IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE NINETEENTH DAY OF FEBRUARY 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 : 3113 of 2008 Between: The Municipal Commissioner, Tirupati Municipal Corporation, Tirupati, Chittoor District. ..... PETITIONER AND 1.Kum A. Sumalini D/o Hanumanta Rao SGT, Municipal Upper Primary School, Upanki Harijanwada, Tirupati, Chittoor District. 2.The Head Master, Municipal Upper Primary School, Uppanki Harijanawada, Tiruapti, Chittoor District. 3.The Commissioner and Director of Municipal Administration, Andhra Pradesh, Hyderabad. 4.The Government of Andhra Pradesh rep by its Secretary Municipal Administration and Urban Development Department, Secretariat, Hyderabad. 5.The District Educational Officer, Nellore, Nellore District. 6.The Commissioner and Director of School Education, Andhra Pradesh, Hyderabad. .....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 issue Writ, order or direction more particularly in the nature of writ of Mandamus declaring the orders of the Hon'ble APAT in O.A. No. 6735 of 2007 dated 06-11- 2007and also the orders passed by the APAT in C.A. No. 795 of 2007 dated 18-01-2008 as illegal, arbitrary, unjust and unconstitutional and pass such other order or orders as this Hon'ble Court may deem fit and proper in he interest of justice. Counsel for the Petitioner: MR.S.I.NEWTON, STANDING COUNSEL Counsel for the Respondent No.1: MR.MEHER CHAND NORI Counsel for the Respondent Nos.2 to 4: GP FOR MUNCIPAL ADMN. & URBAN DEV. Counsel for the Respondent Nos.5 and 6: GP FOR EDUCATION. 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.3113 OF 2008 ORAL ORDER: (per the HON’BLE SRI JUSTICE D.S.R.VARMA) Heard the learned Standing counsel, appearing for the petitioner, the learned counsel appearing for the respondent No.1, the learned Government Pleader for Municipal Administration & Urban Development, appearing for the respondent Nos.2 to 4 and the learned Government Pleader for Education, appearing for the respondent Nos.5 and 6. 2. This writ petition is filed, under Article 226 of the Constitution of India, to declare the interim order, dated 06.11.2007, passed by the Andhra Pradesh Administrative Tribunal, Hyderabad, (for brevity “the Tribunal”), in O.A.No.6735 of 2005, and also the order of the Tribunal, dated 18.01.2008, in C.A.No.795 of 2007, as illegal, arbitrary, unjust and unconstitutional. 3. Petitioner is the respondent No.1, the respondent No.1 is the applicant and the respondent Nos.2 to 6 are the respondent Nos.2 to 6, in the O.A., before the Tribunal. 4. The facts, in brief, are that, the respondent No.1, while working as Secondary Grade Assistant, MPUP School, Subbareddipalem, Muthukur Mandal, Nellore District, was deputed to work as Secondary Grade Assistant, Municipal Corporation Upper Primary School, U.H. Wada, Tirupathi, for a period of three years vide G.O.Rt.No.659, dated 29.05.2007; that subsequently, after completion of about five months, the Government, after careful examination, have cancelled the deputation of the respondent No.1 and requested the respondent No.3 to take further action, vide G.O.Rt.No.1269, dated 24.10.2007; that, in pursuance of which the respondent No.3 had requested the petitioner and the respondent No.5 to take suitable action, vide order, dated 01.11.2007; that accordingly, the petitioner had instructed the respondent No.2 to relieve the respondent No.1 with immediate effect vide order, dated 02.11.2007; that the respondent No.2 had relieved the respondent No.1 on the afternoon of 02.11.2007, vide order, dated 02.11.2007; that, challenging the same, the respondent No.1 had approached the Tribunal by way of filing O.A.No.6735 of 2007; that the Tribunal, while admitting the O.A., had suspended the order of the respondent No.3, dated 01.11.2007, and also the consequential relieving order of the petitioner, dated 02.11.2007, with a further direction to the petitioner and the respondent Nos.2 to 6 to continue the respondent No.1 under the petitioner and that for not implementing the said order of the Tribunal, the respondent No.1 had filed Contempt Application C.A.No.795 of 2007, wherein the Tribunal, by order, dated 18.01.2008, had directed the petitioner to appear in person. Aggrieved by the interim order, dated 06.11.2007 in O.A.No.6735 of 2007, and the order, dated 18.01.2008, in C.A.No.795 of 2007, passed by the Tribunal, the present writ petition has been filed by the petitioner. 