High Court · 2010

Judgment

(per NRR,J) These two writ petitions can be disposed; of by this common judgment as the parties are common and the questions that arise for consideration are also inter related. These two writ petitions are directed against the common judgment rendered by the Andhra Pradesh Administrative Tribunal in OA No. 10084 of 2008 and 0A No. 409 of 2009 filed by the writ petitioner herein. The writ petitioner was recruited as a `forest guard’ on

17.7.1992. He was a member belonging to scheduled castes. The State Government has extended the `rule of reservation’ in favour of scheduled castes in matters of promotions also. Consequently when a vacancy of a `Forest Beat Officer’ became available to be filled in by a member belonging to the scheduled caste, the writ petitioner was promoted as such on 17.2.2006. He has joined duty as `forest beat officer’ on

23.2.2006 and has been working as such. However, the 4th respondent herein appears to have instituted another case bearing OA No. 5154 of 2005 before the Administrative Tribunal, which was disposed of giving directions to the respondents therein to consider the case of the 4th respondent for promotion as a `Forest Beat Officer’ within four weeks from the date of receipt of a copy of the order. It is right and appropriate at this stage to observe that the present petitioner is not a party to OA No. 5154 of

2005. However, as a measure of implementation of the orders passed by the Andhra Pradesh Administrative Tribunal, in OA No. 5154 of 2005, the Divisional Forest Officer, Wild Life Management, Achampet, Mahabubnagar District, passed orders on 1.12.2008 reverting the writ petitioner from the post of Forest Section Officer and promoted the 4th respondent as a Forest Section Officer in that vacancy. Stunned by this order of reversion dated 1.12.2008, the writ petitioner has instituted OA No. 10084 of 2008. Amongst several other contentions canvassed challenging the validity of the said order of reversion, it was contended

that the writ petitioner has not been put on notice while passing the order of reversion dated 1.12.2008 and hence the said order is vitiated for non compliance with principles of natural justice. While admitting the said OA, appropriate interim relief has been granted to enable the writ petitioner to continue as a `Forest Section Officer’. While the said OA No. 10084 of 2008 was pending, the Divisional Forest Officer, Wild Life Management, Achampet, has issued a show-cause notice dated 25.12.2008 calling upon the writ petitioner to show-cause as to why he be not reverted from the post of `Forest Section Officer’ in order to promote the 4th respondent herein as a `Forest Section Officer’, inasmuch as the case of the 4th respondent was not considered while according temporary promotion to the writ petitioner against a vacancy reserved to be filled in by members belonging to scheduled castes. Questioning the validity of this show- cause notice dated 25.12.2008, the writ petitioner has instituted OA No. 409 of 2009. That is how both matters have been clubbed together and heard and decided by a common judgment by the Andhra Pradesh Administrative Tribunal. By its judgment dated 17.7.2009, the Tribunal has dismissed both the OAs. Hence, these two writ petitions have been instituted. We have heard Sri D.Linga Rao, learned counsel for the petitioner and the learned Government Pleader for Services-I for the respondents. Sri Linga Rao would submit that the post of `Forest Section Officer’ has fallen vacant in February 2006 and it is liable to be filled in with a member belonging to the scheduled caste. The post is liable to be filled in on the basis of seniority-cum-fitness. But, however, when two of his seniors, including the 4th respondent herein, were found not suitable for such promotion, the writ petitioner came to be considered for promotion and accordingly he was promoted as a `Forest Section Officer’ on

