IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT THE HON'BLE SRI JUSTICE GHULAM MOHAMMED & THE HON'BLE SRI JUSTICE N. RAVI SHANKAR WRIT PETITION No.25091 of 2010 DATED: 6.12.2010 Between: B. Chandra Shekar ..... PETITIONER AND R. Dhansingh & others .....RESPONDENTS THE HON'BLE SRI JUSTICE GHULAM MOHAMMED & THE HON'BLE SRI JUSTICE N. RAVI SHANKAR WRIT PETITION No.25091 of 2010 DATED: 6.12.2010 THE HON'BLE SRI JUSTICE GHULAM MOHAMMED & THE HON'BLE SRI JUSTICE N. RAVI SHANKAR Writ Petition No.25091 of 2010 ORDER:: ( per Hon’ble Sri Justice Ghulam Mohammed ) This writ petition is filed assailing the order dated 29-9-2010 passed in OA No.4660 of 2010 by the AP Administrative Tribunal, Hyderabad. The writ petitioner is 1st respondent in the said OA and the OA was filed by the 1st respondent herein. The case of the applicant-1st respondent herein before the Tribunal was that the post of Engineer-in- Chief in Public Health & Municipal Engineering Department is governed by adhoc Rules issued in GO Ms.No.580, Municipal Administration & Urban Development (CI) Department, dated 5-11-1998. As per Rule 3 of the Rules, the appointment to the post of Engineer-in-Chief in Public Health & Municipal Engineering Department shall be made by promotion from the category of Chief Engineer in the said department, who has put in minimum period of two years. As per the proviso, if the candidates are not available with two years service, the candidates who have put in less than two years of service and who are highly qualified and suitable may be considered for appointment by relaxing the rules in deserving cases, i.e., minimum service of two years, in the category of Chief Engineer (Public Health). According to the applicant, he was promoted as Chief Engineer on 9-12-2004 and he is fully qualified for being considered as Engineer-in-Chief. There are two posts of Engineer-in- Chief in the department, one is held by the writ petitioner and another is held by Dr.E.Panduranga Rao. In order to fill up the vacancy caused due to retirement of the writ petitioner, three names of Chief Engineers were sent by the department for the purpose of consideration for appointment as Engineer-in-Chief by the DPC and the name of the applicant also finds place therein. The applicant came to know (by virtue of the information furnished to a journalist under Right to Information Act) that proposals were sent to the Finance Department for continuation of the writ petitioner as Engineer-in-Chief or as Advisor and the Finance Department rejected the proposal. It is further his case that thereafter the file was circulated by the Principal Secretary, MA & UD to the Hon’ble Minister for Municipal Administration, who opined that the writ petitioner may be posted as Special Officer in the vacant post of Engineer-in-Chief for a period of one year as a special case and he may be permitted to discharge the duties of Engineer –in-Chief and it appears the Hon’ble Chief minister has also endorsed the same view. It was stated that thereupon, the Government issued GO Rt.No.737, dated 1-7- 2007, appointing the writ petitioner as Special Officer and posted him in the vacant post of Engineer-in-Chief (Public Health), Hyderabad, for a period of one year as a special case duly permitting him to discharge the duties of Engineer-in-Chief (PH), Hyderabad. 2. The contention of the applicant-1st respondent herein was that though the State has a prerogative right to create a post of Special Officer, it has no right to post the person appointed as such in a vacant post governed by special rules and be asked to discharge the functions attached to that post. But the contention of the learned Addl. Advocate General was when a contract appointment is made to a post in service, the Government can entrust any functions to that person, irrespective of the special or general rules. The Tribunal on consideration of the rival contentions, by the impugned order set aside the direction in the GO Rt.No.737, dated 1-7-2007 to the extent of positing the writ petitioner in the vacant post of Engineer-in-Chief (Public Health) while upholding his appointment as Special Officer. Aggrieved thereby, the present writ petition is filed by the 2nd respondent in the OA. 3. Heard Sri JR Manohar Rao, learned counsel for the writ petitioner, Sri P. Balakrishna Murthy, learned counsel for the 1st respondent-applicant and Sri A. Satya Prasad, learned Addl. Advocate General. 4. The short point that arises for consideration in this case is whether a person appointed by agreement or contract under Rule 9 of the AP State and Subordinate Service Rules,1996 be asked to discharge the functions of post whose service conditions are governed by special rules. 