· THE HON’BLE SRI JUSTICE V. ESWARAIAH AND THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR + C.C.NO. 727 OF 2010 & W.P.NO. 149 OF 2011 % Dated 24.6.2011 # K. Narasimha Murthy ….Petitioner Vs. $ K.V. Ramana Chary and others ….Respondents ! Counsel for petitioner: Mr. J. R. Manohar Rao ^Counsel for Respondents: Advocate General, Sri P. Bala Krishna Murthy, G.P. for Services-II Sri G. Ravi Mohan <GIST: > HEAD NOTE: ? Cases referred 1) AIR 1997 SC 1125; 2) CONTEMPT PETITION ( C ) Nos. 140 – 144/2011 in SLP ( c ) Nos. 27755-27759 of 2010 dated 10.5.2011 THE HONOURABLE SRI JUSTICE V. ESWARAIAH & THE HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR C.C.No.727 OF 2010 & TAKEN UP W.P.No.149 OF 2011 COMMON ORDER: (per Hon’ble Sri Justice Vilas V. Afzulpukar) These matters illustrate as to how an officer (third respondent in the contempt case and fourth respondent in the writ petition hereinafter referred to as the third respondent), who was not eligible to be promoted as per the statutory rules, but with the active help of all the higher level officers has secured not one but two promotions, to the exclusion of petitioner in the contempt case who was senior most eligible officer. This case also illustrates as to how the orders of this Court are disobeyed by the officers concerned by finding one lame justification or the other. More disturbing feature further is that the learned Vice Chairman of the Andhra Pradesh Administrative Tribunal, Hyderabad, has acted in gross judicial indiscipline amounting to contempt of this Court and has knowingly passed an order interdicting implementation of the orders of this Court, challenge to which had failed before the Hon’ble Supreme Court as well. We were, therefore, left with no option but to suspend the order passed by the learned Vice Chairman in the taken up writ petition above and now after hearing these matters at length for final disposal, we are left with no alternative but to highlight this judicial indiscipline on the part of the Vice Chairman apart from breach of hierarchical supremacy of Constitutional Court. However, unpleasant it is to record our disapproval of the action of the officers as well as the learned Vice Chairman of the tribunal, in the interest of supremacy of law and prestige of this Court, we are constrained to deal with both aspects in this order. 2. The relevant facts are as follows: (a) The third respondent in the contempt case was appointed as LD – Steno in the department of Endowments, Government of Andhra Pradesh on 06.12.1976 and he was regularized in that post on 08.12.1976 in the forenoon. He was promoted as UD – Steno and joined in the promoted post with effect from 05.03.1980 and to the further promotional post of Special Category Stenographer from 23.06.1984. There were, however, reversions of the third respondent for want of vacancy in the category of special category stenographer but eventually from 19.08.1988 onwards he was regularly promoted as special category stenographer and continued as such. The post held by the third respondent is not the feeder post for promotion to the post of Assistant Commissioner of Endowments but for which the third respondent made representation in view of existing vacancies. (b) The petitioner in the contempt case was appointed in the post of LDC on 24.07.1968 and promoted as Senior Assistant and further promoted as Superintendent on 14.09.1989 and after passing all the requisite tests, he was eligible for promotion as Assistant Commissioner under the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Service Rules (for short ‘the Rules’). The promotion to the post of Assistant Commissioner was by transfer from the category of Superintendents besides direct recruitment and promotion of Executive Officer Grade – I as per the Rules issued in G.O.Ms.No.679 Revenue (Endowment – I) Department dated 04.10.1988. As per the said rules the special category stenographers were not included in the feeder category to the post of Assistant Commissioner, as mentioned above, but in 1992 the Government had issued G.O.Ms.No.90 dated 24.02.1992 to treat the special category stenographers on par with Superintendents for the purpose of appointment by transfer outside their regular channel of promotion. But the service rules, referred to above, were, however, not amended. (c) The third respondent approached the tribunal in O.A.No.1507 of 1997 seeking consideration of his case for promotion to the post of Assistant Commissioner. The said OA was allowed by the tribunal on 23.04.1999 directing consideration of respondent No.3 though none of the Superintendents including the petitioner, who was senior most, were impleaded to the said OA. By virtue of the orders of the tribunal the third respondent secured promotion to the post of Assistant Commissioner to the exclusion of the petitioner and other superintendents. The petitioner had questioned