THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLESRI JUSTICE VILAS V.AFZULPURKAR W.A.No.876 of 2002 Date of Order: -04-2010 Between: The Chairman/The Board of Governors, A.P. Social Welfare Residential Educational Institutions Society, Hyderabad and others ..Appellants And Smt. Ch.Esther Madulatha ..Respondent The Court made the following Judgment: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLESRI JUSTICE VILAS V.AFZULPURKAR W.A.No.876 of 2002 Judgment: (Per Hon’ble Sri Justice A.Gopal Reddy) This intra-Court appeal under Clause 15 of the Letters Patent is filed challenging the orders of the learned single Judge of this Court dated 24-10-2000 in W.P.No.7913 of 1992 and WPMP No.25689 of 2000; and the order dated 24-04-2001 in WPMP No.6186 of 2001 in Rev.WPMP (SR) No.139364 of 2000 in W.P.No.7913 of 1992, whereby the learned single Judge allowed the writ petition, setting aside the order passed by the Chairman, Social Welfare Residential Educational Institutions Society (SWREIS), Hyderabad—2nd respondent dated 07-12-1994 and directed to treat the writ petitioner on duty from 21-04- 1992 to 19-10-1993 and pay the terminal benefits; and dismissed WPMP No.6186 of 2001, filed to condone the delay in filing the review petition. Facts giving rise to filing the Writ Appeal may, briefly, be stated as under: For the sake of convenience the parties are referred to as arrayed in the writ petition. The writ petitioner was placed under suspension by proceedings Rc.No.A3/APSWEIS/8420/91 dated 25-11-1991 of the Chairman, Social Welfare Residential Educational Institutions Society —2nd respondent under Rule 7(a) of Andhra Pradesh Social Welfare Residential Educational Institutions Society Service (Discipline and Appeal) Rules (for short “the Rules”) pending enquiry on the ground that she was responsible for missing the answer sheets bundle relating to SSC Examination 1991. After due enquiry into the negligence of the petitioner, the 2nd respondent by proceedings dated 21-04-1992 imposed punishment of stoppage of two increments with cumulative effect under Part-II Rule 10-1(b) of the Rules. By another proceeding of even date i.e. 21-04-1992, the writ petitioner was reinstated into service and posted as Post Graduate Teacher (Biological Sciences) in Andhra Pradesh Social Welfare Residential School for Girls, Dharmavaram, Nizamabad District in an existing vacancy. Questioning stoppage of two increments with cumulative effect and de-promoting her as Post Graduate Teacher from Special Officer/Principal she filed the above writ petition and in the said writ petition she filed W.P.M.P.Nos.9748 and 9749 of 1982, to stay the posting of the petitioner as Post Graduate Teacher (PGT) in A.P. Social Welfare Residential School for Girls, Dharmavaram, Nizamabad District in proceedings dated 21-04-1992 and direct the respondents to post the petitioner as Special Officer/Principal in the A.P. Social Welfare Residential School for Girls, Narsingi, R.R.District pending writ petition respectively. This Court by order dated 10-08-1992 disposed of both the WPMPs directing the respondents to post the writ petitioner as Special Officer/Principal if any of her juniors are being continued as Special Officer/Principal pending disposal of the writ petition. In compliance of the order passed in the WPMPs, the 2nd respondent by proceedings dated 02-09-1992 posted the writ petitioner as Special Officer/Principal in A.P. Social Welfare Residential School for Girls, Dharmavaram, Nizamabad District. In spite of posting, the petitioner did not report to duty at A.P. Social Welfare Residential School for Girls, Dharmavaram. Thereafter, she filed C.C.No.113 of 1993 complaining that the respondents in WPMP (appellants in the writ appeal) failed to implement the order passed in WPMP Nos.9748 and 9749 of 1992. The said Contempt Case was dismissed with an opportunity to the petitioner to work out her remedies in WPMP No.1397 of 1993 filed by her seeking a direction to continue and post her as Principal/Special Officer, A.P. Social Welfare Residential School (Girls), Narsingi, R.R.District. A learned single Judge of this Court by order dated 21-04-1993 dismissed all the petitions i.e. WPMP Nos.9748, 9749 of 1992 and 1397 of 1993 granting two weeks time to the writ petitioner to report at the place of her posting at Dharmavaram. Questioning the correctness of the