person or a class of persons, who have served in any civil capacity in the Government of Andhra Pradesh in such manner as may appear to be just and equitable to him, where such relaxation is considered necessary in the public interest or where the application of such rule or rules is likely to cause undue hardship to the person or class of persons concerned.”

¶37

It is stated that the relaxation was given in favour of the persons who are entitled to be recruited by transfer in first vacancy of every six vacancies waiving the condition of 5 years of service under Rule 3 (14) (b) of the A.P. Ministerial Services, therefore, the subject Government Orders were issued in view of the public interest and no notice is required while exercising the powers of the Government and that the unofficial respondents entered into service much earlier to that of the writ petitioners and their regularisation of service with effect from the date of their promotion pursuant to the relaxation orders are also much prior to the appointment of the writ petitioners and the seniority list to the post of Junior Assistant and Government orders were never challenged and unless the said orders are set aside, the consequential final seniority list dated 18.1.2011 cannot be suspended.

¶38

Admittedly the Original Application is pending on the file of the Tribunal and we are not inclined to go into the merits of the said contention, as the only question that arise for consideration before this Court, is whether the petitioners are entitled to any relief under the discretionary jurisdiction of this

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Court against issuance of notices to the respondents by the Tribunal in the pending Original Application and whether the cases of the petitioners falls within the exceptional or rarest of the rare cases warranting interference of this Court within the parameters laid down by this Court in R MANJULA AND ANOTHER Vs PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE (SERVICES.I) DEPARTMENT, HYDERABAD AND ANOTHER^[1] .

¶40

It is also contended that Division Bench of this Court in B.NAGESWARA RAO AND OTHERS Vs. GOVERNMENT OF A.P. AND OTHERS^[2] held that in matters involving challenge to process of recruitment/selections, seniority, promotions etc, the element of public interest is always against grant of interim injunction which may operate as a stumbling block and which may adversely affect the functioning of the department or public institution. Only in rarest of rare cases, the Tribunal may pass an order of interim injunction, if it is fully convinced that the action complained against is per se violative of the constitutional or statutory provisions or is tained by mala fides.

¶41

This Court in Manjula case, held that the Tribunal so constituted is competent to hear the matters where the vires of statutory provisions are questioned and has the power to test the vires of subordinate legislations and rules. The Tribunal acts ‘as the Court of first instance’ in respect of the areas of law for which it is constituted. Litigants are not entitled to directly approach the High Court even in cases where they question the vires of the statutory legislations by over looking the jurisdiction of the Tribunal concerned. Such is the extent and reach of the power and jurisdiction conferred upon the Tribunal. The Tribunal so constituted is not subordinate to the High Couret. The High Court has no administrative superintendence over the Tribunal. The High Court merely exercises its jurisdiction conferred under Article 226 and 227 of the Constitution which is a supervisory jurisdiction. This Court does not exercise any appellant jurisdication and evaluate the decision of the Tribunal. The orders and decision of the Tribunal are amenable to judicial review by this Court, which is entirely different from an ordinary appeal.

¶42

No doubt in V. VINOD RAO Vs GOVERNMENT OF A.P., REVENUE DEPARTMENT, SECRETARIAT, HYDERABAD^[3] a Division Bench of this Court observed that “when a notice is directed to the opposite party by the Courts/Tribunals, High Court would normally refrain from entertaining a complaint against such issuance of notice by any Courts/Tribunals, but in certain circumstances, the High Court is bound to exercise its jurisdiction under Article 227 of the Constitution if in the opinion of the High Court, refusal to exercise their jurisdiction by Courts/Tribunals has resulted in grave injustice to the party”.

¶43

The paras at 31 to 33 of the Manjula case, answers for the various contentions raised by the learned counsel for petitioners in the present case, as such, they are extracted as under:

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( 31. ) In our considered opinion, refusal to grant an ex parte interim order in every case by the Tribunal cannot be characterised as a 'decision'. Such acts cannot be subjected to scrutiny by this court in exercise df its jurisdiction under Article 226 of the Constitution of India. It is equally well settled that this court would not entertain a judicial review proceeding only for the purpose of passing an interlocutory order, inasmuch as the interim relief can be granted only in the aid of and ancillary to the main relief to the party and final determination of his rights in the proceedings.