the said order of the tribunal before this Court in WP.No.13039 of 1999. This Court while admitting the writ petition had suspended the order of the tribunal on 13.07.1999. The third respondent, however, was promoted temporarily on 16.06.1999 subject to the outcome of the OA and the writ petition. The interim order of suspension of the orders of the tribunal passed by this Court on 13.07.1999 was made absolute on 23.03.2011 and in spite of the said order, the third respondent was continued in the post of Assistant Commissioner of Endowments and further promoted as Deputy Commissioner on 28.05.2007 while the petitioner retired from service as Assistant Commissioner on 31.12.2003. The writ petition was finally allowed by this Court on 15.06.2009 declaring that in the absence of amendment to the rules, the third respondent, who held the post of special category stenographer, was not holding any feeder post for considering for promotion as Assistant Commissioner and thereby it was declared that he was not eligible for promotion to the post of Assistant Commissioner. The third respondent filed an appeal before the Supreme Court in SLP.No.14789 of 2009, which was dismissed as withdrawn. The order of the Supreme Court is extracted hereunder: “After addressing us for some time, learned senior counsel appearing for the petitioner seeks leave to withdraw the petition with liberty to make a comprehensive representation to the authorities concerned. Accordingly, the special leave petition is dismissed as withdrawn. It goes without saying that we have not expressed any opinion on the merits of the representation which is proposed to be filed by the petitioner. As and when the same is filed, it will be considered on its own merits keeping in view the background of the case.” (d) In the meanwhile, the service rules were amended by G.O.Ms.No.443 Revenue (Endowments.I) Department dated 13.04.2006 whereby the special category stenographers were added as one of the feeder posts for appointment by transfer to the post of Assistant Commissioner of Endowments. If the third respondent had continued as special category stenographer, he could have been considered for promotion under the said amended rules. It is in the context of the amended rules that the third respondent made a representation to the Government, as permitted under the order of the Supreme Court extracted above, seeking retrospective effect to the said amended rules. The said representation of the third respondent dated 11.11.2009 was, however, rejected by the Government on 17.06.2010 on the ground that the amended rules cannot be given retrospective effect as it would affect the existing posts held by the employees as per unamended original service rules. Questioning the said rejection, the third respondent again approached the tribunal by filing O.A.No.4344 of 2010 wherein the tribunal passed an interim order on 02.07.2010 directing the official respondents therein not to take any further action in pursuance of the rejection memo. (e) Thus, while the third respondent pleaded for holding on to the promotion, which he had secured as Assistant Commissioner of Endowments and based on that the further promotion of Deputy Commissioner, in spite declaration granted against him by this Court, as confirmed by the Supreme Court, the official respondents continued the third respondent in the said promotional posts instead of implementing and giving effect to the orders of this Court. The petitioner, therefore, filed the present contempt case being C.C.No.727 of 2010. When the said contempt case was listed before us for admission on 04.06.2010 we had issued notice before admission and on the request of the learned Government Pleader for Services II, had adjourned it on 02.07.2010 and 09.07.2010 to enable him to file a counter. On 20.08.2010, the proceedings record as follows: “Learned Government Pleader who had earlier filed counter affidavit on behalf of respondents 1 and 2, now placed additional affidavit of respondent No.2 before the Court wherein reference is made with regard to the interim direction of the A.P. Administrative Tribunal in O.A.No.4344 of 2010, dated 02.07.2010. Learned Government Pleader says that on account of the interim stay granted by the Tribunal they are not in a position to implement the said order. The said order is dated 2.7.2010 and the respondents ought to have apprised the Tribunal that the memo, dated 17.6.2010 impugned in O.A.No.4344 of 2010 was in fact issued to implement the orders of this Court, which have attained finality. Learned Government Pleader, however, seeks two weeks time to bring the aforesaid facts to the notice of the Tribunal. We therefore adjourn the present contempt case by two weeks to enable the learned Government Pleader to file additional affidavit apprising this Court with regard to further developments. Post after two weeks.” Thereafter, again on request, we had adjourned the hearing on 03.09.2010. On 08.10.2010, the third respondent sought impleadment, which was allowed and thereafter, at the request of the parties, the hearing was adjourned twice and finally the arguments by the learned counsel at the stage of admission were heard on 10.12.2010 and the orders were reserved. Meanwhile, the third respondent also filed applications seeking condonation of delay in filing the review application and the review application to review the order in WP.No.13039 of 2010. The said applications were also heard and reserved by us along with the contempt case on 10.12.2010. 