Andhra HC (Pre-Telangana)
Smt. R. Manjula And Anr. vs The Principal Secretary To Government, ... on 28 January, 2002
Equivalent citations: 2002(3)ALD648, 2002(1)ALT523
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy
JUDGMENT B. Sudershan Reddy, J.
1. Both these writ petitions may be disposed of by a common order, since the issue involved in both the writ petitions is one and the same.
2. The petitioner in W.P.No.801 of 2002 filed O.A.No.9633 of 2001 in the Andhra Pradesh Administrative Tribunal at Hyderabad (for short 'the Tribunal') with a prayer to issue "appropriate directions calling for the records pertaining to the secret preparation of seniority list in the category of Tahsildars without communicating the same to anybody and making further promotions on the said list to the posts of Deputy Collectors and the consequential Memo No.63223/ Ser.I (2)/ 2001-2, dated 16-11-2001 issued by the first respondent-Government and quash the same as illegal, arbitrary and without jurisdiction." The petitioner also prayed for a consequential direction directing the respondents not to make any promotions to the posts of Deputy Collectors until and unless the seniority list in the category of Tahsildars is communicated and finalised and for the further direction to the respondents not to relax the rules in favour of directly recruited Deputy Tahsildars for which no provision exists in the statutory rules.
3. The petitioner in W.P.No.802 of 2002 filed O.A.No.9149 of 2001 before the Tribunal more or less with similar prayer challenging the very same Memo issued by the first respondent-government. Similar consequential directions are sought for directing the respondents to prepare a fresh seniority list in the category of Deputy Tahsildars and Tahsildars based upon the dates of declaration of probation in the category of Deputy Tahsildars. The petitioner accordingly prayed for a direction to promote him as Deputy Collector with all consequential benefits.
4. Both the petitioners were initially appointed as Probationary Revenue Inspectors. They were promoted as Deputy Tahsildars in the year 1984 and subsequently as Tahsildars. It is not necessary to notice the facts in detail since we do not propose to express any opinion whatsoever on the entitlement of the petitioners for promotion as Deputy Collectors since the same is the subject matter of Original Applications filed by them and pending in the Tribunal.
5. Both the petitioners challenged the Memo No.63223/Ser.I (2) /2001-2, dated 16-11-2001 issued by the Government of Andhra Pradesh, which is to the following effect:
GOVERNMENT OF ANDHRA PRADESH REVENUE (SER.I) DEPARTMENT Memo No.63223/Ser.I (2)/2001-2 Dated: 16-11-2001 Sub : Public Services - Revenue Department - Revision of seniority in the cadre of Tahsildars - Review DPC conducted on 30-10-2001 - Certain clarification - Regarding.
Ref : 1. Orders of A.P.A.T. dated 16-03-1996 in VMA No.16/96 in O.A.No.7171/95.
2. CLR's notification No.XI/197/pdl./95-96/Zone-VI dated 16-03-1996.
3. From the Spl. CS & L.A., Letter No.XI/705/2001 dated 14-03-2001.
4. Representation from A.P. Revenue Services Association dated31-10-2001.
5. Government Memo.No.63223/Ser.I (2)/2001-1 dt.07-11-2001.
6. From the Spl. CS & CCLA, Lr.No.XI/705/2001 dated 8-11-2001.
6. The attention of the Spl. Chief secretary & Chief Commissioner of Land Administration is invited to the references cited and he is informed that as seen from the orders in the reference 2nd cited, promotions to the cadre of Tahsildars from 1995-96 onwards have been made purely on temporary basis based on the interim directions of the APAT in VMA No.16/96 in O.A.No.7171/95 only and subjected to the results of the case in the said O.A. The APAT has disposed off the O.A., in favour of the Prob. Deputy Tahsildars, which was upheld by the Supreme Court of India in its orders dated 16-02-2001 in C.A.No.3055/98 and 3054/98. The list of Tahsildars in existence itself is a conditional one prepared under the shelter of interim orders of the Tribunal in VMA No.16/96 in O.A.No.7171/95. When the said O.A. is disposed off in favour of implementation of rule 4 (e) there is no need to apply rule 24 (c) of the A.P. State & Subordinate Service Rules for revision of such panels.
2. The Special Secretary & Chief Commissioner of Land Administration, Hyderabad, shall take necessary further action in the matter.
