Andhra HC (Pre-Telangana)
The Government Of Andhra Pradesh Rep. By ... vs M. Umamaheswara Rao And Ors. on 3 April, 1996
Equivalent citations: 1996(2)ALT1015
Author: Syed Saadatulla Hussaini
Bench: Syed Saadatulla Hussaini
JUDGMENT M.N. Rao, J.
1. All the five writ appeals arise out of five interlocutory orders passed by two learned judges of this court in five writ petitions as detailed below:
W.A.No. 1177/94 against WPMP No. 21609/93 in WP No. 17106/93 W.A.No. 1176/94 against WPMP No. 21608/93 in WP No. 17105/93 W.A.No. 1190/94 against WPMP No. 21607/93 in WP No. 17104/93 W.A.No. 1201/95 against WPMP No. 21204-21206/94 in WP No. 17084/94 W.A.No. 1202/95 against WPMP Nos. 22020-22022/94 in WP No. 17728/94 Four writ appeals - W.A.Nos. 1176, 1190, 1201 and 1202 of 1994 - came up for hearing before us on 25-9-1995 and we closed the same on the undertaking given by Sri N. Subba Reddy, learned counsel appearing for the State Government that "912 posts of Special Teachers are kept vacant and the same will not be filled until the disposal of the main writ petitions whatever be the orders passed by the Government pertaining to the posts of Special Teachers .....that these 912 posts of teachers pertain to the list made by the Selection Committee pursuant to the test conducted in that behalf" and we also further directed that "the aforesaid 912 posts shall not be filled pending disposal of the writ petitions."
2. Seeking review of the above common order, the four review petitions -Review W.A.M.P.Nos. 2379,2381, 2383 and 2385 of 1995 - have been filed contending that: i) no purpose will be served by keeping the 912 posts vacant specially in view of the fact, as admitted by the respondents (State Government) themselves, that the students and schools will suffer; ii) Contempt Case No. 262 of 1995 was dismissed by a learned single Judge because of the aforesaid order passed by this Division Bench on 25-9-1995 in consequence of which the "aggrieved teachers are left without any resource to law"; and iii) the matter is pending before the Constitution Bench of seven Judges of the Supreme Court and it will take a long time for the final decision to emerge.
3. Had the grounds of review been limited to what has been stated above, we would not have taken the trouble of hearing both sides at length, but unfortunately the fact situation obtaining on 25-9-1995 was not placed before us. The assurance given by Sri Subba Reddy before this Bench on 25-9-1995 was based upon G.O.Rt.No. 670 Education (Service. III) Department dated 6-5-1995, the last part of which reads:
"However, certain number of Secondary Grade Teacher posts, the details of which are given in the Annexure to this G.O, be kept vacant and suitable orders in that regard will be issued after the disposal of the writ appeals pending on the file of the High Court of Andhra Pradesh".
The Annexure to the G.O., gives the details of the 912 posts kept vacant in 20 Districts of the State and the preamble part of the Annexure says: "posts kept vacant in pursuance of the orders of the High Court dated 8-9-1994 in WPMP Nos. 17985 of 1994 in W.P.No. 17104 of 1993 and batch." By 25-5-1995, this G.O., was already stood suspended for a period of four weeks by virtue of an interim order passed by the Andhra Pradesh Administrative Tribunal in O.A.No. 2646 of 1995 dated 26-6-1995 and the period of suspension was further extended from time to time till 31-12-1995. While extending the operation of suspension of the G.O.,upto 31-12-1995, the Tribunal directed that the matter be listed for hearing on 27-12-1995 . The review petitions were filed on 27-10-1995 and when the same came up for hearing before us on 27-11-1995, time was taken for filing counters while at the same time making a submission that there was no stay by any court with regard to the above G.O. But quite surprisingly, on 29-11-1995 for reasons inexplicable, the aforesaid O.A., was withdrawn and the interim order was vacated by the Tribunal, The order reads:
"Learned counsel for the applicants seeks permission to withdraw this O.A. Permission is accordingly granted and the O.A is dismissed as withdrawn. In view of the dismissal of the O.A., as withdrawn, the C.A is closed. The interim orders if any are vacated."
