Andhra HC (Pre-Telangana)
K. Srinivasulu Setty vs Government Of Andhra Pradesh, Rep. By ... on 6 September, 1991
Equivalent citations: 1991(3)ALT208
Author: Syed Shah Mohammed Quadri
Bench: Syed Shah Mohammed Quadri
ORDER Syed Shah Mohammed Quadri, J.
1. South India has the distinction of having the most revered and worshipped temple of Lord Venkateswara of great antiquity on the seven hills of Tirumala-Tirupati Devasthanams. Persons professing Hindu faith, belonging to different walks of life - saints, writers, businessmen, poets, politicians and others-are devotees of this temple. Many writers have written in prose and poetry in praise of Lord Venkateswara. Among them was a great saint and poet Annamacharya who had written Sankeerthanas in Telugu language, which were inscribed on palm leaves, copper plates, etc. But, for different reasons, the public did not have the advantage of his invaluable works. Tirumala-Tirupati Devasthanams (T.T.D) launched a project named "Annamacharya Project" for purposes of unearthing hundreds of his compositions said to have been inscribed on the palm leaves, copper plates etc. One K. Srinivasulu Setty who was ,- appointed in the T.T.D. service as tutor in Telugu language (Sri Venkateswara Arts College) and was later promoted as Lecturer in Telugu on 5-8-1968, was deputed to work in this Project at Tanjore Saraswathi Mahal Library. As for the qualification of Srinivasulu Setty, it is stated that he took his degree in higher class in 1963, acquired post-graduate Diploma in Linguistics from Venkateswara University and had completed his doctorate in Annamacharya language, but had to submit his thesis.
2. On 6-12-1978 Srinivasulu Setty was deputed to work as Special Officer of Annamacharya Project work duly assigning his duties. On 22-9-81 in Resolution No. 450 the Management Committee of T.T.D. expressed that it would be unfair to keep Srinivasulu Setty on deputation, who had been associated with Annamacharya work and activities and that if he was willing the Management might bring him over to the project on permanent basis offering sufficient incentives, and proposed to have permanent post of Special Officer redesignated as 'Director' with a scale of pay of Rs. 1200-50-1350-60-1950. It was resolved to create a Director's post as proposed and the proposal to appoint Srinivasulu Setty in the said scale of pay was approved. On the basis of the said resolution the Executive Officer of the T.T.D. issued Proceedings Roc. No. D7/36892/ 81, dated 1-10-1981 appointing Srinivasulu Setty temporarily as Director, Annamacharya Project in the said scale. Srinivasulu Setty claims that though the order stated that he was appointed temporarily as Director, his appointment was on permanent basis. On 1-7-1982 one M. Mohan was appointed as Research Assistant on a consolidated pay of Rs. 250/- which was subsequently increased to Rs. 600/-. However, by proceedings issued by the Executive Officer on 29-11-1982 Srinivasulu Setty was sent back to the post of Lecturer in Telugu on certain allegations. Later, on 31 -3-1983 he was placed under suspension. Srinivasulu Setty challenged the order of suspension in Writ Petition No. 2849 of 1983 in the Court. It was subsequently withdrawn on revocation of the suspension. The said M. Mohan was appointed as programme Co-ordinator in Annamacharya Project in the scale of pay of Rs. 700-1600 by Resolution No. 179, dated 23-7-1984. It is alleged by Srinivasulu Setty that the said M. Mohan got the said resolution -passed by approaching the then Chief Minister Sri N.T. Rama Rao and by bringing his influence on the management committee. However, Srinivasulu Setty was brought back as Officer in-charge of Annamacharya Project on 7-8-1984. The Government of Andhra Pradesh in G.O.Ms.No. 612, Revenue (Endowments. III) Department, dated 29-5-1986 accorded permission to create the post of Programme Coordinator and for appointing M. Mohan to the said post. In the said G.O. it was directed that Srinivasulu Setty should be repatriated to his parent department. For filling up the post of Director, draft rules were published by the Government. It is alleged by Srinivasulu Setty that the draft rules were so framed as to suit the requirements of M. Mohan. On 30-7-1988 the method of recruitment and qualification for the post of Director in Annamacharya Project was approved by the management committee in Resolution No. 354. On 22-7-1989 the Board resolved to promote M. Mohan as Director of Annamacharya Project. Mr. Mohan says that he holds a degree of M.A. (First Class) in Telugu. He submitted thesis on Annamacharya's works on the basis of which he was conferred Doctorate by the Madras University. He claims to have conducted 143 Ashtavadhanams and 9 Sathavadhanams all over India and abroad and obtained many merit certificates and medals, awards, titles, etc. However, that resolution was not implemented. Therefore. M. Mohan filed Writ Petition No. 1720 of 1990 praying for a writ of Mandamus directing the respondents to implement Resolution No. 304, dated 22-7-1989 of the Board of Trustees of T.T.D. and for a consequential direction to promote him as Director, Annamacharya Project. Thereafter, Srinivasulu Setty filed W.P.No. 2463 of 1990 seeking an appropriate writ declaring that he would be deemed to be holding the post of Director Annamacharya Project, T.T.D. Devasthanams, Tirupati, from 1-10-1981 without any break whatsoever with all the attendant benefits of seniority, pay, increments, etc. and for a further declaration that respondents Nos. 1 and 2 therein cannot consider M. Mohan, the 3rd respondent therein, for appointment to the post of Director, Annamacharya Project, T.T. Devasthanams. These in short are the claims of Srinivasulu Setty and M. Mohan .
