HON'BLE SRI JUSTICE GHULAM MOHAMMED AND HON'BLE SRI JUSTICE K.G. SHANKAR WRIT PETITION NO. 3617 OF 2011 Between: Government of Andhra Pradesh represented by its Chief Secretary, Government of Andhra Pradesh, General Administration Department, Secretariat, Hyderabad ………….Petitioner AND P. Gautam Kumar, IPS, S/o P. A. Choudhry aged about 58 years Occ. Principal Secretary to Home and nine others ………….Respondents ORDER: (Per Hon'ble Sri Justice Ghulam Mohammed) This Writ Petition has been filed seeking to issue an order particularly one in the nature of Writ of Certiorari calling for the records relating to and connected with the orders dated 10.2.2011 passed in M.A.No. 69 of 2011 in O.A.No. 958 of 2010 by the Andhra Pradesh Administrative Tribunal, Hyderabad and to quash the same, as illegal. Brief facts of the case are that the first respondent-applicant, who is working as Principal Secretary, Home Department, Government of Andhra Pradesh, filed O.A No. 958 of 2010 contending that the petitioner-Government herein is mismanaging the IPS cadre and cadre officers. The main contention of the first respondent herein is that under G.O.Ms.No. 254, 6 posts were temporarily added in the DGP grade, contrary to Rules. Under the consequential G.O.Rt No. 2462, GA (SC.C) Department, dated 18.5.2010 through which the said six posts were filled up by promoting 1977 batch IPS Officers and G.O.Rt.No. 4344, G.A (SC.C) Department, dated 31.8.2010 through which the third respondent was promoted as Director General of Police (HOPE) ignoring his claim, which is also impugned. It is stated that the Tribunal, taking up the matter for hearing on day to day basis, observed that the issue is covered by the judgment of this Court in Writ Petition No. 2257 of 2010 dated 22.11.2010. Arguments of the counsel for the petitioner in the O.A have been concluded and the arguments of the State Government commenced on 13.12.2010. At that time, the Government of Andhra Pradesh preferred SLP before the Supreme Court vide SLP Appeals (C ) Nos. 34798-34799 of 2010 against the judgment of this Court dated 22.11.2010 in W.P.No. 2257 of 2010 and W.P.NO. 2880 of 2010. The petitioner herein has specifically urged grounds contending that during the pendency of WP No. 2257/2010, the 3rd respondent-K. Arvinda Rao, IPS was appointed as Director General of Police on 31.8.2010. It also urged before the Hon’ble Supreme Court that the appointment of the 3rd respondent was challenged in O.A.No. 958 of 2010 by the 1st respondent herein and that OA was being taken up on day to day hearing and therefore there is an urgency for obtaining interim orders in the SLP. The Hon’ble Supreme Court, having considered the said grounds, was pleased to pass interim direction on 10.1.2011 in SLP Appeal (c ) Nos. 34798-34799 of 2010 staying the operation of the impugned judgment passed in W.P.No. 2257 of 2010 and WP NO. 2880 of 2010 and further observed that any appointment made in the mean time would be subject to the final result of the SLP pending before it. While so, when a copy of the order of the Hon’ble Supreme Court was made available, the petitioner herein filed a memo before the Tribunal, seeking deferment of hearing of the above OA till the disposal of the SLP pending before the Supreme Court. The Tribunal directed the Government to file an application and that memo would not be maintainable. Therefore, the petitioner-Government filed MA No. 69 of 2011 in O.A.No. 958 of 2010 seeking deferment of the hearing of the O.A till the disposal of the SLP as the Hon’ble Supreme Court has specifically stated that any appointment made would be subject to the final result of the case and this observation was made by the Hon’ble Supreme Court in view of mentioning that the 3rd respondent was already appointed as Director General of Police on 31.8.2010 and has been continuing in that post. Therefore, the Tribunal dismissed the said MA. Aggrieved by the same, the present Writ Petition is filed. We have heard the learned Advocate General, learned Senior Counsel Sri C. V. Mohan Reddy and also Sri Raghunandhan, learned counsel at length and also perused the material made available on record. This Court on 15.2.2011 passed the following order: “This Writ Petition is filed by the State challenging the order dated 10.2.2011 passed in M.A.No. 69 of 2011 in O.A.No. 958 of 2010. The learned Advocate General submitted that the Government has filed S.L.P before the Hon’ble Supreme Court vide SLP Appeal (C ) No. 34798-34799/2010 against the judgment of this Court in W.P.Nos. 2257 of 2010 and 2280 of 2010 dated 22.11.2010, wherein it was specifically urged in the grounds of appeal contending that during the pendency of W.P.No. 2257 of 2010, the third respondent was appointed as D.G.P. on 31.8.2010; that appointment of third respondent was challenged in O.A.No. 958 of 2010 by the first respondent. It is further submitted that since the Hon’ble Supreme Court passed order dated 10.1.2011 in the above SLP staying the operation of the judgment in W.P.Nos. 2257 of 2010 and 2280 of 2010, and further observed that the ‘appointment, if any, made in the meantime would be subject to final result of that case”, and that of the O.A is allowed to be proceeded with, the same would be contrary to the order of Hon’ble Supreme Court, therefore, sought for deferring of