said order the writ petitioner filed W.A.No.439 of 1993. A Division Bench of this Court disposed of the said writ appeal on 29-04-1993 holding that no fault can be found with the interim order passed by the learned Judge dated 21-04-1993 dismissing the above WPMPs. But at the request of the learned counsel for the appellant/writ petitioner, the appellant/petitioner was permitted to file an additional representation against the order of transfer within three days from the date of order to the 3rd respondent and the 3rd respondent shall decide the representation on its own merits, within a period of ten days from its receipt at his end and communicate the result of the representation to the writ petitioner. In compliance of the order passed in W.A.No.439 of 1993, the writ petitioner made a representation on 01-05-1993 to the 3rd respondent for posting her as Special Officer/Principal in A.P. Social Welfare Residential School for Girls, Narsingi, R.R.District. The 3rd respondent by proceedings dated 14-05-1993 rejected the said representation and by consequential proceedings dated 15-05-1993 the writ petitioner was directed to report duty as Special Officer/Principal, A.P. Social Welfare Residential School for Girls, Dharmavaram, Nizamabad District immediately, but she failed to report duty as directed. Later she made another representation dated 22-05-1993 to the 3rd respondent for transfer. Considering the said representation, the 3rd respondent by proceedings dated 10-10-1993 posted the writ petitioner as Special Officer/Principal A.P. Social Welfare Residential School, Mahendra Hills, Hyderabad relieving M.Geetha Lakshmi from Full Additional Charge. In compliance of the above order, the writ petitioner submitted her joining report at A.P. Social Welfare Residential School, Mahendra Hills, Hyderabad. After reporting to duty the writ petitioner made a representation dated 23-08-1994 to the 2nd respondent requesting the latter to withdraw all the punishments. Considering the said representation the 2nd respondent by proceedings Rc.No.B2/8420/91, dated 07-12-1994 ordered that the suspension period i.e. from 27-11- 1991 to 20-04-1992 is treated as duty and the period of absence from 21-04-1992 to 19-10-1993 is treated as Extraordinary Leave (EOL) or leave which she is eligible as per Rules. The said proceedings have become final, as the writ petitioner has not question the same. Later, she filed WPMP No.25689 of 2000 seeking a direction to the respondents therein to treat the period from 21-04-1992 to 19-10-1993 as on duty and pay all consequential benefits of service including monetary with full increments forthwith. The learned single Judge by the impugned order dated 24-10-2000 allowed the said petition. To review the said order a review petition was filed by the appellants herein with an application to condone the delay in filing the review petition contending that petition and affidavit filed in support of WPMP No.25689 of 2000 have not been served on them by the writ petitioner. Therefore, they were not aware of the same and could not file a counter in the said WPMP, which was dismissed for default. Hence, the present writ appeal. We have heard Mr.K.Durga Prasad, learned counsel for the appellants and also Mr. B.Sudhakar Reddy, learned counsel for the respondent/writ petitioner. Learned counsel for the respondent/writ petitioner contends that since no posting order as such was given to the petitioner as Special Officer/Principal and the same was given only on 10-10-1993, for the lapses committed by the appellants, writ petitioner cannot be suffered. Had the appellants promptly posted the petitioner in compliance with the representation made by her, she could have been joined in service in time. Therefore, no fault can be attributed to the writ petitioner and she cannot be deprived of the monetary benefits for the period which she was prevented to join duty. Learned counsel further contends that at the time of suspension the petitioner was working as Special Officer/Principal and once the suspension order was revoked she is entitled to be posted as a Special Officer but posted as Post Graduate Teacher (Biological Sciences), which is contrary to the Rules. Learned counsel for the appellants contends that in spite of dismissal of WPMP Nos.9748, 9749 of 1992 and 1397 of 1993 and granting two weeks time to the petitioner to