3. In view of the common questions raised in these cases, they are heard together and are being disposed of by a common judgment. Srinivasulu Setty will be referred to as the petitioner and M. Mohan will be referred to as the 3rd respondent, hereinafter.
4. The Executive Officer of T.T. Devasthanams filed separate counters in these writ petitions. In so far as the claim of the petitioner is concerned, it is stated that T.T.D. deputed the petitioner and several others through S.V. University, Tirupati to Tanjore Saraswathi Mahal Library for doing research work. The petitioner attended to the work of composition and editing Annamacharya's compositions, but he cannot claim the credit solely, as several other persons also rendered service in the project. Further, it is stated, the management faced press criticism number of times due to his improper maintenance of the project funds. He was first deputed to Assist Professors of Telugu and History of S.V. University for writing a book on the life and teachings of Annamacharya with effect from 1st March, 1977 and later he was deputed to work as Special Officer with effect from 11-2-1978. The project was managed by Sri G. Rama Subba Sarma, Lecturer in Telugu, S.V. Oriental College, and the petitioner who was a Lecturer in Telugu. It is admitted that the management committee took a decision to create a post of Director, Annamacharya Project on permanent basis, but it is asserted that the petitioner was appointed only on temporary basis in the scale of Rs. 1200-1950. Had the intention of the Board been to appoint him on permanent basis, the petitioner would have been appointed accordingly. The order of appointment falsifies the claim of the petitioner. While the petitioner was holding the post of Director of Annamacharya Project, the management had to face problems regarding administration, as many irregularities were committed in that period. It is however added that the management had decided to bring the petitioner on permanent basis with sufficient incentives in view of the success of the experiment with the bunch of scholars who worked along with the petitioner in bringing to the public various Sankeerthanas, deciphering copper plates, etc. but unless the suitability of the candidate is considered and selection is made on regular basis no one can be appointed on permanent basis to a post. There are several stages to make a permanent appointment to a newly created post; ad hoc rules have to be framed, applications have to be called for from the eligible candidates, a regular selection has to be made and the selected candidate will have to be on probation for a period of two years. In the case of temporary appointment of a candidate like the petitioner, the services have to be regularised at the first instance and the probation of the incumbent is to be declared to have been completed satisfactorily, then only the question of appointment on permanent basis will arise. The temporary appointment of the petitioner does not confer any legal right on him. The very fact that the petitioner kept quiet for so long a time after his repatriation to his parent department in 1982, would show that he was also aware that the appointment was purely temporary. It is stated that there is no record to show that the petitioner was called to the chambers of the then Executive Officer and was asked about his willingness to be absorbed permanently; and it is added that if it was a question of taking consent the petitioner would have been asked in writing. It is disputed that by virtue of Resolution No. 450 dated 22-9-1981 the petitioner has permanently left the post of Lecturer; on the contrary the petitioner has been working in the post of Lecturer since repatriation and had been drawing his pay and allowances as such. It is stated that the new rules have been issued which were duly approved by the Government in G.O.Ms. No. 1060. Revenue (Endowment) dated 24-10-1989. As the petitioner is only a second class post-graduate and does not possess Ph.D. degree on Annamacharya work and is also aged about 49 years, he is not eligible to hold the post of Director of the project. He cannot also be considered for promotion to the said post as he did not work as Programme Co-ordinator. The petitioner has not questioned