5. The learned counsel appearing for the petitioner submits that the respondent No.1 had no right to continue at the place, to which she was deputed; that only on administrative grounds, the order of deputation was cancelled and therefore, the same cannot be questioned by the respondent No.1. 6. The learned counsel appearing for the petitioner further submits that the Tribunal went wrong in passing the interim order, directing the petitioner and the respondent Nos.2 to 6 to continue the respondent No.1 at the place where she was working on deputation. 7. Per contra, the learned counsel appearing for the respondent No.1 submits that the lending department cannot bring back the employee who was sent on deputation, till the period is completed, of course, subject to certain exceptions like initiation of disciplinary proceedings or non-satisfactory service by the incumbent etc. 8. The learned counsel appearing for the respondent No.1 places reliance on the decision of the apex Court in STATE OF J AND K vs. MOHD. YAQOOB KHAN [1], wherein it was held thus: “The direction of the High Court although passed as an interim order in a pending interlocutory matter was, in substance, a final order, allowing the writ petition in part, without hearing the other side.” 9. In the said decision, the apex Court further held thus: “So long the stay matter in the writ petition was not finally disposed of, the further proceeding in the contempt case was itself misconceived and no orders therein should have been passed.” 10. The learned counsel appearing for the respondent No.1 further places reliance on the decision of a Division Bench of this Court in R.MANJULA vs. PRL. SECY. TO GOVT., REVENUE (SERS.I) DEPT. [2] , wherein it was held thus: “This Court does not exercise any appellate jurisdiction and evaluate the decisions of the Tribunal. The orders and decisions of the Tribunal are amenable to judicial review by this Court, which is entirely different from an ordinary appeal.” 11. However, in the above decision, it was observed thus: “This Court would not interfere with such discretion exercised by the Tribunal with regard to the interlocutory orders, unless, it is established that passing of such interlocutory order or refusal thereof, had resulted in an irreversible situation, resulting in manifest injustice.” 12. In the above decision, it was further observed thus: “However, it would be entirely a different matter if the discretion exercised by the Tribunal in the matter of granting interim relief results in incalculable repercussions and public mischief.” 13. However, in the above decision, eventually, it was observed thus: “Suffice it to observe interference of this Court with the exercise of discretion by the Tribunal at interlocutory stage is not a matter of course.” 14. It is to be noticed that in the said case, the Tribunal did not grant interim order and in those circumstances, the Division Bench of this Court made the above observations. 15. Even in a converse case, where the Tribunal grants interim direction, sometimes it may amount to passing of final order and the same, if found, unjustifiable or irreversible, the High Court can exercise the power of judicial review. 16. In the above context, it is to be examined as to whether the Tribunal was justified in passing the interim order, against which the present writ petition has been filed? 17. To decide the said issue, we have to necessarily fall back upon the facts of the case. The respondent No.1 was initially deputed to work at Municipal Corporation Upper Primary School, U.H. Wada, Tirupathi, for a period of three years, after completion of required formalities by way of taking consent etc. 18. From the order, impugned before the Tribunal, it appears that since, in some cases, the deputations are effected contrary to the Andhra Pradesh Public Employment (Organization of Local Cadres and Regulation of Direct Recruitment) Order, 1975 (for brevity “the Presidential Order”), the Government have cancelled the order of deputation, which is the source of grievance for the respondent No.1. 