THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.11131 OF 2009 DATED 16TH FEBRUARY, 2010 BETWEEN Smt.K.Sreedevi … Petitioner And D.Janaki Rama Rao … Respondents And Others. WRIT PETITION NO.22726 OF 2009 DATED 16TH FEBRUARY, 2010 BETWEEN The Government of Andhra Pradesh, Rep. by its Principal Secretary, Home Department, Secretariat, Hyderabad. And Others … Petitioners And D.Janaki Rama Rao … Respondents And Another. THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NOS.11131 AND 22726 OF 2009 COMMON ORDER: (GM,J) Since common questions of law are involved in both these writ petitions, they are disposed of by way of this common order. Writ Petition No.11131 of 2009 is filed assailing the legality and validity of the order dated 09.04.2009 passed in O.A. No.6870 of 2008 and the order dated 02.06.2009 passed in Review M.A. No.1867 of 2009 and M.A. No.1870 of 2009 in O.A. No.6870 of 2009 by the A.P. Administrative Tribunal, Hyderabad, (for short, ‘the Tribunal’). Writ Petition No. 22726 of 2009 is filed by the State represented by the Principal Secretary, Home Department, assailing the legality and validity of the Order dated 09.04.2009 in O.A. No.6870 of 2008 passed by the Tribunal whereunder and whereby the applicant before the Tribunal was directed to be given notional promotion as a Superintendent with effect from 28.02.2008, when the fifth respondent was promoted to the post of Superintendent, with all consequential benefits, within a period of four weeks from the date of the said order. The petitioner in W.P.No.11131 of 2009 is the fifth respondent in the O.A. and the petitioners in W.P.No.22726 of 2009 are respondents 1 to 4 in the O.A. The applicant in the O.A. is the first respondent in both these writ petitions. For the sake of convenience, the parties are referred to as per their array in the O.A. filed before the Tribunal. The brief facts of the case are that the applicant and the fifth respondent were both initially appointed as Junior Assistant and Typist respectively in the Special Protection Force on the same day, i.e., on 01.06.1995. Thereafter, they were promoted as Senior Assistants on the same day, i.e., on 12.08.2002. However, the applicant was imposed with the punishment of ‘censure’ on 17.01.2008 by the fourth respondent, consequent to the disciplinary proceedings initiated against him. In view of the punishment imposed upon the applicant, his case was not considered for promotion to the post of Superintendent. As per the seniority list, the case of the fifth respondent was considered and accordingly, she was promoted as a Superintendent vide proceedings Rc.No.A1/366/SPF/03-2008 dated 28.02.2008. The applicant preferred an appeal to the third respondent on 24.02.2008 assailing the punishment imposed upon him. However, the appeal was rejected. Thereupon, the applicant filed a review petition before the second respondent on 12.08.2008. It is stated before us that the said review petition is still pending consideration before the second respondent. It is the case of the applicant that the punishment imposed upon him is bad as the third respondent is neither the appointing authority nor the disciplinary authority and that the appointing authority is the Director General of Police, Special Protection Force, the second respondent in the O.A. and therefore the punishment is liable to be quashed. Accordingly, he claimed entitlement to be considered for promotion to the post of Superintendent before the case of the fifth respondent is considered as he is senior to her. With these averments, the applicant filed the O.A. before the Tribunal. The Tribunal, upon considering the arguments put forth by the respective parties and the material placed before it, allowed the O.A. by holding that the appointing authority is only the Director General of Police, Special Protection Force, the second respondent and that, in any event, the applicant had completed the period of more than one year and therefore, the currency of the punishment of ‘censure’ was over and set aside the orders impugned. Consequently, the Tribunal directed the official respondents to give notional promotion to the applicant as a Superintendent with effect from 28.02.2008, when the fifth respondent was promoted, with all consequential benefits, within a period of four weeks therefrom. Thereafter, the fifth respondent filed Review M.A. No.1867 of 2009 seeking review of the said order and M.A.No.1870 of 2009 seeking suspension of operation of the said order pending disposal of the Review M.A. However, the Tribunal, after hearing the counsel on either side, dismissed both the applications. Aggrieved thereby, the present writ petitions are filed by the Officers of the State as well as the fifth respondent. Heard the learned Government Pleader for Services-I for respondents 1 to 4 in the O.A./petitioners in W.P.No.22726 of 2009, Sri P.Gangaiah Naidu, learned senior counsel for the fifth respondent in the O.A./petitioner in W.P.No.11131 of 2009 and Sri M.Ratna Reddy, learned counsel for the applicant in the O.A./first respondent in these writ petitions. The learned Government Pleader vehemently contended that the Tribunal has committed a serious infirmity and exceeded its limits and jurisdiction in adjudicating the matter and setting aside the punishment of ‘censure’ imposed upon the applicant instead of remitting the matter back to the second respondent to pass appropriate orders on the review petition filed by the applicant, which is pending before him. He further submitted that the fourth respondent, being the immediate superior supervisory officer and being competent, imposed the punishment of ‘censure’ upon the applicant after following the due process and the same does not warrant interference. In this regard, he drew our attention to the provisions of Section 16 of the Andhra Pradesh Special Protection Force Act, 1991 (for short, ‘the Act of 1991’) which are quite analogous and identical to Rule 14 of the A.P. Civil Services (Classification, Control and Appeal) Rules, 1991 (for short, ‘the Rules of 1991’), which empowers the supervisory officers inter alia to impose punishment of censure and stoppage of increment without cumulative effect. The provisions of Section 16 of the Act of 1991 read as under: “16. (1) Subject to the provisions of Article 311, the Director-General of the Force may appoint any of the supervisory officers to impose such penalties after conducting enquiries in accordance with the provisions of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1963 and non-appealable penalties by way of summary disposal in the manner prescribed. Explanation:- For the purpose of this section, -- (a) punishments, classified as non-appealable shall consists of, --- 1. Fatigue duty; 2. Extra Drill, and 3. Confinement to barracks for seven days; and (b) Punishments which are classified as appealable shall consists of, --- 1. Censure. 