the proceedings dated 20-11-1982 repatriating him to his parent department as Lecturer either before the management committee or before the High Court and he has not explained as to why he did not question the same. This very fact shows that he had accepted the said order and after such a long time he cannot be allowed to contend that the order was illegal. The reason for repatriation of the petitioner was that huge advance to the tune of Rs. 3,43,000/- was outstanding by the end of October, 1982. He was called upon to adjust the outstanding advance, but as on 15-11-1982 balance of Rs. 77,792-90 Ps. was outstanding. The inspection disclosed several irregularities and laches. viz., not maintaining of proper account of expenditure relating to preparation of cassettes and distribution of cassettes to V.I.Ps. free of cost, not maintaining the Books Issue Register of the library attached to the Project, making advances to various agencies relating to which the material was not received by the T.T.D. It was in these circumstances the management committee resolved to revert the petitioner to his parent department in the interest of Annamacharya Project. He was relieved of the post of Director on 2-12-1982; subsequently he was also placed under suspension with effect from 31 -3-1983 pending departmental enquiry for various irregularities. However, later he was reinstated in the post of Lecturer on 15-12-1983. It is stated that the representations of the petitioner relate to fixation of his pay, but not to his repatriation. On the representations of the petitioner, the Government called for the remarks from the T.T.D., which were submitted. The petitioner has no lien on or connection with the post of Director; he had only worked for a short period of an year in the said post between 1981-82. On 7-8-1984 the petitioner was again deputed to Annamacharya Project as Officer-in-charge as a stop-gap arrangement. The petitioner worked as Officer-in-charge till 15-6-1986. He was exonerated of the charges on 9-10-1987-Though the petitioner challenged the order of suspension, yet he did not choose to challenge the order of repatriation to the post of Lecturer. For these reasons, it is stated, the relief claimed by the petitioner cannot be granted.
5. Regarding the claim of the 3rd respondent it is stated that he was appointed as Research Assistant in the Annamacharya Project on a consolidated pay of Rs. 600/- on 1-7-1982. Pursuant to the resolution of the management committee dated 23-7-1984, the Government of Andhra Pradesh accorded sanction for creation of the post of Programme Co-ordinator in the pay-scale of Rs. 700-1600 (U.G.C. Cadre Lecturer) in Annamacharya Project in G.O.Ms.No. 612,dated 29-5-1986. The appointment of the 3rd respondent was also approved by the Government and it was directed that the Project Co-ordinator should function as the head of the Project. Accordingly, the 3rd respondent was appointed as Programme Co-ordinator and the petitioner was repatriated. Even at that time, the petitioner did not raise any objection; he accepted the order and was working as Lecturer. The 3rd respondent submitted a representation for promotion as Director stating that he was eligible for that post. The Board of Trustees of T.T.D. having taken note of the fact that he is not only a First Class Post-graduate in Telugu, but also a Ph.D on Annamacharya's works, resolved in their resolution No. 304 dated 22-7-1989 to promote him as Director. But the resolution could not be implemented as the U.G.C. pay scale attached to the post was proposed to be revised on par with the existing pay scale of Rs. 2590-4300 for the posts of Public Relations Officer, Welfare Officer, Marketing Officer, etc., as the revised U.G.C. pay scale of the Director is Rs. 3700-5700 which is more than the pay scale of the Special Grade Deputy Executive Officer, T.T.D. who is the supervisory head of the Director. While that matter was under consideration, the 3rd respondent filed W.P. 1720 of 1990 for implementation of the resolution and thereafter the petitioner filed the writ petition. (No. 2463 of 90). It is denied that the 3rd respondent brought any influence on the management committee or the Executive Officer, or managed to get the resolution dated 23-7-1984. It is stated that the management committee is an independent body constituted under Act 20 of 1979 and that the Executive Officer is neither amenable to any influence nor is guided by any outsider as alleged by the petitioner. The T.T.D. acted in accordance with law in the best interests of Annamacharya Project and T.T.D. It is added that when the petitioner was repatriated in 1982 the Government was headed by one party in power and when he was taken as Project Officer another party came in power and that the changes of the Parties in power did not affect the project work which falsify the allegations of motivation and mala fides levelled by the petitioner. On these averments the respondents pray that both the writ petitions be dismissed.