A.V.S.REDDY PRL.SECRETARY TO GOVERNMENT According to the petitioners, the impugned Memo is contrary to the Rule 24 (c) of the Andhra Pradesh State & Subordinate Service Rules, 1962 (for short 'the Service Rules'). The decision taken by the first respondent-government directing not to implement Rule 4 (c) of the Service Rules is wholly without jurisdiction, according to the petitioners. It is the case of the petitioners that based on the impugned memo the second respondent has constituted a Screening Committee for the purpose of promotions to the category of Deputy Collectors by revising the panel from 1997-98 onwards. The Screening Committee, according to the petitioners, having found that 119 persons of directly recruited Depluty Tahsildars of 1985 and 1990 batch do not possess the minimum service as stipulated in Rule 7 of the A.P. Civil Service (Executive Branch) Rules requested the government to relax the rules. The proceedings, according to the petitioners, are totally illegal. The earlier panel prepared is sought to be revised without giving any notice to the petitioners adversely affecting their interest and further future promotions. It is the case of the petitioners in brief that in order to implement the judgment of the Supreme Court given earlier the respondents are required to prepare a fresh seniority list and only then proceed to make future promotions. But the respondents without preparing or communicating any fresh list were taking steps for effecting the promotions.
7. In the Original Applications filed in the Tribunal it is stated that earlier the Government issued provisional seniority list and the same was questioned before the Tribunal in O.A.No.7172 of 1995. The matter was finally disposed of by the Supreme Court in C.A.No.3056 of 1998 directing the State to prepare a seniority list in terms of Rule 4 (e) of the Special Rules as it existed between those persons who were directly recruited and persons promoted between 1980 and 1992.
8. It is the case of the petitioners that in terms of Rule 4 (e) of the Service Rules the inter se seniority between direct recruitees and promotees to the category of Deputy Tahsildars shall have to be determined from the date of confirmation in the substantive vacancies in that category in the proportion of 1:1. The important criteria as per Rule 4 (e) is the date of confirmation. But when the petitioners were promoted to the category of Deputy Tahsildars, the Service rules held the field. In the Service Rules there is no expression 'confirmation' and the same is not defined. The Service Rules define 'approved candidate' and 'approved probationer'. In terms of the said Rules, the petitioners became the approved probationers in the category of Deputy Tahsildars. It is the case of the petitioners that they have become the approved probationers in the category of Deputy Tahsildars in the year 1984-85 while the direct recruitees who are recruited in the year 1985 and 1990 became the approved probationers in the said category with effect from 13-11-1987 and 23-12-1987 respectively. The direct recruitees who were recruited during the said period were confirmed in the said category subsequent to that of the petitioners.Even their probation was declared subsequent to that of the petitioners. In nutshell, it is the case of the petitioners that the date of seniority in the category of Deputy Tahsildars between the years 1980 and 1992 shall have to be determined in terms of the date of confirmation.
8. It was specifically contended in the Tribunal that the Government through the impugned memo directed the Chief Commissioner of Land Administration to prepare a revised seniority list ignoring the statutory Rule 24 (c) of the Service Rules which dealt with revision of panels, only after giving notice to the parties. The impugned orders were challenged on the ground that (i) it is unconstitutional; (ii) it is contrary to the statutory Rule 24 (c) and (iii) also no fresh seniority list has been prepared though required to do so before effecting any further promotions and communicating such seniority list to the petitioners. It is the case of the petitioners that in terms of the judgment of the Supreme Court referred to hereinabove a fresh seniority list of the direct recruitees and promoted Deputy Tahsildars is required to be issued and such exercise would effect some of the Deputy Tahsildars and, therefore, a show cause notice to the effected persons may have to be issued. It was contended that the respondents have not issued any such seniority list, as no such seniority list was received by the petitioners.Such seniority list could not have been prepared and issued contrary to the statutory procedure prescribed. It was also contended that the Departmental Promotion Committee could not have ordered for any relaxation in favour of the direct recruitees.
9. Even at the stage of admission, the learned Government Pleader appearing on behalf of the State appears to have made certain submissions. The learned Government Pleader submitted before the Tribunal as is evident from the impugned order that the earlier seniority lists drawn up were as per the guidelines issued by the Tribunal and in terms of Memo No.550552/Ser.II/A2/89, dated 16-2-1994. The provisional seniority list was published and objections were called for and they were finalised by following the due procedure. It was submitted that the respondents have taken action based on the final seniority list issued earlier in accordance with Rule 4 (e).
