HON'BLE SRI JUSTICE GHULAM MOHAMMED AND HON'BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NOS. 1855 OF 2004 AND 2320 OF 2005 WRIT APPEAL NO. 1855 OF 2004 Between: Tirumala Tirupati Devastanams represented by its Executive Officer, Tirupathi ………….Appellant AND D. Nagulu Naidu , S/o Krishnama Naidu ………….Respondent WRIT APPEAL NO. 2320 OF 2005 Between: D. Nagulu Naidu , S/o Krishnama Naidu ………….Appellant AND Executive Officer, Tirumala Tirupati Devastanams, Tirupathi ………….Respondent COMMON JUDGMENT: These two appeals, with a long and chequered history, require the recounting of the facts in some detail. D. Nagulu Naidu, the petitioner in the two Writ Petitions from which these two appeals arise, was appointed in the year 1979 as a NMR Skilled Electrician in Tirumala Tirupati Devasthanams Museums at Tirupathi (for short “T.T.D”) on a temporary basis. He was absorbed in service as a Helper under proceedings dated 30.10.1990 with effect from 19.4.1988 and promoted as an Assistant Wireman (Electrical) with effect from 18.6.1992. He acquired I.T.I (Electrician Trade) qualification in the year 1993. Thereafter, he filed Writ Petition No. 14282 of 1994 seeking a declaration that he was entitled to the regular scale of pay attached to the post of Electrician with effect from his initial appointment as a NMR in the year 1979. He also challenged the proceedings dated 30.10.1990 whereby he was absorbed in the lower post of Helper. This absorption in service was effected keeping in view the policy of the Government in G.O.Ms.No. 296 dated 19.4.1988 to regularise the services of NMR employees in the T.T.D. Writ Petition No. 14282 of 1994 was allowed by a learned Single Judge of this Court on 23.1.1995. The learned Judge categorically recorded a finding that the T.T.D had throughout extracted the work of an Electrician from D. Nagulu Naidu and accordingly directed it to appoint him to the post of Electrician from the date on which his juniors were appointed or at least from the date of extracting the work of an Electrician from him after he acquired the requisite qualification for being appointed as such. The learned Judge further observed that in the event the petitioner was appointed as such, he would not be entitled for the difference of salary up to that date but would be entitled for all other benefits like increments, seniority etc. Compliance was directed within three months. This order admittedly attained finality as the TTD did not choose to file an appeal against it. Pursuant to the aforesaid direction, the TTD issued proceedings dated 30.1.1996 rejecting the claim of D. Nagulu Naidu on the ground that none of his juniors had been appointed or promoted as Electricians and that the work discharged by him did not fall within the ambit of the duties of an Electrician. Questioning the same, D. Nagulu Naidu filed Writ Petition No. 3641 of 1996 before this Court. During the pendency thereof, the T.T.D by order dated 17.5.1996 transferred him from Tirupathi to Tirumala. The same was challenged by D. Nagulu Naidu before this Court in Writ Petition No. 10674 of 1996. Refusal of an interim order in the said Writ Petition constrained him to file W.A.No. 620 of 1996. A learned Division Bench of this Court, by order dated 4.7.1996, initiated contempt proceedings against the respondents in the said appeal suo motu. This action was resorted to as the Bench opined that the stand of the TTD was opposed to the settled findings recorded in the order passed in Writ Petition No. 14282 of 1994. The Bench therefore observed that it had to take recourse to the plenary power under Article 215 of the Constitution to ensure that the order in W.P.No. 14282 of 2004 was effectuated and those who were guilty of wilful disobedience were strongly dealt with. The Court accordingly directed their presence. Under threat of these contempt proceedings, the T.T.D issued proceedings dated 12.7.1996 appointing D. Nagulu Naidu as an Electrician with effect from the date of his acquiring ITI (Electrician Trade) qualification. The said fact was reported to the learned Division Bench on 15.7.1996 and consequently, the contempt proceedings and the Writ Appeal were disposed of. However, in the meanwhile the TTD, being aggrieved by the initiation of contempt proceedings by the learned Division Bench, approached the Supreme Court in Civil Appeal No. 14221 of 1996. The same was disposed of by the Supreme Court by judgment dated 7.11.1996, whereby the order dated 4.7.1996 passed by the learned Division Bench of this Court in W.A.No. 620 of 1996 was set aside. The Supreme Court was of the opinion that the Division Bench was not justified in exercising powers under Article 215 of the Constitution when the appeal before it was in the context of the refusal by a learned Single Judge to grant an interim order in the Writ Petition filed against a transfer order. Upon the passing of the order by the Supreme Court, the TTD issued proceedings dated 19.12.1996 stating that, pursuant to the said order dated 7.11.1996 passed by the Supreme Court, the order of appointment issued in favour of D. Nagulu Naidu was withdrawn and directing that he be continued as an Assistant Wireman in its service. Aggrieved thereby, D. Nagulu Naidu filed Writ Petition No. 1593 of 1997. The learned single Judge, by common order dated 18.6.2004, disposed of Writ Petition No. 3641 of 1996 without going into its merits and allowed Writ Petition No. 1593 of 1997 setting aside the impugned proceedings dated 19.12.1996. This Common Order is under appeal before us in these two Writ Appeals. Perusal of the said order reflects that the learned Judge was of the opinion that Writ Petition No. 3641 of 1996 did not survive for consideration unless the petitioner failed in Writ Petition No. 1593 of 1997. The learned Judge opined that if the cancellation of the appointment under proceedings dated 19.12.1996 did not withstand judicial scrutiny the appointment of D. Nagulu Naidu under the proceedings dated 12.7.1996 would revive and no examination of the earlier order dated 30.01.1996 passed by the TTD would be required. On facts, the learned Judge found that the