IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY EIGHTH DAY OF JANUARY TWO THOUSAND AND TEN PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH AND THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION Nos.26131 and 27169 of 2009 WP.No.26131 of 2009: BETWEEN H. M.Mallesham. …PETITIONER AND Government of Andhra Pradesh, Rep. by Special Chief Secretary, Panchayat Raj and Rural Development Department, Secretariat, Hyderabad and five others. …RESPONDENTS Counsel for the Petitioner: MR. J. R. MANOHAR RAO Counsel for the Respondents: GP FOR SERVICES II MR. M. RATNA REDDY WP.No.27169 of 2009: BETWEEN H. M.Mallesham. …PETITIONER AND Government of Andhra Pradesh, Rep. by Special Chief Secretary, Panchayat Raj and Rural Development Department, Secretariat, Hyderabad and four others. …RESPONDENTS Counsel for the Petitioner: MR. J. R. MANOHAR RAO Counsel for the Respondents: GP FOR SERVICES II MR. M. RATNA REDDY The Court made the following: COMMON ORDER: (per Hon’ble Sri Justice Vilas V. Afzulpurkar) The writ petitions are directed against the common order of the Andhra Pradesh Administrative Tribunal in O.A.No.7092 and 10251 of 2009 dated 12.11.2009. The petitioner in both these writ petitions is applicant in O.A.No.7092 of 2009 and fifth respondent in O.A.10251 of 2009. O.A.No.10251 of 2009 was filed by the fifth respondent in both the writ petitions. 2. The petitioner herein, who is applicant in O.A.No.7092 of 2009, was working as Deputy Executive Engineer, Panchayat Raj Division, Narayankhed. The Government had bifurcated the Panchayat Raj (PR) Department into Panchayat Raj Engineering Services and Rural Water Supply & Sanitation (RWS&S) vide G.O.Ms.No.508 General Administration (Spl.A) Department dated 18.07.2007 and under G.O.Ms.No.511, PR & RD (ESTT.III) Department dated 15.11.2007 options were called for from the PR Engineering Services. It is stated that while the petitioner has not given any option, he continued in the PR Engineering Services. After considering the options of all the employees and after noticing that certain more PR Engineering Services personnel are required to work under RWS & S, the Government issued G.O.Rt.No.1657 PR & RD (ESTT.III) Department dated 30.11.2007 whereunder the personnel working in PR Engineering Services were deputed to work under RWS & S Department on deputation basis. Para 8 of the aforesaid GO reads as follows: “8. Government after careful consideration of the matter hereby place the excess members of the service in the category of Deputy Executive Engineers as indicated in the Annexure to this GO on deputation to RWS Engineering Services with immediate effect. They may get absorbed in Panchayat Raj Engineering Department as per their options as and when Government create additional posts in order of their seniority. However, this process will get closed by 31.03.2008 as mentioned in the agreement.” 3. The petitioner herein is one among the identified excess members of the service, who were sent on deputation and it appears that the petitioner was sent to work at RWS & S, Bodhan from PR Division, Narayankhed. The petitioner, however, did not join at Bodhan. It appears that various such members of PR Engineering Service approached the tribunal by way of O.A.No.7429 of 2007 assailing their deputation to RWS. The said OA’s were dismissed by the tribunal, which led to those applicants questioning the order of the tribunal in WP.No.5291 of 2008 and batch before this Court. The said batch of cases were considered and dismissed by this Court subject to an observation that if the petitioners have any grievance they can file appeals and the same shall be disposed of before 31.03.2008 and till such time, the petitioners shall continue in the PR Department. 4. The petitioner herein is, thus, continuing at Narayankhed in pursuance of the aforesaid direction up to 31.03.2008 but afterwards though there is no order for continuation in his favour, he appears to be continuing at Narayankhed. The fifth respondent herein meanwhile was transferred and posted in the place of petitioner at Narayankhed vide orders dated 30.12.2008. It is his case, however, that though he went to join and reported to the concerned Superintending Engineer, he was not allowed to join on the ground that there is no vacancy, obviously, as the petitioner was continuing there. Since he was not allowed to join, he made a representation before the Engineer-in-Chief, PR Department, who under his memo No.D(6)/9225/99 dated 26.05.2009 directed the Superintending Engineer to admit the fifth respondent as Deputy Executive Engineer immediately at PR Sub-Division, Narayankhed and report reasons for not relieving the petitioner, who is posted to RWS & S, Bodhan. It is this proceeding that was questioned by the petitioner in O.A.No.7092 of 2009 before the tribunal. Similarly, aggrieved by the action of the official respondents in not allowing the fifth respondent to join at Narayankhed, he had filed O.A.No.10251 of 2009. The relief sought for in O.A.No.7092 of 2009 filed by the petitioner is as follows: “Hence in the interest of justice it is prayed that this Hon’ble Tribunal may be pleased to declare the applicant is entitled to continue at Panchayat Raj Narayankhed without reference to impugned Memo No.D6/9225/99 dated 26.05.2009 by holding the action of the respondents in relieving the applicant from place is illegal, arbitrary and discriminatory resulting in violation of Articles 14, 16 and 21 of the Constitution of India and to pass such other order or orders as this Hon’ble Tribunal may deem fit and proper in the circumstances of the case.” The relief sought for in O.A.No.10251 of 2009 filed by the fifth respondent is as follows: “It is therefore prayed that this Hon’ble Tribunal may be pleased to direct the respondents 1 to 4 to allow the applicant to function as Deputy Executive Engineer, Panchayat Raj Sub-Division, Narayankhed, Medak District and to treat the period from 31.12.2008 onwards as duty period of the applicant by considering the same as compulsory wait for all purposes with a further direction to the respondents 1 to 4 to pay the salary from 31.12.2008 onwards and continue to pay the same by holding the action of the respondents 1 to 4 in not allowing the applicant to function as Deputy Executive Engineer, Narayankhed Sub-Division, Medak District as illegal and to pass such other order or orders as the Hon’ble Tribunal may deem fit and proper.” 