10. The State appears to have further submitted that they have merely followed the directions of the Tribunal in O.A.No.2372 of 2001, dated 7-9-2001 with regard to implementation of the orders of the Supreme Court dated 16-2-2001 to review the seniority list of the Deputy Tahsildars. The Tribunal was informed that as early as on 30th October, 2001 itself, the process of review of promotions earlier effected to the cadre of Deputy Tahsildar was completed and the orders were issued accordingly and further action to effect the consequential promotions has been taken up.
11. The Tribunal after adverting to the various contentions of the learned counsel appearing on behalf of the petitioners and as well as the learned Government Pleader passed the following order:
"In view of the fact that finality of the matter has been arrived at through the order of the Hon'ble Supreme Court in C.A.No.3055/1998 and 3054/1998, it should be the endeavour of all the concerned agencies to implement the decision so rendered by the Apex Court in all earnest. Any interim orders issued putting a spoke in the process of implementation will thwart the very purpose of the Judgment of the Apex Court. In view of this, it is preferable to hear the arguments of all the parties concerned after the respondents file necessary counters meeting the contentions of the applicant.
During the course of arguments it is also brought to my notice by the learned Government Pleader that in O.A.No.9633/2001, an interim order was issued not to effect the promotions to the cadre of Deputy Collectors till final orders are issued in this O.A.No.9149/2001. In view of my above observations, these interim orders stand vacated consequent upon the issue of following orders.
Admit.Issue notices to respondents returnable in four weeks."
In these writ petitions, the petitioners challenge the said order passed by the Tribunal dated 4-1-2002 and seek further declaration that action of the respondents in seeking to promote 119 candidates by granting relaxation without communicating the valid seniority list to the petitioners as bad in law and violative of Articles 14 and 16 of the Constitution of India.
12. We have elaborately heard the learned Senior Counsel Sri E.Manohar appearing on behalf of the petitioners and as well as the learned Advocate General appearing on behalf of the State. We have also heard Sri Nooty Ram Mohan Rao and Sri J.R. Manohar Rao appearing on behalf of the directly recruited Deputy Tahsildars who got themselves impleaded as party respondents in these writ petitions.
13. We do not propose to make any reference as such to the averments made in the affidavit filed by the directly recruited Deputy Tahsildars for the simple reason that as observed supra we do not propose to express any opinion on the merits of the issue that arises for consideration in the main case. We would only in brief refer to the submissions made by them contending that the seniority list prepared in the year 1998 stands cancelled and the seniority list issued during 1995-96 holds good in view of the order passed by the Supreme Court dated 16-2-2001 allowing the appeals by setting aside the judgment of the High Court dated 31-12-1997 and restoring the orders passed by the Tribunal dated 31-7-1997.
14. The learned Senior Counsel, Sri E.Manohar, submitted that the Tribunal ought to have granted an ex parte ad interim order directing the respondents not to make any further promotions to the posts of the Deputy Colletors as any such promotions during the pendency of the Original Applications filed by the petitioners would cause prejudice to the claim of the petitioners. According to the learned Senior Counsel, the Tribunal ought to have exercised its jurisdiction to pass an appropriate order pending determination of the issue, which is somewhat complex in its nature.
The learned Advocate General submits that the writ petitions filed by the petitioners are totally misconceived and not maintainable in law. The learned Advocate General submits that for the sake of two individual employees claiming promotion to the post of Deputy Collector, the whole process of promotions involving about 119 officers need not be stalled. It is further submitted that this court should not interfere with the discretionary orders passed by the Tribunal unless such discretionary orders result in and create an irreversible situation.
15. Sri Nooty Ram Mohan Rao and Sri J.R. Manohar Rao while adopting the submissions of the learned Advocate General further contended that the cases on hand do not require any interference of this court. The order passed by the Supreme Court referred to hereinabove is clear and categorical and any further obstruction in the matter of promotions would be contrary to the spirit of the order passed by the Supreme Court.
