IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY SEVENTH DAY OF JUNE TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE C.V.RAMULU WRIT PETITION NO : 26015 of 2007 Between: K. Balaram, S/o. Pullaiah, O/o. District Educational Officer, Khammam District. ..... PETITIONER AND 1 The District Educational Officer, Khammam. 2 The Regional Joint Director of School, Education, Warangal. 3 The Commissioner & Director of School Education, Warangal. 4 D. Murali Krishna, O/o. District Educational Officer, Khammam. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to declare the Proceedings Rc.No. 13314/B4/Estt/1991 dt. 26- 8-2003 passed by the 1st Respondent as confirmed in O.A.No. 5899 of 2003 on the file of the APAT, Hyderabad as illegal, arbitrary and unjust by issuing appropriate writ order or direction more particularly in the nature of Writ of Mandamus and pass Counsel for the Petitioner:MR.M.V.S.SURESH KUMAR Counsel for the Respondent No.: GP FOR SERVICES I ORDER: (Per Sri Justice GHULAM MOHAMMED) This Writ Petition has been filed with a prayer to issue writ or direction in the nature of Mandamus declaring the proceedings R.C.No. 13314/B4/Estt/1991 dated 26.8.2003 of the first respondent confirmed in O.A.No. 5899 of 2003 on the file of the APAT, Hyderabad as illegal arbitrary and unjust. O.A.No. 5899 of 2003 was filed challenging the order passed by the District Educational Officer, Khammam District, dated 26.8.2003, wherein the unofficial respondent was accorded seniority over and above the applicant on the ground that a contempt application is said to have been filed by him, and the same was dismissed stating that the impugned proceedings have been issued in furtherance of the earlier orders of the Tribunal in O.A.No. 46384 of 1991 dated 2.11.2001 by an order dated 9.10.2007. It is to be noticed that the order dated on 26.8.2003 was issued pursuant to the order passed by the Tribunal in CA No. 616 of 2003 in O.A.No. 46384 of 1991 dated 22.7.2003, wherein the unofficial respondent in this Writ Petition was shown as above the writ petitioner in the cadre of seniority list and that O.A was dismissed holding that the impugned proceedings have been issued in furtherance of the earlier orders of the Tribunal in O.A.No. 46384 of 1991 dated 2.11.2001. The brief facts of the case are that the petitioner was appointed as Typist in the first respondent office with effect from 5.7.1983 and he passed requisite departmental exams during the year 1990. Based on the eligibility list prepared in May, 1991, he was promoted as Senior Assistant with effect from 31.10.1991. While so, the unofficial respondent was appointed as a Junior Assistant on 1.12.1981 and he passed the requisite departmental examination in August 1991 and was included in subsequent list of eligible candidates prepared in November, 1991 and promoted to the post of Senior Assistant in January, 1992. He filed O.A. No. 46384 of 1991 before the Tribunal and the same was disposed of on 2.11.2001 with the following directions: “The applicant is therefore directed to make an application before the District Educational Officer in this regard within a period of one month from today and if his contention that he passed departmental examination by the date of unofficial respondent No. 2 was promoted is correct, the case of the application be considered and he should be given the benefit of promotion along with the unofficial respondent No. 2 was promoted is correct, the case of the applicant be considered and he should be given the benefit of promotion along with the unofficial respondent No. 2 and accord all consequential benefits to which he is entitled to as per rules.” In pursuance of the said order, if at all the unofficial respondent is entitled for notional promotion, he cannot be at any rate declared as senior. The promotion given to the petitioner was neither set aside nor directed to be re-considered by the Tribunal. While so, the first respondent, while protecting the seniority of the petitioner granted notional promotion to the unofficial respondent vide proceedings RCNo. 13314/B4/Estt./2001 dated 2.1.2003 as per the orders passed by the Tribunal dated 2.11.2001 in O.A.No. 46384 of 1991. Aggrieved by the same, the unofficial respondent filed Contempt Case in which notice was ordered. Pursuant to the same, the first respondent has passed modified order dated 26.8.2003 conferring seniority of the official respondent above the petitioner and the petitioner is shown below the unofficial respondent. Questioning the said order, the petitioner filed O.A.No. 5899 of 2003, before the Tribunal and the Tribunal by an order dated 9.10.2007 dismissed the said O.A. stating that the impugned proceedings were issued in furtherance of the earlier orders dated 2.11.2001. Since the earlier order of the Tribunal has attained finality and when once the unofficial respondent filed Contempt Case stating that the order was not implemented in toto, notice was ordered in Contempt Case and thereafter, the authorities have realized the mistake and passed the impugned order dated 26.8.2003, wherein the unofficial respondent is shown above the petitioner in the cadre of seniority list. The learned counsel appearing for the petitioner contended that under Rule 23 of the A.P. State and Subordinate Service Rules, 1996 review of the promotion has to be effected within a period of six months. Since the original order was passed on 2.1.2003 pursuant to the order in O.A and whereas the impugned order dated 26.8.2003, which is now challenged is filed beyond the period of six months, the