HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU WRIT PETITION NO.23739 OF 2009 Date:22.12.2009 Between: T. Ramakrishna Reddy ….. Petitioner And: Government of Andhra Pradesh, rep. by its Secretary, Education Department, Hyderabad and 3 others. …..Respondent. HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU WRIT PETITION NO.23739 OF 2009 ORDER: (per Hon’ble Sri Justice V. Eswaraiah) The petitioner questions the order of the A.P. Administrative Tribunal, Hyderabad (for short, “the Tribunal”) dated 16.09.2009 in O.A.No.7608 of 2006 as illegal, arbitrary and violation of the directions issued by this Court in W.P.No.10659 of 2008, dated 8.4.2008. 2. It is the case of the petitioner that he was appointed as Hostel Welfare Officer, Gr.II on 29.6.1984. He passed the requisite departmental tests and fully qualified and eligible for promotion to the post of Hostel Welfare Officer, Gr.I. Subsequently, he was promoted as Hostel Welfare Officer, Gr.I by proceedings dated 26.8.2006 of the 2nd respondent herein, ignoring the cases of other senior persons, including the 4th respondent herein, who are facing the disciplinary proceedings. While the appeal filed by the 4th respondent herein is pending, the 2nd respondent herein issued proceedings Rc.No.A1/133/2004, dated 14.11.2006, informing the 4th respondent that his case of promotion will be considered as per the instructions of the Government and as per the merits of the case. 3. Aggrieved by the same, the 4th respondent approached the Tribunal by way of filing O.A.No.7608 of 2006. The Tribunal, by order dated 13.03.2007, allowed the O.A. and directed the official respondents to consider the case of the 4th respondent for promotion to the post of Hostel Welfare Officer, Gr.I. Pursuant to the said orders, the 2nd respondent-District Collector, Medak District issued proceedings in Rc.No.A1/49/2007 dated 31.05.2007 reverting the petitioner to the post of Hostel Welfare Officer, Gr.II and promoted the 4th respondent as Hostel Welfare Officer, Gr.I. Challenging the said action, the petitioner filed W.P.No.10659 of 2008 and the same was allowed by order dated 8.4.2008 remitting the matter to the Tribunal for fresh disposal and till such time, the petitioner was directed to be continued as Hostel Welfare Officer, Gr.I. Liberty was given to the petitioner to file a petition for his impleadment as a party respondent in the O.A. The official respondents were also directed to file a counter and on such filing, the O.A was directed to be disposed of in accordance with law. 4. Subsequently, the petitioner filed a petition on 08.09.2009 for impleading himself as a party to the proceedings and the same was allowed on the same day and the matter was posted for hearing on 09.09.2009 and when the 4th respondent did not appear on that day, the O.A. was dismissed for default. It is stated that the 4th respondent filed an application for restoration of the O.A. and the same was allowed by setting aside the dismissal order. But the official respondents have not filed any counter inspite of giving sufficient opportunity. It is stated that the name of the petitioner was printed in the cause list and as there was no representation on behalf of the petitioner, the matter was heard and the O.A was allowed. Aggrieved by the order of the Tribunal dated 01.05.2009 in O.A.No.7068 of 2006, the petitioner filed W.P.No.11748 of 2009 and this Court by order dated 17.07.2009 allowed the writ petition setting aside the order of the Tribunal on the ground that as the petitioner has shown sufficient cause for his non appearance on 24.05.2009 and 1.5.2009 and without expressing any opinion as to whether the writ petitioner is a senior or junior to the 4th respondent and if the case of the 4th respondent for promotion is considered, whether the writ petitioner will be effected or not. While setting aside the order of the Tribunal, O.A. was once again remanded for fresh disposal by the Tribunal. 5. Thus the O.A. was re-heard and the Tribunal once again allowed the O.A., directing the official respondents to consider the case of the 4th respondent for promotion to the post of Hostel Welfare Officer, Gr.I with all consequential benefits as per rules, subject to eligibility and seniority and pass appropriate orders within a period of eight weeks from the date of receipt of copy of the said order. Aggrieved by the said order of the Tribunal dated 16.09.2009, the petitioner filed the present writ petition. 6. It is the contention of the learned counsel for the petitioner that the 4th respondent approached the Commissioner, Social Welfare by way of filing an appeal on 14.09.2006 and while the said appeal is pending, he has approached the Tribunal on 17.12.2006 and therefore, the 4th respondent cannot be allowed to prosecute the parallel proceedings one before the appellate authority and the other before the Tribunal. It is his further contention that the Tribunal ought not have disposed of the matter without the counter affidavit of the Government. It is contended that without making the effected persons as parties, the O.A. is not maintainable. The learned counsel also contended that one Sri N. Mallesham, belonging to Schedule Caste community, who was junior to the 4th respondent, was promoted on 23.04.2006 and the said N. Mallesham is also junior to the writ petitioner and, therefore, if any reversion is to be effected for the purpose of giving promotion to the 4th respondent, the junior-most candidate, namely Sri N.Mallesham shall be reverted. The learned counsel further submits that the disciplinary proceedings pending against the 4th respondent have not yet finalized and till the finalization of the said disciplinary proceedings, the 4th respondent is not entitled for any promotion. 