THE HON’BLE SRI JUSTICE C.V. RAMULU Friday, first day of February,2008 W.P.No.23083 of 2007 Between:- Dr. K. Satyanarayana … Petitioner and The Government of A.P., rep. by its Ex-Officio Secretary to Government, Health Medical & Family Welfare Dept., L-Block, A.P. Secretariat, Hyderabad-500 001 and others … Respondents THE HON’BLE SRI JUSTICE C.V. RAMULU W.P.No.23083 of 2007 ORDER: This Writ Petition is filed seeking a Certiorari to call for the records relating to G.O.Rt.No.1208, Heath, Medical and Family Welfare (R1) Department, dated 31-8-2007 on the file of the 1st respondent and the consequential Order issued in G.O.Rt.No.1236, HM & FW (R1) Department, dated 7-9-2007 posting the petitioner as Principal, Gandhi Naturopathic Medical College, Hyderabad and G.O.Rt.No.1408, HM & FW (R1) Department, dated 24-10-2007 posting the 4th respondent as Secretary, Andhra Pradesh Yogadhyayana Parishad and quash the same as being arbitrary, illegal and violative of Articles 14,16 and 21 of the Constitution of India and also contrary to principles of natural justice. It appears, petitioner was initially appointed as Junior Lecturer in Yoga and Physical Culture in A.P. Yogadhyayana Parishad. It is the case of the petitioner that he has been discharging his duties with utmost satisfaction of his superiors. Taking into consideration his long service and experience in various posts like Junior Lecturer, Senior Lecturer, Vice Principal and Principal of Gandhi Naturopathic Medical College and in other different capacities in Yoga and Nature Cure, he was appointed as a wholetime Secretary of A.P. Yogadhyayana Parishad through G.O.Ms.No.26, Health, Medical and Family Welfare (R1) Department, dated 17-1-1996. Accordingly, he assumed charge and worked for more than 11 years continuously and uninterruptedly. In the capacity of Secretary of the Parishad, he had excellent track record. While that being so, the impugned G.O.Rt.No.1208, dated 31- 8-2007 was issued repatriating him to his parent Department and vide G.O.Rt.No.1236, dated 7-9-2007 he was posted as Principal of Gandhi Naturopathic Medical College, Hyderabad, just a few months before his retirement i.e., 31-7-2008. According to the petitioner, this was done only to accommodate the 4th respondent, who is unqualified to hold the post of Secretary and also retired. Further, Government of Andhra Pradesh in order to ensure uniformity, reviewed its policy decision in the matter of re-employment of all retired personnel and ordered to dispense with the services of all retired officials and accordingly issued G.O.Ms.No.619, Finance (FR-1) Department, dated 3-8-2004 which is still in vogue. In view of the said policy, the impugned Proceedings in G.O.Rt.No.1408, dated 24-10- 2007 to the extent of appointment of the 4th respondent as Secretary of A.P. Yogadhyayana Parishad is nothing but colourable exercise of power and improper. It is his further case that he was appointed to the post of wholetime Secretary of A.P. Yogadhyayana Parishad through G.O.Ms.No.26, dated 17-1-1996 by the Government of Andhra Pradesh with the prior approval of the then Chief Minister, who was also Chairman, Governing Council, A.P. Yogadhyayana Parishad. A.P. Yogadhyayana Parishad is an autonomous Society registered under the A.P. (Telangana Area) Public Societies Registration Act,1350 Fasli. As per the bye-laws of A.P. Yogadhyayana Parishad, the Chairman of the Governing Council shall appoint the Secretary of the Parishad in consultation with the Government. In the case of his appointment as Secretary of the Parishad, the above procedure was followed besides taking into consideration his rich experience in the organization in various capacities. But, unfortunately, the impugned Orders were passed with mala fide intention to cause wrongful loss to him and confer undue benefit on the 4th respondent. Further, he is more qualified than the 4th respondent. He took charge of Secretary, A.P. Yogadhyayana Parishad during 1996 at a time when the financial position of the institution was very poor and at rock bottom level. He has improved the financial position and developed the institution at a total cost of Rs.15.00 crores. Though he served with single pointed devotion and developed the Parishad, respondents 1 to 3 passed the impugned Orders just 7 months before his retirement. In fact, as his appointment as Secretary of the Parishad is permanent in its nature, the question of repatriating him to his parent Department, at this stage, does not arise. Therefore, the impugned Orders are arbitrary and illegal and as such, they are liable to be set aside. A detailed counter affidavit has been filed on behalf of the 1st respondent denying the allegations made by the petitioner. It is asserted that the petitioner was appointed as Secretary of A.P. Yogadhyayana Parishad under G.O.Ms.No.26, dated 17-1-1996 and he was only a senior Lecturer at that time. The procedure adopted in appointing the 4th respondent was also as was done in the past. There were no rules or conditions that only inservice employee has to be