IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE SIXTH DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE V.ESWARAIAH & THE HON'BLE SRI JUSTICE P.SWAROOP REDDY WRIT PETITION NO : 5467 of 2009 Between: G. Vinod Kumar S/o. Laxminarayana O/o. Assistant Transport Officer, Regional Work Shop (SHTO), Warangal. ..... PETITIONER AND 1 Government of Andhra Pradesh, Health, Medical and Family Welfare (F1) Department, rep. by its Principal Secretary, Hyderabad. 2 The Director of Health Koti, Hyderabad. 3 The State Health Transport Officer, Sanjeevareddy Nagar, Hyderabad. 4 V. Govind, L.D. Computer, Primary Health Center, Palakurthy, Warangal 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 to issue a writ, order or direction more in the nature of Mandamus declaring the impugned orders issued in Government in G.O.Ms.No.48, H.M.&F.W., dated 12.2.2009 and the orders issued by the Administrative Tribunal in O.A.NO.3635 of 2009 on 27.2.2009 as illegal, arbitrary, unjust and subversive of Articles 14, 16 and 21 of the Constitution and pass Counsel for the Petitioner:MR.D.LINGA RAO Counsel for the Respondent No.: GP FOR MEDICAL HEALTH & FAMI.WELFARE The Court made the following : THE HONOURABLE SRI JUSTICE V.ESWARAIAH & THE HONOURABLE SRI JUSTICE P.SWAROOP REDDY WRIT PETITION No.5467 of 2009 ORDER: (Per Hon’ble Sri Justice V.Eswaraiah) The writ petitioner is the applicant before the Andhra Pradesh Administrative Tribunal, Hyderabad (hereinafter referred to as “the Tribunal”) in Original Application No.3635 of 2009. The said Original Application was filed, questioning the legality and validity of G.O.Ms.No.48, Health, Medical & Family Welfare (F1) Department, dated 12.02.2009 issued by the Government of Andhra Pradesh. Pending disposal of the O.A. the petitioner sought for suspension of the said G.O.Ms.No.48, dated 12.02.2009. The Tribunal by order dated 27.02.2009, while admitting the O.A. declined to suspend the operation of G.O.Ms.No.48, dated 12.02.2009 on the ground that petitioner/applicant is not qualified for the appointment by transfer as Service Engineer, and the balance of convenience does not lie in his favour. The Government issued the said G.O. in favour of the 4th respondent to recruit the 4th respondent by transfer as Service Engineer in the existing vacancy/arising vacancy in the State Health Transport Organisation, in relaxation of Andhra Pradesh State Medical Health Transport Service Rules, 1970 issued in G.O.Ms.No.1238, dated 30.05.1970. It is not in dispute that the post of the Service Engineer has to be filled up by method of recruitment by transfer from the feeder category of Foreman in Andhra Pradesh State Medical and Health Transport and Equipment Subordinate Services or by direct recruitment, and one must possess a degree in Mechanical Engineering with Automobile as one of the subjects either by direct recruitment or recruitment by transfer to the post of Service Engineer. Admittedly the 4th respondent is working as Lower Division Computer in Primary Health Centre, Palakurthy, Warangal District and it is stated that he belongs to S.T. community and he possessed requisite qualification of B.Tech (Mechanical) for the post of Service Engineer, and he worked as incharge of an Automobile Garage for 3 years. The learned counsel appearing for the 4th respondent submits that though the petitioner is working as a Foreman, but to consider his case for appointment to the post of Service Engineer, he should have completed three years of service as a Foreman. The petitioner has been working as a Foreman with effect from 28.05.2007. It is stated that admittedly as on the date of issuance of the G.O. the petitioner has not even completed two years service as a Foreman. Therefore, the Tribunal declined to suspend the operation of the said relaxation order on the ground that the writ petitioner/applicant is not qualified for appointment to the post of Service Engineer. The learned counsel appearing for the petitioner submits that no doubt under rule 31 of the Andhra Pradesh State and Sub-ordinate Service Rules, 1996, the Government has got the power to relax the rule, but the exercise of such power must be considered if it is necessary in the public interest or where the application of such rule or rules is likely to cause undue hardship to the person or class of persons concerned. It is stated that the Government has not considered any public interest or hardship caused to the 4th respondent. In support of his contentions, the learned counsel for the petitioner relied upon the judgment of this court in the case of D.Ramesh Babu v.Principal Secretary to Government[1] wherein this court held as under: “The Executive Governments under a constitutional order are not conferred powers for the personal gratification of successive State actors who occupy executive office. The constitutional and legal grant of power is coupled with an obligation to act in harmony with the constitutional mandate of equality and with a view to subserve the public interest not according to individual whim. Public power is not always a prerogative power. The power of relaxation is a species of public power to be exercised in public interest, rationally, equitably and on legitimate classification parameters. It cannot be discriminatorily applied by irrelevant or shady choice or identification of persons for grant of the benefits of relaxation”. The learned counsel appearing for the 4th respondent submitted that it is not correct to say that the petitioner got one year nine months service as on the date of issuing G.O., but he got only one year three months service. It is stated that three years of service is required as a Foreman and admittedly the petitioner got only one year three months service as on the date of aforesaid G.O. and therefore he will be entitled for appointment by transfer to the said post of Service Engineer by 28.05.2010 only. The learned counsel appearing for 4th respondent also submits that the 4th respondent belongs to S.T. community and the rule of reservation will not be effected, and as the said post cannot be kept vacant, having taken into consideration the public interest only the case of 4th respondent was considered. We are not inclined to express the opinion with regard to rival contentions of both the parties as the Original Application is pending before the Tribunal. We are of the opinion that it is just and proper for the Tribunal to consider and dispose of the O.A. which is filed questioning the validity and legality of G.O.Ms.No.48, dated 12.02.2009, as expeditiously as possible, preferably within a period of six weeks from the date of receipt of copy of this order. Pending disposal of the Original Application, status quo existing as on today shall be maintained. The writ petition is accordingly disposed of. No order as to costs. _________________ V.ESWARAIAH,J _____________________ P.SWAROOP REDDY,J 6th July, 2009. Ivd/Dsr [1] 2005(3) ALT 612 (D.B)