IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE SECOND DAY OF NOVEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE GHULAM MOHAMMED and THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR WRIT PETITION No.19109 of 2010 Between: The Principal Secretary to Govt. of A.P., Panchayat Raj & Rural Development Department, Secretariat, A.P., Hyderabad and another ..... PETITIONER(S) AND S.Narayana and another .....RESPONDENT(S) THE HON'BLE SRI JUSTICE GHULAM MOHAMMED and THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR WRIT PETITION No.19109 of 2010 ORDER: (per HON'BLE SRI JUSTICE GHULAM MOHAMMED) This Writ Petition is filed seeking to quash the order dated 28.07.2009 passed in O.A.No.3733 of 2007 by the Andhra Pradesh Administrative Tribunal, Hyderabad, whereby and whereunder the relief sought by the applicant therein, first respondent herein, to declare that he is entitled to the seniority as District Panchayat Officer with effect from 26.02.1999, as per the orders in O.A.No.954/99 read with O.A.No.2181/1999 dated 03.05.1999 and O.A.No.3198/2004 dated 11.09.2006 and orders passed in Civil Appeal No.213/2003 dated 08.05.2006 of the Apex Court, with all consequential benefits such as arrears of pay etc., and to direct the petitioners herein to suitably modify para-4 of G.O.Rt.No.1560, dated 02.11.2006, was allowed. 2. The facts, in brief, are as follows. The first respondent was appointed as Junior Assistant on 06.11.1968 and was promoted as Senior Assistant on 12.10.1970. Later, through proceedings dated 12.05.1986, he was posted as an Extension Officer and his services were regularized through proceedings dated 24.09.1989 by the District Collector. Later, on his request, he was again posted as Senior Assistant. While the matter stood thus, a confirmed seniority list of Senior Assistants working in Zone-VI was published and, in the said seniority list, he was figured at Sl.No.6. The Commissioner of Panchyayat Raj promoted one Sri K.Gopal Reddy who is figured at Sl.No.8 in the confirmed seniority list of Senior Assistants and posted to District Panchayat Office, Mahabubnagar District, vide proceedings dated 01.08.1994. Therefore, he made a representation on 07.09.1994 assailing the promotion given to his junior overlooking him and also filed O.A.No.1307/95 before the Tribunal. In pursuance of the orders passed by the Tribunal, he was promoted as Superintendent vide proceedings dated 12.12.1998 on notional basis with effect from 01.07.1991 on par with his junior. Thereafter, he filed O.A.No.954/99 before the Tribunal seeking a direction to appoint him as District Panchayat Officer. By order dated 26.02.1999, the Tribunal directed the petitioners herein to take necessary action for giving promotion to the applicant as District Panchayat Officer in the existing vacancies. In the service particulars of Superintendents working in DPO’s office in Multi Zone-II, submitted by the Commissioner of Panchayat Raj vide letter dated 22.04.1999, he was figured at Sl.No.1. In O.A.No.2181 of 1999 filed by him, the Tribunal directed the petitioners herein to examine the report of the Commissioner and take necessary action to promote him as DPO. While matters stood thus, O.A.No.6692/99 filed by one Sri Md.Ahmedullakhan who is figured at Sl.No.12 in the confirmed seniority list of Zone-VI assailing the notional promotion given to him as Superintendent with effect from 1991 on par with his junior, was dismissed. Aggrieved by the dismissal of the O.A., Sri Md.Ahmedullakhan filed W.P.No.6531 of 2000 before this Court and by order dated 13.12.2001 this Court has set aside the order of the Tribunal in O.A.No.6692 of 1999 and also the proceedings of the Commissioner dated 12.12.1998. Aggrieved thereby, he preferred Civil Appeal No.213 of 2003 before the Apex Court and the Apex Court ordered notice on 11.03.2002. Though he submitted a representation, the petitioners herein through G.O.Rt.No.570 dated 12.04.2002 appointed Sri Md. Ahmadullakhan based on the order passed by this Court subject to outcome of the SLP. Again he filed O.A.No.3198 of 2004 before the Tribunal to review the appointment made to the post of DPO in Multi Zone-II in terms of G.O.Ms.No.2057 dated 08.09.1958 read with G.O.Ms.No.499 dated 27.07.1991 