IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY SECOND DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE D.S.R.VARMA and THE HON'BLE MR JUSTICE K.C. BHANU WRIT PETITION No.5268 of 2004 Between: 1 The Secretary to Government, Fisheries and Animal Husbandry, Govt.of A.P., Secretariat, Hyderabad. 2 The Commissioner of Fisheries, Govt.of Andhra Pradesh, Road No.4, Shantinagar, Masab Tank, Hyderabad. 3 The District Collector, West Godavari District, Eluru. 4 The Asst.Director of Fisheries, Eluru, West Godavari District. 5 The District Treasury Officer, West Godavari District, Eluru. ..... PETITIONER(S) AND Smt.Shaik Khatizabi, D/o Shaik Bajee, Adivarapu Pet, Eluru. .....RESPONDENT 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 issue an appropriate Writ or direction more particularly one in the nature of "Writ of Certiorari" calling for the records with order dated 9-1-2004 in O.A.No.4313 of 2002 on the file of the Hon'ble Administrative Tribunal, Hyderabad and to quash the same as erroneous and contrary to law Counsel for the Petitioners : GP FOR SERVICES I Counsel for the Respondent : Sri B.VEERAIAH The Court made the following : THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION No.5268 of 2004 ORAL ORDER : (per the Hon’ble Sri Justice D.S.R.Varma) Heard learned Government Pleader for Services-I appearing for the petitioners-Government and the learned counsel appearing for the respondent-applicant. 2. This Writ of Certiorari is filed seeking to quash the orders of the A.P. Administrative Tribunal, Hyderabad, (for brevity “the Tribunal”) passed in O.A.No.4313 of 2002, dated 09-01-2004. 3. The petitioners are respondents and the respondent is the applicant in O.A.No.4313 of 2002 before the Tribunal. 4. For the sake of convenience, the parties are referred to as per their array in the O.A. 5. The facts, in brief, are that the applicant is the daughter of the original Government employee, by name Shaik Baji, Watchman, in Fisheries Department, who retired from service on the ground of medical invalidation. On his retirement on the ground of medical invalidation, the applicant, being the daughter, filed an application to the competent authority seeking appointment on compassionate grounds. Consequently, by proceedings No.2857/A/99, dated 13-09- 2000, of the fourth respondent, she was appointed as Attender. Subsequently, it was noticed by the authorities that her appointment was not in accordance with the scheme and, as such, she was removed from the service, by Memo.No.2857/A/99, dated 29-11-2000, of the fourth respondent. Challenging the said order, dated 29-11- 2000, of termination, the applicant filed O.A.No.3530 of 2001 before the Tribunal. The Tribunal, after hearing the matter on merits, by order, dated 06-06-2001, set aside the order of termination, however, with a liberty to the respondents to take appropriate action in accordance with law after giving notice and opportunity to the applicant. Pursuant to the said order of the Tribunal, the applicant was reinstated into service and a show cause notice has been issued and explanation was called for. After considering the explanation of the applicant, by Memo.No.2857/A/99, dated 04-09-2001, of the fourth respondent, again the applicant was terminated from service. Challenging the said order of termination, the applicant filed O.A.No.6845 of 2001 and the same was disposed of by the Tribunal, by order, dated 16-10-2001, directing the applicant to make a fresh representation to the respondents and on such representation, the respondents were directed to examine the same in the light of G.O.Ms.No.350, dated 30-07-1999 and pass appropriate orders. Accordingly, on the representation, dated 29-10-2001, made by the applicant, the fourth respondent, by Memo.No.2857/A/99, dated 24- 11-2001, rejected the case of the applicant. Therefore, the net result is that since the case of the applicant was not considered by the competent authority, the termination order, dated 04-09-2001, passed by the fourth respondent remained on record. Subsequently, basing on another representation, dated 01-01-2002, made by the applicant, remarks have been called for passing appropriate orders. The second respondent, by letter No.9555/A4/2001, dated 12-02-2002, sent the remarks and it is those remarks that were challenged in the present O.A. i.e., O.A.No.4313 of 2002 before the Tribunal. 6. In other words, the Government, which is the competent authority to pass final orders, did not actually pass any final orders on the representation of the applicant. It was at the stage of enquiry and consideration in the light of the remarks sent by the second respondent and final orders are yet to be passed. Mere remarks sent by the second respondent cannot be treated as passing of final orders. Merely because the said remarks are not supporting the case of the applicant, it cannot be held that the competent authority automatically would follow those remarks and pass final orders against the applicant. No such presumption can be drawn and any perception in that sense is pre-mature. It is always open for the competent authority to pass appropriate orders basing on various facts and circumstances and the law, as well. 7. At this juncture, it has been brought to the notice of this Court that a Full Bench of this Court in GOVERNMENT OF ANDHRA PRADESH AND OTHERS vs. D.GOPAIAH[1] held that any scheme formulated by State providing for compassionate appointment on the ground of retirement on medical invalidation was unconstitutional. 8. However, subsequently, in an unreported judgment in W.P.No.12990 of 2007, dated 26-06-2007, a Division Bench of this Court held that the appointments which were made prior to the judgment rendered by a Full Bench of this Court in D.GOPAIAH’s case (supra) shall have to be saved. In other words, the judgment rendered by a Full Bench of this Court, as was held by a Division Bench of this Court, cannot be given retrospective effect. 9. Therefore, if the said principle laid down by a Division Bench of this Court in W.P.No.12990 of 2007, dated 26-06-2007, holds good, the case of the applicant has to be considered independently by not applying the principle laid down by the Full Bench of this Court in D.GOPAIAH’s case (supra). 10. Therefore, we deem it appropriate to dispose of the writ petition with a direction to the first respondent to consider the representation of the applicant in accordance with law existing as on the date of her appointment and also as on the date of passing the orders of termination, dated 04-09-2001, without reference to the judgment rendered by a Full Bench of this Court in D.GOPAIAH’s case (supra). The case of the applicant shall be considered on pragmatic basis and the said exercise shall be completed as expeditiously as possible, in any event within a period of 10 (ten) weeks from the date of receipt of a copy of this order. 11. For the foregoing, the impugned orders, dated 09-01-2004, in O.A.No.4313 of 2002, passed by the Tribunal are liable to be set aside. 12. Subject to above observations and directions, the writ petition is allowed, at the stage of admission, setting aside the impugned orders, dated 09-01-2004, in O.A.No.4313 of 2002, passed by the Tribunal. However, there shall be no order as to costs. _______________________ JUSTICE D.S.R.VARMA _______________________ JUSTICE K.C.BHANU 22-07-2008 Msr. ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 The Secretary to Government, Fisheries and Animal Husbandry Department, Govt.of A.P., Secretariat, Hyderabad. 2 The Commissioner of Fisheries, Govt.of Andhra Pradesh, Road No.4, Shantinagar, Masab Tank, Hyderabad. 3 The District Collector, West Godavari District, Eluru. 4 The Asst.Director of Fisheries, Eluru, West Godavari District. 5 The District Treasury Officer, West Godavari District, Eluru. 6. Two CCs to the Government Pleader for Services-I, High Court Buildings, Hyderabad. (OUT). 7. Two C.D. copies. THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION No.5268 of 2004 22-07-2008 (Msr) [1] 2001 (6) ALD 759 (FB)