IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE SIXTEENTH DAY OF DECEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.9002 of 2009 Between: E.Surendra Babu ..... PETITIONER AND The Principal Secretary to Government Municipal Administration & Urban Development (c) Department, A.P.Hyderabad and 3 others .....RESPONDENTS The Court made the following: THE HON'BLE SRI JUSTICE V.ESWARAIAH & THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.9002 of 2009 ORDER: (per Hon’ble Sri Justice Vilas V.Afzulpurkar) This writ petition is filed by the 3rd respondent in O.A.9625/2002 on the file of the Andhra Pradesh Administrative Tribunal, Hyderabad (hereinafter referred to as “the Tribunal”). While the 3rd respondent is the writ petitioner, the 4th respondent herein is the applicant in O.A.9625/2002. The said O.A. was allowed by the Tribunal under the impugned order dated 05.03.2009. For the sake of convenience, the parties herein are referred to as they are arrayed before the Tribunal. 2. The facts in brief are as follows:- a) The applicant as well as the 3rd respondent were both working as Draughtsmen Grade-III in the Public Health Department under the control of the official respondents Nos.2 and 3 herein. While the applicant was appointed as Draughtsman Grade-III on 23.02.1991, Respondent No.3 was appointed as Draughtsman Grade-III on 02.02.1993. Later the applicant opted to go as Assistant Engineer, Public Health Department as he was already possessing diploma in Civil Engineering and he was the senior most of the Draughtsman Grade-III. His representation dated 30.03.1998 seeking the said promotion as Assistant Engineer was approved and by proceedings of the Engineer-in-Chief, Public Health, Hyderabad dated 21.04.1998 he was promoted as Assistant Engineer, Public Health in the scale of pay of Rs.2600-5580. The said order of promotion is produced in the material papers at page-12 which shows that the lien of the applicant in the category of Draughtsman Grade-III is maintained, as the promotion as Assistant Engineer is temporary against the quota of direct recruitment. The usual condition that the promotion is temporary and does not confer any right for regular promotion was also mentioned in the said order. b) While the applicant continued to work as Assistant Engineer, the 3rd respondent was promoted as Draughtsman Grade-II on 21.07.1998 and thereafter upgraded as Draughtsman Grade-I on 02.04.2000 and thereafter he was appointed by transfer as Deputy Executive Engineer vide proceedings dated 06.09.2002. The said promotion of the 3rd respondent dated 06.09.2002 was questioned by the applicant in the O.A. before the Tribunal primarily on the ground that as his lien continues in the category of Draughtsman Grade-III, ignoring his claim, 3rd respondent could not have been promoted either as Draughtsman Grade-II or Draughtsman Grade-I or the Deputy Executive Engineer under the impugned proceedings dated 06.09.2002. The said O.A. was resisted by the official respondents as well as 3rd respondent on the ground that applicant himself voluntarily opted to go as Assistant Engineer and has been working as such right from 1998, he has, therefore, no right to question the promotions earned by the 3rd respondent in the interregnum. It was contended that since the applicant is working as Assistant Engineer for several long years, he has no claim or right to the post of Draughtsman Grade-III which he originally held. The Tribunal, however, considered the aforesaid contentions and came to the conclusion that as the applicant continued to have lien on the post of Draughtsman Grade-III, and the same having not been terminated by any order of termination of lien, the claim of the applicant for promotion in the category of Draughtsman cannot be denied. Consequently, the O.A. was allowed and the Tribunal gave the following operative directions which are extracted hereunder; “The official respondents are directed to promote the applicant as Draughtsman Gr.I and afterwards promote him as Deputy Executive Engineer with all consequential benefits. If there is a vacancy of Deputy Executive Engineer, the 1st respondent may appoint the applicant as Deputy Executive Engineer, by considering the notional seniority for promotion to the post of Draughtsman Gr.I and later to the post of Deputy Executive Engineer without disturbing the 3rd respondent from the present post. If there is no existing vacancy of Deputy Executive Engineer, Respondents 1 and 2 are directed to first accommodate the applicant, if necessary, by reverting the 3rd Respondent, as applicant is senior as per the final seniority list of Draughtsman Gr.III. The entire exercise shall be completed within three months from the date of receipt of this order.” c) Questioning the aforesaid order, the 3rd respondent has filed the present writ petition. 