IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE NINETEENTH DAY OF APRIL TWO THOUSAND AND TEN HON’BLE SRI JUSTICE B. PRAKASH RAO HON’BLE SRI JUSTICE G. BHAVANI PRASAD Writ Petition Nos.5813 of 2000 & 8365 of 2002 and W.P.M.P. No.3393 of 2002 in W.P. No.5813 of 2000 W.P. No.5813 of 2000: Between: Smt. G. Sarada .. Petitioner AND P.V.P. Chandra Sekhar and others .. Respondents Writ Petition under Article 226 of the Constitution of India praying to issue appropriate writ, order or direction more particularly one in the nature of Writ of Certiorari calling for the records relating to the orders passed by the Central Administrative Tribunal at Hyderabad in O.A. No.162 of 2000, dated 01-03-2000 and quash the same as illegal and arbitrary, and consequently direct the respondents to appoint the petitioner. W.P. No.8365 of 2002: Between: Gude China Babu .. Petitioner AND The Senior Superintendent of Post Offices, Prakasam Division, Ongole and others .. Respondents Writ Petition under Article 226 of the Constitution of India praying to issue appropriate writ, order or direction more particularly one in the nature of Writ of Certiorari calling for the records relating to the orders passed in O.A. No.792 of 2001, dated 17-10-2001 of the Central Administrative Tribunal, Hyderabad and quash the same and consequently set aside the appointment of the 5th respondent as Extra Departmental Branch Post Master of Nagarajupalli, B.O. Prakasam Postal Division, Ongole, Prakasam District. W.P.M.P. No.3393 of 2002 in W.P. No.5813 of 2000: Between: Gude Chinna Babu .. Petitioner And Smt. G. Sarada and others .. Respondents The Miscellaneous petition is filed praying to implead the petitioner herein as the 5th respondent in W.P. No.5813 of 2000. COMMON ORDER: (per Justice G. Bhavani Prasad) Sri P.V.P. Chandrasekhar, a provisional EDBPM (Extra Departmental Branch Post Master), Nagarajupalli as per office order, dated 04-06-1998, filed O.A. No.339 of 1999 before the Central Administrative Tribunal, Hyderabad Bench and in the order, dated 05-03-1999, the Tribunal directed the authorities to consider his application along with others in accordance with law, if he fulfills the conditions required for consideration for the post in pursuance of the notification, dated 11-12-1998 issued for filling up the post. Sri P.V.P. Chandrasekhar filed O.A. No.1475 of 1999 against the official respondents contending that the notification dated 11-12-1998 could not have been issued, as the disciplinary proceedings initiated against the regular candidate were not yet completed. The Tribunal noted that the applicant himself after responding to the notification, filed O.A. No.339 of 1999 seeking consideration of his case and he could not have belatedly questioned the notification as illegal. The Tribunal rejected the contention of the applicant being ignorant of the disciplinary proceedings and the original application was dismissed at the stage of admission opining that having submitted an application in response to the notification, the applicant cannot challenge the notification on other grounds. Subsequently, in O.A. No.110 of 2000 filed by Sri P.V.P. Chandrasekhar against the officials and Smt. G. Sarada, the Tribunal disposed of the Original Application at the admission stage without passing any order, but reminded the official respondents that a provisional appointee cannot be replaced by another provisional appointee. Subsequently, Sri P.V.P. Chandrasekhar filed O.A. No.162 of 2000 against the official respondents and Smt. G. Sarada seeking to set aside the selection of Smt. G. Sarada in pursuance of the notification, dated 11-12-1998 and for a consequential declaration that he was entitled to continue as EDBPM on provisional basis. The Tribunal granted an interim order on 08-02- 2000 directing maintenance of status quo and Sri P.V.P. Chandrasekhar was claiming to be continuing in view of the said status quo order till the disposal of O.A. No.162 of 2000 on 01-03- 2000. In the order in O.A. No.162 of 2000 dated 01-03-2000, the Tribunal noted the respective contentions of the parties and observed that the notification, dated 11-12-1998 was issued when the disciplinary proceedings against the regular candidate were still pending and as per the letter of D.G., P. & T., dated 18-05- 1979, no regular appointment can be made until the disciplinary proceedings are completed fully against the regular candidate. As such, the Tribunal opined that the notification, dated 11-12-1998 has to be considered only as a provisional notification and also observed