5. In the instant case, the writ petitioner is stated to have initially appointed as Junior Engineer in the year 1976 and after getting promotions from time to time eventually promoted as Engineer-in-Chief in the year 2005 and retired from service on attaining superannuation on 30-6-2010. Learned counsel for the petitioner contended that considering the eligibility and vast experience in the Department, the Government issued orders by way of impugned GO Ms.No.737, dated 1-7-2007 and appointed the writ petitioner as Special Officer and posted in the vacant post as Engineer-in-Chief (Public Health), Hyderabad, for a period of one year. But, the contention of the learned counsel for the 1st respondent that the statutory Rules issued in GO Ms.No.580, dated 5-11-1988 which governs the field as to promotion to the post of Engineer-in-Chief (PH) Department do not provide or contemplate of a retired employee being appointed as Special Officer and put him in the post of Engineer-in- Chief and therefore posting him in a coveted post is bad in law. 6. Rule 9 of the AP State and Subordinate Service Rules, 1996, contemplates appointment to any post in a service by agreement or contract by the Government. For better appreciation of the case, Rule 9 of the Rules is extracted hereunder:- “9. Appointment by Agreement or Contract:- (a) (i) Notwithstanding anything contained in these rules and special rules it shall be open to the State Government to make appointment to any post in a service, class or category, otherwise than in accordance with these rules or special rules and to provide by agreement or contract with the person(s) so appointed, for any of the matter in respect of which, in the opinion of the State Government, special provisions are required to be made and to the extent to which such provisions are made in the agreement to contract, nothing in these rules or the special rules shall apply to any person so appointed in respect of any matter for which provision is made in the agreement or contract: Provided that in every agreement or contract made in exercise of the powers conferred by these rules, it shall further be provided that in respect of any matter in which no provision has made in the agreement or contract, provisions of these rules or special rules relatable to the post shall apply. (ii) The agreement or contract may inter alia include provisions in respect of conditions of service, pay and allowances, discipline, contract period of appointment, notice period for termination of appointment by either party and other relevant matters. (iii) The Government may, by order, prescribe the form of such agreement or contract. (b) A person appointed under sub-rule (a) shall not be regarded as a member of the service, in which the post to which he is appointed, is included and shall not be entitled by reason only of such appointment to any preferential right to any other appointment in that or in any other service.” 7. A perusal of the Rule 9 of the Rules, it is clear that the rule begins with a non-obstante clause which over rides the general rules and special rules and empowers the Government to make appointment to any post in a service, class or category. The said rule clearly mentions that notwithstanding anything contained in the general or special rules, the Government is competent to pass orders under Rule 9 of the rules. The Post of Engineer-in-Chief is governed by adhoc Rules issued under Article 309 of the constitution of India in GO Ms.No.580, Municipal Administration & Urban development (CI) Department, dated 5-11-1998 and the channel to fill up that post is by promotion from the cadre of Chief Engineer. But Rule 9 of the rules reserves liberty and discretion to the Government to make appointment to any post in a service, class or category and such exercise of power is within administrative domain of the State. It is not that a person unknown to the field is brought in to such a coveted post. The writ petitioner has been Engineer-in-Chief and the Government realizing his past service thought it fit to retain him for a period of one year and appointed him exercising powers under Rule 9 of the Rules. Further more, no mala-fides are attributed against the petitioner by the 1st respondent. 8. In the circumstances, the impugned order passed by the Tribunal in so far as it relates to setting aside the appointment of the writ petitioner as Engineer-in-Chief (PH), Hyderabad, is hereby set aside. The appointment of the petitioner as Special Officer as upheld by the Tribunal is hereby affirmed. In the result, the writ petition is allowed in part. No order as to costs. ___________________ Ghulam Mohammed, J __________________ N. Ravi Shankar, J Dated: 6-12-2010 Nrg.