IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE ELEVENTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE GHULAM MOHAMMED and THE HON'BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION NO : 21702 of 2008 Between: P. Sudhakar, S/o. Late P. Pakiraiah, Pecheruvu, West Best, Srisailam Range, Atmakur (Wildlife Division), Kurnool District. ..... PETITIONER AND 1 B. Nazeer Ahmed, Abbaraju KUnta, Velgode Range, Wild Life Division, Atmakur, Project Tiger Circle, Srisailam, Kurnool District. 2 The Divisional forest Officer, Atmakur (Wildlife Division) P.T. Circle, Srisailam, Kurnool District. 3 The Conservator of Forests and Field Director, Project Tiger Circle, Srisailam, Kurnool district. .....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 issue a Writ order or direction in the nature of Mandamus or otherwise declaring the orders of the Hon'ble Tribunal in M.A.No. 2796/2007 in O.A.No. 1599/96 dated 20-02-2008, as arbitrary, illegal, erroneous and without jurisdiction and set aside the same, and pass such other orders. Counsel for the Petitioner:MR.P.V.KRISHNAIAH Counsel for the Respondent No.1: Counsel for the respondents 2 & 3: GP FOR SERVICES I The Court made the following : THE HON'BLE SRI JUSTICE GHULAM MOHAMMED and THE HON'BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION NO : 21702 of 2008 ORDER: (per Hon’ble Sri Justice GhulamMohammed) In this writ petition, the petitioner seeks for a writ of mandamus declaring the order of the A.P. Administrative Tribunal, Hyderabad made in M.A. No. 2796 of 2007, dated 20.2.2008 as illegal, arbitrary and to set aside the same. The facts leading to the filing of the writ petition are that the 1st respondent herein filed M.A. No. 2769 of 2007 before the Tribunal seeking a direction to the respondent-authorities to implement the orders passed by the Tribunal in O.A. No.1599 of 1996,dated 25.2.1999. Originally, O.A. No. 1599 of 1996 was filed by some of the applicants including the 1st respondent herein, challenging the order of reversion. The Tribunal, through order dated 25.2.1999, allowed the said O.A. and set aside the reversion order declaring that the 1st respondent is entitled to continue as Forest Beat Officer, without any reversion. Pursuant to which, the respondents fixed his pay and also granted 8 years and 16 years special scale. He appears to have made several representations to the respondent-authorities seeking to grant seniority from the date of filing of the O.A. However, when no action was taken on the said representations, he filed O.A. No.3874 of 2007 before the Tribunal seeking the aforesaid relief. The Tribunal while admitting the O.A. on 12.7.2007, passed an interim order directing the respondents therein, to pass orders on the representation of the 1st respondent. When the respondent-authorities failed to take any action on the representations filed by the petitioners, the 1st respondent filed the aforesaid M.A., viz., M.A. No.2796 of 2007, before the Tribunal seeking to implement the order of the Tribunal in O.A. No. 1599 of 1996. The Tribunal, through the impugned order dated 20.2.2008, while allowing the M.A., directed the respondent-authority concerned to consider the representation of the first respondent as per his seniority and in terms of the earlier order of the Tribunal with a further direction to consider the case of the 1st respondent for promotion, if he is otherwise eligible and suitable and comes within the zone of consideration, as per the rules and regulations. Aggrieved, the petitioner filed the present writ petition. Heard the learned counsel for the petitioner, the learned counsel for the 1st respondent and the learned Government Pleader. Sri P.V. Krishnaiah, learned counsel for the petitioner would contend that the Tribunal committed a grave error in entertaining the M.A.; that there is no provision under the Administrative Tribunal Act, which would enable the 1st respondent to file an interlocutory application seeking implementation of the order of the Tribunal. In support of this contention, he relied on Section 27 of the A.P. Administrative Tribunal Act,1985, which reads thus: "27. Execution of orders of a Tribunal.- Subject to the other provisions of this Act and the rules, the order of a Tribunal finally disposing of an application or an appeal shall be final and shall not be called in question in any Court (including a High Court) and such order shall be executed in the same manner in which any final order of the nature referred to in Clause (a) of sub-section (2) of Section 20 (whether or not such final order had actually been made) in respect of the grievance to which the application relates would have been executed." Secondly, he would contend that the Tribunal has no authority or jurisdiction to entertain a petition filed for implementation of the orders passed by it, that too after a period of eight years after the main O.A. was disposed of. While placing reliance upon a decision of the Supreme Court in HUKAM RAJ KHINVSARA, APPELLANT v. UNION OF INDIA &OTHERS([1]), he would contend that the M.A. as filed is not maintainable as the same is barred by limitation and drew our attention to paras 8 and 9 of the said judgment, which read thus: “Thus it could be seen that the final order