3. We have heard Mr.M.Surender Rao, learned counsel appearing for the petitioner, learned Government Pleader, representing the official respondents and Mr.K.Rathanga Pani Reddy, learned counsel appearing for the 4th respondent/applicant. 4. Several contentions have been raised by the learned counsel on either side with respect to the effect of lien and as to when it gets terminated. The learned counsel for the writ petitioner/3rd respondent contends that by virtue of continuous working of the applicant as Assistant Engineer with effect from 21.04.1998, it is deemed that his probation was declared in the said promotional post and also deemed to have been confirmed in the same post. The learned counsel has relied upon the Rule position in support of the aforesaid contention including the Fundamental Rule-14 read with definition of “lien” as mentioned in Rule-2(13). The learned counsel also relied upon a decision in Tarsem Singh v. State of Punjab[1] stating that “promotion” under Service Jurisprudence means advancement of employee to a higher post carrying higher grade and status. The learned counsel also brought to our notice the proceedings dated 25.08.2007 issued by the office of the Engineer-in-Chief, Public Health, Hyderabad which is produced in the material papers at page-21, whereunder the services of as many as 11 employees who were working as Assistant Engineers and who were transferred from the cadre of Draughtsman/Work Inspector and who are working as Assistant Engineer in Public Health Department were regularized with effect from the date on which they are working as Assistant Engineers. So far as the applicant is concerned, he was shown at Sl.No.6 of the said proceedings and his services as Assistant Engineer are regularized with effect from 24.04.1998 i.e. the date on which he joined as Assistant Engineer. Based on the said proceedings, the learned counsel contends that the said proceedings, giving retrospective regularization of services of the applicant as Assistant Engineer, negatives his claim for promotion in the Draughtsman category. He also contends that the said proceedings though issued during pendency of O.A. the applicant has not questioned the same. 5. Per contra, Mr.K.Rathanga Pani Reddy, learned counsel for the applicant submits that the legal position with regard to holding of lien by the applicant in the category of Draughtsman is not only clear but the order dated 21.04.1998 wherein he was transferred as Assistant Engineer itself categorically states that though the applicant is promoted, his lien in the category of Draughtsman-III continues and the said lien was never terminated, and as such, even if the applicant remained as Assistant Engineer, his claim cannot be ignored and the 3rd respondent cannot be promoted. It is, in that view, the Tribunal has rightly upheld the prayer of the applicant in the O.A. He also submitted that even as per the impugned directions of the Tribunal if there a vacancy of Deputy Executive Engineer exists, the 3rd respondent need not be disturbed. To the extent of the regularization proceedings dated 25.08.2007 is concerned, the learned counsel states that the said proceedings are issued after filing of the O.A. and as such it cannot defeat the rights of the applicant in the O.A. in view of Sec.19(4) of the Administrative Tribunals Act, 1985. The learned counsel also states that the said proceedings were brought to the notice of the Tribunal by the learned Government Pleader and the Tribunal has already dealt with the same in Paragraph-8 of the impugned order and did not accept the contentions of the learned Government Pleader on the ground that the said proceeding is issued without giving notice to the applicant. 6. We have considered the aforesaid contentions. To the extent of the first aspect as to whether the lien of the applicant continues in the category of Draughtsman is concerned, we are in agreement with the view of the Tribunal that the lien of the applicant does not get terminated merely because he was temporarily promoted as Assistant Engineer. As long as the right of lien exists, the applicant continues to have claim in the Draughtsman category. Admittedly, he is the senior most and merely because he was temporarily promoted as Assistant Engineer, any promotions in the category of Draughtsman Grade-III, ignoring the claim of the applicant, cannot be sustained. Consequently, therefore, the promotions earned by the 3rd respondent, which were granted by ignoring the claim of the applicant, cannot be sustained. However, on the second aspect, namely the proceedings dated 25.08.2007 regularizing the services of the applicant in the category of Assistant