appointment of D. Nagulu Naidu under the proceedings dated 12.7.1996 was not made subject to the pendency of Writ Petition No. 3641 of 1996 which was filed by him challenging the earlier order dated 30.01.1996. Further, the proceedings dated 12.7.1996 did not even stipulate that the appointment was made pursuant to the orders of the Division Bench in W.A.No. 620 of 1996, or because of the threat of contempt proceedings and was subject to the outcome of the Supreme Court case. As rightly pointed out by the learned Single Judge, the Supreme Court in its order-dated 7.11.1996, while setting aside the order of the Division Bench in W.A.No. 620 of 1996, did not go into the merits of the case and did not hold to the effect that D. Nagulu Naidu was not entitled to be appointed as an Electrician. Therefore, the observation in the cancellation proceedings dated 19.12.1996 to the effect that the withdrawal of the appointment order was pursuant to the order of the Supreme Court does not hold water. Once the appointment of D. Nagulu Naidu under the proceedings dated 12.7.1996 was independent of these factors, he stood vested with the right which accrued thereunder and could not have been divested of the same without being put on notice and without being given an opportunity of hearing. The learned judge was therefore right in holding that the cancellation proceedings dated 19.12.1996 whereby the TTD unilaterally withdrew its earlier order of appointment-dated 12.7.1996 clearly violated the fundamental principles of natural justice. The learned judge was equally correct in holding that the appointing authority, unless he stood vested with the power of review or revision, could not have exercised such powers suo motu. The proceedings dated 19.12.1996 therefore stood vitiated on counts more than one. W.A.No 1855 of 2004, challenging the order of the learned Judge holding to this effect in W.P.No. 1593 of 1997, is therefore devoid of merit. W.A.No. 2320 of 2005 is filed by D. Nagulu Naidu challenging the common order dated 18.6.2004 to the extent it held that no further examination was required of the order dated 30.01.1996 impugned in Writ Petition No. 3641 of 1996. Sri Ghanta Rama Rao, learned counsel for the appellant/Writ Petitioner, argued that in the light of the settled findings recorded in the order dated 23.1.1995 passed in Writ Petition No. 14282 of 1994 and in the light of the specific and positive direction passed therein, it was not open to the TTD to treat the same as a direction to consider and reject the claim of D. Nagulu Naidu for appointment on wholly untenable grounds, which were at variance with the settled findings recorded in the said order. Perusal of the order dated 23.1.1995 in Writ Petition No. 14282 of 1994 demonstrates that the learned Judge found, upon examination of the material on record, that the services of D. Nagulu Naidu were extracted throughout as an Electrician and in such circumstances, the learned Judge directed the TTD to appoint him to the post of Electrician. The option given to TTD was with regard to the date from which such appointment was to be effected i.e. either from the date on which his juniors were appointed or from the date when he acquired requisite qualification for being appointed as an Electrician and his services were extracted as such by the TTD. This positive direction appears to have been misconstrued by the TTD to be a mere direction to consider the case of D. Nagulu Naidu for appointment and upon such consideration, it rejected his claim under the order dated 30.1.1996. Perusal of this order reflects that the claim was rejected by the TTD on the ground that the petitioner did not discharge all the works of an Electrician and none of his juniors was appointed or promoted as an Electrician. In the light of the clear finding recorded by the learned Judge in the order dated 23.1.1995 passed in W.P.No. 14282 of 1994, which admittedly attained finality, it was not open to the TTD to reopen the issue as to whether D. Nagulu Naidu had worked as an Electrician in its service and come to a different conclusion in its order dated 30.01.1996. If it was aggrieved by the said finding of the learned Judge, the TTD ought to have challenged the same by way of an appeal. Having failed to do so, the TTD is barred by the principles of resjudicata from reopening this issue or arriving at a conclusion other than that recorded in the order dated 23.01.1995 in Writ Petition No. 14284 of 1994. The order dated 30.1.1996 rejecting the claim of D. Nagulu Naidu for appointment is therefore unsustainable and is accordingly set aside. It is stated that pursuant to the common order passed by the learned judge in the two Writ Petitions, D. Nagulu Naidu was continued in service as an Electrician but he is not being paid the salary commensurate with the post. As we have confirmed the order of the learned Judge that the proceedings dated 19.12.1996 issued by the TTD are invalid in law and that the appointment of D. Nagulu Naidu as an Electrician under the proceedings dated 12.7.1996 is lawful and valid; and in the light of the reliefs granted by this Court in Writ Petition No. 14282 of 1994 to the effect that D. Nagulu Naidu would be entitled to all other benefits like increments, seniority etc., the TTD must necessarily extend to him the said benefits. The TTD is accordingly directed to give effect to the appointment of D. Nagulu Naidu as an Electrician for all purposes, except payment of backwages as per the appointment Order dated 12.7.1996. He shall be entitled to protection of attendant benefits and seniority from the date of his acquiring the ITI (Electrician Trade) qualification in the year 1993, which is the effective date of his appointment under the proceedings dated 12.7.1996. Writ Appeal No. 1855 of 2004 filed by the TTD is accordingly dismissed and Writ Appeal No. 2320 of 2005 filed by D. Nagulu Naidu is allowed to the extent indicated above. There shall be no order as to costs. ________________________ GHULAM MOHAMMED, J _____________________ SANJAY KUMAR, J DATE: 09.08.2011 KA ... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. 2 CD copies.