appointed as Secretary of the Parishad. Petitioner, though worked as Secretary, had drawn salary of the Principal. Vide G.O.Ms.No.157, HM&FW (R1) Department, dated 16-5-2003, the posts of Secretary and Principal of Gandhi Naturopathic Medical College carry the same scale of pay. As such, no financial loss is caused to the petitioner. The service particulars of the 4th respondent given by the petitioner have no relevance for the purpose of deciding the issue involved in this Writ Petition. Petitioner has made such allegations only to prejudice the mind of the Court. Further, Vemana Yoga Research Institute, Secunderabad was first established by the Government of Andhra Pradesh on 1-11-1978. Later, it was registered under the Societies Registration Act,1979 and functioned independently with 100% grant-in-aid of the Government. Minister for Medical and Health was the Chairman of the governing body. Gandhi Nature Cure College was started in the year 1970 under Nisargopchar Trust, a private body and was brought under the control of A.P. Yogadhyayana Parishad; so also, Vemana Yoga Research Institute and Nature Cure Hospital. When the 4th respondent joined as Chief Yoga Demonstrator in 1978, the petitioner had not entered into service at all. When the 4th respondent was appointed as Yoga Supervisor in the year 1980, petitioner was studying ND course in Naturopathy in the same College premises. Respondent No.4 was appointed as Director, Vemana Yoga Research Institute in the year 1986 and worked as Member Secretary and Treasurer of the Governing Body of Vemana Yoga Research Institute. At that time, petitioner was only a junior Lecturer in Naturopathy in the Trust Board, a private body and he was a non-regularized employee. Government declared Indian Medicine and Homeopathic Department as parent Department for A.P. Yogadhyayana Parishad and its institutions on 16-5-2003 when the 4th respondent was working as Director of the said Research Institute. Similarly, petitioner was working as Secretary, A.P. Yogadhyayana Parishad with the scale of Principal. The scale of pay of both cadres was Rs.5390-8980. Respondent No.4 is senior to the petitioner by all means and eligible to the said post. In the year 1994, Government issued A.P. Nature Cure and Yoga State Service Rules vide G.O.Ms.No.68, dated 16-2-1994. Respondent No.4 was already working as Director when these Rules came into force. There was a saving clause in the said G.O. for the employees, which says, “nothing in these rules shall adversely effect the persons already appointed in regular scale of pay to any category or post and continuing as such on the date of commencement of these rules”. Further, the contention of the petitioner that the 4th respondent was irregularly appointed as Director is not correct. When the 4th respondent was appointed on 4- 11-1986, there were no Rules or qualifications specified for the said post. Subsequently, the qualifications as well as recruitment procedure was prescribed vide G.O.Ms.No.68, dated 16-2-1994. As per the said G.O., the qualifications prescribed for the post of Director are that one must possess a Degree from a recognized University, Degree/Diploma/Certificate in Yoga or Naturopathy from a recognized institution/statutory Board/University/Institution aided by Central or State Government and eight years of experience in any recognized Yoga institution. Respondent No.4 was not only having required qualifications, but also additional qualifications over and above the required qualification. The services of the 4th respondent were regularized with effect from 4-11-1986 i.e. from the date of taking charge as Director, Vemana Yoga Research Institute vide G.O.Ms.No.175, Health, Medical and Family Welfare (R2) Department, dated 6-6-2005. The 4th respondent worked as Director, VYRI well before the petitioner was promoted as Principal. The qualifications of the 4th respondent are well ahead of the petitioner with a Master Degree in Arts and Post Graduate Diploma in Yoga, Transcendental Meditation, Rishikesh, SCI, NIS, Gwalior etc., whereas, the petitioner is only PUC (Arts), Diploma in Naturopathy and does not possess the requisite qualifications. A.P.Yogadhyayana Parishad has undergone different forms, sometimes in the nature of autonomous body and sometimes under Government control and sometimes under different institutions under the control of different authorities including the trust and society. The Parishad was constituted as autonomous society registered under the Andhra Pradesh (Telangana Area) Public Societies Registration Act,1350 Fasli. Each institution has its own staffing pattern and at no point of time, the posts borne in different institutions were integrated or treated for the purpose of seniority or promotion. Each institution is treated as distinct unit and the staffing pattern is maintained separately even as on the date of filing of the counter. Petitioner was never senior to the 4th respondent and 4th respondent was never a subordinate to the petitioner. In fact, many complaints were lodged against the