IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD Wednesday, the 3rd day of August, Two Thousand and Eleven PRESENT HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO WRIT PETITION No.19783 OF 2011 Between: K.Suresh Kumar … Petitioner And The State of A.P. rep. by its Principal Secretary to Government, MA. & U.D.Department and others … Respondents This Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO WRIT PETITION No.19783 OF 2011 ORDER: - (Per Hon’ble Sri Justice A.GOPAL REDDY) In this writ petition filed under Article 226 of the Constitution of India, the petitioner seeks issuance of a writ of Certiorari for quashing the order made in V.M.A.No.972 of 2011 in O.A.No.3369 of 2011, dated 08.07.2011, by the A.P.Administrative Tribunal, Hyderabad in vacating the interim directions granted earlier in the said O.A. on 31.05.2011. The facts, which are relevant for the disposal of the writ petition, are briefly stated as under:- Petitioner initially was appointed and joined as Deputy Executive Engineer on 11.04.1987 in Zone-V of Public Health & Municipal Engineering Department. He was further promoted as Executive Engineer, Public health, in G.O.Rt.No.283, M.A. & U.D.Department, dated 09.04.1994. In the month of April, 2002 he was posted as incharge Superintending Engineer, but was subsequently promoted as regular Superintending Engineer in G.O.Rt.No.356, M.A. & U.D. Department, dated 02.04.2004. Further, he was promoted as Chief Engineer vide G.O.Rt.No.1712, M.A. & U.D. Department, dated 31.12.2005 and was promoted as incharge Engineer–in–chief in G.O.Rt.No.828, M.A. & U.D. Department, dated 30.06.2011. The seniority list in the cadre of Deputy Executive Engineers was finalised and published by the 2nd respondent vide proceedings, dated 29.09.2010, in respect of all the zones i.e., for 941 persons. In the said seniority list the name of the petitioner was shown at Sl.No.127, whereas the name of the 3rd respondent was shown at Sl.No.157. One K.Suresh Kumar, whose name is found at Sl.No.98 where the notional promotion to him as Deputy Engineer was given effect from 02.01.1981, filed O.A.No.7431 of 2010 to review the promotions basing on seniority assigned. Meanwhile O.A.No.7185 and 7258 of 2010 and batch were filed before the Tribunal controverting the promotions made to the post of Deputy Executive Engineer in respect of Assistant Executive Engineer and also in respect of promotions made to Municipal Executive Engineers. The Tribunal took up all the O.As together and granted status quo by order, dated 28.10.2010. Since by virtue of the status quo granted by the Tribunal as no review of promotion is being undertaken by the Department in respect of the posts of Executive Engineers and above higher posts pursuant to the seniority list, dated 29.09.2010, the applicant in the said O.A.No.7431 of 2010 filed W.P.No.29196 of 2010. A learned Division Bench of this Court disposed of the writ petition by order, dated 29.11.2010, directing the respondents viz., 1) The State of Andhra Pradesh, rep. by its Principal Secretary to Government, 2) The Engineer in Chief, Public Health and 3) The Andhra Pradesh Administrative Tribunal, to review the undisputed seniority/promotions in the cadre of Executive Engineers and above higher posts in pursuance of the final seniority list, dated 29.09.2010, issued by the 2nd respondent in the category of Deputy Executive Engineers, within a period of two weeks from the date of receipt of a copy of the order; that if the petitioner therein is aggrieved by the order passed by the respondents therein, he is at liberty to file an appropriate application before the Tribunal. It is, however, made clear that the said order is only confined to the petitioner therein and any promotion shall be subject to the result of the final verdict passed in the O.A. On disposal of the above writ petition, the petitioner herein filed O.A.No.3369 of 2011, wherein the Tribunal passed an interim order on 31.05.2011, observing that as per the letter No.333/CSI/2010, dated 02.05.2011, of the Engineer-in-Chief, Public health, i.e., the 2nd respondent, addressed to the Principal Secretary to Government, M.A. & U.D. Department i.e., the 1st respondent therein, the seniority list of Deputy Executive Engineers in all zones and integrated seniority list is defined as undisputed seniority list upto Sl.No.129 of the integrated seniority list. According to the applicant therein, the respondents are directed to review only upto Sl.No.126, whereas the applicant is at Sl.No.127. it was further directed that the to review promotions to the post of Executive Engineer, Superintending Engineer and Chief Engineer duly revising the year wise panels in respect of the above posts as per the final seniority list dated 29.09.2010 issued by the 2nd respondent in the category of Deputy Executive Engineer insofar as the applicant is concerned, who is at Sl.No.127 and whose seniority is not in dispute and consequently consider his case for granting notional promotion in the said higher categories and to the post of Engineer-in- Chief as per his eligibility. On the respondents therein filing V.M.A.No.972 of 2011 for vacating the said order, the Tribunal by the impugned order vacated the interim order issued on 31.05.2011 observing in view of the suspension of the seniority list in O.A.No.7258 of 2010, addressing letter by the Engineer-in-Chief-2nd respondent in the O.A., to the 1st respondent on 02.05.2011 stating that the review is restricted upto Sl.No.126 and for complying the orders of the High Court in respect of the writ petitioner before the High Court is contrary to the order passed by the Tribunal on the even date in M.A.No.3446 of 2010. Sri T.Surya Kiran Reddy, learned counsel for the petitioner contends that the 3rd respondent, who is at Sl.No.157 did not choose to challenge the seniority to the petitioner who is at Sl.No.127. When the 3rd respondent filed O.A.No.5216 of 2011, the Tribunal made it clear that any promotions will be subject to the result of the O.A. In the absence of any representation or challenge to the fixing of the seniority of the petitioner, the tribunal is not justified in vacating the interim order. O.A.No.7285 of 2010 