5. The tribunal considered both the OA’s and came to the conclusion that the petitioner herein has already been deputed to work at RWS & S, Bodhan was not entitled to continue at Narayankhed whereas the fifth respondent herein having been transferred and having reported at Narayankhed since 31.12.2008 is not allowed to join the duty, the tribunal, therefore, dismissed O.A.No.7092 of 2009 filed by the petitioner and allowed O.A.No.10251 of 2009 filed by the fifth respondent by directing the official respondents to relieve the petitioner forthwith and admit the fifth respondent to duty as Deputy Executive Engineer, PR Sub-Division, Narayankhed and treat the period from 31.12.2008 till date of his joining at Narayankhed as compulsory wait and given him all consequential benefits. It is the aforesaid orders, which is questioned by the petitioner in these two writ petitions. 6. We have heard Mr. J.R. Manohar Rao, learned counsel appearing for the petitioner, learned Government Pleader and Mr. M. Ratna Reddy, learned counsel appearing for the fifth respondent in both the writ petitions. 7. The principal contention raised by the learned counsel for the petitioner is with reference to G.O.Ms.No.240 Finance (SMPC) Department dated 19.09.2009 wherein the Government had sanctioned 144 temporary posts of Deputy Executive Engineers in the PR Engineering Department. Learned counsel, therefore, states that the aforesaid GO read with Para 8 of G.O.Rt.No.1657 dated 30.11.2007 extracted above would make it clear that the Government intended to bring back all the PR Engineering Service personnel sent on deputation to RWS & S to the Engineering Department as and when additional posts are created. He also submits that the Government in its counter affidavit before the tribunal also confirmed that the persons from Engineering Department, who have been sent on deputation would be brought back to PR Engineering Service in the order of their seniority as under: "The applicant Sri H. Mallesham is junior and stands at Sr.No.34 in the Seniority of Deputy Executive Engineers sent on deputation to RWS & S Department. His seniors are still working on deputation with RWS & S Department. The applicant’s case will come up for consideration as per his turn in PR Engineering Department.” So far as the direction with respect to compulsory wait ordered in favour of the fifth respondent is concerned there is really no grievance so far as the petitioner is concerned. 8. After hearing the matter, We are of the view that and this position is also not seriously disputed that continuation of the petitioner at Narayankhed after 31.12.2008 is not supported by any orders including any orders from either the tribunal or this Court. The position as it existed on 31.12.2008, therefore, is continuing even now and the fifth respondent, who is transferred and required to work at Narayankhed is not allowed to work, as the petitioner is not relieved form Narayankhed so as to join at RWS & S, Bodhan. The order of deputation, which is consequence of G.O.Rt.No.1657 dated 30.11.2007, cannot be frustrated since the said GO is not in issue in the OA’s. Secondly, the averment in the counter filed by the State, which is extracted above, shows that eventually the officers, who are sent on deputation to RWS & S would be absorbed and brought back to PR Engineering Department as per seniority and eventually the petitioner may be brought back to PR Engineering Department. However, till happening of such event, the petitioner cannot continue at Narayankhed notwithstanding his deputation to RWS & S, Bodhan. In the circumstances, therefore, the view taken by the tribunal under the impugned order is clearly justified and does not warrant any interference. The writ petitions, therefore, are liable to be dismissed. 9. However, in view of the fact that the G.O.Ms.No.240 dated 19.09.2009 sanctioning 144 temporary posts of Deputy Executive Engineers, having been issued by the Government during the pendency of the OA and keeping in view the policy of the Government as contained in G.O.Ms.No.1657 dated 30.11.2007 referred to above we would permit the petitioner to make a representation to the first respondent to ventilate his grievance and seek appropriate relief for his absorption in the PR Engineering Department. If such representation is made by the petitioner, the first respondent shall consider and dispose of the same preferably within a period of three (3) months from the date of filing the said representation. However, as mentioned above, since the impugned order of the tribunal is confirmed the respondents 1 to 4 shall relieve the petitioner from Narayankhed and admit the fifth respondent in his place as Deputy Executive Engineer, PR Sub-Division Narayankhed and on relieving, the petitioner shall report to RWS & S, Bodhan or to such other place where he is allotted. Subject to the above, the writ petitions are dismissed. There shall be o order as to costs. ______________ V. ESWARAIAH, J _____________________ VILAS V. AFZULPURKAR, J January 28, 2009 DSK