*HON’BLE SRI JUSTICE GODA RAGHURAM AND *HON’BLE SRI JUSTICE R.KANTHA RAO W.P.NO.13683 OF 2010 AND W.P.NO.13872 OF 2010 % DATED: 27.10.2010 W.P.NO.13683 OF 2010 BETWEEN: #The State of A.P. and others . Petitioners And $Dr.B.Srinivas Murthy and another .. Respondents W.P.NO.13872 OF 2010 BETWEEN: #The State of A.P. and others . Petitioners And $Dr.B.Srinivas Murthy and another .. Respondents !Counsel for the petitioners: Mr G.P. for Services I ^ Counsel for the Respondents : Dr.B.Srinivasa Murthy Party in person <GIST: > HEAD NOTE: ? Cases HON’BLE SRI JUSTICE GODA RAGHURAM AND HON’BLE SRI JUSTICE R.KANTHA RAO W.P.NO.13683 OF 2010 AND W.P.NO.13872 OF 2010 DATED: 27.10.2010 W.P.NO.13683 OF 2010 BETWEEN: The State of A.P. and others . Petitioners And Dr.B.Srinivas Murthy and another .. Respondents W.P.NO.13872 OF 2010 BETWEEN: The State of A.P. and others . Petitioners And Dr.B.Srinivas Murthy and another .. Respondents HON’BLE SRI JUSTICE GODA RAGHURAM AND HON’BLE SRI JUSTICE R.KANTHA RAO W.P.NO.13683 OF 2010 AND W.P.NO.13872 OF 2010 COMMON ORDER: (Per RKR,J) We have heard the learned Government Pleader for Services-I for the petitioners and the party-in-person-respondent No.1. These writ petitions are filed seeking issuance of writ in the nature of certiorari to quash the orders dated 27.01.2010 passed by the Andhra Pradesh Administrative Tribunal in Rev.M.A.No.4241 of 2001 in O.A.No.5068 of 2005 and Rev.M.A.No.4252 of 2010 in O.A.No.4366 of 2005 declaring them as illegal, unconstitutional and in excess of jurisdiction. The brief facts leading to filing of the writ petitions may be stated as follows: Dr.B.Srinivasa Murthy, the first respondent was engaged by the 4th petitioner-The Principal, Government Junior College, Rayachoty, Kadapa District on 19.07.1997 s part time lecturer in MLT (vocational) Course on payment of remuneration of hourly basis. According to the petitioners, the said engagement is contrary to the provisions of the Act 2 of 1994 and according to which no part time arrangement is to be made with effect from 25.11.1993 and thus, 4th petitioner was working from 19.07.1997 is contrary to the rules. Therefore, the 4th petitioner asked the first respondent to submit his willingness for conversion of his post to that of a contract lecturer. The first respondent refused to give any such willingness and inconsequence thereof, the 4th petitioner dispensed with his services and issued notification on 12.08.2005 to fill up the contract Junior Lecturers including the vacancy of the first respondent. Feeling aggrieved, the first respondent filed O.A.No.4366 of 2005 before the Andhra Pradesh Administrative Tribunal, Hyderabad and the learned Tribunal on an application made by the first respondent passed interim direction directing the petitioners not to fill up the post of Medical Lab Technician on contract basis in the 4th petitioner’s college, pending disposal of the O.A. The first respondent also filed another O.A.No.5068 of 2005 seeking a direction to the 4th petitioner allowing the first respondent to discharge his duties as part time junior lecturer MLT (vocational) course. In the said O.A on the application made by the first respondent, the learned Tribunal passed interim orders on 24.11.2005 directing the 4th petitioner to allow the first respondent to take up the classes pending disposal of the O.A. Subsequently, the learned Andhra Pradesh Administrative Tribunal disposed of the O.A. No. 4366 of 2005 by its order dated 18.08.2009 which is as follows: “In the light of the above circumstances, the applicant is not entitled for the relief as prayed for and if he so desires, he my make an application for appointment as contract lecturer and the respondents in the event of such application of the applicant, may consider the case of the applicant for taking him as contract lecturer. The O.A. is accordingly disposed of.” Insofar as O.A.No.5068 of 2005 is concerned, the learned Tribunal felt that in view of the above stated order, no relief could be granted to the first respondent in the present O.A. and accordingly dismissed the same. Pursuant to the said orders, the 4th petitioner dispensed with the services of the first respondent. Aggrieved by the orders of the Andhra Pradesh Administrative Tribunal, the first respondent filed Writ Petition No.26438 of 2009 before this Court seeking issuance of writ of certiorari to quash the orders in O.A.No.5068 of 2005 dated 18.08.2009 