that the official respondents, who admitted the notification to be a provisional notification in O.A. No.1475 of 1999, could not have reversed their stand. The Tribunal also observed that the selection of the 4th respondent said to have been made on 03-02-2000 only after the disciplinary proceedings were completed against the regular candidate, cannot be considered to be under a regular notification and hence, the Tribunal allowed the Original Application directing treatment of Sri P.V.P. Chandrasekhar as a provisional candidate and further directing the official respondents to issue a fresh regular notification for posting the most meritorious candidate. Smt. G. Sarada filed W.P. No.5813 of 2000 challenging the order of the Tribunal in O.A. No.162 of 2000 contending that she was selected in pursuance of the notification for appointment as a regular candidate, on 03-02-2000 after the delinquent regular appointee was removed from service on 31-07-1999. There was no bar for initiating steps to fill up the post with a regular candidate prior to finalization of the disciplinary proceedings against the incumbent delinquent. Sri P.V.P. Chandrasekhar, who lost in three original applications, could not have challenged her selection and the notification could not have been treated as a provisional notification. O.A. No.162 of 2000 is barred by res judicata due to the decision in O.A. No.1475 of 1999 and the letter of the Director General P & T neither lays down a rule nor is mandatory. Smt. G. Sarada claimed that she is a permanent resident of the village, fulfilling all the terms and conditions and is entitled to be selected and appointed. In W.P.M.P. No.7677 of 2000, interim suspension of the order in O.A. No.162 of 2000 was granted by this Court on 10-04- 2000. While so, Sri P.V.P. Chandrasekhar filed O.A. No.792 of 2001 against the official respondents and one Gude China Babu claiming that in view of the interim suspension granted in W.P. No.5813 of 2000, no action could be taken in respect of the fresh notification issued on 04-04-2000. He claimed that the candidates were issued call letters, dated 29-05-2001, interviews were conducted and Sri Gude China Babu was regularly appointed to the post on 02-06-2001, which was challenged in the Original Application. The Tribunal disposed of O.A. No.792 of 2001 by its order, dated 17-10-2001 noting that in view of the interim order granted by the High Court in W.P. No.5813 of 2000, no action could have been taken in pursuance of the second notification and Smt. G. Sarada selected by the order dated 03-02-2000 is entitled to be appointed subject to compliance with all the formalities. The Tribunal, therefore, considered the appointment of Gude China Babu as incompetent and illegal and any such appointment is subject to the outcome of the stay petition or the writ petition. The Tribunal also observed that till such time, Smt. G. Sarada alone is the legally selected person to that post and consequently, the Tribunal directed the official respondents to take steps to appoint Smt. G. Sarada subject to fulfillment of all the formalities, which shall be subject to the result of W.P.M.P. No.7677 of 2000 in W.P. No.5813 of 2000. The Tribunal also directed the claim of Sri P.V.P. Chandrasekhar to treat the period from 02-06-2001 till the post is filled up regularly as duty to be considered by the official respondents. Gude China Babu filed W.P. No.8365 of 2002 against the said order contending that in pursuance of the notification, dated 04-04-2000, he was found to be the most meritorious candidate fulfilling all the required formalities, due to which, he was appointed as regular BPM on 02-06-2001. He claimed to be discharging his duties since then, after which he received the notice in O.A. No.792 of 2001, which he brought to the notice of the Senior Superintendent of Post Offices, Prakasam Division, Ongole, who assured that the department will look after the matter. Consequently, he did not appear in the matter. But suddenly, he received the proceedings, dated 28-11-2001 removing him from the post and appointing Smt. G. Sarada in the post. He was totally unaware of the orders of the Tribunal and the notification, dated 04-04-2000 was issued in pursuance of the orders of the Tribunal in O.A. No.162 of 2000. He was not a party to O.A. No.162 of 2000 or W.P. No.5813 of 2000 and Smt. G. Sarada, who was never regularly appointed, was never directed to be continued and never challenged his appointment. The direction of the Tribunal was granting relief to Smt. G. Sarada even