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( 32. ) The Supreme Court in State of U.P. and others v. Sunanda Prasad and another found fault with the High Court in entertaining a writ petition against an order of status quo granted by the Administrative Tribunal. It is observed: "We have no doubt in our mind that the High Court exceeded its jurisdiction in entertaining a writ application when the legality of the order of transfer is subjectmatter of a pending proceeding before the Central Administrative Tribunal and the Tribunal has passed an order of status quo"

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( 33. ) In the light of the foregoing discussion, we are of the considered opinion that this court in exercise of its jurisdiction under Article 226 of the Constitution of India would not normally interfere with the discretionary orders passed by the Tribunal. Grant of an interlocutory order or refusal theredf is within the discretion of the Tribunal. This court would not interfere with such discretion exercised by the Tribunal with regard to the interlocutory orders unless it is established that passing of such interlocutory order or refusal thereof had resulted in an irreversible situation resulting in manifest injustice. It would not be appropriate for this court to entertain any writ petition only for the purpose of granting an interim order during the pendency of the main proceedings before the Tribunal. However, it would be entirely a different matter if the discretion exercised by the Tribunal in the matter of granting interim relief results in incalculable repercussions and public mischief. In such cases where denial of

¶47

interim orders may lead to public mischief, grave irreparable injury or shake a citizen's faith in the judicial process, it is hot only the poWer but the duty of the Court to interfere and grant appropriate relief accordingly. Suffice it to observe interference of this court with the exercise of discretion by the tribunal at interlocutory stage is not a matter of course.

¶48

In view of the aforesaid two judgments of this Court, we are of the opinion that unless the legality or validity of the impugned Government Orders is decided and as long as the said orders are in force and not set aside, the consequential seniority list as finalised, cannot be suspended. We are also of the opinion that the case on hand is not one of those rarest of rare cases warranting suspension of final seniority list and more so it being the consequential proceedings of the various Government Orders, which are the subject matter of the main Original Application before the Tribunal.

¶49

The Tribunal heard the matter at the admission stage and in exercise of its discretion, thought it fit to admit the Original Application filed by the petitioners and before passing any interim orders, directed notices to the respondents returnable in four weeks, requiring them to appear in the matter. The Tribunal is entitled to pass appropriate orders after hearing all the parties to the proceedings. We are of the opinion that issuance of notices to the respondents by the Tribunal should not be termed as if the interim relief claimed by the petitioners was rejected by the Tribunal but it is still under consideration, therefore, the writ petitioners are not entitled to any relief whatsoever from this Court. Since the counter is filed by the Government, it is need less to observe that the Tribunal shall dispose of the Original Application in accordance with law as expeditiously as possible, uninfluenced by observations, if any made by this Court in the present writ petition.

¶50

For the foregoing reasons, we see no reason to interfere with the order of the Tribunal in issuing notices to the respondents at this stage and the interim orders granted by this Court in WPMP Nos. 14246 and 14247 of 2011 dated 25.4.2011 are liable to be vacated and the writ petition is liable to be dismissed.

¶51

In the result WPMP Nos. 14246, 14247 of 2011 and the writ petition are dismissed and WVMP Nos. 1951, 1952 and 2362 of 2011 are allowed. The

¶52

implead petition filed by Mr.Mohd.Qubtubuddin and Mr.Abdul Rawoof in W P M P No. 21017 of 2011 is also dismissed, however with liberty to file appropriate application in the pending O.A.No. 2140 of 2011 on the file of the A.P. Administrative Tribunal, Hyderabad. No costs.

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V ESWARAIAH, J

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K.G.SHANKAR, J

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DATE:2.3.2012 TVK

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[1] 2002 (3) ALD 648 (DB)

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[2] 2006 (4) ALD 649 (DB)

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[3] 1999 (1) ALD 147 (DB)

T. Vijaya Kumar v. The State of A.P.

Case brief

What is this about?

What did the court decide?

T. Vijaya Kumar v. The State of A.P.

Case brief

What is this about?

What did the court decide?

What the court decided

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