hearing of O.A. In the circumstances, there shall be interim order deferring the hearing of O.A till Monday i.e., 21.02.2011. At the request of Sri J. Sudheer, learned counsel for respondent No.1, post on 18.2.2011.” The learned Advocate General vehemently contended that in SLPs viz., SLP Appeal (C ) Nos. 34798 and 34799 of 2010 filed before the Supreme Court, all the details have been given with regard to the controversy in question, pendency of O.A and also the appointment of Sri K. Arvinda Rao, IPS. He submits that the grounds urged for interim relief before the Supreme Court are as under: “It is submitted that during the pendency of the Writ Petition, on 31.8.2010 Sri K. Aravinda Rao was appointed as Director General of Police. The incumbent Prl. Secretary to Government, Sri P. Gautham Kumar filed O.A.No. 958/2010 on 7.9.2010 before the Honourable Central Administrative Tribunal, Hyderabad on similar contentions. Counters have been filed by the State and after the delivery of the judgment in W.P.No. 2257 of 2010 dated 22.11.2010, the O.A is being taken up on day to day hearing contending that the cause is covered by the High Court judgment. The applicants turn has concluded on 3.12.2010 and for the petitioner Government’s reply is posted to 13.12.2010 finally. Hence, the urgency to obtain stay of the Division Bench of the High Court judgment in order that the proceedings before the Tribunal are not based and concluded entirely on impugned judgment.” He further drawn our attention to the main prayer portion urged before the Supreme Court, which reads as under: “(a) the petitioner(s) be granted Special Leave to Appeal under Article 136 of the Constitution of India against the final common judgment and order dated 22.11.2010 passed by the High Court of Judicature, Andhra Pradesh at Hyderabad in W.P.Nos. 2257 and 2880 of 2010.” The Supreme Court was conscious about the pleadings and passed the following order, which reads as under: “Issue notice. Since Respondent No. 1 is represented on caveat, service of notice on the said respondent, is dispensed with. Let the other respondents be served in the usual course. The respondents will be entitled to file their respective counter affidavits within sic weeks from today. Rejoinder, if any, may be filed within two weeks thereafter. Liberty is given to mention the matter immediately after the pleadings are completed. In the meantime, there will be stay of operation of the impugned judgment. Appointment, if any, made in the meantime, will be subject to the final result of this case.” The first portion of the order deals with the procedural aspect as to how the notice has to be served and its effect and in the second portion of the order, the Supreme Court given liberty to make a mention immediately after the pleadings are completed. The third portion of the order of the Supreme Court is very crucial and the relevant portion is again extracted hereunder for the sake of convenience: “In the meantime, there will be stay of operation of the impugned judgment. Appointment, if any, made in the meantime, will be subject to the final result of this case.” The learned Advocate General also contended that since the Supreme Court was aware of the appointment of Mr. K. Arvinda Rao, and in that context the controversy is covered, the Tribunal ought not to have proceeded with the matter, when once the matter is seized of by the Supreme Court. Sri R. Raghunandan, learned counsel contended that the Supreme Court is aware of the factual matrix of the matter and thought it fit to grant interim stay and granted stay of operation of the impugned judgment and observed that appointment, if any, made in the meantime, will be subject to the final result of that case. He also contended that the expression ‘meantime’ has been interpreted by the Bombay High Court in GOVINDA BHAGOJI KAMABLE AND OTHERS VS SADU BAPU KAMABLE[1]. The relevant portion at paragraph 12 is extracted hereunder: “ 12. In view of this controversy, the question is whether the possession should be restored to the Appellants. Before I consider this question, it is necessary to consider the main controversy whether the stay granted by this Court was operative only till the returnable date i.e. 9th December 2002, or it was to continue till disposal of the Civil Application or till further orders. The first part of the order records that the notice is issued to the Respondents and 9th December 2002 is fixed as the returnable date of the notice. From the plain reading of the order, it is very clear that the order of ad-interim stay was not limited to any particular date. The first part of the order directs issuance of the notice to Respondents and it is ordered to be made returnable on a particular date. It is further stated that in the meanwhile ad-interim exparte relief is granted. It is crystal clear from the order that the intention of this Court was to issue notice and to grant stay in the meanwhile. The phrase "in the meanwhile" is used in the order granting stay. The dictionary meaning of the word meanwhile is "till happening of a particular even" or "until something expected happens". When the stay was to be operative in the meanwhile, it was to operate upto happening of a particular event. The said event was hearing of the application after service of notice to the