IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY FIRST DAY OF APRIL TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 6929 of 2009 Between: K.V.S. Prasad, S/o. K.V. Sitaramaswamy, O/o Commissioner of Commercial Taxes, A.P. Hyderabad. ..... PETITIONER AND 1 Government of Andhra Pradesh, Rep by its Principal Secretary, Revenue (CT) Department, Secretariat Building, Hyderabad. 2 Commissioner of Commercial Taxes, Andhra Pradesh, M.J. Road, Hyderabad. 3 K. Venkataratnam, working as Senior Assistant, O/o. Commissioner of Commercial Taxes, Andhra Pradesh, M.J. Road, Hyderabad. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a writ or order or direction more in the nature of Writ of Mandamus by declaring the orders dated 25-3-2009 passed Ref.No. C1/1215/2003-2, dated 29-5-2008 passed in OA No. 5337 of 2008 with V.M.A. Nos. 868 of 2008 and 43 of 2009 on the file of the Hon'ble A.P. Administrative Tribunal, Hyderabad, as illegal and arbitrary and consequentially set aside GO Ms.No. 881 Revenue (CT.III.2) Department, dated 25-6-2007 passed by the first respondent, proceedings of the second respondent in CCT's Ref. No. C1/1215/2003, dated 30-11-2007 and CCT's Ref.No. C1/1215/2003-2, dated 29-5- 2008. Counsel for the Petitioner: MR.P.V.S.S.S.RAMA RAO Counsel for the Respondent Nos.1&2: GP FOR SERVICES II Counsel for the Respondent No.3: MR. M.RATNA REDDY The Court made the following : ORDER: This writ petition is filed by the petitioner with a prayer to issue a writ of Mandamus by declaring the orders dated 25.03.2009 passed in O.A.No.5337 of 2008 with V.M.A.Nos.868 of 2008 and 43 of 2009 on the file of the A.P. Administrative Tribunal, Hyderabad (for short, ‘the Tribunal’) as illegal and arbitrary and consequently set aside G.O.Ms.No.881 Revenue (CT.III.2) Department, dated 25.06.2007 and proceedings in CCT’s Ref.No.C1/1215/2003, dated 30.11.2007 and CCT’s Ref.No.C1/1215/2003-2, dated 29.05.2008 issued by the Commissioner of Commercial Taxes, A.P., Hyderabad-2nd respondent. 2. Brief facts of the case are that the petitioner is working as Senior Assistant in the office of the Commissioner of Commercial Taxes, A.P., Hyderabad-2nd respondent and his services in the said cadre were regularized. One K.Venkataratnam-3rd respondent was working as Assistant Manager in A.P.Ricefed Limited, Hyderabad. Consequent on the closure of A.P.Ricefed Ltd., the Government issued directions to absorb its employees into Government Departments/ Organizations vide G.O.Ms.No.329, Agrl. & Coop. (Coop.I) Department, dated 22.05.1993. Thereafter, the 3rd respondent was allotted to the Commercial Tax Department and he joined duty on 24.02.1994 as Junior Assistant. The Government issued G.O.Ms.No.421 dated 19.05.1997 considering the case of one M.Chandramouli, formerly Assistant Manager in the scale of Rs.700-1025/- in the A.P. Ricefed working as Junior Assistant in Registration Department, Cuddapah absorbing him in equivalent post in the office of the Commissioner and Inspector General of Registration and Stamps in the category of Senior Assistant in the scale attached to the present post from the date of joining. Based on that the 3rd respondent requested the Government to extend the same benefit to him also on par with the said M.Chandramouli. As the Government rejected his request, he filed writ petition and as per the orders of the High Court, the request of the 3rd respondent was conceded to by the Government and he was absorbed as Senior Assistant in the scale attached to the post in Commercial Tax Department, of course subject to certain conditions, and his case was considered on par with M.Chandramouli. Thereafter, the 3rd respondent made a request to consider his case for absorption in the equivalent post of Senior Assistant. The Government has issued G.O.Ms.No.881, Revenue (CT.III.2) Department, dt.25.06.2007 absorbing the 3rd respondent as Senior Assistant in the office of the Commissioenr of Commercial Taxes, Hyderabad with effect from 24.02.1994, with a condition to pass all relevant departmental examinations within a period of two years. On account of the absorption, certain individuals were affected in the category of Senior Assistants. Consequently, the Commissioner of Commercial Taxes, has issued show cause notice dt.30.11.2007 which is impugned in the O.A, calling for objections within 15 days and further, GO Ms.No.881, dated 25.06.2007 was given effect to vide orders dt.29.05.2008. Because of the said absorption and appointment of the 3rd respondent as Senior Assistant with effect from 24.02.1994, without considering the objections raised by the petitioner herein and other similarly placed persons, the petitioner approached the Tribunal by filing O.A.No.5337 of 2008. The Tribunal dismissed the said O.A. by an order-dated 25.03.2009, relevant portion of the order reads as hereunder: “ The orders impugned herein are the absorption orders and consequential show cause notice issued for fixation