was filed by nine engineers, who are at Sl.No.416, onwards claiming that they should be placed at appropriate places declaring the Municipal Engineers and Assistant Executive Engineers in the seniority list as illegal. Even if the said O.A. is allowed, at the most the persons at Sl.No.54, 68, 69, 72 and 75, belongs to the municipality will be removed and in the process the petitioner’s name will move upwards in the seniority list. Therefore, there cannot be any impediment for promotion of the petitioner. Even if the 3rd respondent’s name is shown at Sl.No.157, the same has to be reckoned by operating the roaster point. Therefore the Tribunal is not justified in vacating the interim order. Per contra, learned Government Pleader contends that Once the seniority list is suspended by the Tribunal, there cannot be any finalty to the seniority. To avoid confusion and conflict, the Tribunal vacated the interim order and posted all the O.As for hearing. Since the main O.As have not been decided, the writ petition cannot be maintained questioning the interim order. Sri P.Bala Krishna Murthy, learned counsel for the 3rd respondent contends that the persons likely to be effected if the O.A. filed by the petitioner is allowed have not been impleaded as parties/respondents. The 3rd respondent was promoted as Chief Engineer vide G.O.Rt.No.493, dated 22.11.2004 as per the Departmental Promotions Committee meeting held on 17.11.2004, wherein the name of the 3rd respondent is shown at sl.No.2 and the name of the writ petitioner is at Sl.No.6. The 3rd respondent was further promoted as Chief Engineer on 09.12.2004 in G.O.Rt.No.1377-MA, whereas the petitioner was promoted after the 3rd respondent’s promotion on 31.12.2005 i.e., one year after the said order. The said order has not been challenged. Therefore, it is not open for the petitioner to contend that he is senior to the 3rd respondent. The writ petitioner is at Sl.No.98 as absorbed in Metro Water Board. The Tribunal passed the interim order in favour of the applicant in view of the orders passed by the High Court in W.P.No.29196 of 2010, wherein the order, dated 03.11.2010 has been granted status quo was challenged. But the status quo order has been modified by the Tribunal on the same day in M.A.No.3446 of 2010 suspending the seniority list. In view of the same, the Tribunal rightly vacated the interim order and the writ petition as such is not maintainable which can be filed only against the final order as observed by the Hon’ble Supreme Court in L.Chandra Kumar v. Union of India [1] Admittedly the present O.A. was filed by the petitioner inspired by the order passed by this court in W.P.No.19296 of 2010, dated 29,11,2010 wherein this court directed to review the undisputed seniority/promotions in the cadre of Executive Engineers and above higher posts pursuant to the seniority list issued by the 2nd respondent, dated 29.09.2010. The order of the Tribunal in O.A.No.7431 of 2010, dated 03.11.2010, was the subject matter of challenge in the above writ petition, but on the very same day when this court passed the order, the Tribunal suspended the seniority list in M.A.No.3446 of 2010. May be the argument advanced by the learned counsel for the petitioner is attractive that the challenge in the seniority list in O.A.No.7258 of 2010 and batch is with regard to the bringing of municipal employees into the public health and giving seniority to them, but the fact remains that the seniority list has been suspended by the Tribunal on 29.11.2010. Therefore, the basis of challenge in W.P.No.29196 of 2010 to the order passed on 03.11.2010 in O.A.No.7431 of 2010 has been obliterated in view of the modified order passed on 29.11.2010. This Court in R.Manjula v. Principal Secretary to Government[2] held that the refusal to grant ex parte interim order by the A.P.Administrative Tribunal is not a decision, such a decision is not amenable to judicial review under Article 226 of the Constitution. The Hon’ble Supreme Court in L.Chandra Kumar’s case (supra) in para 90 held that the High Court will also have the benefit of reason to decide on merits which will be of use to it in finally deciding the matter. All such decisions of the Tribunal will, however, be subject to the supervision before the Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls. It makes it clear that it do not prohibit the High Court in exercising the judicial review against an interim order altogether if the interim order will have the effect of deciding the main controversy. It is well settled if the interim order passed in the form of final order deciding the main controversy between the parties and nothing finally left to be adjudicated, such an order cannot be termed as an interim order passed by the Tribunal and all such decisions are always subject to the judicial review of the High Court. In the case on hand, the Tribunal earlier passed an interim order and vacated the same. As a result, there is no interim order as such in favour of the petitioner or an adverse order against the respondents to have a judicial review of the order. In view of the conflicting claims between the parties, the Tribunal suspended the seniority list. Therefore, it is not proper for it to consider the claim of the petitioner basing on the seniority assigned to him in the seniority list, which is already suspended. Further the judicial comity requires that it is has to respect the order passed earlier and any subsequent orders should not be in conflict with the earlier orders. Therefore, unless the order passed by the Tribunal suspending the seniority is vacated, the petitioner is not entitled to the interim relief. Hence, the writ petition is devoid of merits. We do not see any merit in the writ petition. The Writ Petition is, accordingly, dismissed. However, the learned Tribunal is directed to hear all the writ petitions together and decide the same within a period of two months from the date of receipt of a copy of this order. __________________ A.GOPAL REDDY, J ________________ RAJA ELANGO, J - 08 - 2011 lmv HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO WRIT PETITION No.19783 OF 2011 03- 08 - 2011 lmv [1] AIR 1997(1) SC 1125 [2] 2002(3) ALD 648