16. Before proceeding further we are required to notice that the petitioners herein have chosen not to implead any of the directly recruited Deputy Tahsildars as party respondents either in the Original Applications filed in the Tribunal or in the writ petitions in hand. The averments and allegations made in the Original Applications filed in the Tribunal and as well as in the affidavits filed in these writ petitions are mainly directed against those directly recruited Deputy Tahsildars. The petitioners seek appropriate directions to interdict the promotions of the directly recruited Deputy Tahsildars to the posts of Deputy Collectors. Yet, they are not impleaded as party respondents.
17. One more aspect that is required to be noticed is that the Tribunal having found that a case is made out for admission passed appropriate orders admitting the Original Applications filed by the petitioners and accordingly directed notices as against the respondents. The Tribunal has not expressed any opinion on the merits of the petitioners' claim and the issues raised in the Original Applications. The Tribunal merely directed notice to be issued to the other side. There is no decision as such rendered by the Tribunal. The Tribunal observed that "it is preferable to hear the arguments of all the parties concerned after the respondents file necessary counters meeting the contentions of the applications ............ Admit.Issue notices to respondents returnable in four weeks." This would clearly disclose that the matter is under active consideration of the Tribunal.
18. The short question that falls for consideration is as to whether the decision of the Tribunal in refusing to grant an ex parte ad interim order interdicting the promotions to the posts of Deputy Collectors is susceptible to be judicially reviewed by this court in exercise of its jurisdiction under Article 226 of the Constitution of India?
19. Part XIV-A of the Constitution was inserted through Section 46 of the Constitution (42nd Amendment) Act, 1976 with effect from 1-3-1977. It comprises two provisions, Articles 323-A and 323-B. Article 323-A (1) says that Parliament, may, by law, provide for the adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation owned or controlled by the Government. Clause (2) of Article 323-A says that a law made under clause (1) may-
(a) provide for the establishment of an administrative tribunal for the Union and a separate administrative tribunal for each State or for two or more States;
(b) specify the jurisdiction, powers (including the power to punish for contempt) and authority which may be exercised by each of the said tribunals;
(c) provide for the procedure (including provisions as to limitation and rules of evidence) to be followed by the said tribunals;
(d) .....
(e) .....
(f) .....
(g) .....
The Parliament enacted the Administrative Tribunals Act, 1985 (Act 13 of 1985) (for short 'the Act') pursuant to the power conferred upon it by clause (1) of Article 323-A of the Constitution. The Act itself was enacted in the express terms of Article 323-A of the Constitution. The Act was intended to set up of such Administrative Tribunals to deal exclusively with service matters to reduce the burden of various courts and to provide to the persons covered by the Administrative Tribunals speedy relief in respect of their grievances.
20. We have adverted to the provisions of the Constitution and made a reference to the Act with a view to highlight that the Tribunals created under Article 323-A of the Constitution of India cannot be equated and placed along with other inferior Tribunals whose origin is not traceable to any of the provisions of the Constitution of India. No doubt, all the decisions of Tribunals created pursuant to Article 323-A of the Constitution are subject to High Court's jurisdiction under Articles 226/227 of the Constitution of India as held by the Supreme Court in L.Chandra Kumar V. Union of India1. The power of the High Court under Articles 226 and 227 of the Constitution of India is not wholly excluded. The Tribunals so constituted are even entitled to handle the matters involving the constitutional issues. "The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court, which have, under our constitutional set-up, been specifically entrusted with such an obligation. Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts." (See: L.Chandra Kumar (1 supra).
21. The Tribunal so constituted is competent to hear matters where the vires of statutory provisions are questioned and has the power to test the vires of subordinate legislations and rules. The Tribunal acts 'as the court of first instance' in respect of the areas of law for which it is constituted. Litigants are not entitled to directly approach the High Court even in cases where they question the vires of the statutory legislations by overlooking the jurisdiction of the Tribunal concerned. Such is the extent and reach of the power and jurisdiction conferred upon the Tribunal.
22. It has to be borne in mind that the Tribunal so constituted is not subordinate to the High Court. This Court does not exercise any administrative superintendence over the Tribunal. This court merely exercises its jurisdiction conferred under Articles 226 and 227 of the Constitution of India which is a supervisory jurisdiction.
23. It is equally well settled that this court does not exercise any appellate jurisdiction and evaluate the decisions of the Tribunal. The orders and decisions of the Tribunal are amenable to judicial review by this court, which is entirely different from an ordinary appeal. A Division Bench of this court in A.Ratnam V. Government of A.P.2 after adverting to the various decisions on the subject explained the distinction between 'appeal' and 'judicial review'.These principles must be kept in mind while judicially reviewing the decisions rendered by the Tribunal.
