IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE NINETEENTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION NO : 1308 of 1999 Between: P.G.Mahender S/o.late P.V.Gopala Rao R/o.Saleemnagar Colony, Hyderabad ..... PETITIONER AND 1 State of A.P., rep.by its Secretary Education (A&M) Dept., Secretariat, Hyderabad 2 The Secretary to the Govt. of A.P., GAD (Ser-A) Dept., Hyderabad 3 Director of A.P.,Govt. Oriental Manuscripts Library & Research Institute Hyderabad 4 The Registrar A.P.Administrative Tribunal, Hyderabad .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a writ, order, or direction more particularly one in the nature of writ of certiorari, by calling the records, and quash the order Dt.16/09/1998 passed by Hon'ble A.P.Administrative Tribunal in OA.No.1932/1995 as illegal, arbitrary, discriminatory, suffers from error of law apparent on the face of record and also violative of Articles 14,16 & 21 of the Constitution of India and consequently direct the respondents herein to treat the period of service rendered by the petitioner continuous right from 01/02/1975 onwards, if necessary by conding the break between 23/04/1983 and 10/05/1991 fix his pay on reinstatement at an appropriate stage in the revised scale after granting notional increments on the last pay drawn before reinstatement and further direct that the period of service rendered by him right from 1/2/1975 onwards should be computed towards qualifying service for purposes of retirement benefits such as pension, gratuity, etc and pass such other order or orders. Counsel for the Petitioner:MR.S.A.CHARI Counsel for the Respondent No.: GP FOR SCHOOL EDUCATION The Court made the following : THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.1308 OF 1999 ORDER: (Per GM,J) This writ petition is filed seeking a writ of certiorari to quash the decision dated 16.09.1998 rendered by the Andhra Pradesh Administrative Tribunal, Hyderabad (for brevity, ‘the Tribunal) in O.A. No.1932 of 1995 as illegal and arbitrary and consequently direct the respondents herein to treat the period of service rendered by the petitioner/applicant as continuous right from 01.02.1975 onwards, if necessary, by condoning the break period between 23.04.1983 and 10.05.1991, pay back wages and grant consequential benefits to the petitioner/applicant. For the sake of convenience, the parties are referred to as per their array before the Tribunal. The brief facts of the case are as follows: The applicant was appointed as a Menial on 31.10.1974 and posted as a Mali at Quli Qutub Shah Tombs by the Director of Archaeology and Museums Department. Thereafter he was temporarily appointed as an Attender from 01.02.1975 to 07.05.1975. Subsequently, he was appointed as a L.D. Steno with effect from the afternoon of 08.05.1975 in the office of the third respondent under Rule 10(a)(1)(i) of the A.P. State and Subordinate Service Rules (for short, ‘the Rules’). While so, instructions were issued under G.O.Ms.No.647 dated 14.09.1979 to regularize the services of all temporary employees working for a long period. Subsequently, instructions were also issued under G.O.Ms.No.81 dated 05.02.1982 not to continue persons who were working for a long time without acquiring the prescribed qualification for the posts they were holding. Accordingly, the applicant was discharged from service with effect from 22.04.1983 on the premise that he did not acquire the necessary qualification in Shorthand (English) prescribed for the post of L.D. Steno. Aggrieved thereby, the applicant filed Representation Petition No.592 of 1983 before the Tribunal and the Tribunal by its order dated 20.06.1983, on a sympathetic consideration of the matter, recommended for his retention in service in the category of Typist or in any other post for which he was fully qualified. As soon as a vacancy arose, the respondents took him into service as a Typist vide Proceedings Rc.No.OML.E2/12/62/89 dated 08.05.1992 of the third respondent. Accordingly, the applicant joined as a Typist on 10.05.1991 in the office of the third respondent. Thereafter, the applicant filed O.A. No.1932 of 1995 before the Tribunal seeking a direction to the respondents to reckon the period of service rendered by him earlier from 01.02.1975 onwards, if necessary by condoning the break period between 23.04.1983 and 10.05.1991 and to pay him back wages and grant all consequential benefits. The Tribunal considered the points raised by the applicant as well as the respondents and held that the discharge of the applicant from service with effect from 22.04.1983 was made in accordance with law as the applicant was appointed to a post for which he did not possess the minimum prescribed qualification even by the date of termination and that his appointment as a Typist, taking into consideration the earlier order passed by the Tribunal in R.P.No.593 of 1983, was a fresh appointment. The Tribunal also observed that the earlier appointment of the applicant as a Mali was only under contingent establishment and his further appointment as an Attender was also temporary and later his appointment as a L.D.Steno was under Rule 10(a)(1)(i) of the Rules and was thus irregular. Stating so, the Tribunal dismissed the O.A. filed by the applicant. Hence, the present writ petition. Heard Sri S.A.Chari, learned counsel for the petitioner/applicant and the learned Government Pleader for Services-I for the respondents. The learned