6. Sri P. Balakrishna Murthy, the learned counsel for the petitioner, submits that (1) T.T.D's Resolution No. 450, dated 22-9-1981 read as a whole, leads to the only inference that the management committee decided to absorb the petitioner permanently in Annamacharya Project subject to the petitioner's agreeing and the consent having been given by the petitioner orally for the permanent appointment, the word "temporary" used in the order issued by the 2nd respondent does not alter the nature of his appointment;
(2) even assuming that the appointment was only temporary, the resolution of the Board repatriating him as Lecturer is not merely illegal but void, therefore it is non-est in law and the petitioner would be deemed to be continuing as Director, Annamacharya Project. Merely on the ground that the petitioner had approached late, the relief cannot be denied to him;
(3) the petitioner was again brought back to Annamacharya Project as Officer-in-charge in August, 1984 and was in-charge of the project. The order of the Government issued in G.O.Ms.No. 612, dated 29-5-1986 in so far as it directs repatriation of the petitioner is wholly without jurisdiction and does not affect the petitioner;
(4) the ad hoc rules issued by the Government in G.O.Ms.No. 1060 dated 24-10-1989 for the post of Director are framed to suit the requirements of the 3rd respondent, therefore they are mala fide and as such they are liable to be quashed; and (5) the Resolution No. 304 dated 22-7-1989 appointing the 3rd respondent as Director, Annamacharya Project is irregular and void as there is no vacant post of Director to be filled up by the 3rd respondent.
7. Sri P.S. Narayana, the learned counsel for the 3rd respondent, on the other hand, contends that the petitioner's appointment as Director, Annamacharya Project was purely temporary as is evident from the order of the Special Officer, therefore, the repatriation of the petitioner for the irregularities committed is valid; as the petitioner accepted the order and acted upon it, he is estopped from challenging the validity of the same. In any event, by his conduct in not challenging the said order for about eight years, the petitioner would be deemed to have waived any cause of action available to him against the said order. As the 3rd respondent was appointed to the post of Director, Annamacharya Project by the Management Committee T.T.D. by Resolution No. 304, dated 23-7-1989, and as the same is not implemented by the 2nd respondent, the 3rd respondent is entitled to a direction to implement the said resolution and allow the petitioner to work as Director, Annamacharya Project.
8. Sri A. Gopala Rao, the learned standing counsel for T.T.D., submits that Resolution No. 450 dated 22-9-1981 of the Board expresses a desire, to absorb the petitioner permanently in Annamacharya Project subject to his agreeing, but no option was called by the T.T.D. nor any option was exercised by the petitioner; it has also redesignated the post of Special Officer as Director in the grade specified therein, but it did not appoint the petitioner as the Director on permanent basis and that is the reason why the 2nd respondent issued the order intimating the petitioner's appointment a Director temporarily. If a new post is created, rules have to be framed for appointment to the said post and the eligible persons will have to be considered for the post. The appointee has to be placed on probation and it is only after confirmation that one can claim to have been permanently appointed. All these steps were not taken in the case of the petitioner, therefore, his appointment is only temporary appointment. As the petitioner was found unsuitable for the post and the T.T.D. had faced a lot of public criticism on account of the financial irregularities committed by him, the Committee took a decision to repatriate him to his original post of Lecturer by Resolution dated 22-9-1981. The petitioner was suspended pending enquiry; the order of suspension was challenged by the petitioner in the High Court by filing a writ petition, but he did not challenge the order of repatriation, as such he is precluded from challenging the same in the present writ petition. The petitioner accepted the order of repatriation, worked as Lecturer for more than two years thereafter, and agreed to work as Officer-in-charge when he was brought back to Annamacharya Project in August, 1984. Later, again when he was repatriated pursuant to the orders of the Government in May, 1986 he worked as Lecturer without questioning the order of repatriation, as such the petitioner would be deemed to have waived his right to challenge the same and he cannot question the orders passed eight years before. The learned Standing Counsel further submits that the petitioner has now been given equivalent post in which he is working and thus no prejudice is caused to him.
