HON’BLE SRI JUSTICE V. ESWARAIAH AND HON’BLE SRI JUSTICE VILAS V. AFZUL PURKAR W.V.M.P.No. 2072 of 2009 And W.P.No. 26836 OF 2008 Date: 17.09.2009 Between: M. Udayasree ………. Petitioner and The Collector and District Magistrate, Prakasam District at Ongole & others …….. Respondents HON’BLE SRI JUSTICE V. ESWARAIAH AND HON’BLE SRI JUSTICE VILAS V. AFZUL PURKAR W.V.M.P.No. 2072 of 2009 and W.P.No. 26836 OF 2008 O R D E R: (Hon’ble Sri Justice Vilas V. Afzul Purkar) When W.V.M.P.No. 2072 of 2009 was taken up for hearing initially, both the learned counsel consented that the Writ Petition itself may be heard and disposed of. In view of the orders proposed to be passed by us, we are only giving a brief description of the facts and the questions involved and we have refrained from making any observations on the relative merits of the case of the parties, as urged by the learned counsel on either side. O.A. No. 1183 of 2008 came to be filed before A.P. Administrative Tribunal by the 4th respondent herein allegedly on the basis of seniority list, dated 09.03.2007, wherein the petitioner herein was shown senior to the 4th respondent in the category of Hostel Welfare Officer Grade - I. The contention of the 4th respondent before the Tribunal in the O.A. was that he was directly recruited on 09.07.1984 as Hostel Welfare Officer Grade - II, whereas the petitioner was recruited on 04.02.1986 to the same post. The first promotion thereafter is that of Hostel Welfare Officer Grade-I, to which the writ petitioner as well as the 4th respondent herein are eligible. The contention of the 4th respondent, however, is that since she had not passed the accounts test, her case was not considered as eligible and the writ petitioner was promoted to the said post on 05.08.1985. It is alleged that the writ petitioner is further promoted as Assistant Social Welfare Officer by proceedings, dated 08.11.2007, of the Commissioner of Social Welfare, A.P., Hyderabad bearing No. F2/4721/2007. The 4th respondent herein filed the O.A. along with an Application seeking condonation of delay on the ground that she was not aware of the promotion of the writ petitioner and only after the seniority list, dated 09.03.2007 was issued, she came to know of the promotion of the writ petitioner as Social Welfare Officer Grade-I. The impugned order shows that the Tribunal had issued notice on the Application seeking condonation of delay and later, had condoned the delay on payment of costs. The O.A. thereafter was undertaken and as there was no appearance on behalf of the writ petitioner herein, the Tribunal considered the contentions of the 4th respondent as well as the learned Government Pleader for Social Welfare and came to hold that the 4th respondent ought to have been considered for the said promotion of Hostel Welfare Officer Grade-I, in view of the exemption available to her under G.O.Ms. No. 165, dated 22.04.1997 read with G.O.Ms.No. 225, dated 18.05.1999. The Tribunal, therefore, was of the view that since the statutory exemption was available to the 4th respondent, it cannot be said that she was not entitled to be considered and as such, the promotion of the writ petitioner as Hostel Welfare Officer Grade-I, ignoring the claim of the 4th respondent, was found to be arbitrary and illegal and consequently, the Tribunal had allowed the O.A. directing the official respondents to promote the 4th respondent herein in the place of the writ petitioner as Hostel Welfare Officer Grade – I, by giving all consequential benefits. Questioning the aforesaid order, the present Writ Petition is filed. We have heard Sri D.Linga Rao, learned counsel appearing for the petitioner and Sri J.R. Manohar Rao, learned counsel appearing for the 4th respondent and learned Government Pleader for Social Welfare appearing for Respondent Nos. 1 to 3 herein. Learned counsel for the petitioner, inter alia, has raised various contentions, particularly with regard to the further promotion earned by the petitioner on 08.11.2007 as Assistant Social Welfare Officer. Learned counsel, therefore, submits that the 4th respondent is aware of the said promotion of the writ petitioner, as is evident from the cause title in the O.A. He, however, objects to the maintainability of the O.A., on the ground that the 4th respondent has not questioned the said further promotion of the writ petitioner as Assistant Social Welfare Officer and, therefore, the earlier promotion as Hostel Welfare Officer Grade-I has merged in the said further promotion. Learned counsel, therefore, submits that this fact could not be brought to the notice of the Tribunal, as the writ petitioner did not appear before the Tribunal, on the impression that the Government Pleader, any way, would defend the matter. The other contentions raised by the learned counsel for the petitioner is that while the petitioner was qualified on his own to be considered and appointed as Hostel Welfare Officer Grade-I, the 4th respondent on the contrary, even if entitled to the exemption, under the G.Os. referred to above, cannot be said to stand on par with the writ petitioner. He also submits that entertaining of the O.A., after the bar of limitation, would un-settle the seniority for the promotion of the petitioner. Learned counsel for the 4th respondent, however, submits that in paragraph 6 of the O.A. itself, it is mentioned that the 4th respondent herein was not aware of the promotion of the writ petitioner and could approach the Tribunal only after the seniority list, dated 09.03.2007 was issued. Learned counsel also states that the further promotion of the writ petitioner on 08.11.2007 as Assistant Social Welfare Officer is only an ad hoc promotion and she is not holding any substantive promotional post. Learned counsel would also submit that once the 4th respondent is held to be entitled to the benefit of exemption, she as well as the writ petitioner stand on an equal footing and are entitled to be considered for the promotion of Hostel Welfare Officer Grade – I, which is primarily a promotional post on seniority. The 4th respondent being admittedly senior to the writ petitioner, learned counsel supports the order of the Tribunal impugned herein. As mentioned above, in view of the order proposed to be passed, we are not dealing with the merits of the contentions of either counsel. We, however, feel that the writ petitioner admittedly has been promoted as Assistant Social Welfare Officer on 08.11.2007. Whether the 4th respondent was aware of the said further promotion of the petitioner or not, the cause title in the O.A. shows that the writ petitioner herein is holding the post of Assistant Social Welfare Officer. However, the body of the O.A. as well as the relief portion is completely silent with regard to the said promotion of the writ petitioner. Learned counsel for the 4th respondent submits that in view of the subsequent events, he would take steps to amend the O.A. There were various submissions on behalf of either side as to whether the said promotion is ad hoc, temporary and as such not required to be recognized. However, to avoid any technical arguments on that aspect, and any possible difficulties, which may arise in the final adjudication of the matter, we deem it appropriate to remit this O.A. to the Tribunal for fresh consideration and at the same time, grant liberty to the 4th respondent herein to appropriately amend the O.A. and seek appropriate relief if the 4th respondent is so advised. We have also noted that the writ petitioner has not participated in the proceedings before the Tribunal either at the stage of condonation of delay or at the stage of hearing of the O.A. Since substantive rights of the writ petitioner are likely to be affected on account of the adjudication in the O.A., we deem it appropriate to grant opportunity to the writ petitioner, so that the Tribunal will be in a position to hear both sides and adjudicate on all the issues involved in the matter. The impugned order is, therefore, set aside and the O.A. is remitted to the Tribunal for fresh consideration. As soon as the amended pleadings are complete, we are sure that the Tribunal would take up and determine this matter at the earliest, within a period of two months. The Writ Petition is accordingly disposed of. No costs. ------------------------- (V. ESWARAIAH, J) ----------------------------------- (VILAS V. AFZUL PURKAR,J) 17th September 2009 Note: Issue CC in one week. ksld