2. Fine. 3. Withholding of increment or promotion. 4. Reduction in Rank. 5. Recovery from pay. 6. Compulsory retirement. 7. Removal from service. 8. Dismissal from service; and 9. Suspension: Provided that in respect of class (b) of punishments an appeal shall lie within thirty days from the date of the communication of the order to such appellate authority as may be prescribed.” Sri P.Gangaiah Naidu, learned senior counsel for the fifth respondent, contended that the Tribunal ought not to have granted so many reliefs in one O.A., which arose under different cause of actions and on that score the O.A was not maintainable; but it was entertained, adjudicated and erroneously allowed. He pointed out that during the currency of the penalty imposed upon the applicant, the case of the fifth respondent was considered and she was given promotion to the post of Superintendent considering her seniority and merit. He contended that Rule 14(1) of the Rules of 1991 empowers the next superior Gazetted Officer to impose the punishment on behalf of the disciplinary authority and Section 16(1) of the Act of 1991 is an enabling provision and the same is not mandatory, more particularly in view of Rule 14(1) of the Rules of 1991. Finally, he submitted that the Tribunal ought not to have set aside the order dated 28.02.2008 whereby his client’s promotion to the post of Superintendent was practically nullified and on the other hand the Tribunal ought to have remitted the matter back to the second respondent before whom the review petition filed by the applicant was still pending consideration. He therefore prayed that the writ petition filed by the fifth respondent may be allowed by setting aside the order passed by the Tribunal. Per contra, Sri M.Ratna Reddy, learned counsel for the applicant/first respondent, contended that since the appointing authority is the Director General of Police, Special Protection Force, the second respondent, the Tribunal had rightly granted the reliefs sought for, since the O.A. was filed to set side the punishment imposed upon the applicant on the ground of incompetence and that as the applicant was senior to the fifth respondent, he should have been promoted instead of the fifth respondent. He therefore pointed out that the Tribunal had not committed any error or exceeded its jurisdiction in adjudicating the matter and rightly allowed the O.A. Alternatively, he submitted that in as much as the review petition filed by the applicant is still pending consideration before the second respondent, the matter may be remitted back to him for passing appropriate orders thereon. Admittedly, the post of Superintendent is not a selection post and appointment to the post of Superintendent is to be made by way of promotion from the category of eligible Senior Assistants. Therefore, seniority list of Senior Assistants existing as on the relevant date is crucial for resolving the issue. It is also not in dispute that as on the date when the fifth respondent was promoted to the post of Superintendent, the applicant was under the currency of the punishment of ‘censure’. Therefore, his case for promotion to the post of Superintendent was overlooked and the case of the next incumbent in the seniority list of Senior Assistants, namely, K.Sreedevi, the fifth respondent, was considered and she was given promotion to the post of Superintendent. Further, as the review petition filed by the applicant is still pending consideration before the second respondent, the Tribunal committed a serious error in entertaining the O.A. and setting aside the order dated 28.02.2008 whereby the fifth respondent’s promotion as Superintendent was practically nullified; and granting the reliefs sought for in the O.A., which, in our considered view, was impermissible under Rule 14(1) of the Rules of 1991 read with Section 16 of the Act of 1991 as it is always open to the next superior Gazetted Officer to impose the punishment on behalf of the disciplinary authority. Since there is only one vacancy in the post of Superintendent, the next eligible incumbent as per the seniority list of Senior Assistants as on the relevant date, i.e., 28.02.2008, who was the fifth respondent, was promoted to the post of Superintendent as the applicant was under the currency of the punishment of ‘censure’ and was not entitled to be considered for promotion at that time. Therefore, the Tribunal committed a serious error in directing the official respondents to give notional promotion to the applicant as a Superintendent with effect from 28.02.2008, i.e., the date on which the fifth respondent was promoted, with all consequential benefits, which, in effect, would result in the reversion of the fifth respondent. For the foregoing reasons, the orders passed by the Tribunal in the O.A. as well as the miscellaneous applications are liable to be quashed as the Tribunal exceeded its limits and jurisdiction in passing the same and the same are hereby quashed. The writ petitions are accordingly allowed. However, as it is stated by the applicant that his review petition is still pending consideration before the second respondent, it is left open to him to pursue the same. No costs. __________________________ GHULAM MOHAMMED, J. ____________________ SANJAY KUMAR, J. 16TH FEBRUARY, 2010. VGSR/PGS