7. The official respondents filed a counter contending that the 4th respondent-M.Devadanam joined in the service on 13.06.1980 and whereas the writ petitioner Sri T. Ramakrishna Reddy joined in the service on 29.06.1984 and thus Sri M. Devadanam is senior to Sri T. Ramakrishna Reddy. But the 4th respondent-Sri M. Devadanam was placed under suspension due to certain irregularities committed by him in maintaining Social Welfare Hostel and aggrieved by the said suspension orders dated 22.04.2000, he filed O.A. No.5395 of 2000 and the Tribunal while keeping the suspension orders in abeyance directed the 4th respondent to file an appeal before the concerned authority and on such filing appeal, the appellate authority shall examine the recovery proposals made by the official respondents. It is stated that pursuant to the said order of the Tribunal dated 28.09.2000 in O.A.No.5395 of 2000, the 4th respondent filed an appeal on 04.10.2000 before the Commissioner, Social Welfare. The Government appointed Additional Director, Social Welfare to conduct discrete enquiry in the matter with a direction to retain Sri M. Devadanam at the same place and submit the enquiry report. Pursuant to the orders of the Tribunal dated 16.09.2009, the writ petitioner was reverted and the 4th respondent was promoted. It is stated that the 4th respondent is not eligible for promotion as enquiry is pending against him at the Government level and as on date one N. Mallesham and the petitioner both were promoted as Hostel Welfare Officer, Gr.I. 8. We have heard the contentions raised on either side and perused the material available on record. 9. Apart from the said contentions raised by the counsel for the writ petitioner, the further question that arises for consideration is as to whether any disciplinary proceedings are pending against the 4th respondent and if so, whether the 4th respondent is entitled for promotion to the post of the Hostel Welfare Officer, Gr.I. 10. At the outset, we are of the opinion that the scope of the judicial review under the extraordinary Certiorari jurisdiction of Article 226 of the Constitution of India is only to see whether there is any error committed by the Tribunal while passing the orders. It is not in dispute that this Court cannot entertain any writ petition directly relating to the service matters. Obviously the petitioner cannot question the said reversion order in O.A. filed by the 4th respondent. 11. The learned counsel appearing for the writ petitioner submits that though the promotion of the petitioner from the post of Hostel Welfare Officer Gr.II to the post of Hostel Welfare Officer Gr.I is purely temporary and his promotion was subject to outcome of the case pending against the 4th respondent, it is stated that his promotion to the post of the Hostel Welfare Officer, Gr.II was regularized vide proceedings dated 29.11.2008 with effect from 26.08.2006. Prior to the regularization of his service, the District Collector, Medak District vide proceedings R.C.A1/49/07 dated 14.08.2008 cancelled the earlier reversion orders and restored the position as was prevailing as on the date of the filing of the O.A and the writ petitioner was directed to be continued in the said post holding prior to his reversion orders. 12. It is to be seen that the promotion of the writ petitioner pursuant to the said proceedings dated 14.08.2008 will not give rise to any right or privilege for regular promotion as Hostel Welfare Officer, Gr.I and the said promotion will be subject to the final disposal of the case and the pending review and finalization of seniority and he can be reverted back without giving any prior notice or without assigning any reasons. 13. A perusal of the proceedings of the District Collector, Social Welfare dated 22.04.2000 by which the services of the 4th respondent was placed under suspension, goes to show that he was suspended only on the ground that the disciplinary proceedings are pending. Questioning the said suspension order dated 22.04.2000, 4th respondent filed O.A.No.5395 of 2000 and the Tribunal by order dated 28.09.2000 directed the 4th respondent to file an appeal before the concerned authority within a week from the date of receipt of the copy of the order and on filing of such an appeal, the concerned appellate authority was directed to examine the same in accordance with rules and pass appropriate orders within two months. But, the fact remains that the appellate authority has not passed any orders within two month as directed by the Tribunal. 