from among the Superintendents of Commissioner and DPOs for the fourth vacancy in a cycle of five vacancies earmarked to them and appoint him from the date of his eligibility with all consequential benefits. The Apex Court by order dated 08.05.2006 allowed the appeal filed by him, setting aside the order passed by the High Court and affirming the order passed by the Tribunal in O.A.No.6692 of 1999 dated 24.03.2000. Later, the Tribunal by order dated 11.09.2006 passed in O.A.No.3198 of 2004 directed the petitioners herein to pass appropriate orders on the representation dated 24.03.2002, implementing the order of the Tribunal which was upheld by the Apex Court. In pursuance of the orders of the Tribunal, G.O.Rt.No.1560 dated 02.11.2006 was issued promoting the him as DPO with effect from 12.04.2002 on par with his junior Sri Md.Ahmedullakhan and posted to Adilabad. In the said G.O., in para-4, it is stated that pay shall be fixed notionally and arrears will not be allowed. Therefore, he filed O.A.No.3733 of 2007 before the Tribunal for the relief stated supra. The petitioners herein seem to have filed a detailed counter resisting the claim of the first respondent herein. The Tribunal, by order dated 28.07.2009, upon considering the material on record, holding that because of the mistake committed by the petitioners herein, the first respondent herein could not get his promotion as DPO in spite of the orders passed by the Tribunal as affirmed by the Apex Court, declared that he is entitled to be promoted as District Panchayat Officer in terms of the order dated 26.02.1999 passed in O.A.No.954 of 1999 read with the order dated 03.05.1999 passed in O.A.No.2181 of 1999 and subsequent orders in O.A.No.3198 of 2004 dated 11.09.2006. The Tribunal also directed modification of G.O.Rt.No.1560 dated 02.11.2006 to the effect that he is entitled for promotion as DPO from July, 1998 and he is also entitled for arrears of pay, Revised Pay Scales and other benefits arising out of modification of G.O.Rt.No.1560 and further directed that the petitioners herein to complete the exercise of payment of arrears as directed within six weeks therefrom. It is stated that in accordance with the direction given to him in G.O.Rt.No.1560, he joined in the said post and retired as DPO on his superannuation on 28.02.2007. Aggrieved by the order passed by the Tribunal in O.A.No.3733 of 2007, the respondents before the Tribunal filed the present Writ Petition. 3. The learned Government Pleader for Services-II appearing for the petitioners mainly relying on Note (3) of Rule 26 (aa) of the Andhra Pradesh Fundamental Rules contended that inasmuch as the first respondent has not actually discharged the duty, he is not entitled to the arrears of pay. According to him, as per Note (3) of the Rule 26 (aa), in the case of Government servant who has already retired or died before the revision of his seniority and re- fixation of pay, the arrears shall be payable in the manner indicated in Note (2), and pensionary benefits shall also be revised on the basis of the notional pay fixation in the manner indicated in Note (2) and the monetary benefit of Pension/Family Pension or Death- cum-retirement gratuity as the case may be, shall be allowed from the date of retirement/death. 4. Per contra, the learned counsel, appearing for the first respondent, relied on the observations made by the Apex Court in S.NARAYANA vs. MD. AHMEDULLA KHAN[1] in the appeal preferred by the first respondent himself while reversing the order dated 13.12.2001 passed by this Court in W.P.No.6531 of 2000 and affirming the order dated 24.03.2000 passed by the Tribunal in O.A.No.6692 of 1999. The observations made by the Apex Court in the said case read as under: “19. For the first respondent, however, it is contended that regularisation is the same as confirmation in service, and therefore, lien would operate from the said date. We are afraid that we cannot accept this contention in the face of clear authority to the contrary, to which we have already referred. Counsel for the first respondent also contended that any relief given to the appellant should not affect any benefit of service, emoluments, allowance and pension etc. available to the first respondent. We do not see how this apprehension can arise. The order of the Tribunal does not in any way show that the first respondent's service benefits are affected. All that it ensures is that justice is rendered to the appellant. The learned counsel for the State submitted that the State would submit to any orders passed by this Court. We also notice that the State Government has not filed any counter-affidavit in opposition to the appeal. 