Only thereafter, additional counter-affidavits were filed by senior I.A.S., officers holding responsible positions-one by Sri M.V.P.C. Sastry, Secretary, Education Department and the other by Smt. Sujatha Rao, his predecessor in office - stating that they were under a bona fide impression that there was no order of the Tribunal extending the period of suspension of G.O.Rt.No. 670 dated 6-5-1995 by which the 912 posts of teachers were kept vacant. The two crucial facts - the foundation for the assurance given to this court on 25-9-1995 being G.O.Rt.No. 670 dated 6-5-1995 and it was already suspended by a Division Bench of the Andhra Pradesh Administrative Tribunal - are uncontroversial. Had we been apprised of the fact on 25-9-1995 that G.O.Rt. No. 670 dated 6-5-1995 had suffered an eclipse by virtue of the order of suspension granted by the Tribunal, we would not have closed the four writ appeals recording the assurance of the learned counsel for the Government without going into the factual and legal aspects of the matter. We have therefore, admitted the review petitions.
4. Before adverting to the contentions urged, we think it appropriate to briefly state the facts leading to the filing of the present writ appeals: The State Government by G.O. 429 dated 13-10-1989 decided to create posts of "Special Teachers" and "Special Language Pandits" on payment of fixed pay and so far as the Special Teachers are concerned, the qualifications prescribed are : i) minimum educational qualification as prescribed in the general rules for the Andhra Pradesh State and Subordinate Services (Intermediate); and ii) trained teacher's certificate (secondary grade) or an equivalent thereto. A paltry fixed monthly remuneration of Rs. 398/- was fixed without eligibility for any other allowances or any other benefits like leave etc., which teachers in other departments were enjoying. The selection was to be made by District Selection Committees in accordance with the procedure laid down in G.O.Ms.No. 716 Panchayat Raj Department dated 13-11-1981. The maximum age prescribed was 30 years. This CO., was issued by the State Government on 13-11-1981 as a sequel to the provincialisation of the service of the employees in the gram panchayats and panchayat raj bodies. By this G.O., an ad hoc rule was made under the proviso to Article 309 of the Constitution read with Sub-section (4) of Section 26 and Sub-section (4) of Section 51 of the Andhra Pradesh Panchayat Sami this and Zilla Parishads Act, 1959 laying down that selections shall be made by a District Selection Committee chaired by the District Collector and seven others as specified therein for appointment by direct recruitment in respect of the posts specified in Annexure-I to the G .O. Item No. 1 of Annexure-I covers School Assistants. Annexure-II deals with the procedure for selection to posts mentioned in Annexure-I. For School Assistants, a written test is obligatory and as per paragrah 9 of Annexure-II, a candidate who secures 30 marks shall become eligible for interview. In the case of reserved categories -S.Cs, S.Ts, and B.Cs, - for whom posts are reserved, even if they fail to obtain this minimum mark, the candidates should be called for interview in the order of merit among those who secured less than 30 marks. The District Collector was obligated to prepare a list of candidates "who have secured the qualifying marks in the order of merit". If a candidate secures 40 marks in both written and oral tests, he shall be deemed to be qualified as per paragraph 12. In the case of the reserved categories "even if this minimum is not obtained, candidates who have secured the highest marks shall be appointed in the order of their merit". Paragraph 14 lays down that the District Collector shall then direct finalisation of the selection and allot candidates to the appointing authorities concerned. By paragraph 17, it is made clear that "the list of candidates referred to in paragraph 14 above shall be valid till the entire list for the succeeding year is prepared".
5. A batch of petitions - R.P.No. 23505 of 1989 and batch - were filed before the Andhra Pradesh Administrative Tribunal by a large number of persons contending that they had been validly selected by the District Selection Committees in the recruitment held in the year 1989 but their appointments were illegally withheld. Those petitions were resisted by the State Government contending that the select list would be valid only for a period of one year from the date of its approval and not beyond that as per G.O.Ms.No. 231 Panchayat Raj Department dated 31-3-1989. After considering the rival contentions, a Division Bench of the Andhra Pradesh Administrative Tribunal presided over by Justice Puttuswamy held that G.O.Ms.No. 231 concerned with posts other than Special Teachers and, therefore, it did not have the effect of altering the procedure contained in G.O.Ms.No. 716 for the selection of Special Teachers. The learned Judge observed:
".......it necessarily follows that the provisions made in G.0.231 for other allied posts cannot govern the selections to the posts of Special Teachers. If we were to do that, then we are re-writing the order which is impermissible. From this it follows that the mode of selection stipulated in G.O. 716 exclusively governs the selections to the posts of Special Teachers."