3. By our order dated 24.12.2010 we had rejected the applications for condonation of delay as well as the review petition moved by the third respondent and we had also recorded our prima facie satisfaction that the respondents in the contempt case are prima facie guilty of willful disobedience of the orders of this Court. We had, therefore, admitted the contempt case by issuing form – I notice to the respondents and we granted further opportunity to the respondents to enable them to make their submission on their defence as well as the punishment. After we pronounced the said order, it was brought to our notice by the Commissioner of Endowments by filing an additional affidavit dated 24.12.2010 that the official respondents have issued proceedings dated 14.12.2010, in implementation of the orders of this Court in WP.No.13039 of 1999 dated 15.06.2009, by reverting the third respondent herein to the post of special category stenographer by canceling his promotion as Assistant Commissioner as well as further promotion of Deputy Commissioner. It was further brought to our notice that against the said order of reversion dated 14.12.2010 the third respondent had moved the tribunal in O.A.No.8887 of 2010 and that the tribunal through its Vice Chairman had suspended the reversion order dated 14.12.2010, referred to above. A copy of the order of the tribunal was placed before us. 4. As we were of the view that the said order of the tribunal amounts to sitting in judgment over the orders of this Court, which have attained finality and which also amounts to defying the authority and prestige of this Court, we had passed an order in the contempt case on 24.12.2010, which is extracted hereunder: “While pronouncing the orders, the Commissioner of Endowments filed additional affidavit, sworn and signed today i.e. on 24.12.2010, enclosing the proceedings passed by him in Proceedings No.E1/26530/2009, dated 14.12.2010, reverting the 1st respondent in the writ petition to his original post of Special Category Stenographer by canceling his appointment as Assistant Commissioner vide proceedings in Rc.No.E1/10761/1998, dated 16.06.1999 and his subsequent appointment as Deputy Commissioner in Proceedings No.E1/14934/2007-1, dated 28.05.2007, in view of the law laid down by this Court in W.P.No.13039/1999, dated 15.06.2009. The Commissioner also enclosed the copy of the order passed by the Vice-Chairman, A.P. Administrative Tribunal, Hyderabad dated 15.12.2010 in O.A.No.8887/010 in suspending the said proceedings of the Commissioner of Endowments dated 14.12.2010, by which the promotion of the 1st respondent in the writ petition was cancelled. The relevant paragraphs of the order of the A.P. Administrative Tribunal, Hyderabad are reproduced hereunder: “17. Added to that Sri K. Narasimha Murthy, the petitioner in WP No.13039/99, is not in service and he retired in December, 2003. Even if he ultimately succeeds he will get only notional promotion. 18. The applicant is working as Assistant Commissioner from 1999 and as Deputy Commissioner from 2007. So, reverting the applicant by two stages, at this stage, does not appear to be a wise decision, that too, when this question is subjudice. So, the applicant has a strong prima facie case and balance of convenience in his favour.” We are prima facie of the opinion that the said order passed by the A.P. Administrative Tribunal amounts to sitting over the judgment of this Court in W.P.No.13039/1999, against which the special leave petition filed by the 2nd respondent was also dismissed. We have dealt with the scope of O.A.No.4344/2010 in our order pronounced today. Therefore, we are of the opinion that the aforesaid order of the A.P. Administrative Tribunal dated 15.12.2010 is under the teeth of the judgment of this Court and prima facie, amounts to defying the authority of this Court. As larger questions of importance arise for consideration with regard to scope, power and authority of A.P. Administrative Tribunal in passing contra orders to the order of this Court and judicial discipline is required to be followed by all Courts subordinate including A.P. Administrative Tribunal in ensuring that the orders of superior Court must be followed in letter and spirit, particularly, when orders of superior