Tribunal ought not to have passed this order, which is contrary to the statute. The learned counsel for the respondent pointed out that the authorities have realized the mistake and passed the impugned order dated 26.8.2003 and pursuant to the Contempt Case, notice was ordered and the unofficial respondent has realized the mistake and rectified the same. He further submitted that under such circumstances, Rule 23 of the A.P.State and Subordinate Service Rules, 1996, is not applicable to the facts and circumstances of the case. The learned counsel further placed reliance on the judgment in JVSP PURNANANDA RAO AND OTHERS VS. COMMISSIONER AND DIRECTOR OF SCHOOL EDUCATION, A.P., HYDERABAD[1], the relevant portion at paragraph 12 reads as under: “Thus, the name of the third respondent could not be included in the panel prepared on 18.10.1988 though the third respondent passed the test as per the results published on 6.10.1988. The District Educational Officer may be right to state that unless there is an entry in the service register, the name of the third respondent cannot be included in the seniority list prepared on 18.10.1988. But, when the third respondent was given promotion as Senior Assistant after the official gazette was communicated, the District Educational Officer ought to have reviewed the panel prepared on 18.10.1988 giving her the original place as contained in the seniority list of the Junior Assistants. As seen from the Rule 6, panel has to be prepared for promotion in the month of September every year taking first September of the year as the qualifying date to determine the eligibility of the candidate for such appointment. As per second proviso contained therein, the panel of candidates so prepared, shall be reviewed after a period of six months reckoned from the date of approval of the panel, for the purpose of considering the cases o such other persons, whose names were not included in the panel prepared earlier for not passing the prescribed tests or for not having special qualifications prescribed under the rules, if they have subsequently passed those tests or acquired the said qualifications and are otherwise found suitable for inclusion in the panel of the year. In the instant case, the third respondent appeared for the departmental test in November 1987 itself, and the results ought to have been published before the end of July 1988 and for no fault of third respondent, the results were not published by the A.P. Public Service Commission and the results were published subsequently, on 6.10.1988 and even after that those results could not be printed in official gazette till December, 1988. For such lach on the part of the A.P. Public Service Commission, the third respondent cannot be penalized. In fact, in the grounds of writ petition, the petitioners themselves in para 4 at page 10 stated that the official respondents alone have to be blamed or found fault for exclusion of the unofficial respondents names in the Senior Assistants panel for the year 1987-88. The writ petitioners also did not find fault on the part of the third respondent for non-inclusion of her name in the panel prepared for year 1987-88. The Government of Andhra Pradesh in Memo No. 2745/T.E.2/98-4, dated 16.9.1998, drew the attention of the Commissioner of Technical Education that in case the candidates appeared for the examination for the departmental tests prior to first September of panel year, their names should be considered for that panel year though the results were announced lately, as per the second proviso contained in Rule 6 of A.P. State and Subordinate Services Rules that their original place on par with their juniors shall be restored in the higher category also. It is also the common practice to restore to the original places in the higher category in case the promotion of the candidate could not be considered earlier for no fault of that particular candidate. For example, if a departmental enquiry is pending against an employee, his name will not be considered for promotion for that reason and in case the employee is absolved of all the charges after due enquiry, he shall not only be promoted but also be given his original place on the principle that for no fault of his own, he cannot be deprived of his promotion with original seniority. The same principle applies here also because in November, 1987 itself the third respondent appeared for departmental test and the results ought to have been published before July, 1987 as per the rules of the A.P. Public Service Commission. However, when the third respondent passed the test appeared in November 1987, the result of the examination shall date back to the date of writing the examination.” In the circumstances, having given an anxious consideration, we are of the view that the Tribunal has rightly considered the case pursuant to the order, which had attained finality and the impugned order was passed only in obedience of the order passed by the Tribunal in an earlier case. Therefore, we do not find any illegality or irregularity in the order passed by the Tribunal and accordingly, the Writ Petition is dismissed. No order as to costs. _____________________________ GHULAM MOHAMMED ,J ___________________________ C.V.RAMULU, J Dt. 27.06.2008 KA ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 The District Educational Officer, Khammam. 2 The Regional Joint Director of School, Education, Warangal. 3 The Commissioner & Director of School Education, Warangal. 4. CC to G.P. for Services –I, High Court of A.P. Hyderabad. 5. 2CD copies [1] 2006(1) ALT 528 (DB)