After referring to certain binding precedents, including the one in S.Govindaraju v. K.S.R.T.C., 1986 (3) SLJ 98 wherein it was held that a candidate whose name is included in the select list gets a right to be considered for appointment as and when the vacancy arises, the Tribunal upheld the claim of the petitioner for appointment. Among the various directions given by the Tribunal while allowing the petitions, the following two are relevant:
"We declare that the currency of the select lists for the posts of Special Teachers prepared by the D.S.Cs., was governed by Rule 17 of G.O.Ms. No. 716.
We declare that those selected and kept in the select lists prepared prior to 14-8-1989 except those that are deleted or delisted before or hereafter, are entitled for appointments on the basis of the rankings assigned to them in the select lists for the number of resultant vacancies which exist in that district to the number of posts allocated to that district and not more than that and that any excess appointments made in any district can be terminated following the principle of last come first go..."
6. As there was no response from the Government, sensing that they may not get appointment orders, some of the teachers filed writ petitions in this court inter alia contending that Article 323-A (2) (d) of the Constitution of India and Section 28 of the Administrative Tribunals Act, 1985 to the extent they divested the High Courts of their jurisdiction under Article 226 of the Constitution in respect of service matters are unconstitutional being violative of the basic features of the Constitution. A full Bench of this Court in S. Harinath v. State of A.P., (F.B.) speaking through one of us - M.N. Rao, J- after a rigorous constitutional analysis declared as unconstitutional Article 323-A (2) (d) of the Constitution to the extent it empowered Parliament by law to exclude the jurisdiction of the High Court under Article 226 and also further declared that Section 28 of the Administrative Tribunals Act to the extent it divested the High Courts of their jurisdiction under Article 226 in respect of service matters as unconstitutional. The Full Bench held that the power of judicial review must be exercised only by Constitutional Courts but not by other courts or tribunals set up by statutes and that the constitutionality of an amendment to the Constitution has to be judged on the touch-stone of the Constitution as originally enacted and any amendment made to the original Constitution by Parliament in exercise of its constituent power should not result in abrogation of any basic feature of the Constitution. As no individual cases were argued before the Full Bench, a general direction was given that the petitioners should first approach the Administrative Tribunal for necessary relief. Had the Full Bench of the High Court been apprised of the fact that a Division Bench of the Tribunal had already granted relief to several people in the judgment dated 22-8-1990 (hereinafter referred to as "the first judgment"), the Full Bench might have considered the question of giving a direction to the Government and other concerned authorities to issue appointment orders to the selected candidates as Special Teachers in accordance with the directions given by the Tribunal. If the directions issued by the Tribunal in the first judgment had been implemented, the 911 petitioners in W.P.M.P.Nos. 21607, 21608 and 21609 of 1993 in W.F. Nos. 17104, 17105 and 17106 of 1993 would have been appointed as Special Teachers.
7. The judgment of the Full Bench of this Court in S. Harhiath (2 supra) was questioned before the Supreme Court by the Union of India by filing C.A. No. 169 of 1994 and by an order dated 14-1-1994, the Supreme Court suspended the Full Bench Judgment. The aforesaid C.A., is awaiting adjudication by a larger Bench in view of the order passed in C.A.No. 481 of 1989 on 2-12-1994 wherein similar questions have arisen for consideration.
8. W.P.Nos. 17104, 17105 and 17106 of 1993 were filed by 911 qualified teachers in this court asking for a direction to the State Government to appoint them as Special Teachers in accordance with the judgment of the Tribunal in the first batch of cases. Interim orders in their favour were granted by this court by this court by a learned single Judge on 12-11-1993. On 23-2-1994, the Government issued two orders - G.O.Ms.No. 120 and G.O.Rt.No. 191 - laying down the procedure for fresh selection of teachers and the same were suspended by this court on 23-9-1994. When an application was filed before the Supreme Court in I. A.No. 4 of 1994 by the affected teachers for a direction to the State Government to appoint them as Special Teachers, the same was dismissed by the Supreme Court on 12-5-1995 observing that the stay granted on 14-1-1994 in CA.No. 169 of 1994 will not come in the way of the aggrieved parties from approaching the Tribunal. The main appeal was directed to be heard after the vacation by a constitution Bench but as already noticed, the same has been referred to a larger Bench.
