THE HON'BLE SRI JUSTICE GHULAM MOHAMMED and THE HON'BLE SRI JUSTICE G.BHAVANI PRASAD W.P.Nos.9427 and 9428 of 2010 COMMON ORDER: (Per Sri Justice Ghulam Mohammed, J) Since both these writ petitions arise out of the identical interim orders, dated 06.04.2010 and 13.04.2010, passed in O.A.Nos.1948 and 1904 of 2010 respectively, they are being taken up for disposal by this common order. 2. The first petitioner in W.P.No.9427 of 2010 and the petitioner in W.P.No.9428 of 2010 is one and the same. Respondent Nos.3 to 6 in W.P.No.9427 of 2010 filed O.A.No.1948 of 2010 seeking to direct respondents 1 and 2 to prepare the final seniority list in the cadre of Sub-Inspectors and above and review the promotions in the cadre of Inspectors and Assistant Commandants based on the seniority list to be prepared and also to promote them as Inspectors and Assistant Commandants with retrospective effect. Respondent No.3 in W.P.No.9428 of 2010 filed O.A.No.1904 of 2010 seeking to call for the records in G.O.Ms.No.105, dated 01.05.2000, and declare prescription of graduation as minimum qualification for the post of Additional Commandant/Commandant, as illegal and arbitrary and to declare that the petitioner is not entitled to promotion to the post of Additional Commandant. 3. In O.A.No.1948 of 2010, the Tribunal passed the interim order, dated 06.04.2010, directing respondents 1 and 2 not to fill up the post of Assistant Commandant, until further orders. In O.A.No.1904 of 2010, the Tribunal following the interim order in O.A.No.1948 of 2010 passed the same order on 13.04.2010. Aggrieved by the same, the petitioners filed the present writ petitions. 4. Heard the learned counsel for the petitioners, learned Government Pleader for Services-I and Sri J. Sudheer, learned counsel for respondent No.7 in W.P.No.9427 of 2010. 5. Learned counsel for the petitioners contended that the Tribunal without hearing the petitioners has passed the interim orders and therefore, it has committed error in terms of Section 24(b) of the Administrative Tribunals Act, 1985, which reads as under: “Conditions as to making of interim orders- Notwithstanding anything contained in any other provisions of this Act or in any other law for the time being in force, no interim order (whether by way of injunction or stay or in any other manner) shall be made on, or in any proceedings relating to, an application unless- (a) copies of such application and of all documents in support of the plea for such interim order are furnished to the party against whom such application is made or proposed to be made; and (b) opportunity is given to such party to be heard in the matter; He further contended that the Tribunal has not recorded any reasons while passing the interim order. He further contended that the petitioners are at the edge of promotion as their names were shown at higher place than unofficial respondents in the tentative seniority list prepared in the cadre of Assistant Commandants and that because of the interim orders, they denied promotion, which would cause irreparable loss to them. He relied upon the decision of the Apex Court in B. NAGESWARA RAO v. GOVERNMENT OF ANDHRA PRADESH[1] wherein it was held as under: “In cases involving termination of services, reversion or like, the Tribunal may, on being satisfied about the existence of a strong prima facie case in favour of the applicant, pass an interim order by presuming that the balance of convenience is in his favour and that he would suffer irreparable injury if an order of injunction is not passed. It must also be remembered that an interim order in such cases is not likely to affect the rights of others. However, in matters involving challenge to the process of recruitment/selections, seniority, promotion etc., the Tribunal is duty bound to be extremely careful and circumspect in entertaining/accepting prayer for interim relief. In such matters, the Tribunal can, at the time of final adjudication, give appropriate relief to the aggrieved person. If the selection or recruitment process is found to be tainted by arbitrariness or patent violation of the statutory provisions or the constitutional code of equality or it is found that a particular candidate has been selected due to extraneous reasons or the entire process is vitiated due to mala fides, the Tribunal can nullify the selection, as also the consequential appointments and direct holding of fresh selection. If the Tribunal comes to the conclusion that the applicant had been arbitrarily denied consideration for selection, then it can direct the concerned authority to consider his candidature along with other eligible persons. In an exceptional case, the Tribunal can also issue mandamus for appointment of a duly selected candidate, who may have been denied appointment due to extraneous reasons. If the Tribunal is convinced that seniority of an employee has not been fixed in accordance with law, then, while disposing of the main application, it can give a direction for proper fixation of seniority with a further direction for consideration of his case for promotion to the higher posts. Similar course can be adopted in cases involving adjudication of disputes relating to inter-se-seniority and wrongful denial of promotion. However, the Tribunal cannot pass an interim order staying the process of selection/recruitment or exercise undertaken by the employer for making promotions merely because it feels satisfied that the applicant has a strong prima facie case. An interim order, which has the effect of stalling appointments or promotions, cannot be passed unless the Tribunal is convinced beyond any manner of doubt that the action or exercise undertaken by the public authority is grossly violative of the constitutional provisions or is vitiated due to mala fides. If an order of injunction is