Court has attained finality. We, therefore, deem it appropriate to issue notice to the learned Advocate General, State of Andhra Pradesh so that they may assist this Court in resolving the question, as above. Registry shall register suo motu writ petition against O.A.No.8887 of 2010 on the file of the A.P. Administrative Tribunal and call for the records of the said OA. The order of A.P. Administrative Tribunal dated 15.12.2010 passed in the above OA shall remain under suspension pending further orders. Registry shall issued notice to all the parties in O.A.No.8887 of 2010 and list the said taken up writ petition along with this contempt case on 04.02.2011, after obtaining appropriate orders from the Hon’ble the Chief Justice. Learned Advocate General, State of Andhra Pradesh shall appear and assist this Court in the taken up writ petition.” 5. When the taken up writ petition and the contempt case were heard on 25.02.2011, we noticed that the office had not issued Rule Nisi as directed by us on 24.12.2010 but, however, Mr. P. Bala Krishna Murthy, learned counsel, took notice for the third respondent in the contempt case and the fourth respondent in the writ petition and filed counter and vacate stay petition. Similarly, the learned Advocate General took notice for respondents 1 and 2 and learned Assistant Solicitor General took notice and requested time. We had also dispensed with the appearance of the respondents pending further orders. Thereafter, the contempt case was further heard on 01.04.2011 and again on 10.06.2011 and finally heard and reserved on 17.06.2011. 6. Learned Advocate General submits that so far as the implementation of the order in WP.No.13039 of 1999 is concerned, the official respondents were disabled from implementing the order on account of the orders of the tribunal in the first instance in O.A.No.4344 of 2010 and on the second instance on account of the orders of the tribunal in O.A.No.8887 of 2010. He, further, submits that in view of the fact that proceedings were issued by the respondents on 14.12.2010 reverting the third respondent, the order of this Court in WP.No.13039 of 1999 is complied with and the delay is attributable to the orders of the tribunal, referred to above. So far as the taken up writ petition is concerned, learned Advocate General submits that the manner in which the tribunal has granted interim suspension of the reversion order dated 14.12.2010, does amount to interdicting the orders of this Court and as such, the learned Advocate General very fairly does not support the blanket suspension ordered by the tribunal. Learned Advocate General also fairly accepted that the tenor of the order of the tribunal, particularly in paragraphs 17 and 18, is highly improper but pleads that since the then Vice Chairman having been retired and the said order of the tribunal having been suspended by this Court, the said suspension be continued and the tribunal be allowed to deal with O.A.No.8887 of 2010 in accordance with law. 7. Mr. P. Bala Krishna Murthy, learned counsel for the third respondent, supports and defends the promotion of third respondent by contending that the amended rules under G.O.Ms.No.443 dated 13.04.2006 substitute the original service rules and therefore, even if on the date of promotion the third respondent was not eligible, on the date of judgment of this Court in the writ petition, the amended rules were in operation and that the third respondent was not liable to be reverted. It is also pointed out that the order of the Government rejecting the representation of the third respondent, which was subject matter of O.A.No.4344 of 2010 was subsequently set aside by the tribunal by reconsidering the effect of G.O.Ms.No.443 dated 13.04.2006 under which the service rules were amended. He also supports the order of suspension passed by the tribunal on 15.12.2010, which is subject matter of taken up writ petition, by contending that the observations of the tribunal in paragraphs 17 and 18, in particular, are referable to the decision of the Government in reverting the third respondent and is neither a reflection on nor a comment on the judgment of this Court. He also points out that under Section 19 of the Administrative Tribunal Act, 1985 and in view of the decision of the Supreme Court in L. CHANDRA KUMAR v. UNION OF INDIA[1] vide para 99, the third respondent was justified and in fact, had no option but to move the tribunal against the adverse orders passed by the Government. 8. Learned counsel, therefore, submits that entertainment of suo motu writ petition is not justified, as none of the respondents had questioned the said order of the tribunal dated 15.12.2010. He also submits that the tribunal had jurisdiction to pass a right or wrong order but it cannot be the subject matter of a suo motu writ petition. Finally, the learned counsel submits that the prayer in WP.No.13039 of 1999 is only declaratory in nature without any consequential prayer and as such, the order of reversion of third respondent is wholly unwarranted. 