before W.P. No.5813 of 2000 is decided and the Tribunal acted beyond its jurisdiction in the matter. Sri P.V.P. Chandrasekhar and Smt. G. Sarada got only third division in SSC, whereas he got first division and by virtue of the orders of the Tribunal, his appointment was set aside and Smt. G. Sarada was appointed in his place. Hence, he sought for reversal of the order in O.A. No.792 of 2001 and to set aside the appointment of Smt. G. Sarada. Gude China Babu filed W.P.M.P. No.3393 of 2002 in W.P. No.5813 of 2000 to implead him as the 5th respondent. Sri P.V.P. Chandrasekhar in his counter affidavit in W.P. No.5813 of 2000 claimed that he was appointed as EDBPM of Nagarajupalli on provisional basis by order dated 04-06-1998 and the said post fell vacant as Sri Hanumaiah, the regular EDBPM, was put off from duty with effect from 22-01-1998 on the ground of committing fraud. He contended that in O.A. No.338 of 1999 filed by Ch. Venkatalakshmi, the official respondents stated the notification to be provisional and in O.A. No.110 of 2000, the Tribunal made it clear that one provisional appointee cannot be replaced by another provisional appointee. While he passed SSC in second division and intermediate in March, 1989, Smt. G. Sarada passed SSC compartmentally. Hanumaiah, the original regular appointee, was removed from service only by proceedings, dated 31-07-1999 and hence, the order in O.A. No.162 of 2000 has to be upheld. The official respondents in their counter-affidavit in W.P. No.8365 of 2002 contended that the notification, dated 04-04-2000 was issued in compliance with the directions in O.A. No.162 of 2000 and as Sri P.V.P. Chandrasekhar working since 04-06-1998 would be completing three years of continuous service by 04-06- 2001 and would be getting a right to claim regular appointment, the applications received pursuant to the notification dated 04-04-2000 were reviewed and Sri G. China Babu, the most meritorious candidate, was selected and appointed on 02-06-2001 subject to W.P. No.5813 of 2000. However, in pursuance of the orders in O.A. No.792 of 2001, Smt. G. Sarada was appointed with effect from 05-12-2001 subject to the result of W.P.M.P. No.7677 of 2000 in W.P. No.5813 of 2000, terminating the services of Sri G. China Babu. The orders of interim suspension in W.P. No.5813 of 2000 were on 10-04-2000 subsequent to issuance of second notification. Smt. G. Sarada in her counter-affidavit in W.P. No.8365 of 2002 contended that after her selection and appointment under the notification, dated 11-12-1998, she was continuing as Branch Post Master prior to and after O.A. No.162 of 2000. Before considering the rival contentions, as G. China Babu is necessarily a proper party to the subject matter of dispute, W.P.M.P. No.3393 of 2002 filed by him for being impleaded in W.P. No.5813 of 2000, has to be allowed in the interests of justice and it is accordingly allowed. Smt. S.V. Indira and Sri Ch. Ravinder, learned counsel for the petitioners respectively and Sri Ch. Jagannadha Rao, Sri Andapalli Sanjeev Kumar, Sri K. Someswar Kumar, learned counsel and Sri A. Rajasekhar Reddy, learned Assistant Solicitor General respectively for the respondents, are heard at length. As both the writ petitions arise out of the same issue, they are heard and decided together. The point for consideration is as to who, out of Smt. G. Sarada, Sri P.V.P. Chandrasekhar and Sri Gude China Babu, has to continue as EDBPM of Nagarajupalli ? Point: One Hanumaiah was the regular EDBPM of Nagarajupalli. He was kept out of duty from 22-01-1998 on charges of committing fraud and Sri P.V.P. Chandrasekhar was appointed in the said post on provisional basis and was working as such since the order, dated 04-06-1998. While so, a notification, dated 11-12-1998 was issued inviting applications from eligible candidates for the post of Extra Departmental Branch Post Master of Nagarajupalli and the same was challenged by Sri P.V.P. Chandrasekhar working as provisional EDBPM by the time of notification, in O.A. No.339 of 1999, in which the Tribunal directed consideration of his claim also along with others, if he fulfills the required conditions. It should be noted that the order in O.A. No.339 of 1999, dated 05-03-1999 was noting the notification to be for filling up the post regularly. When Sri P.V.P. Chandrasekhar then attempted to challenge the legality of notification dated 11-12-1998 itself, the Tribunal ordered in O.A. No.1475 of 1999 on 01-10-1999 that having responded to the notification and applied for the post, he could not have challenged