passed by the Andhra Pradesh Administrative Tribunal, Hyderabad being arbitrary, illegal and contrary to G.O.Ms.No.101, Higher Education (IE.1) Department, dated 29.07.2006. This Court dismissed the said writ petition considering the fact that the first respondent never opted to get converted himself into the post of part time lecturer on contract basis and therefore, the 4th petitioner held justified in ignoring his claim and filling up the said post on contract basis in terms of the policy of the Government. Thus, this Court declined to interfere with the order passed by the learned Tribunal under the certiorari jurisdiction. Thereafter, the first respondent filed Rev.M.A.No.4252 of 2009 in O.A.No.4366 of 2005 and Rev.M.A.No.4341 of 2009 in O.A.No.5068 of 2005 before the Andhra Pradesh Administrative Tribunal, Hyderabad and the learned Tribunal allowed the review petitions by its order dated 27.01.2010 directing the respondents therein to continue the applicant as part time lecturer in the light of the Sub clause (5) of para 3 of G.O.Ms.No.101, Higher Education (IE.1) Department, dated 29.07.2006. The Andhra Pradesh Administrative Tribunal reviewed the order on the ground that Sub clause (5) of para 3 of G.O.Ms.No.101, Higher Education (IE.1) Department, dated 29.07.2006 was not brought to his notice while disposing of the OAs. After obtaining the orders of review in the above said OAs, the first respondent again filed the review W.P.M.P.No.674 of 2010 before this Court to review the order in W.P.No.26438 of 2009 and the Division Bench of this Court dismissed the review petition by the following order dated 16.04.2010. “Apparently, the order passed by us in the writ petition confirming the earlier order of the Tribunal in O.A.No.5068 of 2005 was not brought to the notice of the tribunal. Prima facie, we feel that the petitioner is guilty of willful material suppression. No other ground is urged in support of the review petition showing any error apparent on the face of the record.” In view of the events took place in relation to the subject matter of dispute and the orders passed by the Division Bench of this Court as well as the learned Andhra Pradesh Administrative Tribunal above referred, the question arises for determination before us is whether the orders dated 27.01.2010 passed by the Andhra Pradesh Administrative Tribunal in Rev.M.A.No.4241 of 2001 in O.A.No.5068 of 2005 and Rev.M.A.No.4252 of 20010 in O.A.No.4366 of 2005 are liable to be quashed. The learned Andhra Pradesh Administrative Tribunal allowed the review applications on the premise that at the time of hearing of the main OAs, G.O.No.101, Higher Education (IE.1) Department, dated 29.07.2006 was not brought to its notice. Para 3(5) of the said G.O. reads as follows: “That the vocational staff, who are engaged after 25.11.1993 upto the year 2000-2001 can opt to continue either as Contract Faculty or as Part Time Junior Lecturers. However, the Vocational staff, who were engaged after the academic year 2000-2001 should be continued as Contract Faculty only, if they are otherwise qualified to hold the post.” In view of the said G.O., the first respondent is entitled to opt for continuing as part time Junior Lecturer though he did not consent to be converted as contract lecturer. In the opinion of the Tribunal, passing the order without reference to G.O.Ms.No.101, Higher Education (IE.1) Department, dated 29.07.2006 is an error apparent on the face of record as the said G.O. was ignored. Before making the decision on the question involved, we think it necessary and relevant to refer the following judgments of the Supreme Court. (1) KUNHAYAMMED AND OTHERS v STATE OF KERALA AND ANOTHER[1] wherein the Supreme Court explained the doctrine of merger in the following terms: “The doctrine of merger and the right of review are concepts which are closely interlinked. If the judgment of the High Court has come up to the Supreme Court by way of a special leave, and special leave is granted and the appeal is disposed of with or without reasons, by affirmance or otherwise, the judgment of the High court merges with that of the Supreme Court. In that event, it is not permissible to move the High court by review because the judgment of the High court has merged with the judgment of the Supreme Court. But where the special leave petition is dismissed – there being no merger, the aggrieved party is not deprived of any statutory