IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY FIFTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE G.BHAVANI PRASAD WRIT PETITION No: 7477 of 2008 Between: Mohd. Osman Ali. S/o. Mohd. Mahaboob Ali, R/o. H.No. 8-3-787, Yellareddiguda, Hyd. ..... PETITIONER AND 1. The Govt. of A.P., Rep. by its Secretary Transport, Roads & Buildings Dept, Secretariat, Hyderabad. 2. The Engineer in Chief R&B Erramanzil, Hyderabad. 3. The Pay and Accounts Officer, A.P., 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 more particularly one in the nature of Mandamus declaring the Memo No.16130/Ser.III 2/2002 TR & B dated 22.03.2005 of the 3rd respondent is arbitrary, illegal and violative of Art. 14, 16 and 21 of the Constitution of India by setting aside the judgment dated 8.8.2007 in O.A.No.6953 of 2005 of A.P. Administrative Tribunal and allow the O.A.as prayed for. Counsel for the Petitioner: MR.K.GOVIND Counsel for the Respondents: GP FOR ROADS & BUILDINGS The Court made the following: ORDER: (Per. Hon’ble Sri justice Ghulam Mohammed) This writ petition has been filed by the petitioner seeking a direction to declare the Memo No.16130/Ser.III 2/2002 TR & B dated 22-3-2005 issued by the third respondent as arbitrary and illegal and to set aside the judgment in O.A.No.6953 of 2005 dated 8-8-2007 passed by the Andhra Pradesh Administrative Tribunal (for short ‘the Tribunal”), Hyderabad. The writ petitioner herein is the applicant before the Tribunal and the status of the parties will be referred to as arrayed before the Tribunal. The sum and substance of the case is that initially the applicant was appointed as Lower Division Clerk (Junior Assistant) in the office of Superintending Engineer, Roads and Buildings Circle, Hyderabad on 12-6-1959 and subsequently he was selected by the A.P. Public Service Commission, Hyderabad, on 4-3-1963 and transferred to the Control of Chief Engineer, Roads and Buildings, in September, 1970 and his lien is being continued in the circle office even though he was promoted as Senior Assistant in the office of the Chief Engineer, R & B and the same was evidenced through Lr.No.E2/146/81, dated 5-2-1991. One Mohd. Khaja Faruqui, LDC, who was junior to him in the circle office, was given selection Grade LDC on 29-5-1973 in the scale of 192-7-215. The respondents have not considered his case to the selection grade post even though his lien was continued to be in force in the circle office. Being aggrieved by the said action, he filed O.A.No.4817 of 1992 seeking relief of declaration that he is entitled for selection grade appointment in terms of G.O.Ms.No.190 F & P, dated 10-6-1983 and the Tribunal disposed of the same along with O.A.No.6134 to 6136 of 1990 directing the respondents to consider his case for selection grade post on par with his juniors, who were working in the Subordinate Offices, pursuant to which, the Superintending Engineer, R & B circle, Hyderabad issued proceedings No.E2/8/D/2002, dated 18.3.2002 appointing the applicant to selection grade post of LDC w.e.f. 29-5- 1973 on par with his junior Mohd. Khaja Farooqui by fixing his pay in the category of Senior Assistant and Superintendent. When the bills pertaining to the arrears with regard to the appointment to Selection Grade and re-fixation of pay in the higher categories were sent to the third respondent, the same were not admitted by the third respondent, against which, he filed O.A.No.62 of 2005 complaining the inaction of the respondents in not implementing the judgment of the Tribunal under the guise of objection raised by the third respondent and the same was erroneously dismissed observing that in the absence of having any lien in the circle office, the applicant is not entitled to the benefits of G.O.Ms.No.190, dated 10-6-1983. Pursuant to the said directions, the Government issued impugned Memo No.16130/Ser.III.2/2002, TR&B, dated 22- 3-2005 rejecting the claim of the applicant, against which, he filed the present O.A. and the same was dismissed by the Tribunal holding that in the absence of any lien in the circle office, the petitioner was not entitled to the benefits of G.O.Ms.No.190 and the same was superceded w.e.f. 13-6-1975 as per G.O.Ms.No.191 dated 11-11-1992. Aggrieved by the same, the present writ petition has been filed by the applicant. Heard the learned counsel for the applicant and learned Government Pleader for Services-II. Learned counsel for the applicant contended that when once the judgment made in M.A.No.3035 of 2001 in O.A.No.4817 of 1992 dated 2-1-2002 has attained its finality in the absence of any challenge and when there was a direction to consider the case of the applicant for selection grade on par with his junior Mohd. Khaja Farooqui, pursuant to which, the Superintending Engineer, Roads & Buildings Circle, Hyderabad, issued proceedings appointing him to the selection grade post and fixing his pay in the category, the third respondent cannot have any right to reject the claim of the applicant on the pretext of lien. Hence, the Tribunal is not justified in passing the impugned order and as such, the same is liable to be set aside. On the contrary, learned Government Pleader for Services- II contended that when the lien of the applicant was terminated, he cannot claim any benefits in terms of G.O.Ms.No.190 (F & P) Department, dated 10-6-1983, as the said benefits were superceded as per G.O.Ms.No.191 F & P (FW.PC.II) Department, dated 11-11-1992. The lien of the applicant was terminated in the Rural Circle where he was initially appointed. Therefore, the order impugned does not amount to any illegality. Before going into the merits of the case, it is to be seen that the fact that remains to be undisputed is that the applicant was appointed as LDC in the office of Superintending Engineer, R & B Circle, Hyderabad and subsequently selected by A.P.P.S.C. on 4-3-1963 and transferred as such to the Control of the Chief Engineer, Roads and Buildings in September, 1970 and he was subsequently promoted as Senior Assistant. Now, the only dispute that remains for adjudication herein is as to whether the lien of the petitioner was continued to be in force in the office of Superintending Engineer, Roads and Buildings Circle, Hyderabad and if that being the case, he is entitled to the benefits under the post of Special Grade. It is also to be noted that the order of the Tribunal in O.A.No.4817 of 1992 granting the relief to the applicant, which has become final, is not in dispute. Apart from that, no scrap of material has been adduced before the Court to show that the lien of the applicant has been terminated. Even leaving it all aside, when once the initial appointment of the applicant is not in dispute and his selection by the A.P.P.S.C is not dispute and when the applicant has been taken to the office of the Chief Engineer only by way of transfer, it is unintelligible as to how the applicant could forego his lien in the circle, where he was initially appointed. In this regard, no explanation is forthcoming to that effect. In the absence of such material, the action of the respondents amounts to suppression of the facts. In this back ground of the matter and in view of the order of the Tribunal passed in O.A.No.4817 of 1992, which has become final, we deem that the impugned order herein run contrary to its own order passed in O.A.No.4817 of 1992, which has become final. It is also pertinent to note that as seen from the letter issued by the Superintending Engineer, dated 5.2.1991, it is not specific as to the termination of the lien of the applicant. In these circumstances of the case, we have no hesitation to hold that the Tribunal has failed to consider all these aspects while passing the order impugned and as such, the order impugned suffers from legal infirmity and irregularity and thereby, the same is liable to be set aside. Accordingly, this writ petition is allowed setting aside the order of the Tribunal in O.A.No.6953 of 2005, dated 8.8.2007 and consequently, O.A.6953 of 2005 filed by the applicant, is allowed. _____________________ GHULAM MOHAMMED, J _____________________ G. BHAVANI PRASAD, J Date: 25-9-2008 Ksn ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{KSRANI}