the notification on any other grounds. The dismissal of the Original Application on the grounds of acquiescence and participation left the notification dated 11-12-1998 untouched and the official respondents obviously proceeded with the selection. Smt. G. Sarada was admittedly selected and in O.A. No.110 of 2000, the Tribunal only observed on 01-02-2000 that one provisional appointee cannot be replaced by another provisional appointee and did not give any positive direction interfering with the selection or appointment of Smt. G. Sarada. When the selection of Smt. G. Sarada was under challenge in O.A. No.162 of 2000, Sri P.V.P. Chandrasekhar appeared to have continued as provisional EDBPM by virtue of the interim status quo order dated 08-02-2000 till the final disposal of the Original Application on 01-03-2000. The Tribunal in its final order set aside the notification, dated 11-12-1998 considering it to have been issued before the disciplinary proceedings against the regular candidate became final with his removal from service on 31-07-1999 contrary to the letter of the Director General P & T, dated 18-05-1979. The Tribunal directed issuance of a fresh notification and continuance of Sri P.V.P. Chandrasekhar as provisional appointee. The letter dated 18-05-1979 discouraged provisional appointment of ED Agents continued for indefinite periods, while, of course, advising that pending departmental or judicial proceedings against a regular incumbent put off duty, a provisional appointment may be made to meet the contingency of a decision to reinstate the regular incumbent later. The express language of the letter is not couched in mandatory terms and the instructions were so worded as to apply as far as possible and not made inflexible and rigid. That apart, the challenge by Smt. G. Sarada to the order in O.A. No.162 of 2000 directing fresh notification and continuance of Sri P.V.P. Chandrasekhar as provisional EDBPM also resulted in interim suspension of the order in O.A. No.162 of 2000 on 10-04-2000 itself, while the official respondents in the meanwhile proceeded with the second notification, dated 04-04-2000 and selected Gude China Babu for the post, which was under challenge by Sri P.V.P. Chandrasekhar in O.A. No.792 of 2001. The Tribunal found that in view of the interim order of the High Court in W.P. No.5813 of 2000, the second notification could not have been proceeded with and Smt. G. Sarada selected under the first notification on 03-02-2000 subsequent to the dismissal of the regular incumbent on 31-07-1999, was entitled to be appointed, if she fulfills all other requirements. Smt. G. Sarada was clearly held to be the only person entitled to be appointed and continued pending finalization of W.P. No.5813 of 2000. In so far as Gude China Babu is concerned, he was an applicant in pursuance of the second notification, dated 04-04- 2000 and was not in the picture earlier. Though he claimed to have discharged the duties of regular Branch Post Master from 02-06-2001 in pursuance of his selection under the second notification, he was terminated with immediate effect by proceedings, dated 28-11-2001 in pursuance of the orders in O.A. No.792 of 2001 and since then he never discharged the duties of the post. Whatever be the reasons for which he did not contest O.A. No.792 of 2001 in spite of personal service of notice, he cannot impart any legality to the second notification when he was admittedly informed that his selection and appointment were subject to the outcome of W.P. No.5813 of 2000 since inception as seen from the copy of the letter dated 13-06-2001 communicated to him by the 1st respondent. When a direction in O.A. No.162 of 2000 by the Tribunal to issue a fresh notification for whatever reasons, was suspended by the High Court in W.P.M.P. No.7677 of 2000 in W.P. No.5813 of 2000, the issuance of second notification and all consequential proceedings arising therefrom will be null and void being opposed to the positive interim directions of the High Court as rightly found in O.A. No.792 of 2001. Gude China Babu cannot claim any right to the post by virtue of his selection under such an invalid notification or by virtue of his discharging the duties of the post for some time by virtue of selection and appointment under such notification. The question of Gude China Babu being a party to O.A. No.162 of 2000 or W.P. No.5813 of 2000 does not arise, as he became an applicant to the post only subsequently under the notification dated 04-04-2000 and even assuming that the orders of interim suspension by