right of review, if it was available and he can pursue it. It may be that the review court may interfere, or it may not interfere depending upon the law and principles applicable to interference in the review. (2) CHANDI PRASAD AND OTHERS v JAGDISH[2] wherein the Supreme Court has laid down that when an appellate Court passes a decree, the decree of the trial court merges with the decree of the appellate court irrespective of the fact as to whether the appellate court affirms, modifies or reverses the decree passed by the trial court. The said doctrine applies when a higher forum entertains an appeal and passes an order on merit, but is not applicable when the appeal is dismissed on the ground that delay in filing the same is not condoned. In the instant case, W.P.No.26438 of 2009 filed by the first respondent challenging the orders passed by the Andhra Pradesh Administrative Tribunal in O.A.No.5068 of 2005 was dismissed on merits with speaking order. While dismissing the writ petition by its order dated 04.12.2009, the Division Bench of this Court had dealt with the contention that no opportunity was afforded to the first respondent in terms of Sub clause 5 of para 4 of G.O.Ms.No.101 Higher Education (IE.1) Department, dated 29.07.2006 for continuing him on contract basis and held that as the first respondent never opted to get converted on contract basis, the petitioners are justified in ignoring the claim of the first respondent and filling up the said post on contract basis in terms of the policy of the Government. It may be noticed in this context that the review applications filed by the first respondent were allowed by the learned Andhra Pradesh Administrative Tribunal on the sole ground that G.O.Ms.N0.101 Higher Education (IE.1) Department, dated 29.07.2006 was not brought to its notice and the said G.O. was not considered. Apparently on the same ground, which the first respondent raised before the Division Bench of this Court in W.P.No.26438 of 2009, it was specifically rejected by the Division Bench of this Court while dismissing the writ petition on merits. Further filing of writ petition and its disposal was not brought to the notice of the Andhra Pradesh Administrative Tribunal by the first respondent in his review applications. Similarly, the pendency of the review applications was not brought to the notice of the Division Bench of this Court before which the writ petition was pending. The first respondent, therefore, as rightly contended by the petitioners is guilty of suppression of material facts and the suppression is also so deliberate and willful. The order dated 18.08.2009 passed by the learned Andhra Pradesh Administrative Tribunal in O.A.No.4366 of 2005 and in O.A.No.5068 of 2005 stood merged in the order of the Division Bench of this Court in W.P.No.26438 of 2009. The writ petition has been disposed of by this Court on merits. In such an event, the review applications are not maintainable before the Andhra Pradesh Administrative Tribunal, which is the lower forum and in challenge of whose orders writ petition is provided. The conduct of the first respondent in pursuing the remedies simultaneously before the learned Andhra Pradesh Administrative Tribunal and before this Court is nothing but abuse of process of Court. Moreover, the learned Tribunal under the guise of review adjudicating the matter afresh and along with the review applications, in any event, when once the Division Bench of this Court disposed of W.P.No.26438 of 2009 against the orders passed by the learned Andhra Pradesh Administrative Tribunal, it has no jurisdiction to entertain the review applications. The orders passed by the learned Andhra Pradesh Administrative Tribunal in review applications is therefore, illegal and without jurisdiction. For the forgoing reasons, the orders dated 27.01.2010 passed by the Andhra Pradesh Administrative Tribunal in Rev.M.A.No.4241 of 2001 in O.A.No.5068 of 2005 and Rev.M.A.No.4252 of 2010 in O.A.No.4366 of 2005 are declared as contrary to law and without jurisdiction and they are quashed. The writ petitions are allowed. There shall be no order as to costs. _____________________ GODA RAGHURAM,J ___________________ R.KANTHA RAO,J Date: 27.10.2010 Note L.R.copy to be marked b/o kvrm HON’BLE SRI JUSTICE GODA RAGHURAM AND HON’BLE SRI JUSTICE R.KANTHA RAO W.P.NO.13683 OF 2010 AND W.P.NO.13872 OF 2010 Date: 27.10.2010 [1] 2000(6) SCC 359 [2] (2004) 8 SCC 724