9. The matter again came up before the Tribunal in which only one affected teacher figured as the applicant - S. Harinath - in O. A.No. 2400 of 1994 and the same was dismissed by a Division Bench of the Andhra Pradesh Administrative Tribunal on 21-7-1994 observing that G.O.Ms.No. 716 which contained the procedure for selection of teachers was superseded and that was not brought to the notice of the earlier Division Bench of two members and that the whole scheme of Special Teachers was already abolished and, therefore, the applicant had no claim. In three miscellaneous petitions - WPMP Nos. 21607, 21608 and 21609 of 1993 in WP Nos. 17104, 17105 and 17106 of 1993 - our learned brother S.R. Nayak, J., by a common order dated 8-9-1994 after narrating in extenso the entire gamut of controversy and after noticing the fact that the Supreme Court suspended the operation of the Full Bench Judgment of this Court in S. Harinath (2 supra), that the Government persistently has been taking an untenable stand as to the claim of the empanelled Special Teachers and the legal position that rights have already been accrued in favour of the petitioners by virtue of the first judgment of the Tribunal delivered by Puttuswamy, J., in R.P.No. 23505 of 1989 and batch, which had attained finality, observed:
"Even in the event of the apex court reversing the judgment of the Full Bench of this Court, it will only change the forum of adjudication and not the substantive service law applicable to the facts of this case".
And on that view, the learned judge issued the following directions:
"1. The respondents - State and panchayat Raj Institutions - are directed to prepare a select list of all those writ petitioners who have secured 40% of the marks in both written and oral tests strictly in accordance with Rule 13 of CO.Ms.No. 716 dt. 13-11-1981 and appoint all those writ petitioners who find a place in such select lists as Teachers subject to the same terms and conditions specified in the interim order of this court dated 12-11-1993 made in WPMP Nos. 21607, 21608 and 21609 of 1993.
2. The respondents - State and Panchayat Raj Institutions - are further directed not to make any direct recruitment for the posts of teachers unless and until they comply with the direction No. 1 issued supra;
3. When the respondents - State and Panchayat Raj Institutions- comply with the direction No. 1, they will be free to make recruitment for the remaining posts of teachers;
4. It is made clear that if the respondents - State and Panchayat Raj Institutions-deem it advisable and expedient to appoint the writ petitioners covered under direction No. 1 on regular basis and with out imposing any conditions as specified by this court in its order dated 12-11-1993 made in W.P.M.P.Nos. 21607, 21608 and 21609 of 1993 in order to give a quietus to the long standing dispute, they are free to do so and this order will not come in their way;
5. WPMP No. 17958 of 1994 is ordered in part in modification of the earlier order made on 17-8-1994 and in terms of directions (i) to (iv). WVMP No. 917/94 and WVMP No. 678/94 are rejected. WPMP No. 13662/94 is disposed of as having become unnecessary in view of this order. WVMP ;No. 843/94 is rejected".
10. W.A.Nos. 1190, 1176 and 1177 are filed by the State against the above common order. In two other writ petitions - W.P.Nos. 17084 and 17728 of 1994 - filed by another batch of special teachers, our learned brother B. Subhashan Reddy, J., passed a common order in the interlocutory applications on 7-10-1994 declining to give interim directions to the State Government to appoint the petitioners therein as Special Teachers pending disposal of the writ petitions on the ground that after the suspension of the Full Bench Judgment of this court in S. Harinath (supra) by the Supreme Court on 14-1-1994, this court is precluded from passing any orders in respect of service matters. Against these interlocutory orders, the aggrieved teachers have filed W.A.Nos. 1201 and 1202 of 1995.
11. On the previous occasion, when these matters came up for hearing, we asked Sri N. Subba Reddy, learned counsel for the State Government whether the Government was prepared to appoint the 917. teachers figuring as petitioners in the aforesaid W.P.M.P.Nos. 21607, 21608 and 21609 of 1993 as Special Teachers on a monthly fixed remuneration of Rs. 398/- in view of the fact that the first judgment of the Andhra Pradesh Administrative Tribunal rendered by the Division Bench presided over by Justice Puttuswamy attained finality, in which the Government is a party. Sri N. Subba Reddy has taken adjournments on two occasions to obtain instructions from the Government and submitted before us that the Government was not agreeable to appoint any of them during the pendency of the writ petitions.