report at the place of her posting at Dharmavaram, the writ petitioner failed to join duty. Merely because the representation made by the petitioner was favourably considered by the 3rd respondent and posted her as Special Officer/Principal A.P. Social Welfare Residential School, Mahendra Hills, Hyderabad by proceedings dated 10-10-1993, she cannot seek to wipe out her lapses for not joining to duty in A.P. Social Welfare Residential School, Dharmavaram, Nizamabad District. Even after rejection of representation made by her, pursuant to the order made in W.A.No.439 of 1993, on 14-05-1993, she failed to obey the order passed on 15-05-1993 for reporting to duty as Special Officer/Principal A.P. Social Welfare Residential School, Dharmavaram, Nizamabad District. It is not in dispute in spite WPMP Nos.9748, 9749 of 1992 and 1397 of 1993 were dismissed on 21-04-1993, granting two weeks time to the writ petitioner for reporting at the place of her posting at Dharmavaram, she failed to join duty and W.A.No.439 of 1993 filed against the said order was also dismissed. The learned single Judge has not considered the impact of the order passed by this Court in WPMP Nos.9748, 9749 of 1992 and 1397 of 1993, permitting the petitioner to join duty, except reproducing the contention of the writ petitioner that she was not absent from duty and as per the orders of the 2nd respondent she was transferred from place to place that too remote place and subsequently as per the directions of this court she was kept as Special Officer/Incharge Principal and, therefore, the order passed by the appellate authority is contrary to law and sought for interference of this Court. The learned single Judge satisfied that the writ petitioner was in service during the period from 21-04-1992 to 19- 10-1993 and continued in the demoted post as per the punishment imposed by the respondents and as per the directions issued by this court she was posted as Special Officer/Principal. The order passed by the respondents treating the period from 21-04-1992 as extraordinary leave is wholly illegal and is liable to be set aside. The findings recorded by the learned single Judge is contrary to the earlier order passed by this Court in WPMPs, as aforementioned, and W.A.No.439 of 1993. Since the petitioner failed to join duty in spite of granting time by this Court while dismissing WPMP Nos.9748, 9749 of 1992 and 1397 of 1993, it cannot be said that she was prevented from joining duty and she was continued in service as such from 21-04-1992 to 19-10-1993. Further, when the appeal/ representation filed by her has been allowed by the 2nd respondent in Rc.No.B2/8420/91 dated 07- 12-1994 treating the suspension period of the petitioner from 27-11- 1991 to 20-04-1992 as on duty and the period of absence from 21-04- 1992 to 19-10-1993 as Extraordinary Leave (EOL) or leave which she is eligible as per Rules. The said proceedings have become final, as the same has not been challenged by the writ petitioner. Mere filing of W.P.M.P.No.25689 of 2000 to treat the period of absence from 21-04- 1992 to 19-10-1993 as on duty, without challenging the order dated 21-04-1993 made in WPMP Nos.9748, 9749 of 2992 and 1397 of 1993 by amending the writ petition, the petitioner is not entitled to the relief sought in WPMP No.25689 of 2000. It is now fairly settled that judicial discretion has to be exercised judicially. When the petitioner has not discharged the functions as Special Officer/Principal and defied the order of posting dated 15-05-1993 by not joining the duty, she is not entitled for the relief that the period of absence from 21-04-1992 to 19-10-1993 may be treated as on duty. In view of the same, the impugned order passed by the learned single Judge setting aside the order passed by the 2nd respondent/2nd appellant herein dated 07-12-1994 and directing the respondents/appellants herein to treat the writ petitioner as on duty for the period from 21-04-1992 to 19-10-1993 and pay the terminal benefits is contrary to the principal “no work no pay”. Hence, the impugned order cannot be sustainable and the same is liable to set aside and it is accordingly set aside. The Writ Appeal is allowed to the extent indicated above. However, in the circumstances, there shall be no order as to costs. _________________ A.GOPAL REDDY, J. _____________________ VILAS V.AFZULPURKAR,J. -04-2010 Murthy