19. However, the learned counsel appearing for the respondent No.1 submits that the question of repugnancy of the Presidential Order does not arise, inasmuch as, the Presidential Order applies only to the direct recruitments, but not to the transfers or deputations. This question altogether is different and not connected with the issue involved in the present writ petition. 20. The simple issue involved in the present case is -- as to whether the Government servants who had been sent on deputation from one place to another, can be repatriated, if so, whether on administrative grounds, which appear to be, prima facie, reasonable, and the Courts can interfere with such orders or not? 21. Whether the incumbent was transferred from one place to another on deputation basis and whether the Presidential Order is applicable to the incumbent or not, cannot be gone into by this Court, nor it is the primary question. However, the only basic question that has to be seen, in this case, is as to whether the incumbent was brought on justifiable or genuine grounds or not or whether on the grounds of malice or lack of jurisdiction etc. 22. The learned counsel appearing for the petitioner places reliance on the decision of a Division Bench of Punjab and Haryana High Court in GURINDER PAL SINGH vs. STATE OF PUNJAB (PB. & HRY.) [3], wherein it was held thus: “A deputation subsists so long as the parties to this tripartite arrangement do not abrogate it. However, if any one of the parties repudiate the agreement, the other two have no legally enforceable right to insist upon continuance of the deputation. Even in the cases where deputationists continue for a pretty long period and options for their “absorption” in the borrowing department were taken, yet their repatriation to the parent department was upheld by the Apex Court in Rattilal B.Soni V. State of Gujarat, AIR 1990 SC 1132, after holding that the appellants being on deputation, they could be repatriated to their parent cadre at any time and they do not get any right to be absorbed on the deputation post.” 23. Basically, deputation at different place is only a temporary measure or an adhoc arrangement without conferring any right, including the completion of term of deputation. 24. In STATE OF PUNJAB vs. INDER SINGH [4] , the apex Court has reiterated this view. 25. However, as regards the submission of the learned counsel appearing for the respondent No.1 that before getting back the employee sent on deputation, reasons have to be furnished is concerned, we have already observed above that the reasons should be genuine and bona fide. So, we are of the view that the cancellation of order of deputation can be made by the department on genuine and bona fide grounds. 26. On a perusal of the grounds, recorded for cancellation of the order of deputation, dated 01.11.2007, it is obvious that the department was under the impression that, in several cases, appointments are being made in violation of the Presidential Order and the same is subject to the scrutiny by the Government. We cannot express our view, at this stage, mainly in an issue where cancellation of order of deputation was under challenge. Eventually, it may be found by the Government that there would be no violation of any provisions of the Presidential Order. 27. Further, this Court cannot look into that question, inasmuch as, the same was not raised at all in the O.A., before the Tribunal. It is only at the stage of writ petition, before this Court, the said question has been raised. Therefore, we are of the view that we need not address this question at all. 28. At this juncture, it is brought to the notice of this Court, by the learned counsel appearing for the respondent No.1, that the Tribunal had relied on the decision rendered by a learned single Judge of this Court in DR.S.S.WAGHE vs. NIZAM’S INSTITUTE OF MEDICAL SCIENCES, HYDERABAD AND OTHERS [5], wherein it was held thus: “It is not open to parent department to call him back nor is it open to respondents to send him back before completion of stipulated two years period, more so, without any review of petitioner’s work and performance at the end of one year on the so called grounds of administrative reasons. Impugned order prematurely repatriating the services of writ petitioner set aside.” 