HONOURABLE SRI JUSTICE V. ESWARAIAH AND HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION 25187 OF 2009 Between G.Vinod Kumar …Petitioner And The government of AP, rep. By its Principal Secretary to Government, Health, Medical and Family Welfare (F1) Department, Secretariat, Hyderabad, and, ors. …Respondents. HONOURABLE SRI JUSTICE V. ESWARAIAH AND HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION 25187 OF 2009 ORDER: ( Per VVA.J.) The unsuccessful applicant in O.A.No. 3635 of 2009 before the Andhra Pradesh Administrative Tribunal questions the correctness of the judgment dated 04.11.2009 passed in the said OA. The fourth respondent herein had contested the said OA and in this Writ Petition, he is represented by learned Counsel Sri M. Venkatrami Reddy. We have heard the learned Counsel on either side, apart from the learned Government Pleader representing respondents 1 to 3. The petitioner herein is working as Foreman in the office of the Assistant Transport Officer, Regional Workshop, Warngal and his services are governed by A.P. Medical & Health Transport Service Rules, 1970, made by the Government of Andhra Pradesh in G.O.Ms.No. 1238, Health, Housing & Municipal Administration Department, dated 30.5.1970. The next available promotion for the petitioner is a post in Category-4, as Service Engineer, for which eligibility requirement is (1) candidate must possess Diploma in Automobile Engineering/Mechanical Engineering/Electrical Engineering or Electronics, (2) must have put in not less than three years of regular service in their respective fields in Category-2, i.e. Foreman in the Andhra Pradesh State Medical & Health Transport & Equipment Maintenance Subordinate Service. The applicant/petitioner submits that he has now put in about two years service. However, the grievance of the petitioner in the OA was that the power of relaxation was exercised by the first respondent in favour of the fourth respondent under G.O.Ms.No.48, Health, Medical and Family Welfare (F1) Department, dated 12.2.2009. Under the said Government Order, the Government relaxed the A.P. Medical & Health Transport Service Rules, 1970 in favour of the fourth respondent as a special case and appointed him as Service Engineer. The said relaxation made in the said Government Order has been challenged before the Tribunal primarily on the ground that the said grant of relaxation is unjust and void and thereby he has been seriously prejudiced as his promotion to the Category-4 to the post of Service Engineer would be affected, inasmuch as the fourth respondent would be occupying the said post. It was further submitted that the fourth respondent is working as L.D. Computer and the said post is not a feeder category to the post of Service Engineer and not governed by the aforesaid Service Rules and his services are governed by entirely different service rules. The learned Counsel for the applicant/petitioner submitted that the Government had picked up the case of the fourth respondent for grant of relaxation, though he is not in the feeder category for grant of promotion to the post of Service Engineer, without considering identical cases of other candidates including the applicant/petitioner. A further submission has been made by the learned Counsel that several such candidates like the fourth respondent having the same qualification are working in various Departments, however relaxation was granted only in favour of the fourth respondent. The learned Counsel for the fourth respondent has placed reliance upon the power of the Government under Rule 31 of the AP State and Subordinate Service Rules, 1996 and submits that the Government has got the power to relax the rule and as such, the power of relaxation exercised and as expressed in G.O.Ms.No. 48, dated 12.2.2009, impugned herein, is not in any way illegal or invalid. The learned Counsel for the fourth respondent further submits that once the service rules are relaxed in favour of the fourth respondent, the applicant’s basic contention that the fourth respondent is not from the feeder category has no substance. We have considered the said contentions in the light of the material on record. The Tribunal has dismissed the OA mainly on the ground that the applicant in any case is not eligible having not qualified by putting in the required service of three years and therefore he cannot have any grievance against the relaxation given to the fourth respondent in view of the public interest. The learned Counsel for the petitioner submits that exercise of power of relaxation under Rule 31 of the AP State and Subordinate Service Rules, 1996 is ab initio void and by relaxing services rules, a person belonging to some other department can be brought over for giving promotion required to be filled by promotion of an officer belonging to another cadre. The learned Counsel for the petitioner submits that if at all the power of relaxation is required to be exercised, there are several such persons in other departments who are qualified as that of the fourth respondent. The case of the fourth respondent was considered by the Government purely in his favour as a special case. A look at G.O.Ms.No. 48, dated 12.2.2009 shows that it is in the nature of an appointment which is referable to be a direct recruitment and does not appears to be appointment by transfer, though in fact it is not any appointment by transfer. When the OA was at interlocutory stage, the petitioner approached this Court by way of Writ Petition No. 5467 of 2009, which was disposed of by a Division Bench of this Court, to which, my learned Brother, Sri Justice V.Eswaraiah is one of the members. In the said Writ Petition, considering the contentions of the learned Counsel on either side, including the legal position as settled in the decision in D.Ramesh Babu Vs. Principal Secretary to Government { 2005(3) ALT 612(DB)}, it was held as follows: “ We are not inclined to express any 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 OA which is filed questioning the validity and legality of G.O.Ms.No. 48, dated 12.2.2009 as expeditiously as possible, preferably within a period of six weeks from the date of receipt of a copy of this order. Pending disposal of the Original Application, status quo existing as on today shall be maintained.” It was therefore desired that the Tribunal has to consider the validity and legality of G.O.Ms.No. 48, dated 12.2.2009. In the order impugned, we find that neither validity nor legality of the said G.O. was considered and OA had been disposed of merely on the ground that the applicant/petitioner is not eligible. The validity and legality of G.O.Ms.No. 48, dated 12.2.2009 as directed by this Court, therefore, remains un adjudicated. The learned Counsel for the petitioner made specific reference to a decision of the Supreme Court reported at 2007(2) SCC(L&S) 819, wherein it was held that an officer belonging to a different cadre of the State Service cannot claim promotion to a post required to be filled by promotion of officer belonging to another cadre. We have noticed that G.O.Ms.No. 48, dated 12.2.2009 is purported to have been passed exercising power under Rule 31 of the AP State and Subordinate Service Rules, 1996 and the said power is exercisable only in public interest; whereas the said G.O. does not even purport to be in public interest, and it merely says that said power of relaxation is granted as a special case. This aspect was not considered by the Tribunal and therefore in the light of the aforesaid legal position, a direction referred to above was issued by this Court. We therefore deem it appropriate to set aside the impugned order and remand the OA to the Tribunal for fresh consideration, as directed earlier. It is desirable for the Tribunal to consider the validity and legality of G.O.Ms.No. 48, dated 12.2.2009 in the light of the contentions of the parties. The Tribunal is requested to dispose of the OA afresh as expeditiously as possible, preferably within a period of six weeks from the date of receipt of a copy of this order. It is also made clear that the said consideration shall be uninfluenced by any of the observations made in this order. Status quo as ordered by this Court during the pendency of the OA shall continue in operation pending disposal of the OA. The Writ Petition is allowed accordingly. No order as to costs. ------------------------- JUSTICE V. ESWARAIAH --------------------------------------- JUSTICE VILAS V. AFZULPURKAR DATED 19TH NOVEMBER, 2009. Msnr.