THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE G.BHAVANI PRASAD WRIT PETITION NOs: 3619, 3642 & 3643 of 2003 COMMON ORDER: (per Hon’ble Sri Justice Ghulam Mohammed) 1. These writ petitions are ﬁled for a writ of Certiorari to call for records in connection with the common judgment passed by the Andhra Pradesh Administrative Tribunal in O.A.Nos.2601, 2615 & 2600 of 2000 and batch, dated 1.08.2002 and 18.03.2002 and set aside the same to the extent of Annexure-II of G.O.Ms.No.41 (Social Welfare (SW.SER.1.2) Department, dated 5.05.2000. Since the common question of fact is involved in all these writ petitions, they are clubbed together and disposed of by this common order. 2. Brief facts of the case are as follows. O.A.Nos.2600, 2601 & 2615 of 2000 are ﬁled under Section 19 of the A.P. Administrative Tribunals Act, 1985 to call for Records on the ﬁle of the Principal Secretary, Government of A.P., Social Welfare Department, Hyderabad-ﬁrst respondent in G.O.Ms.No.41 dated 5.05.2000 and to declare that allotting of Zone V to unoﬃcial respondents as illegal, contrary to rules and contrary to the judgment of Tribunal in O.A.No.3839 of 1997 and batch. 3. The applicants in these three O.As., were working as Wardens and Matrons in the Tribal Welfare Department. The relief sought for by them is the inaction of the respondents in not revising the promotions made to the District Tribal Welfare Oﬃcers after the Social Welfare Department is bifurcated into three departments, namely, Social Welfare, Backward Classes Welfare and Tribal Welfare Departments. They challenged G.O.Ms.No.41, dated 5.05.2000 on the ground that 65 posts of Assistant Social Welfare Oﬃcers are transferred from Social Welfare Department to Tribal Welfare Department are transferred along with their supporting staﬀ contrary to the judgment of the Tribunal in O.A.No.3839 of 1997 and batch dated 15.12.1998. It is stated that initially the Government issued orders in G.O.Ms.No.72, GAD, dated 22.02.1994 bifurcating the Social Welfare Department and creating a new department for Backward Class and decided to transfer 100 posts of Assistant Social Welfare Oﬃcers (ASWOs) along with staﬀ to B.C. Welfare Department, out of which, only 72 posts were ﬁlled and remaining 28 were kept vacant. The total cadre strength of ASWOs was 330 and out of the same 247 posts were ﬁlled and remaining 83 posts were kept vacant. After transfer of 100 posts the total cadre strength in the Social Welfare Department was 230 and out of the same 175 personnel were holding the posts and remaining 55 posts were vacant. The posts deemed to have been transferred are 65 and out of them 37 are vacant and remaining 28 are working. Thus keeping the vacancy position in the Social Welfare Department, the impugned G.O.Ms.No.41, dated 5.05.2000 was issued transferring and allotting them to Tribal Welfare Department contrary to the judgment of the Tribunal in O.A.No.3839 of 1997 dated 15.12.1998. The G.O. is questioned to the extent of Annexure-II, in which the Wardens working in Tribal Welfare Department will not get promotions as Assistant Tribal Welfare Oﬃcers (ATWOs.) and they have to retire as such, and therefore, the impugned G.O. to the extent of Annexure- II is liable to be set aside. 4. Regarding trifurcation of the Department, Government issued G.O.Ms.No.470, dated 17.04.1997 constituting a Committee for allotment of staﬀ and the said committee met and formulated certain scheme in the meeting held on 17.04.1997. The same was questioned in O.A.No.3839 of 1997 and batch, which was disposed of by the Tribunal on 15.12.1998 holding that the scheme is bad. The Tribunal further held that whoever appointed in the initial cadre in particular wing in criteria for allocation, calling options does not arise. After allocating staﬀ on birthmark basis, if still there are excess personnel found in the department those may be transferred to other departments basing on their seniority. 5. It is stated that in spite of the speciﬁc order of the Tribunal, the respondents are allocating the personnel from one department to other contrary to the guidelines. Therefore, O.A.No.2104 of 2000 and batch were ﬁled wherein the Tribunal passed interim order of status- quo regarding reversion and allocation of personnel until the matter is decided on merits. 6. The respondents ﬁled counter in the present O.As., stating that the judgment passed by the Tribunal in O.A.No.3839 of 1997 dated 15.12.1998 deals with trifurcation of three departments and the same is not at all connected to the above G.O. The Government has taken a policy decision to create the cadre strength in Tribal Welfare Department as per the recommendations of Staﬀ Review Committee and the requisition sent by the Commissioner of Tribal Welfare Department. 