9. In view of the above contentions, the following questions arise for consideration:-
(1) Whether the petitioner is entitled to the declaration that -
(a) he was appointed permanently as Director, Annamacharya Project and he would be deemed to be holding the said post without any break with all attendant benefits of seniority, and
(b) respondents 1 and 2 cannot in law consider the appointment of the 3rd respondent to the post of Director, Annamacharya Project.
2) Whether the 3rd respondent is entitled to a direction to respondents 1 and 2 to implement Resolution No. 304, dated 22-7-1989 and give him posting as Director of Annamacharya Project.
10. Having regard to the facts and circumstances of the case, these two questions can be considered together. The petitioner was initially appointed as Tutor in Telugu in 1964 in S.V. Arts College and was later promoted as Lecturer in Telugu in 1968. He was deputed for research work in connection with Annamacharya Project along with others to Tanjore Saraswathi Mahal Library. In December, 1978 he was made Special Officer of Annamacharya Project. While he was so working he was appointed temporarily as director of Annamacharya Project by proceedings issued by the 2nd respondent on 1-10-1981. The contention of Sri Balakrishna Murthy, however, is the resolution of the management-committee appointed him on permanent basis, but the order issued by the 2nd respondent is on temporary basis, therefore the order is not in conformity with the resolution; by virtue of the resolution his appointment is permanent and therefore he has to be treated as appointed on permanent basis. I am unable to accept this contention for two reasons - first, because the petitioner cannot claim advantage of the resolution said to have been passed by the management which is not communicated to him either by the management committee or by any other authority. Even if the management committee has passed such a resolution, unless the same is communicated, it does not confer any right on the petitioner. Secondly, in my view, the resolution did not appoint the petitioner as permanent Director as claimed by him. The relevant portion of Resolution No. 450, dt. 22-9-1981 of the management committee reads as follows:-
"So far the Project is being managed by Sri K. Srinivasulu Setty a Lecturer in our College and had been associated with Annamacharya's works and activities. It is unfair to keep him on deputation. If he is willing, we may bring him over to the project on a permanent basis offering sufficient incentive.
xxxxxxxxxxxxxxx A) We may have on a permanent basis, the following posts:
1) Special Officer redesignated as Director. At present Sri K. Srinivasulu Setty is a Lecturer with eighteen years of experience. It is desirable to fix the Director's post in Reader's scale fixing the salary at the appropriate level as per the rules. Scale of pay: Rs. 1200-50-1350-60-1950.
2. Senior Artists (to be filled later. xxxxxxxxxxxx
3. Artistes-10 posts: xxxx xxxx xxx xxxxx Scale of Pay xxxxxxxx
4. Assistants - 6 Posts xxxxxxxxxx xxxxxxxxxxx Scale of Pay: xxxxxxxxxxx xxxxxxxxxxxx xxxxxxxxxx B) xxxxxxxxxxxx xxxxxxxxxx xxxxxxxxxxxxxxx xxxxxxxx Management Committee may consider the above proposals at A and B. 'Resolved to create the following posts on a permanent basis.
1) Director's post as proposed at A (1).
The proposal to appoint Sri K. Srinivasulu Setty as proposed in the scale of Rs. 1200-50-1350-60-1950 fixing the salary at appropriate level is also approved.
2) 5 (five) posts of Artists in the scale of Rs. 750-30-1020-35-1300 are sanctioned on permanent basis. The following persons from out of the project staff may be appointed in those posts.-
a) Kum. R.G. Sobha Raju -Vocal.
b) Sri G. Balakrishna Prasad - "
c) Sri R. Ramanathan -Violin.
d) Sri B. Rajagopal - Mridangam.
e) Sri D. Lokabhiram -Tabala.
Sd. B. Nagi Reddy, CHAIRMAN."