20. In the circumstances, we find merit in the contentions urged on behalf of the appellant. We are also of the view that the High Court erred in interfering with the order of the Tribunal. In the result, we allow this appeal and set aside the impugned judgment of the High Court. The order of the Tribunal dated 24-3-2000, made in O.A.No.6692/1999 dismissing the application of the first respondent, is affirmed. No order as to costs.” 5. At the outset, it is pertinent to refer to Rule 26 (aa) of the Andhra Pradesh Fundamental Rules which reads thus- “The pay of a Government servant whose date of seniority/promotion has been revised and fixed from an earlier date, pay may be refixed on the basis of notional duty in the post from time to time. For this purpose, the periods for which the Government servants concerned would have officiated in the higher post if he had been promoted actually on that date may be reckoned and weightage for only such period given from the notional date or promotion. The non-qualifying periods like extraordinary leave, suspension etc., should also be deducted from this period. Note 1:-- Monetary benefit arising out of re-fixation as above, shall be limited to the duty periods and arrears shall be payable only for the periods during which the Government servant actually discharged the duties of the post. Arrears shall not be payable for the notional duty periods assigned as a result of revision of seniority position. Note 2:-- While a Government servant who is already promoted before the revision of seniority and who is assigned an earlier date of promotion, shall be allowed arrears resulting from the pay fixation in the manner set out in Note 1 above for the periods during which he actually discharged the duties of the post and in the case of Government servant who has been promoted before the revision of his seniority but is promoted after the review, he shall be allowed monetary benefit of pay fixation from the date of promotion only. Note 3:-- In the case of Government servant who has already retired or died before the revision of his seniority and re- fixation of pay, the arrears shall be payable in the manner indicated in Note 2 above, and pensionary benefits shall also be revised on the basis of the notional pay fixation in the manner indicated in Note (2) above and the monetary benefit of Pension/Family Pension or Death-cum-retirement gratuity as the case may be, shall be allowed from the date of retirement/death.” 6. There is no dispute that the first respondent was persuading the matter of his seniority/promotion since long time and filed number of O.As. before the Tribunal and even went up to the Apex Court seeking justice. It is submitted that the first respondent has joined in the post of District Panchayat Officer as per the directions given to him in G.O.Rt.No.1560 dated 02.11.2006 and later retired on 28.02.2007 on his attaining superannuation. In catena of decisions, the Apex Court held that no Government servant can be said to have forfeited his claim for arrears of salary when he did not get his due promotion for no fault of his. The Apex Court in AMRIK SINGH vs. UNION OF INDIA[2] held that the employee should not be victimized for any administrative lapses on the part of the department. Therefore, we do not find any illegality or infirmity in the order passed by the Tribunal. The Writ Petition is thus devoid of merits and is liable to be dismissed. 7. The Writ Petition is accordingly dismissed. There shall be no order as to costs. Petitioners are directed to pay the arrears of salary as directed by the Tribunal within two months from today. ___________________________ GHULAM MOHAMMED, J. _________________________ B.CHANDRA KUMAR, J. 2nd November 2010 CVRK Note: Despatch copy within two weeks. B/o CVRK [1] AIR 2006 SC 2224 [2] AIR 1980 SC 1447