29. This view taken by the learned single Judge of this Court, in our considered view, is contrary to the view taken by the apex Court in RATTILAL B.SONI vs. STATE OF GUJARAT (AIR 1990 SC 1132), which was reiterated in INDER SINGH’s case (4 supra). Hence, the view expressed by the learned single Judge of this Court cannot be held as correct law. 30. Therefore, viewed from any angle, particularly in view of the principle laid down by the apex Court right from the case in RATTILAL B.SONI (AIR 1990 SC 1132) till the case of STATE OF PUNJAB (4 supra), we are of the concrete view that merely because the incumbent had been sent on deputation to some other place, he/she had no vested right whatsoever for continuing in the same place for the term agreed. 31. Insofar as the contention of the learned counsel appearing for the respondent No.1 that the petitioner should have sought for vacating the interim order, passed by the Tribunal, instead of approaching this Court, we have to again fall back upon the decisions of the apex Court in MOHD.YAQOOB KHAN’s case (1 supra) and D R.MANJULA’s case (2 supra), wherein it was observed that where the interim order has a flavour of final order in part, the High Court can exercise its power of judicial review, under Article 226 of the Constitution of India. 32. Added to this, a Division Bench of this Court had already observed that, in normal course, the High Court would not interfere with the discretionary order, either refusing or granting the interim relief, which is interlocutory in nature. If it is felt that either refusal or grant of the interim relief is not justifiable or irreversible, such power of judicial review can be exercised in exceptional cases. 33. Coming to the case on hand, it is to be seen that in the O.A., the main prayer and the interim prayer are one and the same and the interim order granted by the Tribunal is in the nature of a final order. 34. To put it in an illustrative manner, if, for any reason, the hearing of the O.A., is delayed and by virtue of the interim order granted by the Tribunal, the respondent No.1 is continued in the same post, to which she had been sent on deputation, the agreed period of three years may be completed, in which event, the hearing of the O.A., would become virtually superfluous. 35. Therefore, we are of the considered view that the petitioner had rightly approached this Court, by way of present writ petition, invoking the jurisdiction of this Court, in the facts and circumstances of the case, and the impugned order of the Tribunal is subject to judicial scrutiny. 36. For the foregoing, the interim order, dated 06.11.2007, and consequently the order, dated 18.01.2008, in C.A.No.795 of 2007, passed by the Tribunal, are liable to be set aside. 37. Accordingly, the writ petition is allowed, setting aside the interim order, dated 06.11.2007 in O.A.No.6735 of 2007 and the order, dated 18.01.2008 in C.A.No.795 of 2007, passed by the Tribunal. However, there shall be no order as to costs. 38. Similarly, in view of the observations, as already made, as regards the genuineness or mala fides or otherwise of the orders, dated 01.11.2007 and 02.11.2007, impugned before the Tribunal, and in order to avoid the continuity of unnecessary litigation, in the O.A., before the Tribunal, we are of the view that it is expedient to hold that there is no illegality or irregularity in passing the said orders, by the respondent No.3 and the petitioner, respectively. 39. Therefore, O.A.No.6735 of 2007, filed by the respondent No.1, before the Tribunal, is liable to be dismissed and, accordingly, the same is dismissed. ----------------------------- JUSTICE D.S.R.VARMA --------------------------- JUSTICE K.C.BHANU 19TH FEBRUARY 2008 HSD To 1.The Head Master, Municipal Upper Primary School, Uppanki Harijanawada, Tiruapti, Chittoor District. 2.The Commissioner and Director of Municipal Administration, Andhra Pradesh, Hyderabad. 3.The Government of Andhra Pradesh rep by its Secretary Municipal Administration and Urban Development Department Secretariat, Hyderabad. 4.The District Educational Officer, Nellore, Nellore District. 5.The Commissioner and Director of School Education, Andhra Pradesh, Hyderabad. 6. 2 CCS to G.P. for Municipal Admn. & Urban Dev. 7.2 CCs to G.P. for Education 8. 2 CD copies. [1] (1992) 4 SCC 167 [2] 2002 (1) ALT 523 (D.B.) [3] 2005 (1) SLR 629 [4] (1997) 8 SCC 372 [5] 2004 (2) ALD (NOC) 87