A close reading of the above proposal shows that the management committee acknowledged that the petitioner was associated with Annamacharya Project work and its activities and was managing the project, and expressed that it would not be fair to keep him on deputation and, if he was willing, he might be brought over to the project on permanent basis offering sufficient incentives. It may immediately be noticed here that this is not part of the resolution; this forms part of the proceedings of the committee. It further appears that two proposals were placed before the management committee for consideration. Proposal 'A' deals with creation of certain posts on permanent basis. The first post is of Special Officer redesignated as Director. In the proposal it was noted that the petitioner was working as Lecturer with 18 years of experience, therefore it would be desirable to fix the director's post in the Reader's scale fixing the salary at appropriate level as per the rules in the scale of Rs. 1200-50-1350-60-1950. In regard to the appointment of the petitioner in the above said scale of the Reader at appropriate level, it is noted that the proposal is approved. It can be seen from the proceedings of the committee that there was no proposal to appoint the petitioner as Director on permanent basis. There can be no doubt that it was the intention of the committee to bring the petitioner on permanent basis, but when it came to his appointment as Director in the above said scale, neither it was proposed that he should be appointed on permanent basis, nor the resolution recorded that he would be the permanent Director of the Project. A careful reading of the resolution as a whole leaves no doubt that the resolution did not appoint the petitioner as Director of Annamacharya Project permanently.
11. The order issued by the 2nd respondent reads as follows:-
"ROC. NO. D7/36892/81 OFFICE OF THE EXECUTIVE
OFFICER, T.T. DEVASTHANAMS, TIRUPATI,
PROCEEDINGS. DT. 1-10-81.
Sub: T.T.D.-Annamacharya Project------Sri K. Srinivasulu Setty-Lecturer on
other duty as Special Officer - appointed as Director - Orders issued.
Read:- 1) Resolution No. 450, dt. 22-9-1981 of the TTD, Management Committee.
2) Procg. Roc. No. D7/36892/81,dt. 1-10-1981.
ORDER In pursuance of the Resolution of the Management Committee and the orders issued in the read above, Sri K. Srinivasulu Setty, Lecturer on other duty as Special Officer, Annamacharya Project, Tirupati, is appointed temporarily as Director, Annamacharya Project, Tirupati, in the scale of pay of Rs. 1200-50-1350-60-1950, with usual allowance as applicable from time to time in the post newly sanctioned in the read 2nd cited. He is requested to report before the Executive Officer, T.T.D. Sd/- P.V.R.K. Prasad, Executive Officer".
A perusal of the above order also shows that the petitioner was appointed temporarily as Director in the scale of pay of Rs. 1200-50-1350-60-1950.
12. Sri Balakrishna Murthy contends that as the resolution appointed the petitioner permanently as Director of Annamacharya Project, the order issued by the 2nd respondent on 1-10-1981 extracted above is inconsistent with the resolution and has no legal effect. I would have no hesitation in accepting the contention, had the premise been correct; but in my view the premise, viz., that the resolution appointed the petitioner permanently, is itself incorrect as noticed above. The resolution, it has been pointed out, did not appoint the petitioner on permanent basis. Therefore, the above said order of the 2nd respondent dated 1-10-1981 is in accord with the resolution and is not inconsistent thereto.
13. Sri Balakrishna Murthy contends that merely because the order of appointment uses the word 'temporary' it does not become 'temporary' as description of nature of appointment in the order is not conclusive; he relies on S. A. Hussain v. State, AIR 1971 A.P. 11. In that case Tahsildars of the erstwhile State of Hyderabad were appointed as Deputy Collectors after 1-11-1956 without selection on temporary basis. The Full Bench observed as follows:-
"Evidently the appointment made without selection can never be considered as a regular appointment and if such an appointment is termed as temporary or provisional, it can never amount to a permanent promotion. In cases where the promotion is made after undergoing the process necessary for regular promotion but if such promotion is termed as temporary or provisional, such a promotion cannot be held temporary or provisional merely because it is so termed".
14. In the instant case it is nobody's case that the petitioner was appointed after selection in accordance with the Rules, any the Rules were not framed by then. Therefore, the observation of the Full Bench does not help the petitioner.
15. From the above discussion it follows that the petitioner was appointed as Director of Annamacharya Project in the scale of pay of Rs. 1200-50-1350-60-1950, temporarily.