24. In V.Vinod Rao V. Government of A.P., Revenue Department, Secretariat, Hyderabad3 a Division Bench of this court observed that "when a notice is directed to the opposite party by the Courts/Tribunals, High Court would normally refrain from entertaining a complaint against such issuance of notice by any Courts/Tribunals, but in certain circumstances, the High Court is bound to exercise its jurisdiction under Article 227 of the Constitution if in the opinion of the High Court, refusal to exercise their jurisdiction by Courts/Tribunals has resulted in grave injustice to the party."
25. It is very well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India will not interfere with the exercise of discretionary power by the inferior Courts/Tribunals, unless such exercise has resulted in grave and irreparable injury to the concerned and particularly in cases where such discretion is exercised by a Tribunal whose origin is traceable to the constitutional provisions. The decisions of the Tribunal are subject to a scrutiny before a Division Bench of this court.
27. This court, as observed, does not sit as a court of appeal but merely reviews the manner in which the decision was made by the Tribunal. This court cannot substitute its own decision for that of the Tribunal. This court should confine itself to the question of legality. This court in exercise of its judicial review jurisdiction may interfere with the decision of the Tribunal if it exceeds its power. An error apparent on the face of the record is one of the grounds for interference.
28. In our considered opinion, refusal to grant an ex parte interim order in every case by the Tribunal cannot be characterised as a 'decision'. Such acts cannot be subjected to scrutiny by this court in exercise of its jurisdiction under Article 226 of the Constitution of India. It is equally well settled that this court would not entertain a judicial review proceeding only for the purpose of passing an interlocutory order, inasmuch as the interim relief can be granted only in the aid of and ancillary to the main relief to the party and final determination of his rights in the proceedings.
29. The Supreme Court in State of U.P. and others V. Sunanda Prasad and another4 found fault with the High Court in entertaining a writ petition against an order of status quo granted by the Administrative Tribunal. It is observed:
"We have no doubt in our mind that the High Court exceeded its jurisdiction in entertaining a writ application when the legality of the order of transfer is subject-matter of a pending proceeding before the Central Administrative Tribunal and the Tribunal has passed an order of status quo."
In the light of the foregoing discussion, we are of the considered opinion that this court in exercise of its jurisdiction under Article 226 of the Constitution of India would not normally interfere with the discretionary orders passed by the Tribunal. Grant of an interlocutory order or refusal thereof is within the discretion of the Tribunal. This court would not interfere with such discretion exercised by the Tribunal with regard to the interlocutory orders unless it is established that passing of such interlocutory order or refusal thereof had resulted in an irreversible situation resulting in manifest injustice. It would not be appropriate for this court to entertain any writ petition only for the purpose of granting an interim order during the pendency of the main proceedings before the Tribunal. However, it would be entirely a different matter if the discretion exercised by the Tribunal in the matter of granting interim relief results in incalculable repercussions and public mischief. In such cases where denial of interim orders may lead to public mischief, grave irreparable injury or shake a citizens faith in the judicial process, it is not only the power but the duty of the Court to interfere and grant appropriate relief accordingly. Suffice it to observe interference of this court with the exercise of discretion by the tribunal at interlocutory stage is not a matter of course.
30. The Tribunal in the instant cases having heard the matters at the admission stage in exercise of its discretion thought it fit to admit the Original Applications filed by the petitioners and accordingly directed notices requiring the respondents to appear in the matter.The Tribunal in its discretion thought it fit not to stall and interdict further promotions of eligible persons to the posts of Deputy Collectors. The order, in our considered opinion, had not resulted in any irreversible situation. The Tribunal is entitled to pass appropriate orders after hearing all the parties to the proceedings.
31. We are informed that even the interlocutory applications filed by the petitioners are not disposed of by the Tribunal and are under its consideration.
32. For the aforesaid reasons, we are of the considered opinion that the petitioners are not entitled for any relief whatsoever from this court at this stage.
33. It is needless to observe that the Tribunal shall dispose of the matters in accordance with law uninfluenced by the observations, if any, made in this order.
The Tribunal shall consider the request of the petitioners for expeditious disposal of the matters.
34. The writ petitions shall accordingly stand dismissed. There shall be no order as to costs.