7. On appreciation of the facts and circumstances, the Tribunal observed that the Government also delayed in framing rules for Tribal Welfare Department though it has framed rules for Social Welfare and B.C. Welfare Departments vide G.O.Ms.No.189, SW, Dated 9.07.1996 and G.O.Ms.No.36 BCW, dated 9.07.1996. Now on the ground that there were no posts of ASWOs available in the Social Welfare Department to be considered for promotion as DSWOs, the excess promotee ASWOs of Social Welfare Department are again transferred along with posts to Tribal Welfare Department, contrary to the directions given by the Tribunal, which has been conﬁrmed by the High Court. The action that was taken earlier in transferring some of the staﬀ members of one department to the other along with posts was justiﬁed in the judgment, does not mean that the oﬃcial respondents have got power after the judgment also again to transfer the excess staﬀ of a particular department to a diﬀerent department eﬀecting the chances of promotion of employees belonging to other department. By issuing G.O.Ms.No.41, and by transferring 15 ASWOs of Social Welfare Department to the Triabal Welfare Department along with posts and staﬀ ,again amounts to creating a fresh litigation, which has earlier been concluded by the Tribunal and conﬁrmed by the High Court. The oﬃcial respondents now cannot go back to G.O.Ms.No.134, dated 26.02.1974 and transfer the employees and ASWOs of Social Welfare Department to Tribal Welfare Department. At a belated stage the Government issued G.O.Ms.No.123, dated 23.12.1999 framing Special Service Rules to the various Gazetted posts in Tribal Welfare Department. Even in these Rules the post of ATWO has been shown speciﬁcally, but surprisingly the cycle prescribed for promotion to the post of district Tribal Welfare Oﬃcer reveal that promotion channel is created for ATWOs. It appears that the Commissioner of Tribal Welfare has addressed a letter Rc.No.A1/4797/2000, dated 21.11.2001 to the Government seeking permission that for the post of ATWO the personnel of Social Welfare Department may be considered following the said rules. Unless and until the rules are specifically amended creating a post of ATWO and method of appointment and promotion for it, the procedure now being adopted by the oﬃcial respondents is not at all legal and proper. Even some of the employees of Social Welfare Department who have now been transferred along with posts to Tribal Welfare Department are not intending to join in the said posts and they have ﬁled O.A.Nos.7942/99, 7846/99 and 10/2000. Unless and until the oﬃcial respondents take eﬀective and proper steps for streamlining the tribal Welfare Department as per the discussion referred to above, the rights of the personnel of tribal Welfare Department will be seriously aﬀected. Further during the pendency of these O.As., the oﬃcial respondents have considered some of the Superintendents for promotion as District Tribal Welfare Oﬃcers and issued G.O.Ms.No.801, dated 26.12.1998 and G.O.Ms.No.804, dated 26.12.1998. Therefore, taking into consideration the facts and circumstances of the case and the discussion referred to above the Tribunal while disposing of the O.As., issued the following directions. “O.A.No.1655/2000 is disposed of with a direction to the oﬃcial respondents to frame subordinate service rules to the Tribal Welfare Department within two months. O.A.No.1726/2000 is disposed of directing to suitably amend the rules issued in G.O.Ms.No.123, 23.12.1999 by incorporating the post of Assistant Tribal Welfare Oﬃcer along with method of appointment within two months and O.A.Nos.2600, 2601, 2615, 2616 of 2000 are allowed in part setting aside Annexure-II of G.O.Ms.No.41, dated 5.05.2000 with a further direction to the oﬃcial respondents to review the promotions of Superintendents, who have been promoted as District Tribal Welfare Officers.” 8. As there was diﬀerence of opinion in the above O.As. the matter was directed to be placed before a third Judge. Thus the matter was placed before Sri Ch. Venkatapathi Raju, Vice Chairman, who on re-appreciation of the entire case, disposed of all the O.As. with the following directions. “O.A.No.1655/2000:- the Government should take immediate action for framing rules governing the post of ATWOs and also the subordinate staﬀ working in Tribal Welfare Department. O.A.No.1726/2000:- The Government should review the ratio ﬁxed between the Superintendents and ATWOs Welfare Department, dated 23.12.1999 keeping in view the respective cadre strengths. The promotions to the category of DTWOs made after 23.12.1999 may be reviewed if any promotions given are not in accordance with the rules issued in G.O.Ms.No.123. O.A.Nos.2600, 2601, 2615 and 2616 of 2000:- As there are vacancies in the category of ASWOs as on 5.05.2000 in some zones, the Government should review the allotment of persons covered by Annexure-II in G.O.ms.No.41, dated 05.05.2000 and allot only those ASWOs to Tribal Welfare Department who could not be accommodated in the vacancies available in the Social Welfare Department as on 5.05.2000. “ Aggrieved by the same, the present writ petitions are filed. 