16. It appears that the management of T.T.D. noticed financial irregularities in the working of the Project while the petitioner was functioning as Director. That had brought the management under severe criticism from different quarters and consequently the petitioner was sent back as Lecturer in Telugu to S.V. Arts College by Proceedings of the 2nd respondent in Roc. No. B2/52094/82, dated 29-11-1982 which was issued pursuant to the resolution passed by the management committee on 27-11-1982. The validity of that order was not questioned by the petitioner.
17. Sri Balakrishna Murthy, however, submits that the petitioner was so afraid of the management and the changed circumstances, that he could not question that order. I am unable to accept this explanation in view of the subsequent events which I will refer to presently. Subsequently the petitioner was placed under suspension by Proceedings Roc.No. B2/52094/82, dated 31-3-1983 while he was working as Lecturer in Telugu in S.G.S. Arts College after his repatriation. The petitioner challenged the validity of this order placing him under suspension, in W.P.No. 2849 of 83, which he later withdrew after the order of suspension was revoked on 1-12-1983. It may be noticed that after revocation of the order of suspension the petitioner was posted as Lecturer in Telugu in S.G.S. Arts College at Tirupati. If the explanation given by the learned counsel for the petitioner is correct, then the petitioner would not have even filed the writ petition against the order of his suspension. The fact remains that the petitioner accepted the order of his repatriation as Lecturer in Telugu, worked as such till he was suspended and after revocation of suspension he again joined as Lecturer and worked in that capacity till he was brought to Annamacharya Project a second time, in August, 1984 when the petitioner was deputed to Annamacharya Project, Tirupati, as Officer-in-charge. He was Officer-in-charge till 15-6-1986 when he was again sent back as Lecturer in Telugu of S.G.S. College.
18. It is contended that even if his appointment as Director was temporary, repatriating him as Lecturer on the allegations of financial irregularities in 1982 by Proceedings dt. 20-11-1982 is wholly illegal and void. The order dated 20-11-1982 reverting the petitioner as Lecturer from the post temporarily held by him as Director, Annamacharya Project, no doubt, amounts to punishment and as admittedly the said order was passed without affording an opportunity to him, the petitioner could have challenged the validity of the said order; but he has not chosen to do so. Even in this Writ Petition it is not questioned. On the other hand, he accepted the same and acted upon it for over 8 years without demur as is evident from the facts stated above. Once the order was accepted and acted upon by the petitioner for a period of 8 years without questioning the same, I cannot pronounce upon the validity of the said order in these proceedings collaterally, nor can I ignore the same for purposes granting the declaration prayed for by the petitioner.
19. Sri Balakrishna Murthy, however, contends that the order is a void order and has no existence in law. He relied upon a judgment of the Supreme Court in State of Punjab v. Jadgip Singh, . In that case the officiating Tahsildars in the State of pepsuwere confirmed by the Financial Commissioner of the State. At the time of confirmation of the Tahsildars no posts of Tahsildars were available. Subsequently, Rajpramukh of Pepsu created supernumerary posts of Tahsildars. After the merger of Pepsu with Punjab under the States Reorganisation Act, the successor Government of Punjab passed an order deconfirming those Tahsildars. The correctness of that order was before the Supreme Court. It was held that the order of the Financial Commissioner had no legal foundation under the relevant rules as there were no vacancies in which the confirmation could take place, therefore, the order was wholly void. It was further held that where a Government servant had no right to a post or to a particular status, he cannot claim advantage of the same and the subsequent order passed by the successor Government only recognises that position and does not amount to reducing him in rank. This judgment, in my view, does not help the petitioner.
20. The other case is Nawabkhan v. State of Gujarat, . In that case an order of externment was passed against the appellant under Section 56 of the Bombay Police Act by the Police Commissioner. For violation of that order, the appellant was prosecuted. While the trial of the said offence was pending, the order of externment was quashed by the High Court of Bombay on the ground of non-complianance of principles of natural justice. He was acquitted by the trial Court. The State's appeal against the acquittal was allowed by the High Court. The appellant then carried the matter to the Supreme Court. It was held by the Supreme Court that the legal result of quashing the order of externment in writ proceedings by the High Court, was that the accused was never guilty of flouting an order which never legally existed and that the appellant was entitled to an acquittal. In regard to the order passed in violation of principles of natural justice, Krishna Iyer, J. speaking for the Supreme Court tersely stated the principles thus:
"The legal chaos on this branch of jurisprudence should be avoided by evolving simpler concepts which work in practice in Indian conditions. Legislation, rather than judicial law-making will meet the needs more adequately. The only safe course, until simple and sure light is shed from a legislative source, is to treat as void and ineffectual to bind parties from the beginning any order made without hearing the party affected if the inquiry is to a constitutionally guaranteed right. In other cases, the order in violation of natural justice is void in the limited sense of being liable to be avoided by Court with retroactive force".