12. Sri Subba Reddy's argument, broadly, is two fold: i) this court has no jurisdiction to pass any orders concerning service matters after the Full Bench Judgment of this court in S. Harinath (supra) was suspended by the Supreme Court; and ii) the first order passed by the Andhra Pradesh Administrative Tribunal in R.P.No. 23505 of 1989 and batch granting relief to the Special Teachers by holding that the procedure regarding selections was governed by G.0.716 is incorrect and the later judgment dated 21-7-1994 in O.A.No. 2400 of 1995 is correct.
13. Both the contentions of Sri N. Subba Reddy, it is self-evident, are mutually inconsistent. If this court has no jurisdiction in respect of service matters, the question as to which of the two judgments of the Andhra Pradesh Administrative Tribunal is conformable to the law would not arise. From what is submitted before us, it appears to be fairly dear that there are 21, 347 posts of teachers vacant in the state. The contention advanced for the Government that there are no posts and that the scheme was abolished as mentioned in the second judgment of the Andhra Pradesh Administrative Tribunal does not appear to be factualy correct. The record placed before us prima facie belies such an assertion. In Memo No. 55811/A.2 E.VIII/92 dated 11-9-1992 issued by the Government of Andhra Pradesh, the District Development Officer, Zilla Parishad, Vizianagaram, was informed that "panel prepared shall be operative till all the candidates in the waiting lists are exhausted. He is further informed that as per G.0.716 Panchayat Raj Department dated 13-11-1981, the panel selected by the District Selection Committee shall hold good till a new D.S.C prepares a new panel". The directions issued by the Administrative Tribunal in the first batch of cases - R.P.No. 23505 of 1989 and batch became final and the State Government being a party to those proceedings, did not choose to challenge the correctness of that order in the Supreme Court.
14. It is a well settled principle firmly rooted in our jurisprudence that the decision of a tribunal binds-whether it be right or wrong-when it attained finality. As far back as in 1962, considering this aspect, the Supreme Court in Ujjam Bai v. State of U.P., AIR 1962 SC 1621 by its majority judgment ruled:
"An error of law or fact committed by a judicial or quasi-judicial body cannot, in general, be impeached otherwise than on appeal unless the erroneous determination relates to a matter on which the jurisdiction of that body depends. These principles govern not only the findings of inferior courts stric to sensu but also the findings of administrative bodies which are held to be acting in a judicial capacity. Such bodies are deemed to have been invested with power to err within the limits of their jurisdiction, and provided that they keep within those limits, their decisions must be accepted as valid unless set aside on appeal. Even the doctrine of res judicata has been applied to such decisions." See: Union of India v. Raghubir Singh, .
The first judgment of the Tribunal in R.P.No. 23505 of 1989 and batch having attained finality, it clearly binds the State Government which was a party to it. It is not open to the State Government to contend before us that the said judgment of the Tribunal was incorrect. The second judgment of the Tribunal in O.A.No. 2400 of 1994 which was delivered by a Bench consisting of two members could not claim to declare that the earlier judgment of another Bench of two members was wrong. Only a larger Bench of the Tribunal could say that4. An appellate Court can reverse a judgment on appeal or a higher court may over-rule the same in another case. The doctrine of res-judicata which means, "that the final judgment of competent court may not be disputed by the parties or their successors or any third parties in any subsequent legal proceedings See: Dias - Jurisprudence 4th Edn., pp. 162-163", as already noticed supra, binds the Administrative Tribunals also. Whatever rights the parties acquired under the first judgment-R.P.Nos. 23505 of 1989 and batch cannot be scuttled in any way either directly or indirectly after it became final. The State Government is precluded from challenging the interpretation placed on the relevant statutory rules by the Tribunal in the first judgment: such a course of action is plainly forbidden.
"In service matters, where validity or interpretation of rule is concerned, any order passed by the Courts which achieves finality is binding on the department. If the court is satisfied that any employee has been prejudiced or his right under Article 14 has been violated, it may interfere in his favour. But the department is precluded from challenging the interpretation given by the court. See: Sreedharan Kalat v. Union of India, ."