9. Learned counsel for the petitioners contended that the chances of promotion is not a right vested in an employee and therefore mere effecting chances of promotion is not a ground for setting aside the order of the Government made in valid exercise of executive power. It is open to the Government to transfer the existing persons working in the said posts in the earlier department along with the post. He also contended that the action of the Government is supported by the earlier decision of the Tribunal rendered in O.A.No.3829 of 1997 and batch dated 15.12.1998 wherein the Tribunal held that the persons transferred along with posts are to be treated as borne employees of the department to which the posts are transferred, and upheld the action of the Government in transferring about 72 ASWOs to B.C. Welfare Department as Assistant B.C. Welfare Oﬃcers while 100 posts were transferred to B.C. Welfare Department in the year 1994, and the said judgment was conﬁrmed by the High Court in W.P.No.4400 of 1999 dated 16.04.2001. He also contended that the Tribunal failed to appreciate that prior to issuance of G.O.Ms.No.41 dated 5.05.2000, there was no post of Assistant Tribal Welfare Oﬃcer in Tribal Welfare Department and there were no rules framed governing the post of Assistant Tribal Welfare Oﬃcer. However, the learned counsel contended that the Government has framed guidelines in G.O.Ms.No.134 dated 26.02.1974 and accordingly G.O.Ms.No.41 is issued transferring 65 posts of Assistant Social Welfare Oﬃcers from Social Welfare Department to Tribal Welfare Department. As per annexure- II to G.O.Ms.No.41, in Zone I three persons, Zone IV three persons, Zone V six persons and Zone VI three persons, in total 15 persons were transferred. 10. Sri Satyam Reddy, learned counsel for the fourth respondent contended that in respect of all the three departments common seniority list was prepared. Without following the common seniority list the Government ought not to have issued Annexure-II to G.O.Ms.No.41 transferring various persons to the Tribal Welfare Department. By virtue of bringing these persons to Social Welfare Department their chance of promotions are being aﬀected since they have been appointed as Matrons. He also submitted that the present policy of the oﬃcial respondents is not only arbitrary but also contrary to the judicial pronouncements and for this reason alone the present writ petition is liable to be dismissed in limini. In fact the employees of Social Welfare Department, who were transferred to the Tribal Welfare Department through G.O.Ms.No.41 dated 5.05.2000, are also not intended to join Tribal Welfare Department and they also ﬁled O.As. questioning the impugned G.O.Ms.No.41. 11. Heard learned counsel for the petitioners, learned Government Pleader and learned counsel for the fourth respondent. 12. From the above facts, it is to be noticed that the Tribunal in the judgment dated 15.12.1998 passed in O.A.No.3839 of 1997 directed the oﬃcial respondents to follow the directions given in O.A.No.3839 of 1997 and after that further action be taken for considering the case of the applicant for inclusion of his name in a particular department and for further promotions and till then the status quo ordered to be maintained. The said order was conﬁrmed by this Court in W.P.No.4400 of 1999 dated 16.04.2001. There were no posts of Assistant Social Welfare Oﬃcers in Tribal Welfare Department and therefore, taking into consideration the principle laid down in G.O.Ms.No.134, dated 26.02.1974 about 15 persons have been transferred along with their posts and supporting staﬀ to the Tribal Welfare Department, and that as the Tribal Welfare Department is a small department, depending upon its cadre strength the ratio has been ﬁxed vide G.O.Ms.No.123, dated 23.12.1999. It has also to be noticed that in the absence of any special or other rules, the Government is not justiﬁed in framing the guidelines and issuing executive instructions so as to make the exigencies in the departments. Since there are no such rules, the method of appointment provided in Rule 4 of the A.P. State & Subordinate Service Rules 1996, was followed, which reads as follows. Rule 4 –Method of appointment:-(a) appointment to any service, class or category shall be by one or more of the methods indicated below- 1. Direct recruitment 2. Recruitment/appointment by transfer 3. Promotion or 4. Contract/Agreement/Re-employment. 13. For the abovementioned reasons, we are of the opinion that the Tribunal has considered the matter in right perspective. As there are vacancies in the category of ASWOs as on 5.05.2000 in some zones, the Tribunal directed the Government to review the allotment of persons covered by Annexure-II in G.O.Ms.No.41, dated 5.05.2000 and allot only those ASWOs to Tribal Welfare Department, who could not be accommodated in the vacancies available in the Social Welfare Department as on 5.05.2000. In view of the same, we do not ﬁnd any inﬁrmity or illegality in the impugned order warranting interference of this Court in exercise of supervisory jurisdiction under Article 226 of the Constitution of India. 14. Accordingly, these three Writ Petitions are dismissed. There shall be no order as to costs. ________________________ (GHULAM MOHAMMED, J.) _______________________ (G.BHAVANI PRASAD, J.) 30th October, 2008 Js.