Respondents. Whenever this Court intends to grant ad-interim relief limited to a particular date, it is always mentioned in the order very specifically that the ad-interim relief will be operative till a particular date. When this Court issued notice and granted ad-interim relief in the meanwhile, it was obviously intended that the ad-interim relief will operate till the application was heard by this Court after service of notice. When this Court makes notice returnable on a particular date, it cannot be argued that the date mentioned in the notice is the date on which the application will be positively heard. The returnable date mentioned in the order is the returnable date fixed for the notice. It is a date fixed for appearance of the parties. It is not necessary that on the returnable date fixed by this Court, the case appears on the Board. When this Court issued notice to the Respondents and granted ad-interim relief "in the meanwhile", is obvious that the ad-interim relief was to operate till the Court heard the parties on the basis of the notice issued or till order of stay was specifically vacated by this Court. Whenever, the Court intends that the ad-interim relief will operate till the returnable date, it is specifically mentioned in the order that ad-interim relief will operate upto a specific date or till the returnable date of notice. When ad-interim relief is granted "in the meanwhile" after issuance of notice to the Contesting Party the said relief continues to operate until the event of hearing of the Application. The order cannot be read to mean that the interim relief is operative only till the returnable date of the notice. Sri C. V. Mohan Reddy, learned senior counsel contended that the grounds challenged before the Supreme Court are different and distinct. In the reply notice, it is stated that the judgment of this Court in Writ Petition Nos. 2257 of 2010 and 2880 of 2010 was the subject matter before the Supreme Court, though they have mentioned in the O.A, which is pending before the Central Administrative Tribunal, the Hon’ble Supreme Court did not grant any deferment of hearing therefore, the question of deferment of hearing of O.A does not arise inasmuch as they have raised several grounds and that the Selection Committee has already recommended the name of Mr. P. Gautam Kumar. Apart from that, he has stated that they challenged the promotion of Sri K. Aravinda Rao to DG grade and his subsequent appointment as HOPF on further grounds, which read as under: “(a) the creation of several ex-cadre posts in the grade of DG on 17.5.2010 is illegal as being beyond the scope of ambit of rule 4(2) of the Cadre Rules itself. (b) the promotion dated 18.5.2010 to the DG grade is in violation of rule 8(2) of the Cadre Rules; (c) the promotion is also in violation of rule 3(2) (ii) of the pay Rules; (d) even on comparative assessment the selection of Sri K. Aravinda Rao is not legally correct.” According to the Oxford Dictionary, ‘meantime’ means “in the intervening period of time’ and the Supreme Court was aware of the pendency of O.A before the Tribunal. The order was passed by the Supreme Court on 10.1.2011, whereas the order passed by this Court was on 22.11.2010. The subject matter of the Writ Petition before the Supreme Court and hearing of the OA, which was filed by Mr. Gautam Kumar, though it was stated in the SLP that the Supreme Court was declined to grant any stay of hearing of OA, the case on hand stands on different and distant footing, therefore, the question of filing the present Writ Petition is not permissible under law. Apart from the factual matrix, the case of Mr. Yadav is quite different than from the case of Mr. Gautam Kumar, which is pending before the Central Administrative Tribunal. In the above facts and circumstances of the case, the point now arises for consideration is whether the stay granted by this Court shall be vacated? We have carefully gone through the order passed by the Supreme Court in SLP, the pleadings, factual matrix of the mater and also the prayer portion of the SLP. We are of the opinion that though there was a mention in the OA in the prayer portion, but there was no stay in the O.A, which was pending before the Central Administrative Tribunal. However, considering the expression ‘in the meantime’, we are of the opinion that the interim stay granted by this Court on 15.2.2011 has to be vacated and is accordingly vacated. Let the hearing be proceeded with, as the factual matrix of the matter is quite different and distinct and particularly they have raised several grounds besides challenging the appointment of Mr. Arvinda Rao. Be that as it may, the Supreme Court in L. CHANDRA KUMAR VS. UNION OF INDIA[2], observed as under: “The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is a part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution.” Following the above judgment of the Supreme Court, as the Tribunal is the first authority to decide this matter, interim order granted by this Court is vacated and the Writ Petition is dismissed. There shall be no order as to costs. ________________________ GHULAM MOHAMMED, J _____________________ K.G. SHANKAR, J DATE: 18.02.2011 KA ... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. 2 CD copies. [1] 2005 (1) ALLMR 272, 2004 (6) BOM CR 552 [2] (1997) 3 SCC 261