petitioner, but the petitioner managed to curb them by influence. Petitioner suppressed all these facts and filed the present Writ Petition making all false allegations. The Writ Petition is devoid of any merit and is liable to be dismissed. In the counter filed by the 4th respondent, he has reiterated the same as was stated by the 1st respondent and gave further details as to the service rendered by him and the petitioner. Heard both sides. Learned counsel for the petitioner mainly contended that the 4th respondent was not only junior to the petitioner, but also worked under the petitioner and now in view of the fact that the 4th respondent is appointed as Secretary of A.P.Yogadhyayana Parishad, petitioner has to take instructions from the 4th respondent and further to accommodate the 4th respondent, petitioner was disturbed and posted as Principal of Gandhi Naturopathic Medical College. Therefore, there is a mala fide intention on the part of respondents 1 to 3 in accommodating the 4th respondent, who is a retired employee, as Secretary of the Parishad. It appears, there were four independent institutions working in the same field. Thereafter, A.P.Yogadhyayana Parishad was formulated and again it was merged with Indian Medicine and Homeopathic Department of Government of Andhra Pradesh under Act 25 of 1987. However, based on the recommendations of a committee constituted by the Government to look into the working of A.P.Yogadhyayana Parishad, the State Legislature has passed Andhra Pradesh Yogadhyayana Parishad Act i.e. Act 18 of 1990 repealing A.P.Yogadhyayana Parishad Act,1987. The institutions, on repeal of the said Act of 1987, have been brought under the control of Government specifying the Director, Indian Medicine and Homeopathy as the authority to whom the institutions stand transferred together with the staff and assets and the staff were ordered to be treated on par with Government employees. Government of Andhra Pradesh issued G.O.Ms.No.460, HM&FW (R1) Department, dated 30-11-1992 directing that the employees of erstwhile A.P.Yogadhyayana Parishad and its constituent units be treated as Government employees for all purposes with effect from 16-3-1991. Therefore, the service rules were made under G.O.Ms.No.68, HM&FW (R1) Department, dated 16-2-1994 and G.O.Ms.No.330, dated 30-6- 1994 i.e. Nature Cure and Yoga Services Rules and Nature Cure and Yoga Subordinate Service Rules respectively. Gandhi Nature Cure College, Nature Cure Hospital, Vemana Yoga Research Institute and Pranayama Research Institute were brought within the fold of A.P.Yogadhyayana Parishad to provide education and training for effective care and treatment of diseases by the system of naturopathy and yoga by locating them in one campus in Begumpet Nature Cure Hospital, Hyderabad under the provisions of Andhra Pradesh (Telangana Area) Public Societies Registration Act,1350 Fasli. Thereafter, Government have issued orders vide G.O.Ms.No.205, dated 25-5-1996 directing that the staff working in the erstwhile A.P.Yogadhyayana Parishad and who were later brought under the control of Director, Indian Medicine and Homeopathy Department, with effect from 16-3-1991 and continued as such as on 1-5-1995 in A.P.Yogadhyayana Parishad, be treated as Government service for all purpose and be on deputation to the A.P.Yogadhyayana Parishad, subject to absorption of the employees as Government servants by stipulating condition of payment of leave salary, pension contribution etc., by the A.P.Yogadhyayana Parishad during the deputation period and other conditions as stipulated in G.O.Ms.No.10, Finance and Planning, dated 22-1-1993. By letter dated 22-9-2001, the Secretary, A.P.Yogadhyayana Parishad requested the Government to absorb the employees now working in A.P.Yogadhyayana Parishad as full-fledged Government servants from 16-3-1991 and also to declare Indian Medicine and Homeopathic Department as parent Department. The Commissioner, Indian Medicine and Homeopathic Department has recommended the proposals of the Secretary, A.P.Yogadhyayana Parishad to the Government to declare Indian Medicine and Homeopathic Department as parent Department for the A.P.Yogadhyayana Parishad and its institutions. Government after careful examination has decided and ordered that the Indian Medicine and Homeopathic Department is declared as parent Department for the employees on deputation to A.P.Yogadhyayana Parishad and its constituent units for the limited purpose of regularization of services, settlement of pension etc., and also A.P.Yogadhyayana Parishad shall be exempted from payment of leave salary and pension contribution in relaxation of the provisions contained in G.O.