14. The Government vide its Memo No.11700/SW.SER.III.2/2002-7 dated 07.11.2005 considered the representation of the 4th respondent stating that he is nothing to do with the allegations leveled against one Sri P.C.P. Raju, Dy. Director (Social Welfare), Medak District on which the discrete enquiry was conducted and requested to drop the proceedings in the matter. Pursuant to the said representation submitted by the 4th respondent, the Government appointed Additional Director, Social Welfare to conduct discrete enquiry in the matter. The Government further examined the matter and decided to retain the 4th respondent who was reinstated into services as Hostel Welfare Officer in the same place i.e., Social Welfare Boys Hostel (B), Narayankhed, Medak District. A memo was enclosed to the counter filed by the Government. The said memo was issued by the Deputy Director, Social Welfare, Medak District which indicates that the 4th respondent has drawn Rs.14,953/- in excess in the month of March, 1999 and August, 1999 besides he did not produce the records from March, 1998 to January, 1999 as per the report of the Accountant General dated 21.03.2000. Accordingly the 4th respondent-Sri M. Devadanam was directed to remit the said excess amount with interest. 15. Learned counsel appearing for the 4th respondent submits that the said memo was given on the same allegations which were mentioned in the order that was issued contemplating to initiate disciplinary proceedings against the 4th respondent. In fact, no disciplinary proceedings have been initiated, no charge memo was issued and the amount was also not at all determined by any known principles of law. Therefore, it cannot be said that the said memo is by way of minor punishment, as no show-cause notice was issued and the amounts were not at all determined. 16. On the other hand, the learned Government Pleader as well as the learned counsel for the petitioner submits that an enquiry is pending against the 4th respondent and, therefore, he was rightly denied the promotion. 17. We are unable to accept the said contention as no record has been placed before us showing that a charge memo has been issued against the 4th respondent. In fact, the Tribunal rightly held as early as back on 13.03.2007 with regard to the so-called pendency of the disciplinary proceedings and the same status is being continued as on date, as no charge memo was issued, no charges were framed and no enquiry officer was appointed with regard to the so-called allegations. Therefore, it cannot be said that the disciplinary proceedings are pending against the 4th respondent as contemplated under A.P.C.S (C.C.A Rules). The Tribunal after perusing the records produced by the learned Government Pleader verified the fact as to whether any disciplinary proceedings are pending or not and found that no disciplinary proceedings are initiated or pending against the 4th respondent. The Additional Director of Social Welfare was appointed to conduct discrete enquiry to find out whether there is any prima facie case to initiate disciplinary proceedings against the 4th respondent or not? Therefore, we are of the opinion that the Tribunal rightly held that as on date no disciplinary action was initiated against the 4t h respondent and, therefore, there should not be any objection to consider the case of the 4th respondent for promotion to the post of Hostel Welfare Officer, Gr.I as per the seniority and other eligibility criteria basing on record. As no enquiry is pending, the intimation given to the 4th respondent stating that his case will be considered for promotion as per the instructions of the Government is without any justification. 18. Insofar as the contention of the petitioner that he was not made a party and, therefore, the O.A. ought not have been allowed is without any foundation, as he himself was impleaded as a party-respondent pursuant to the earlier orders of this Court and he was given sufficient opportunity and after hearing him alone the Tribunal passed the impugned order basing on the records produced by the Government Pleader. However, Government filed a counter before this Court and even as per the counter and the records, no material is available to show that the disciplinary proceedings as contemplated under the rules are initiated and pending against the 4th respondent. Insofar as the other contentions that the parallel proceedings cannot be permitted to pursue, we are of the opinion that no parallel proceedings are pending as the Government has failed to consider and dispose of the appeal even after the lapse of nine years after the disposal of the OA No.5309 of 2000, dated 28.09.2000. Therefore, it cannot be said that any appeal is pending consideration by the Government. However, it is not the case of the Government that the appeal is pending and hence the O.A. filed by the 4th respondent is not maintainable. We therefore do not find any merits in the said contention of the writ petitioner. 19. Therefore, we are of the opinion that the 4th respondent is denied the promotion without there being any pendency of the disciplinary proceedings and the promotion orders said to have been given to his juniors were not at all communicated to him. It is for the Government to rectify the mistake committed by it and restore the seniority by giving appropriate notice to the juniors to the 4th respondent. The only limited defence that would be available to the juniors of the 4th respondent is as to whether they should be reverted back or not as per the seniority list, but they will not have any other defence except the protection of their seniority. 20. For the foregoing, we do not find any merits in the writ petition and the same is liable to be dismissed. Accordingly the writ petition is dismissed. However, there shall be no order as to costs. ___________________ V. ESWARAIAH,J. ___________________________________ SAMUDRALA GOVINDARAJULU,J. Date: 22.12.2009. Gk. HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU WRIT PETITION NO.23739 OF 2009 (per Hon’ble Sri Justice V.Eswaraiah) Date:22.12.2009. Gk.