17.2.2006. Hence, he has earned the said promotion entirely on his own merit. Therefore, even if the order of promotion tried to describe such a promotion as a temporary promotion, it shall nonetheless be construed as one made on regular basis. The learned counsel would submit that when Rules 5(b), 6(h), Rule 10 (a)(i), Rule 16(c) and Rule 23 of the Andhra Pradesh State and Subordinate Service Rules are read together, it clearly emerges that it is not merely the words employed in the order of promotion that would be final, but what would be relevant is whether promotion has been ordered in accordance with the rules or not. Learned counsel would submit that there was no practice in the department to place promotees on probation in terms of Rule 16(c) and therefore if the 4th respondent is really aggrieved of the promotion ordered in favour of the writ petitioner overlooking his claim on 17.2.2006, he ought to have agitated about the same within the time limit prescribed under Rule 23 of the Andhra Pradesh State and Subordinate Service Rules, but not otherwise. It was further contended by the learned counsel for the petitioner that the 4th respondent has not challenged the correctness or otherwise of the order of promotion dated 17.2.2006 issued to the writ petitioner and without challenging the same, the Department could not have undone his promotion. Hence, the learned counsel for the writ petitioner would further submit that the writ petitioner has earned his promotion on 17.2.2006 as he is found to be suitable while two of his seniors though belonging to the scheduled castes are not suitable for any such promotions simultaneously and hence it is a regular promotion and it cannot be treated as a temporary promotion. Learned counsel for the writ petitioner has placed reliance upon the judgment rendered by the Supreme Court in State of Orissa v. Sivasanker Lal Bajoria[1] and the Division Bench judgment of this Court i n K.Venkata Raju v. Govt. of A.P., Revenue (Endts. – I) Dept., Hyderabad[2] and the judgments of the Supreme Court in Surjit Singh v. Balbir Singh[3] and Edukanti Kistamma v. S.Venkata Reddy[4], in support of his plea. Per contra, the learned Government Pleader for Services – I would urge that the orders of promotion dated 17.2.2006 issued to the writ petitioner, along with two others made it abundantly clear that that the said promotions are purely temporary in nature, in terms of Rule 10(a) of the Andhra Pradesh State and Subordinate Service Rules and the promotees shall not be regarded as `probationers’ in the category of Forest Section Officers. It was further made clear that the promotions ordered are liable for review, revision or cancellation at any time without any notice and without assigning any reasons therefor. Learned Government Pleader would further draw our attention to the note appended at the bottom of the order dated 17.2.2006 making it specifically clear to the writ petitioner that his case was considered for promotion without any right of seniority, regularisation of services in the category of Forest Section Officer and probation and he will be reverted without any notice nor assigning any reasons therefore. This, according to the learned Government Pleader, is emphasised because two other members of the scheduled castes, who are seniors to the petitioner herein, are not considered for such promotion at that point of time. It is further pointed out that the 4th respondent is senior to the writ petitioner in the feeder category. However, because of an accident, he fractured his leg and consequently he was not fit to perform duties as a Forest Beat Officer at that point of time. Until and unless he recovered from the injury and he is found fit, his case for promotion as a Forest Section Officer could not have been considered by the department. Taking into account and consideration the nature of duties liable to be performed by a Forest Section Officer, it is essential that one must be in a physically fit position to assume duties and responsibilities. If one were not in a physically fit position, question of consideration of his case for promotion would not arise. Hence, at that time, the writ petitioner was temporarily promoted. Hence, he cannot seek any right from such a temporary promotion. Since the 4th respondent has recovered from the injury and has reported fit for resuming duties, the necessity to consider his case for promotion had arisen all the more so because he is also a member belonging to the scheduled caste. Therefore, learned Government Pleader would urge that there is nothing wrong in reverting the writ petitioner from the position of Forest Section Officer, to which post he was temporarily promoted so as to enable the 4th respondent to be so promoted. Learned Government Pleader would further submit that without rejecting the candidature of the 4th respondent, he being the senior to the writ petitioner, the writ petitioner could not have earned, out of turn promotion. We have considered the rival submissions. The undisputed facts that emerge are these: Between the writ petitioner and the 4th respondent, the 4th respondent is senior in the feeder category to the writ petitioner. He is also a Member belonging to the Scheduled Caste. When a vacancy of Forest Section Officer has arisen, to be filled in by promotion, the 4th respondent is not in a physically fit condition to be so promoted. Only after he becomes fit, his case can be considered for promotion because of the very nature of duties and responsibilities liable to be performed by a Forest Section Officer. Hence, with a view to fill the post, instead of keeping it vacant, the case of the writ petitioner was taken up for consideration. Therefore, care has been taken to consider his promotion purely as a temporary measure. He has not been promoted on a regular basis nor was the writ petitioner preferred in the matter of selection over the 4th respondent. In these set of circumstances, it will be difficult to accept the contention of the learned counsel for the petitioner that notwithstanding the conditions contained in the order of promotion dated