The different view taken in the second judgment in O.A.No. 2400 of 1994 would not affect the rights accrued to the parties by virtue of the first judgment.
15. We regret to notice that the Andhra Pradesh Administrative Tribunal, a creature of a statute enacted by Parliament claiming to enjoy exclusive jurisdiction in respect of service matters has passed an interlocutory order on 27-6-1995 in a routine manner suspending the operation of the order of the Government in G.O.No. 670 dated 6-5-1995 which was issued by the State Government for the purpose of complying with the interim directions granted by a learned Judge of this court. The order is bereft of any legal reasoning except stating the contentions urged by the counsel, one of them being - "the jurisdiction of all the courts including the High Courts other than the Supreme Court was ousted in service matters and,, therefore, orders that were passed by learned single Judge of the High Court are non-est in law",
16. Without entering into the arena of controversy, we wish to only refer to the law declared by the Supreme Court as to the status and the constitutional position of the Administrative Tribunals established under the Administrative Tribunals Act, 1985. In State of Orissa v. Bhagban Sarangi, 1995 (3) SCC 399 a three Judge Bench of the Supreme Court ruled:
"In our opinion, it is not correct for the tribunal to have stated that they are not prepared to accept the judgment of the Orissa High Court in Kunja Behari Rath v. State of Orissa. We make it dear that the Tribunal in this case is nonetheless a Tribunal and it is bound by the decision of the High Court".
The summit court in Sreedharan Kallat (6 supra) has expressed its unhappiness when the Central Administrative Tribunal commented adversely about a judgment of the Keral High Court:
"This appeal directed against the order of the Central Administrative Tribunal does not raise any intricate question of law but it exposes a very disturbing feature as the Tribunal not only commented upon the judgments rendered by the Kerala High Court in favour of the appellant which had been affirmed by this court, but went on to hold that they had no binding effect as they appeared to be inconsistent with the rules. This was against judicial comity and propriety. We do not approve of it."
17. This court being a constitutional court exercising supervisory jurisdiction under Article 227 of the Constitution of India over all courts and Tribunals throughout the territory of Andhra Pradesh in relation to which it exercises jurisdiction, in our considered opinion, in the peculiar fact situation of this batch of cases, is not denuded of authority to direct the State Government to comply with the directions given by the Tribunal in the first judgment in R.P.No. 23505 of 1989 and batch to which it was a party pending disposal of the main writ petitions. Such a direction would be conformable to the law declared by the Supreme Court under Article 141 of the Constitution of India, despite the suspension of the Full Bench Judgment of this court in S. Harbiath (2 supra) on 14-1-1994 by the Supreme Court.
18. Taking shelter under the sterile plea that this court has no jurisdiction in service matters, the State Government cannot, by resorting to an obstacle course, wriggle out of its duty to abide by the directions issued in the first judgment in R.P.No. 23505 of 1989 and batch. Adherence to Rule of Law and the tenets of good governance obligate the State Government to honour the verdict of the Administrative Tribunal which became final. The poverty stricken unemployed trained teachers aspiring for the small job of Special Teachers carrying an unbelievably trivial monthly total remuneration of Rs.398/- cannot carry the forensic struggle to the Supreme Court in order to enjoy the benefits accrued to them as a result of the judgment in R.P.No. 23505 of 1989 and batch, which attained finality. We think, in these cases, we are duty bound sitting as a constitutional court to reduce the harsh effects of procedural prescriptive and humanise the administration of the law by compelling the Government to adhere to the legal tenets which emanated from the declaration of law made by the supreme judicial authority of the country.
19. For these reasons, allowing the review petitions, we dispose of the writ appeals with the following direction:
20. The State Government shall appoint the petitioners in W.P.M.P. Nos. 21607, 21608, 21609 of 1993 in W.P.Nos. 1/104, 17105 and 17106 of 1993 within four (4) weeks from today as Special Teachers on a monthly fixed remuneration of Rs. 398/- and their appointments shall be subject to review in the light of the decisions that will be rendered in W.P.Nos. 17104, 17105 and 17106 of 1993.
21. Post W.P. Nos. 17104, 17105, 17106 of 1993, 17084 and 17728 of 1994 for final hearing after the judgment of the Supreme Court in C.A.No. 169 of 1994.