21. The principle laid down by the Supreme Court in the above decision is that passed by State within the meaning of Art. 12 of the constitution, without giving notice to the person likely to be affected, if it affects fundamental right of a person, it is null and void and non-est in law against him, but if affects other rights, it is a voidable order and can be avoided by a competent court from its inception at the instance of an aggrieve party. In the instant case though the order reverting the petitioner to the post of Lecturer was passed without notice to the petitioner, yet it did not violate any constitutionally guaranteed right of the petitioner, so it is liable to be avoided by Court with retroactive force at the instance of the petitioner, but as admittedly that order is not quashed by any Court so far, it cannot be ignored in these proceedings when the petitioner acted upon it for a period of 8 years. I am not, therefore, prepared to accept the contention of the petitioner that he would be deemed to be holding the post of Director, Annamacharya Project though he is not working in the said post for the last 8 years. It follows that the post of Director, Annamacharya Project has fallen vacant and respondents 1 and 2 can fill up that post in accordance with law.
22. For the aforementioned reasons, the declaration prayed for by the petitioner cannot be granted.
23. Now the claim of the 3rd respondent remains to be considered. The 3rd respondent claims to have been appointed as Director of Annamacharya Project by Resolution No. 304, dated 22-7-1989 passed by the management committee of T.T.D. The resolution reads as follows:-. 304 "E1/25027/89. Item No. 304 Page No. 55.
Establishment Section: Confidential.
Sub:- Estt.- Superior Service - Sri M. Mohan, Programme Co-ordinator,
Annamacharya Project - Promotion to the Cadre of Director- Regarding,
xxx xxx xxx
xxx xxx xxx
The matter is placed before the T.T.D's Trust Board, for taking a decision on the request of Sri M. Mohan, Programme Co-ordinator for his Promotion as Director, Annamacharya Project with effect from 16-6-1989, subject to the approval of the new service rules by the Government.
The T.T.D. Trust Board which met at Tirumala on 12-6-89, in its Resolution No. 240, dt. 12-6-1989 has deferred the subject. Hence the matter is again placed before the T.T.D. Trust Board for taking a decision. Resolution No. 304, dt. 22-7-1989. Resolved to promote Sri M. Mohan as Director of Annamacharya Project.
Sd/- D. Seetharamaiah".
24. From a perusal of the above resolution it is clear that the Management Committee resolved to promote the 3rd respondent as Director of Annamacharya Project. No material is placed before me to show that this Resolution was communicated to the 3rd respondent either by the Management Committee of the 1st respondent on the 2nd respondent.
25. In Bachhittar 'Singh v. State of Punjab, the Supreme Court held thus:
"Thus it is of the essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order. For, until the order is communicated to the person affected by it, it would be open to the Council of Ministers to consider the matter over and over again and, therefore, till its communication the order cannot be regarded as anything more than provisional in character".
It, therefore, follows that only when a resolution of the Management Committee of of the T.T.D. is communicated to the person affected by it, it binds both the T.T.D. and the person so affected and creates mutual rights and obligations; an un communicated resolution contained in the minutes book of the Management Committee is a matter of internal management and does not create any legal right in a third party even though it relates to that party. As the said Resolution was not communicated to the 3rd respondent, he acquires no legal right under it which can be enforced by the High Court by issuing a Writ of Mandamus therefore, no Writ of Mandamus can be issued to implement the resolution. However it is made clear that this judgment does not preclude respondents 1 and 2 from implementing the said Resolution and appointing the 3rd respondent as Director, Annamacharya Project.
26. For the above reasons, both the writ petitions fail and they are accordingly dismissed. In the circumstances of the case, the parties are directed to bear their own costs.