IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE NINTEENTH DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE GHULAM MOHAMMED & THE HON'BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO : 2054 of 2009 Between: Shankar S/o.Darmu Naik Zaheerabad, Medak District. ..... PETITIONER AND 1 The Government of Andhra Pradesh, represented by its Principal Secretary, Social Welfare Department, Secretariat, Hyderabad. 2 The Commissioner & Director of Social Welfare, A.P., Hyderabad. 3 The District Collector (S.W.), Medak District at Sangareddy. 4 The Deputy Director of Social Welfare, Medak at Sangareddy. 5 E.Pentaiah S/o.Pochaiah Jogipet, Medak 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 or order or orders or directions particularly in the nature of Writ of Mandamus calling for the records pertaining to orders of this Hon'ble Tribunal dt. 12.12.2008 in O.A.No.2641 of 2008 and set aside the same as illegal, arbitrary, contrary to law and violative of article 14, 16 and 21 of Constitution of India and non-est in the eyes of law, discriminative in nature, in the interest of justice and pass any such other order or orders. Counsel for the Petitioner:MR.M.V.RAJA RAAM Counsel for the Respondent No.: GP FOR SERVICES II The Court made the following : . THE HON'BLE SRI JUSTICE GHULAM MOHAMMED & THE HON'BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO : 2054 of 2009 ORDER: (per Hon’ble Sri. Justice Ghulam Mohammed) This writ petition is filed by the petitioner seeking a direction in the nature of certiorari, to call for the records pertaining to the order passed in O.A.No:2641 of 2008 on 12.12.2009 by the A.P. Administrative Tribunal and to set aside the same as illegal and arbitrary. The petitioner is the 5th respondent before the tribunal and the 5th respondent herein the applicant. He filed the O.A seeking to set aside the proceedings No:A1/692/2006, dated 19.3.2008 and also proceedings Rc.No:A1/692/2006, dated 19.3.2008 issued by the District Collector (SW), Medak at Sangareddy and hold that the applicant is entitled for promotion to the post of Hostel Welfare Officer Grade-I with effect from the date on which the unofficial respondent was promoted to the said post on the basis of clarification issued by the Commissioner of Social Welfare vide Rc.No.13/13421/2006, dated 19.3.2008 with all consequential benefits. The tribunal having relied on its own order passed in O.A.No:1534 of 2005, which was confirmed by this Court in W.P.No:18415 of 2006 and having come to the conclusion that the applicant was not under currency of punishment and the order passed by the disciplinary authority got merged with the orders of the appellate authority and therefore, the orders dated 19.3.2008 have no legs to stand, allowed the O.A directing the respondents to consider the claim of the applicant for promotion to the post of hostel welfare Officer Grade.I with effect from the date on which the unofficial 5th respondent was promoted. Having aggrieved by the same, the present writ petition is preferred by the unofficial 5th respondent. Heard the learned counsel and perused the entire material available on record and the order impugned. Before going into the merits of the case, it is pertinent to note that despite the notice served on the unofficial 5th respondent, who is the writ petitioner herein, he has not turned up and contested the matter before the tribunal. Sri M.V.Rajaram, the learned counsel appearing on behalf of the unofficial 5th respondent-writ petitioner that though the order of the appellate authority merges regarding punishment, it does not mean that the writ petitioner has no right to get automatic promotion and that when the applicant has undergone a punishment of stoppage of two increments with effect from 5.10.2007 passed by the 2nd respondent awarding a punishment of censure which will be in force for a period of two years, but not for a period of one year and that even assuming that the order of punishment merges with the order of the District Collector from 4.1.2006, it will be in operation till 4.1.2008. Therefore, the order of the tribunal is not justified and as such, the same is liable to be set aside. At this stage, learned G.P. for services-II contended that the applicant as well as the writ petitioner belong to S.T category and they fulfilled the requisite conditions for promotion to the post of Hostel Welfare Officer Grade-I and the applicant was under the currency of punishment as on the crucial date i.e., 1.9.2007 and he was undergoing