passed restraining the State or public authorities from making appointment/promotion against the vacant posts simply because the applicant is able to demonstrate that he has got a prima facie case, the functioning of the department or public institution is bound to be seriously jeopardized and at times the working of the department may come to a grinding halt. Such an order may also adversely affect unknown number of persons, who may not be parties to the application. In matters relating to seniority and promotions, an interim order, which has the effect of frustrating the impending promotions, must be avoided because, in the event of dismissal of the main application, the clock cannot be put back. The Tribunal cannot direct the State and public authorities to retrospectively promote the non-applicants and give them consequential benefits on the premise that the concerned employees had been deprived of promotion etc., on account of interim stay. The sum and substance of the above discussion is that, in matters involving challenge to the process of selection/recruitment/appointment, promotion, seniority etc., the element of public interest is always against the 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 case, 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 tainted by mala fides” He further contended that the representations made by the unofficial respondents have been considered and rejected vide memos, dated 24.07.2003, which were not challenged by them. He also contended that the Tribunal ought not to have directed the official respondents not to fill up the post of Assistant Commandant though the main grievance of the unofficial respondents is for non-preparation of the final seniority list in the cadre of Sub-Inspectors. 6. Learned Government Pleader for Services-I submitted that the proposals are called for with regard to preparation of panel for the post of Assistant Commandants/Commandant for 2005- 2006. He also submitted that at the time of promotion of the respondents/applicants from Sub-Inspectors to Inspectors in 2003, no seniority list is prepared in the cadre of Sub-Inspectors. 7. Learned counsel for respondent No.7 in W.P.No.9427 of 2010 contended that though an enquiry is pending against the first petitioner, his name is found above the names of the unofficial respondents, for which, learned counsel for the petitioners answered that the first petitioner has a clean chit of record as on today. Learned counsel further contended that the Director General, SPF, AP Secunderabad issued memo, dated 21.11.2006, stating that the seniority of Inspectors was fixed and that the representation for preparation of the seniority list of CPO’s will be examined separately as it is not related to the seniority list of Inspectors and subsequently, a tentative seniority list in the cadre of Assistant Commandants was prepared showing the place of the petitioners at Sl.Nos.1 and 2 respectively and the unofficial respondents at Sl.Nos.3,4,5 and 8 respectively. 8. From a perusal of the material on record, it is evident that Special Rules were framed for Special Police Force Subordinate Services through G.O.Ms.No.208 dated 20.08.1997, as per which, the post of Sub-Inspector can be filled up by direct recruitment and by promotion from Assistant Sub-Inspector. Admittedly, the first petitioner was appointed in Border Security Force and subsequently, absorbed as Assistant Sub-Inspector in Special Protection Force by transfer and thereafter promoted as Sub- Inspector, Inspector and Assistant Commandant and his services were regularized with effect from the date of his promotion, but the services of the unofficial respondents were regularized with effect from the date of their appointment as per the rules in vogue. Therefore, the petitioners were promoted as Sub-Inspectors much before entering into the Department by the unofficial respondents. Further, the representations made by the unofficial respondents seeking to fix inter-se seniority among 1996 batch Sub-Inspectors, were disposed of vide memo, dated 24.07.2003, stating that they never appointed or absorbed into SPF force and therefore, their claim of inter-se seniority among their own batch mates is not yet determined. They have not challenged the said memo, but, in the year 2010, they filed the above said O.As seeking appropriate reliefs specified supra. The Tribunal, without hearing the petitioners and recording any reasons, has passed the above said interim orders directing respondents 1 and 2 not to fill up the post of Assistant Commandant, until further orders. More so, the claim of the unofficial respondents is for preparation of final seniority list in the cadre of Sub-Inspectors, but the Tribunal stayed the appointments for the post of Assistant Commandant, until further orders. However, the Tribunal cannot pass such an order staying the process of exercise undertaken by the employer for making promotions unless the unofficial respondents have a strong prima facie case, and it may adversely affect the functioning of the department or public institution, as held by the Apex Court in B. Nageswara Rao’s case (1 supra). 9. In view of the aforesaid reasons, we are of the view that the Tribunal exceeded its jurisdiction in passing the orders impugned and the same are liable to be set aside. 10. Accordingly, both the writ petitions are allowed by setting aside the orders impunged. However, the Tribunal is directed to dispose of the O.As., as expeditiously as possible, within a period of three months from the date of receipt of a copy of this order, and any promotions will be subject to the final result of the O.As. No order as to costs. _____________________ GHULAM MOHAMMED,J _____________________ G.BHAVANI PRASAD, J Date:08.06.2010. Note: Issue CC forthwith. (Bo) sj [1] 2006(4) ALD 649 (DB)