17.2.2006, the writ petitioner shall be construed to have been promoted on a regular basis. Therefore, we have no hesitation to reject the contention canvassed by the learned counsel for the petitioner that the writ petitioner has been promoted on a regular basis with effect from 17.2.2006 and that he shall be treated to have been put on probation as there was no such practice in the department to place the promotees on probation. We are clearly of the view that the department never intended to fill up the post of Forest Section Officer on a regular basis with the writ petitioner at that time when they granted him temporary promotion on 17.2.2006. Because of the policy of the State Government to extend the members the rule of reservation in favour of scheduled castes and scheduled tribes even in the matter of promotions, one vacancy, which is liable to be filled in by a scheduled caste candidate, is available. That’s how the case of the writ petitioner has come up for consideration. If the 4th respondent is not a member belonging to the scheduled caste, it could not have posed any difficulty for the department. He was not only senior to the writ petitioner belonging to the feeder category, but he is also a member belonging to the scheduled caste. Until and unless his case is considered and he was found not fit for such promotion, the writ petitioner would not have earned a promotion in preference to him. There is no material for us to construe that the 4th respondent has not been found fit for promotion as Forest Section Officer, at the time when the writ petitioner was promoted. As is urged by the learned Government Pleader at that point of time, the 4th respondent was injured because of his involvement in an accident and therefore he is not physically fit to perform duties. Therefore, the department has considered it appropriate to accord permission on a temporary basis to the writ petitioner. When the 4th respondent has become fit to resume duties, the department was constrained to consider his case for promotion. If he was found fit for promotion, undoubtedly the writ petitioner will have to make way as there is no other vacancy available to be filled in by the member belonging to the scheduled castes. Hence the order of reversion, in principle, is unexceptionable. However, since more than two years time has elapsed after the writ petitioner came to be promoted, atleast the department could have put him on notice and thus afford him an opportunity of hearing, before passing order of reversion. It is not for the department to consider that there is nothing for the writ petitioner to offer in reply to the show cause notice. What he could have offered by way of explanation is not for the department to speculate upon. Therefore, for want of compliance with the principles of natural justice of affording an opportunity to the writ petitioner to put forth his claim, the order of reversion dated 1.12.2008 is liable to be set at naught. However, when the department has realised the folly committed by it, it has issued a show cause notice to the writ petitioner on 25.12.2008. Therefore, the department sought to remedy the mistake committed by it while straightaway issuing the orders of reversion to the writ petitioner on

1.12.2008. Instead of showing a proper cause to the department as to why he cannot be reverted, the writ petitioner has, inappropriately invoked the jurisdiction of the Andhra Pradesh Administrative Tribunal. When principles of natural justice demand an opportunity to be provided to a party who is likely to be effected and impacted by the decision liable to be taken against his interest, it would be fair and appropriate for a party to show cause instead of rushing and invoking the jurisdiction of the Andhra Pradesh Administrative Tribunal. The scope in judicial review is very limited in such circumstances. Unless it was prima facie shown that the authority which has issued show cause notice lacks competence or jurisdiction, the question of invoking the jurisdiction of the Administrative Tribunal is not the appropriate remedy. Andhra Pradesh Administrative Tribunal ought to have relegated the party to show proper cause and allow an order to be passed by the competent authority on merits of the matter. Any aggrieved party could have canvassed the correctness or otherwise of such a decision of the competent authority by seeking the intervention of an appellate or revisional authority thereafter. Therefore, while we have no hesitation to uphold the ultimate conclusion drawn by the Tribunal, excepting that slight modification is called for in its conclusion. The Tribunal ought to have allowed OA 10084 of 2008 only on the ground that the said order of reversion has not adhered to the principles of natural justice as the competent authority had not preferred to issue the show cause notice or prior opportunity to the writ petitioner. While it ought to have dismissed OA No. 409 of 2009 as the same is directed against a show cause notice. It ought to have directed the writ petitioner to file a detailed reply to the show cause notice within a reasonable period of time and ought to have allowed the competent authority to consider and pass appropriate final orders thereafter. The decisions relied upon by the learned counsel for the petitioner are of no help to him, for the present, in the view we have taken in the fact situation prevailing herein. For the aforesaid reasons, we are of the opinion that WP No. 15202 of 2009 which is directed against the judgment rendered in OA No. 10084 of 2008, deserves to be allowed while WP No. 15276 of 2009 deserves to be dismissed. WP No. 15202 of 2009 has been allowed only to the extent that the order of reversion dated 1.12.2008 has been passed in utter violation of principles of natural justice inasmuch as the writ petitioner has been denied an opportunity of putting forth his objections for consideration of the competent authority. In fact, the competent authority ought to have issued the show cause notice first as was done by him on

25.12.2008 before passing the impugned order of reversion on 1.12.2008. We therefore direct that the petitioner to set forth his objections as to why he shall not be reverted pursuant to the show-cause notice dated

25.12.2008 within a period of three weeks from today. The writ petitioner shall file his detailed objections on or before 10.5.2010 and thereafter the competent authority may pass orders considered appropriate on merits within a further period of two weeks. Accordingly, to the extent indicated supra, WP No. 15202 of 2009 stands allowed and WP No. 15272 of 2009 stands dismissed. No costs. --------------------------------- Ghulam Mohammed,J ----------------------------------------------- Nooty Ramamohana Rao,J Dt : 30.4.2010