a major penalty and therefore, his case was not considered for promotion to the post of Hostel Welfare Officer Grade-I. However, pursuant to the order of the tribunal, the unofficial 5th respondent-writ petitioner was reverted to the post of hostel welfare officer Gr.II. On the other hand, Sri D.Lingarao, the learned counsel appearing on behalf of the applicant, vehemently contended that the post of Hostel Welfare Officer Grade-I is a non selection post and the applicant is a senior most standing at serial No.34 whereas the writ petitioner stands at serial No:54 in the seniority list and therefore, the tribunal is justified in directing the authorities to consider the case of the applicant for promotion. It is further submitted that the punishment of two increments imposed against the applicant, was modified to that of censur and the same was not an impediment to consider his promotion. In support of his contention, he flied on a Division Bench judgment of this Court reported in A.VEMA REDDY V. CONTROLLER GENERAL OF DEFENCE ACCOUNTS, NEW DELHI & OTHERS[1] wherein it is held thus: “Services-Promotion-Promotion to be made on the basis of seniority-cum-fitness-Imposing punishment of censure is not a ground for not considering the case of the employee for promotion” At this stage, it is to be noted that the fact that remains undisputed is that initially a punishment was imposed on the applicant by the 1st respondent vide proceedings dated 4.1.2006 and the same was modified to that of censure by the appellate authority vide proceedings dated 5.10.2007. In this regard, the tribunal has relied on its own order passed in O.A.1534 of 2005, which reads as under: “The applicant has been suspended from service on 11.3.1999. He has been reinstated into service on 22.6.1999. He was not granted increments till 18.8.2004. The applicant has been imposed with a punishment of three annual grade increments with cumulative effect by the proceedings of the Collector, dated 21.11.2002 and the same has been modified by the appellate authority i.e., the Chief Commissioner of Land Administration by proceedings dated 2.4.2006. The order of the appellate authority merges with the order of the original order of punishment. Therefore, the punishment of stoppage of increments is deemed to have commenced on 1.10.1999 as the same has not been sanctioned till 19.9.2005, by which date the appellate authority has passed the order modifying the punishment. The applicants annual grade increments due as on 1.10.1999, 1.10.2000 and 1.10.2001 shall be deemed to have been stopped and the applicant would be entitled to annual grade increments from 1.10.2002 onwards. The period of subsistence of penalty should be treated to have come to an end by 139.2002. Therefore, the applicant is right in contending that the applicant is eligible to be considered for promotion/appointment by transfer to the higher post after 1.10.2003 onwards.” It is also not out of place to mention that the above order of the tribunal has been confirmed by this Court in W.P.No:18415 of 2006 holding that the tribunal is perfectly justified in passing the impugned order directing the authorities to consider the case of the applicant for promotion. In this background of the matter coupled with the observations laid down by this Court in the above decision (citation-1 supra), We are of the view that since the post in question is a non selection post and seniority- cum-fitness is the criteria for promotion and mere punishment of censure is not an impediment for considering the case of the employee for promotion and since the applicant is most senior than the unofficial 5th respondent-writ petitioner, the tribunal is justified in directing the respondents to consider the claim of the applicant for promotion to the post of Hostel Welfare Officer Grade-I with effect from the date on which the unofficial 5th respondent-writ petitioner was promoted. Therefore, the order impugned does not warrant any interference by this Court. Consequently, this writ petition is devoid of merits and as such, the same is liable to be dismissed. Accordingly, this writ petition is dismissed. No costs. __________________________ Justice Ghulam Mohammed ______________________ Justice Sanjay Kumar Dated: 19th March, 2009 gurc. THE HON'BLE SRI JUSTICE GHULAM MOHAMMED & THE HON'BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO :2054 of 2009 (Order of the Division Bench delivered by the Hon’ble Sri. Justice Ghulam Mohammed) 19th March, 2009 [1] 2001 (5) ALD 131 (DB)