passed by the Tribunal is executable under Section 27 of the Act within one year from the date of its becoming final. Admittedly, the final order was passed on March 13, 1992. Consequently, the appellant was required to file the execution application within one year from the said date unless the order of the Tribunal was suspended by this Court in a special leave petition/appeal which is not the case herein. Admittedly, the application came to be filed by the appellant on December 13, 1994 which is well beyond one year. Under these circumstances, the Tribunal was right in its conclusion that the application was barred by limitation. Learned counsel for the appellant contends that the Tribunal would have condoned the delay in filing the application. It is not his case that he made an application for condonation of delay and the Tribunal had rejected the application without examining the grounds for the delay occasioned by him. Under these circumstances, we need not go into further question of refusal to condone the delay by the Tribunal.” Lastly, he would contend that if the impugned order is implemented, it would affect the rights of the petitioner. He, therefore, prayed that the writ petition be allowed and the impugned order be set aside. On the other hand, Sri P.V. Ramana, learned counsel for the 1st respondent contended that challenging the very same order impugned in this writ petition, two individuals, viz., Sri B. Jayaprasad and B. Laxminarayana, filed Writ Petition No. 11179 of 2008 before this Court and the said writ petition was dismissed. He further contended that since the petitioner is not a party to the main O.A., or the present M.A., impugned in this writ petition, the writ petition is not maintainable. Learned counsel further contended that the order of the Tribunal in O.A. No. 1599 of 1996 has attained finality and the same has to be implemented and the petitioner has no locus to interdict the implementation of the said order. It is also his contention that since Sri P.V. Krishnaiah, learned counsel who is appearing for the petitioner in the instant writ petition, has in fact, appeared in that matter also, it becomes his bounden duty to bring to the notice of the Court about the dismissal of the earlier writ petition and in fact the averments made in the said writ petition have been reproduced in verbatim, without even a slightest change. He further stated that the learned counsel for the petitioner suppressing the factum of filing of the earlier writ petition, has filed the instant writ petition seeking the self-same relief sought in that writ petition. Therefore, he contended that the non-disclosure of filing of W.P. No. 11179 of 2008 before this Court in respect of the very same relief, would be a reasonable cause to dismiss the writ petition. In support of this contention, he relied on the judgment of the Supreme Court in STATE OF ORISSA vs. NALINI KANTA MUDULI & OTHERS ([2]). In para-6 of the said judgment, the Apex Court observed thus: “It is strange that a decision which has been overruled by this Court nearly a quarter of a century back was cited by the Bar and the Court did not take note of this position and disposed of the matter placing reliance on the said overruled decision. It does not appear that the decision of this Court reversing the judgment of the High Court was brought to the notice of the learned Single Judge who was dealing with the matter. It is a very unfortunate situation that learned counsel for the accused who is supposed to know the decision did not bring this aspect to the notice of the learned Single Judge. Members of the Bar are officers of the court. They have a bounden duty to assist the court and not mislead it. Citing judgment of a court which has been overruled by a larger Bench of the same High Court or this Court without disclosing the fact that it has been overruled is a matter of serious concerned. It is one thing that the Court notices the judgment overruling the earlier decision and decides on the applicability of the latter judgment to the facts under consideration on it. It also does not appear that learned counsel appearing for the respondent before the High Court did not (sic) refer to the judgment of this Court. All this shows that the matter was dealt with very casually. From the judgment of the High Court it is noticed that the hearing was concluded on 13.3.2003 and the judgment was delivered on 25.4.2003. It was certainly the duty of the counsel for the respondent before the High Court to bring to the notice of the Court that the decision relied upon by the petitioner before the High Court has been overruled by this Court. Moreover it was the duty of the learned counsel appearing for the petitioner before the High Court not to cite an overruled judgment.” He further stated that the petitioner has not come to the Court with clean hands and played fraud on the Court by suppressing the factum of filing of the earlier writ petition. In support of this contention, he relied on the judgment of the Supreme Court in S.P. CHENGALVARAYA NAIDU v. JAGANNATH & others([3]). The Supreme Court in para-7 of the said judgment observed thus: “The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. It can be said without hesitation that a person whose case is based on falsehood has no right to approach the Court. He can be summarily thrown out at any stage of the litigation. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.” He also relied on the judgment of the Supreme Court in WELCOME HOTEL vs. STATE OF A.P. & OTHERS ([4]), wherein at para-7 of the judgment the Apex Court observed thus: “Instead of honouring this agreement, the Petitioners within a span of 12 days rushed to this Court and obtained ex parte stay order wholly suppressing the fact that the orders impugned in these petitions have already been replaced by the latest order dated January 5, 1981. Petitioners who have behaved in this manner are not entitled to any consideration at the hands of the Court.” Having regard to these contentions, now the point that arises for consideration in this writ petition is whether the Tribunal is justified in issuing the directions in M.A. No. 2796 of 2007 filed by the 1st respondent ? There is no dispute about the fact that the 1st respondent herein was appointed as Forest Watcher on 13.5.1983 and subsequently, he was promoted as Forest Guard on 8.11.1990. There is also no dispute about the fact that the post of Forest Watcher falls under category 6 of Class – II and the posts of Forest Guard fall under Category 10, Class I of A.P. Subordinate Service Rules. Rule 5 of the A.P. Forest Subordinate Service Rules, which read thus: Class & Method Qualifications Category (1) (2) (3) Forest Guard (i) By direct recruitment 1)Must have passed III Form or (ii) By promotion 8th Class from a recognized school or Army 1st Class Certificate of Education or an equivalent examination and must be able to read and write the language of the District in which the candidate is to be employed and to write a simple letter or report in such language:- Provided that this qualification shall not apply in the case of members of categories of Class II of the Andhra Pradesh Forest Subordinate Establishment who were appointed to the posts in the said Establishment prior to 19th August, 1969. 2) Must not be less than 163 cms., in height. 3) Must not be less than 84 cms., round the chest on full inspiration. 4) Must have a chest expansion of not less than 5 cms., on full inspiration. Provided that this qualification shall not be required in respect of candidates belonging to Forest Tribes specified in Annexure-I and in respect of candidates appointed prior to 1st November, 1961 and 17-9-1963 respectively. ----------------------------------------------------------------------------------------------------------- - On a perusal of the aforesaid rule, it is quite clear that the qualification prescribed shall not apply to the members of categories of Class-II of the Andhra Pradesh Forest Subordinate Establishment, who were appointed prior to 19th August, 1969 and those rules have no retrospective effect. Since the 1st respondent was promoted as Forest Beat Officer in the year 1990, i.e., after the issuance of new rules in G.O. Ms. No. 497, dated 4.12.1986, only those rules would apply and not the old rules. However, through proceedings dated 3.2.1994, when the 1st respondent was reverted to the post of Forest Watcher, he filed O.A. No. 1599 of 1996 before the Tribunal assailing the said order of reversion. The Tribunal, through order dated 25.2.1999, has allowed the said O.A. by setting aside the reversion order. Consequent to the said order, the respondent- authorities though paid the special promotion scale of 8 years and 16 years to the 1st respondent, however, did not grant him the seniority. The 1st respondent, thereafter, made several representations to the respondent- authorities on 9.9.2002, 10.12.2006 and 26.5.2007 to grant seniority from the date of his original promotion, i.e., right from 1990 in the category of ‘Forest Beat Officer’. When the respondent-authorities did not take any action on the representations of the 1st respondent, he filed O.A. No.3874 of 2007 before the Tribunal seeking the aforesaid relief. The Tribunal while admitting the O.A. on 12.7.2007, passed an interim order directing the respondents therein, to pass orders on the representation of the 1st respondent within a period of four weeks from the date of receipt of a copy of the said order. In pursuance of the said order, the 2nd respondent herein passed an order 28.7.2007 stating that he is not the competent authority for granting seniority to the applicant. Thereafter, the 1st respondent filed the aforesaid M.A. before the Tribunal seeking a direction to the respondent-authorities to implement the order in O.A. No. 1599 of 1996. The Tribunal having heard the learned counsel for the parties and having perused the material made available on record, allowed the said M.A., with a direction to the Conservator of Forests, the 3rd respondent to consider the case of the 1st respondent for promotion, if he is otherwise eligible, suitable and comes within the zone of consideration, as per rules and regulations within a period of three months from the date of receipt of a copy of the said order. In fact, in para-6 of the impugned order, the Tribunal observed thus: “Let us recall what the disposal in O.A 1599/96 was. Earlier portion of the judgment is reproduced in para 1 above which clearly indicates that “promotion” was very much an issue. On this point, applicant’s prayer in MA is allowed. Further, the contention of the 1st respondent that he is not competent to consider seniority and that it is within the competence of the 2nd respondent to do so, does not carry any weight. Both the Divisional Officer (1st respondent) and the Conservator of Forests, Kurnool (2nd respondent) are Respondents in the M.A. During the arguments stage, learned GP contended that Government will consider Applicant’s prayer if he makes a fresh representation to the Conservator of Forests. But we wonder why that should be the case. Now that both the Divisional Forest Officer and Conservator of Forests are Respondents and the Divisional Forest Officer has stated that the Conservator of Forests is the competent authority to consider the prayer of the applicant. In O.A. No. 3874 of 2007 the Tribunal in its order dated 12.7.2007 clearly directed the respondents to pass orders on the representation of the Applicant. Now the 1st Respondent has complied by simply stating that he is not the competent authority and the applicant should apply to the 2nd respondent, the Conservator of Forest. This according to us is nothing but getting the matter delayed. The applicant has inalienable right to know about his representation. Both the respondents are responsible for this. Now, the 1st Respondent has thrown the buck on the 2nd Respondent, i.e., Conservator of Forests, the 2nd Respondent will consider the representation of the applicant as per his seniority and as per earlier judgments of this Tribunal and also consider his promotion, if the applicant is otherwise eligible and suitable and comes within the zone of consideration as per rules and regulations, which are in force within a period of three months from the date of receipt of a copy of this order.” Admittedly, the petitioner is not a party to the main O.A. or the M.A. impugned in this writ petition. That apart, the petitioner is also far junior to the 1st respondent and he cannot, therefore, seek a direction to interdict the implementation of the order made in O.A.No. 1599 of 1996, which has already become final. Further, the Tribunal has not issued any specific directions to implement the earlier order passed by it in the aforesaid O.A.; on the other hand it only directed the respondent-authorities to consider the representation of the 1st respondent as per his seniority and in terms of the earlier orders and to consider his case for promotion, if he is otherwise eligible and suitable as per the rules and regulations, if he comes within the zone of consideration. In the circumstances, no exception can be taken to such an innocuous order passed by the Tribunal. We, therefore, find no merit in the contention of Sri P.V. Krishnaiah, learned counsel for the petitioner that the Tribunal has no authority or jurisdiction to entertain the M.A. after a lapse of eight years; that the M.A. as filed is barred by limitation and not maintainable. One more important factor is that the petitioner suppressing the factum of filing of Writ Petition No. 11179 of 2008, filed the present writ petition on the very same grounds and for the self-same relief. In fact, through order dated 14.7.2008, a division bench of this Court (to which one of us, namely, Ghulam Mohammed,J is a party), dismissed the said writ petition observing thus: “Admittedly, the petitioners are not parties to the O.A. or M.A. before the Tribunal. Earlier, the Tribunal allowed O.A. and set aside the order of reversion and directed the official respondents to continue the first respondent herein as Forest Beat Officer without any reversion, which order had attained finality. As on today, the official respondents have not passed any order affecting the rights of the parties and the petitioners have approached this Court on mere apprehension that the implementation of the order would affect their present official status. In case the petitioners are aggrieved by the consequences of implementation of the order passed by the Tribunal, it is always open to them to challenge the same by way of filing O.A. In the circumstances, we are not inclined to interfere with the impugned order.” That apart, the writ petitioners in the aforesaid writ petition are senior to the present petitioner and the petitioner except reiterating the very same contentions urged in the said writ petition, did not raise any fresh contentions. Even on that ground also, the writ petition is liable to be dismissed. Viewed from any angle, the impugned order of the Tribunal does not warrant any interference. The writ petition is devoid of merits and is liable to be dismissed and it is accordingly dismissed. There shall be no order as to costs. _______________________ GHULAM MOHAMMED,J DATE: 11th November, 2008 ________________ P.S. NARAYANA,J pnb ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. The Divisional forest Officer, Atmakur (Wildlife Division) P.T. Circle, Srisailam, Kurnool District. 2. The Conservator of Forests and Field Director, Project Tiger Circle, Srisailam, Kurnool district. 3. Two C.Cs. to the G.P. for Services-I, High Court Buildings, Hyderabad.(OUT) 4. Two C.D. copies [1] AIR 1997 SC 2100 [2] (2004) 7 SCC 19 [3] AIR 1994 SC 853 [4] AIR 1983 SC 1015