of seniority of the applicants in the cadre of Senior Assistants. Through the show cause notice, the respondents proposed to place the names of the party respondents above Sri.A.V.Jogaiah at Sl.No.116 and below Sri.Jayapal Aseervadam at Sl.No.115. Admittedly, the applicants have submitted objections styling them as interim objections. They have sought certain documents. Further, they have requested the Commissioner to refer the matter to the Government. Government is yet to take a decision in the matter. The applicants have chosen to file these OAs without waiting for the reply. Therefore, this Tribunal is of the opinion that the OAs are pre-mature. As far as the orders of absorption are concerned, they have been passed by the Government and consequential action of seniority is taken up by the Commissioner. Commissioner in due observance of principles of natural justice has chosen to issue the show cause notice. I do not think that there is any violation of principles of natural justice on the part of the respondents. Thus, viewed from any angle, the O.A. is pre-mature and is not maintainable. This Tribunal is not inclined to interfere in the matter. O.As are dismissed.” 3. Heard learned counsel appearing for the petitioner and learned Government Pleader for Services-II appearing for the respondents 1 and 2 and learned counsel appearing for the 3rd respondent. 4. Learned counsel appearing for the petitioner submits that since the Tribunal committed a serious legal infirmity in not adjudicating upon the validity and legality of G.O.Ms.No.881, Revenue (CT.III.2) Department, dated 25.6.2007 and thereby dismissing the O.A. as pre-mature, this writ petition needs to be allowed and the matter is to be remitted back to the Tribunal for fresh adjudication on the merits of the case. It is further contended that the Tribunal ought not have dismissed the O.A. merely on the ground that it is pre-mature since there is a decision rendered by the Government, by which the seniority vis-à-vis absorption of R3 has been altered and on which the petitioner is aggrieved duly affecting his seniority. 5. On the other hand, learned counsel appearing for the R3 contended that pursuant to proceedings issued by the Commercial Tax Department in CCT’s Ref.No.C1/1215/2003, dated 30.11.2007 and CCT’s Ref.No.C1/1215/2003-2, dated 29.05.2008, altering the date of absorption, a show-cause notice was issued. It is further submitted that if the petitioner is so aggrieved, he can approach the Tribunal by filing a separate O.A. since it gives raise to a fresh cause of action. He lastly contended that since he made a representation to the Government to protect his seniority on par with the persons who are similarly placed in the Registration Department, on which the Government granted the relief to the 3rd respondent as per law, it needs no interference by this Court. 6. Learned Government Pleader for Services-II for the respondents 1 and 2 also contended that since the Tribunal has not gone into the legality and validity of G.O.Ms.881, dated 25.06.2007, the matter needs to be remitted back to the Tribunal for fresh adjudication as per law. 7. Indisputably, the writ petitioner was born in the Commercial Tax Department, and was promoted to the post of Senior Assistant on 14.12.1994, whereas, the un-official respondent i.e. R.3 was initially working in the A.P. Ricefed, which was abolished and closed, and by virtue of its closure R3’s services were absorbed in the Commercial Tax Department, at Kakinada, on 24.02.1994. 8. We have perused the order passed by the Tribunal. Indisputably, the Tribunal instead of going into the legality and validity of the G.O.Ms.No.881, dated 25.06.2007 and the proceedings in CCT’s Ref.No.C1/1215/2003, dated 30.11.2007 and CCT’s Ref.No.C1/1215/2003-2, dated 29.05.2008 issued by the 2nd respondent, has dismissed the O.A. merely on the ground of pre- maturity. Since the Tribunal has missed the fact of the Government taking a decision by virtue of which the services of R3 were absorbed in the cadre of senior assistant with effect from 24.02.1994 in the Commercial Tax Department, and also altering the date of seniority of the petitioner as well as R3, which aspect requires adjudication on merits, and also as the Tribunal dismissed the O.A. on the ground of pre- maturity, we deem it appropriate to remit the matter back to the Tribunal for fresh adjudication as per law. 9. In the facts and circumstances of the case, this writ petition is allowed setting aside the order impugned in this writ petition and the matter is remitted back to the Tribunal for fresh adjudication as per law. No costs. ---------------------------- GHULAM MOHAMMED, J. -------------------------------- B.SESHASAYANA REDDY, J. Date:21st April, 2009. Tnb/cs ….. REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{KURR} THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO:6929 OF 2009 (AS PER JUSTICE GHULAM MOHAMMED) 21ST APRIL, 2009