(P) No.10, Finance and Planning, dated 22-10-1993. From the above, it is seen that the service conditions of the petitioner are governed by the Rules made under Article 309 of the Constitution of India. But, since the petitioner was repatriated from A.P.Yogadhyayana Parishad and he was claiming his rights under the Service Rules of A.P.Yogadhyayana Parishad, a Writ Petition of this nature cannot be said to be not maintainable as contended by the learned counsel for the 1st respondent as well as the learned counsel for the 4th respondent. Petitioner is not working out his remedies as available under the service conditions under Article 309 of the Constitution. It is his grievance that he is being repatriated only to accommodate 4th respondent, who is again, is not governed by any of the Rules made under Article 309 of the Constitution, since he is a retired employee. Therefore, I am of the opinion that the Writ Petition is maintainable. Coming to the merits of the case, it appears, the Writ Petition is filed not at a time when the petitioner was repatriated under G.O.Ms.No.1208, dated 31-8-2007 to his parent Department nor at the time when he was posted as Principal of Gandhi Naturopathic Medical College under G.O.Rt.No.1236, dated 7-9-2007. He filed the present Writ Petition only when the 4th respondent was posted as Secretary of A.P.Yogadhyayana Parishad. Firstly, the petitioner has no right whatsoever to continue at A.P.Yogadhyayana Parishad as its Secretary permanently or till he retires from service. When he was appointed, it was not on permanent basis, but as wholetimer, since earlier there was only a part time Secretary. Merely because the petitioner was appointed as Secretary and the Parishad has different rules for appointment of the Secretary, he has no right whatsoever to continue till his retirement. It seems, as soon as the revival of A.P.Yogadhyayana Parishad had taken place, some part-time Secretary was there and thereafter, it was felt by the Government that a full time Secretary should take over. Under those circumstances, the petitioner was appointed. Of course, he worked for 11 years. But that does not mean that the petitioner has accrued any vested right to continue as a Secretary. Apart from this, grave allegations are made against the petitioner stating that he has committed lot of financial and other irregularities in the maintenance of A.P.Yogadhyayana Parishad. It is alleged that even the Comptroller and Auditor General of India in his report for the year ending 31st March, 2003 pointed out several lacunae with regard to the constructions taken place during his tenure. Therefore, Government felt that the petitioner should be replaced by a qualified person as per the rules of the society i.e. A.P.Yogadhyayana Parishad. As such, the 4th respondent, who is a highly qualified as per the narration of the qualifications in the counter filed by the 1st respondent, which is not in dispute, was appointed as Secretary. Further, it appears, there is no bar for appointing a retired person as Secretary of the Society, which is not governed by any Rules made under Article 309 of the Constitution or it is a Department of the Indian Medicine and Homeopathic Department of Government of Andhra Pradesh. Only those who were working as on the date of constitution of the society were treated as employees of the Indian Medicine and Homeopathic Department for all purposes and in fact, they were governed by the Rules made under Article 309 of the Constitution. Those rules have no application to the case of the petitioner nor they govern the service conditions of the 4th respondent. Respondent No.4 is appointed in appreciation of his merit after retirement, as Secretary as per the requirements of the Society. Therefore, the contention of the petitioner that there is a mala fide intention on the part of the 1st respondent in repatriating the petitioner to the parent Department and thereby created a post in favour of the 4th respondent cannot be countenanced. If really the petitioner was aggrieved by the repatriation, he could have filed a Writ Petition immediately on the issuance of G.O.Rt.No.1208, dated 31-8-2007. Such a course was not adopted. It appears, the rivalry between the petitioner and the 4th respondent is not of recent origin. Way back in the year 1994, 4th respondent filed a Writ Petition being W.P.No.467 of 1996 challenging the very appointment of the petitioner as Secretary of A.P.Yogadhyayana Parishad, but the said Writ Petition was dismissed holding that the post of Secretary is an ex-cadre post and the provisions of Article 14 of the Constitution are not applicable and there was no need for making an advertisement or calling for applications. Almost the petitioner has raised the same grounds against the 4th respondent now in this Writ Petition challenging the appointment of the 4th respondent herein as Secretary. In fact, this Court has taken note that no rules have been framed prescribing qualifications or method of recruitment to the post of Secretary at that point of time. Now rules have been framed and as per the rules, the 4th respondent was appointed on his own merit. The petitioner has not made out any case calling for interference of this Court under Article 226 of the Constitution of India. For all the above reasons, the Writ Petition is devoid of merits and is liable to be dismissed. Accordingly, the Writ Petition is dismissed. No order as to costs. 01-02-2008 prk