the High Court were on 10-04-2000 subsequent to the notification, dated 04-04-2000, once the basis for issuance of second notification stood removed by the order of interim suspension, no further action could have been taken under such notification. The official respondents or anybody else never obtained appropriate orders from the High Court to proceed with the notification, dated 04-04-2000 through appropriate orders varying the orders of interim suspension, dated 10-04-2000. Irrespective of who challenged the appointment of G. China Babu, it is not for him to indicate as to who, out of Sri P.V.P. Chandrasekhar and Smt. G. Sarada, should function in the post. Admittedly, since the termination of G. China Babu with immediate effect on 28-11-2001, Smt. G. Sarada was working as the Branch Post Master with effect from 05-12-2001 up to date. Sri P.V.P. Chandrasekhar, working as provisional EDBPM from 04-06-1998, had his performance of duties discontinued at least since 02-06-2001, the date of G. China Babu joining his duties in pursuance of his selection and appointment under the second notification and he never resumed his duties thereafter. He was not selected for appointment either under first notification or under second notification before or after the finalization of the disciplinary proceedings against the earlier regular incumbent and his challenge to either notification does not appear to have any locus standi. Any administrative instructions of the Director General, P & T through his letters cannot confer any enforceable rights on Sri P.V.P. Chandrasekhar and even if there is any deviation from the instructions of the Director General, P & T, such irregularity cannot be considered as illegality, if the process of notification, selection and appointment was in accordance with the prescribed procedure governing such post. When the appointment of Smt. G. Sarada on the selection under the first notification was only on 03-02-2000 much later to the finalization of the disciplinary proceedings regarding the earlier regular incumbent who was removed with effect from 31-07-1999, the same may not be even capable of being construed to be in violation of the instructions of the Director General, P & T. What was advised was to make only a provisional appointment till the dismissed or removed employee exhausted all channels of appeal, but it does not prohibit commencing the process of notification and selection before such a contingency. The dismissed EDBPM was not claimed to have preferred any appeal and consequently, the selection and appointment of Smt. G. Sarada were never in suspense due to the pendency of any such proceedings at any time after her appointment. The view of the Tribunal that no notification could have been issued when disciplinary proceedings were pending, does not exactly reflect the spirit of the instructions of the Director General, P & T in his letter, dated 18-05-1979 and the direction of the Tribunal to issue a fresh notification on that count treating Sri P.V.P. Chandrasekhar as provisional appointee entitled to continue in the meanwhile, does not, therefore, appear sustainable. Even otherwise for invoking the extraordinary original jurisdiction of this Court, the result of O.A. No.1475 of 1999 dismissing the challenge to the notification, dated 11-12-1998 by Sri P.V.P. Chandrasekhar, should act as a bar for challenging the said notification again on some other ground in O.A. No.162 of 2000 and the principles of res judicata or constructive res judicata are, undoubtedly, applicable even to writ proceedings. If a ground of challenge which ought to have been taken, was not taken, it ought to be considered as taken and negatived and there cannot be any piece meal challenge resulting in multiplicity of proceedings. The notification, dated 11-12-1998 and consequential selection and appointment of Smt. G. Sarada cannot, therefore, be set at naught and consequently, Smt. G. Sarada has to be considered as a regular appointee entitled to continue in the post, the duties of which she is performing since 05-12-2001 in pursuance of the proceedings issued on 28-11-2001 terminating the services of G. China Babu with immediate effect and appointing Smt. G. Sarada with immediate effect. Accordingly, W.P. No.5813 of 2000 has to succeed and W.P. No.8365 of 2002 has to fail. In the result, W.P. No.5813 of 2000 is allowed and W.P. No.8365 of 2002 is dismissed and both parties shall bear their own costs. __________________ B. PRAKASH RAO, J _____________________ G. BHAVANI PRASAD, J Date: 19-04-2010 Svv