9. Mr. J.R. Manohar Rao, learned counsel for the petitioner in the contempt case, submits that the writ petitioner was the senior most Superintendent and undoubtedly, was eligible to be promoted, as per the Rules, as Assistant Commissioner but ignoring his claim, at the instance of the third respondent, the official respondents have promoted the third respondent, though he had no channel of promotion nor was holding any feeder post as per the rules and in spite of the interim orders of this Court dated 13.07.1999 pending the writ petition as well as the final order dated 15.06.2009 passed in the writ petition, the proceedings for implementation of orders of this Court were issued at a highly belated stage i.e. on 14.12.2010 which clearly amounts to willful disobedience warranting appropriate action against the respondents. 10. Most of the contentions of Mr. P. Bala Krishna Murthy were duly considered and rejected by us in our order dated 24.12.2010 whereunder we rejected his applications for condonation of delay as well as review and as such, they are not once again reiterated here. So far as his contentions based on the decision of the Supreme Court in L. CHANDRA KUMAR’s case (1 supra) is concerned, there is no controversy that every service dispute relating to an employee of the State or Central Government, as the case may be, has to be ventilated in the first instance by approaching the tribunal under Section 19 of the Administrative Tribunal Act, 1985. There was, therefore, nothing wrong with the third respondent approaching the tribunal by filing the earlier O.A.No.4344 of 2010 or the later O.A.No.8887 of 2010 before the tribunal. The entertainment of the said OA’s by the tribunal is not in issue in these proceedings but the interim orders passed thereon by the tribunal, which directly amounts to interdicting and interfering with the final order of this Court, is the subject matter of these proceedings. It is evident that the third respondent herein was heard at length by this Court in WP.No.13039 of 1999 including on contentions now advanced and it would be appropriate to notice the following two paragraphs from the judgment of this Court. “While admitting the writ petition, the order of the Tribunal was suspended on 13.7.1999 and the same was also made absolute on 23.3.2001. In spite of the said order, the first respondent was promoted illegally. We are of the opinion that the promotion of the first respondent to the post of Assistant Commissioner of Endowments is against the statutory rules and the same is illegal and unsustainable. Therefore, we have no hesitation to set aside the order of the Tribunal. The learned counsel appearing for the first respondent submits that the first respondent was promoted 10 years back and he was holding the post of Assistant Commissioner of Endowments and got subsequent promotion and therefore if the order of the Tribunal is set aside his promotion will be treated from the date of his eligibility pursuant to the amendment made to the Rules vide G.O.Ms.No.443, dated 13.4.2006, and therefore requested that it may not be just and proper to set aside the order at this length of time. We are unable to accept the said contention of the learned counsel for the first respondent in view of facts and circumstances of the case particularly in the nature of the case where the order of the Tribunal was suspended and made absolute on a petition filed by the first respondent and in spite of the said order he managed to get promotion” 11. The SLP filed by the third respondent against the said order was dismissed as withdrawn and as such, the order of this Court had attained finality. Once again the representation of the third respondent was rejected by the Government on 17.06.2010 and finally, when this Court was dealing with the contempt case, the official respondents have come up with the proceedings dated 14.12.2010 reverting the third respondent in compliance with the orders of this Court. The said order, which is subject matter of the late O.A.No.8887of 2010, itself states while mentioning the subject of the proceedings that it is issued in implementation of the orders of this Court apart from the fact that the contents of the order categorically show that the said order is not an independent exercise of mind but is a proceeding issued only to implement the orders of this Court, which have attained finality. 12. We are, therefore, at a loss to appreciate any justification as to what the then learned Vice Chairman meant by the observations made in paras 17 and 18 extracted above that the decision of reverting the third respondent is not a ‘wise’ decision and that it is subjudice. There is no substance in the contention of Mr. P. Bala Krishna Murthy that the said