counsel for the petitioner/applicant contended that as the applicant was appointed as a L.D. Steno with effect from 08.05.1975 in the office of the third respondent and was put on regular scale of pay, it was a regular appointment although it was stated that he was appointed under Rule 10(a)(1)(i) of the Rules. He submitted that when the respondents, in view of the order passed by the Tribunal in R.P.No.592/1983, set aside the discharge order and directed reinstatement of the applicant, it follows that the applicant was entitled to back wages, continuity of service and other consequential benefits. In support of his contention, the learned counsel drew our attention to the expression “reinstatement” in ‘Advanced Law Lexicon’ by P.Ramanatha Aiyar as extracted in the Judgment of Supreme Court in DIRECTOR GENERAL, I.C.M.R. v. D.K.JAIN[1] which reads as follows: “reinstatement means that a man is put back in his job. Reinstatement can only arise if a man is dismissed or removed from service or if otherwise his service has been terminated and he is brought back to service.” He also drew our attention to the Judgment of the Supreme Court in SAGIR AHMAD v. UNION OF INDIA[2] and relied on the following paragraph in the said Judgment: “… The termination was on the ground that the appellant was involved in a criminal case. He, having been acquitted in the criminal case the natural consequence would be that he is entitled to be reinstated in the service. We allow the appeal, set aside the order of the Tribunal and direct the respondents to reinstate the appellant in service. In the facts and circumstances of this case we direct that the appellant shall not be entitled to back wages. The period of absence shall, however, be treated for the purposes of continuity in service as casual labourer and for whatever benefits which may enure to him in the service. We set aside the order of the Tribunal and allow the appeal with no order as to costs.” He further drew our attention to F.R.22-B of the A.P. Fundamental Rules with regard to a Government Servant holding a post in a substantive, officiating or temporary capacity. He also drew our attention to F.R.26, Note-2 which reads as follows: “F.R.26. Note 2:- The break in service of an officiating Government Servant caused by his discharge under Rule 8(a)(iii) of the State of Subordinate Service Rules shall be condoned so as to enable him to count for increments the service prior to the break.” He also drew our attention to Rule 25 of the A.P. (Revised) Pension Rules, 1980 which reads as under: “25. Counting of past service on reinstatement:- (1) A Government servant who is dismissed, removed or compulsorily retired from service, but is reinstated on appeal or review, is entitled to count his past service as qualifying service. (2) The period of interruption in service between the date of dismissal, removal or compulsorily retirement, as the case may be, and the date of reinstatement, and the period of suspension, if any, shall not count as qualifying service unless regularized as duty or leave by a specific order of the authority which passed the order of reinstatement.” He therefore prayed that the order impugned may be set aside and the writ petition may be allowed by giving necessary directions to the respondents as prayed for. Per contra, the learned Government Pleader for Services-I submitted that the Tribunal after careful consideration of the material placed before it passed a well reasoned order which did not warrant any interference by this Court. On facts, he contended that initially the applicant was appointed as a Mali in the contingent establishment of the Archaeology and Museums Department and thereafter he was appointed as an Attender with effect from 01.02.1975 on temporary basis and thereafter he was again temporarily appointed to the post of L.D. Steno under Rule 10(a)(1)(i) of the Rules and as the applicant did not acquire the necessary qualification prescribed for the post of L.D.Steno, he was discharged from service in view of G.O.Ms.No.81 dated 05.02.1982. He further submitted that his subsequent appointment as a Typist was a fresh appointment, which was made keeping in view the order passed by the Tribunal in R.P.No.592 of 1983 which is on sympathetic grounds. In support of his contentions, he drew our attention to the Judgment of the Supreme Court in INDIAN DRUGS & PHARMACEUTICALS LTD. v. WORKMEN, INDIAN DRUGS & PHARMACEUTICALS LTD.[3] He therefore submitted that the Tribunal rightly dismissed the O.A. filed by the applicant and the writ petition is liable to be dismissed. In view of the rival contentions raised by either side, the question that arises for our consideration is as to whether the impugned order passed by the Tribunal is liable to be set aside? We have perused the order impugned herein and the material placed before us. As can be seen from the record, it is clear that initially the applicant was appointed as a Mali in the contingent establishment of the Archaeology and Museums Department and thereafter appointed as an Attender with effect from 01.02.1975 in the same Department. Subsequently, the applicant was temporarily appointed as a L.D. Steno under Rule 10(a)(1)(i) of the Rules by the then Director of the Department, who himself was a contract appointee, although the applicant did not possess the requisite qualification to hold the said post. Since the applicant failed to acquire the requisite Shorthand