Engineer with effect from 24.04.1998 is concerned, the learned counsel for the applicant was unable to satisfy us as to whether the applicant had ventilated any grievance with respect to the said proceedings before the Tribunal. By the aforesaid order, the services of the applicant stand regularized as Assistant Engineer, and if the applicant has not questioned the said proceeding, the said order by itself amounts to terminating the lien of the applicant in the Draughtsman category. The learned counsel for the applicant submitted that the said proceeding was examined by the Tribunal, as is evident from the findings in Paragraph-8 of the order. However, we do not find any independent discussion with regard to the effect of the said order nor we find that the applicant had even amended the O.A. or questioned the said proceeding in any manner. Reliance by the learned counsel for the applicant on Sec.19(4) of the Administrative Tribunals Act, 1985 to get over the said proceeding is also not tenable in view of the fact that the subject matter of the O.A. is only related to the ignorance of the claim of the applicant while promoting the 3rd respondent in the category of Draughtsman, whereas the said proceedings dated 25.08.2007 relatied to regularization of several Assistant Engineers who were transferred from the category of Draughtsman/Work Inspector on various dates and working as such in the Public Health Department. We are, therefore, not able to accept the said contention of the learned counsel for the applicant and it cannot be said that said proceedings dated 25.08.2007 stand abated under Sec.19(4) of the Administrative Tribunals Act, 1985. 7. As stated above, as we are not able to find any material to satisfy us that the applicant had questioned the said proceeding either separately or by amendment in the pending O.A. whereby adjudication with regard to the effect of the said proceeding vis-à-vis the claim of the applicant in the O.A.remained unconsidered. The finding of the Tribunal in Paragraph-8 of the impugned order in ignoring the said proceeding on the ground of want of notice is also not sustainable inasmuch as not only the applicant but also several Draughtsmen Grade-III/Work Inspectors who were working as Assistant Engineers as per their own representations and requests were regularized with retrospective effect under the aforesaid proceedings and the said benefit which accrued to all the said regularized employees, including the applicant, could not have invalidated on the ground that the applicant had no notice. 8. Since the issue revolves around the termination of the lien of the applicant either by specific order or by the proceedings dated 25.08.2007, referred to above, by his regularization in another category, the said aspect, in our opinion, requires examination. We are also not in a position to adjudicate upon the said aspect as the said regularization proceedings are not directly or indirectly questioned before the Tribunal and are not subject matter of the present writ petition. Noticing the aforesaid difficulty, the learned counsel for the applicant submits that though the said proceeding is dealt with by the Tribunal in Paragraph-8, separate challenge to the said proceeding, however, appears to have not been made on account of inadvertence. In the circumstances, alternatively, he submits that the applicant be permitted to amend the O.A. as the said aspect has already been considered by the Tribunal in Paragraph-8 of the impugned order. We are, therefore, of the view that for a complete and effective adjudication of the issues involved, it would be just and proper to set aside the impugned order and permit the applicant to amend the O.A. so as to enable him to question the legality and validity of the regularization proceedings dated 25.08.2007, referred to above, and after giving opportunity to both sides, the Tribunal is requested to consider the matter afresh and pass appropriate orders, in accordance with law. We also make it clear that in view of the fact that the said regularization proceedings dated 25.08.2007 was passed pending the O.A. and also in view of the fact that the Tribunal had noticed the above proceedings and had made observations regarding thereto in Paragraph-8 of the impugned order, the applicant shall be entitled to seek amendment of the prayer without any impediment with regard to Limitation aspect. 9. As mentioned above, the Writ Petition is accordingly allowed and the O.A.9625/2002 is remitted back to the Tribunal for fresh consideration, in the light of the observations and directions, as above. There shall be no order as to costs. ___________________ V.ESWARAIAH,J ________________________ VILAS V. AFZULPURKAR,J Dated: 16.12.2009 Dsr [1] 1994(4) SLR 577