qualification, he was discharged from the post of L.D.Steno with effect from 22.04.1983 taking into consideration G.O.Ms.No.81 dated 05.02.1982. Aggrieved thereby, the petitioner approached the Tribunal by way of R.P.No.592 of 1983 and the Tribunal having considered the facts of the case, rejected the applicant’s petition. However, before parting with the matter, the Tribunal taking note of the fact that the applicant had worked as a Typist for 7 years, recommended for his retention in service in the category of Typist or in any other post for which he is otherwise qualified to avoid hardship to him. This observation appears to have been made on sympathetic grounds keeping in view the hardship that was caused to the applicant on his discharge from service. Perhaps this observation of the Tribunal made the respondents to consider the case of the applicant favourably and as soon as a vacancy arose, giving due regard to the order of the Tribunal passed in R.P.No.592 of 1983, the applicant was appointed as a Typist afresh vide proceedings Rc.No.OML.E2/1262/89 dated 08.05.1991 of the third respondent. A perusal of the said proceedings goes to show that it is not a continuation of his earlier service. On the other hand, it reads that he was appointed as a Typist and he should take last rank in the list of Typists working in the Department. This sufficiently indicates that it is a fresh appointment for all purposes. That being so, the argument of the learned counsel for the applicant that the applicant was reinstated in service vide proceedings dated 08.05.1991 and therefore his past service right from 01.02.1975 onwards shall be reckoned for all purposes does not find favour with this court. Once the appointment of the applicant as a Typist is not considered a ‘reinstatement in service’ as understood in service jurisprudence, the various provisions of the Rules, namely, F.R.22-B and F.R.26, Note-2 of the A.P. Fundamental Rules and Rule 25 of the A.P. (Revised) Pension Rules, 1980 And the Judgment in SAGIR AHMAD’s case (2 supra) relied on by the learned counsel for the applicant have no application to the facts and circumstances of the case. On the other hand, the Judgment of the Supreme Court in INDIAN DRUGS & PHARMACEUTICALS LTD.’s case (3 supra) relied on by the learned Government Pleader for Services-I is applicable to the facts of the present case. In the said Judgment, the Supreme Court relying upon its earlier Judgment in SECY., STATE OF KARNATAKA v. UMADEVI[4] held that the Court cannot direct continuation in service of a non-regular temporary employee. By the same analogy, a temporary employee cannot seek the benefit of his past temporary service even if he is appointed to a substantive post subsequently. The Supreme Court stated as follows: “The courts must exercise judicial restraint in this connection, and not encroach into the executive or legislative domain. The tendency in some courts/tribunals to legislate or perform executive functions cannot be appreciated. Judicial activism in some extreme and exceptional situations can be justified, but resorting to it readily and frequently, as has lately been happening, is not only unconstitutional, it is also fraught with grave peril for the judiciary.” A reading of the paragraph extracted hereinabove from the Judgment of the Supreme Court clearly shows that the Courts must exercise judicial restraint and not encroach into the executive or legislative domain and the tendency of the Courts or the Tribunals to legislate or perform executive functions needs to be curbed. The Tribunal, having considered the case of the applicant in detail, rightly dismissed the O.A. The Tribunal inter alia held in the impugned order that the appointment of the applicant as a Typist was directed to be considered by the Tribunal in the earlier round of litigation only on sympathetic considerations and accordingly the authorities considered the request of the applicant when a vacancy arose in the post of Typist and that it was a fresh appointment. We do not find any reason to interfere with the said finding of the Tribunal. Therefore, we are not inclined to disturb the well reasoned findings arrived at by the Tribunal in the order impugned. The Tribunal has not committed any jurisdictional error and has not exceeded its jurisdiction so as to warrant exercise of certiorari jurisdiction. The appointment of the applicant as a Typist itself is a benefit given to him keeping in mind the fact that the past service rendered him under the earlier appointment was only temporary. Therefore, the prayer of the applicant to reckon the period of service rendered by him as continuous right from 01.02.1975 onwards, if necessary, by condoning the break period between 23.04.1983 and 10.05.1991 and to pay back wages and grant consequential benefits to him is not permissible under law. All these things would arise for consideration only in the case of his reinstatement in service and not in the case of a fresh appointment. In any view of the matter, we do not find any merit in the writ petition. For the foregoing reasons, the Writ Petition fails and is accordingly dismissed. In the facts and circumstances of the case, there shall be no order as to costs. ___________________________ GHULAM MOHAMMED, J. _____________________ SANJAY KUMAR, J. 19th February, 2009. VGSR / PGS [1] 2007 SCALE (5) 82 = 2007 AIR SCW 2408 [2] 1994 ATC 27-78 [3] (2007) 1 SCC 408 [4] (2006) 4 SCC 1