WP/27071/2006 of P. Radha Kishan rao, Vs The Superintending Engineer ( RWS Circle), Panchayat Raj, on 29 December 2006

: O R D E R :

Counsel for the petitioner : Shri K. Ram Reddy 29[th] December, 2006

Per G.S.SINGHVI, C.J.

This petition is directed against order dated 22-12-2006 passedby the Andhra Pradesh Administrative Tribunal at Hyderabad (forshort, ‘the Tribunal’) in VMA Nos. 1406 and 1452 of 2006 in O.A No.6769 of 2006, whereby the Tribunal vacated ex parte interim order dated 17-11-2006.

A perusal of the record shows that on being recommended bythe District Selection Committee, respondent No.6 – Smt. P.V.Rajeena was appointed as Junior Assistant in Zilla Parishad, RangaReddy with effect from 7-12-1979. She was promoted as SeniorAssistant in Mandal Parishad, Shameerpet from 1-11-1999. By anorder dated 30-8-2006, Chief Executive Officer, Zilla Parishad, RangaReddy promoted her as Superintendent. She joined that post on 31-8-2006. Petitioner – Radha Kishan Rao was appointed as Typist in1979 by Superintending Engineer, Panchayat Raj (Mechanical Circle),Hyderabad. In 1992, he was promoted as Senior Assistant. By anorder dated 27-9-2006, Superintending Engineer, Panchayat RajCircle, Hyderabad has temporarily promoted the petitioner asSuperintendent in the time scale of pay Rs. 7,770 – Rs. 18,575 andposted vice respondent No. 6 in the office of Executive Engineer,Ranga Reddy Division, Vikarabad, Ranga Reddy District (respondentNo.2). He was relieved from the office of the Superintending Engineeron 11-10-2006 and reported for duty in the office of respondent No.2. The latter did not accept the joining report of the petitioner and sentletter dated 16-10-2006 to the Superintending Engineer seeking someclarification. In reply, the Superintending Engineer sent letter dated24-10-2006 reiterating that as per the extant Government Orders, hewas competent to make promotion to the post of Superintendent. Thereafter, the petitioner again approached respondent No.2 for beingallowed to join duty, but the latter declined to accept the same. Hethen filed an application under Section 19 of the AdministrativeTribunals Act, 1985 for issue of a direction to the respondents to allowhim to join duty in furtherance of order dated 27-09-2006. The application filed by the petitioner was registered as O.A No. 6769 of2006. By an order dated 17-11-2006, a Single Member Bench of theTribunal admitted the application and passed the following mandatoryinterim order:

“Pending disposal of the OA there shall be interimSuspension of the impugned letter No. A2/51/2004 dated16.10.2006 and consequential memo no.A2/64/2001 dated16.10.2006 along with letter No.A2/562/2004 dated 4.11.2006of the 2[nd] respondent and letter No.A2/516/2004-1, dated1.11.2006 of the 3[rd] respondent. There shall be a furtherdirection to the 2[nd] and 3[rd] respondents to admit the applicantinto duty as Superintendent”.

On being noticed by the Tribunal, respondent No. 6 and ChiefExecutive Officer, Zilla Parishad, Ranga Reddy District filedapplications for vacating the interim order, which were registered asVMA Nos.1406 and 1452 of 2006. They pleaded that theSuperintending Engineer was not competent to make promotionagainst the post of Superintendent in Zilla Parishad and the ChiefExecutive Officer alone was competent to make such promotion. Afterhearing the parties, the Tribunal passed the impugned order andvacated the ad interim order.

Arguments

Learned counsel for the petitioner argued that refusal ofrespondent No.2 to accept the joining report submitted by the petitionerwas per se illegal and the Tribunal gravely erred by vacating ad-interim order. He submitted that by virtue of order dated 27-9-2006passed by the Superintending Engineer, the petitioner had acquired avaluable right and the same could not have been frustrated byadamant refusal of respondent No.2 to accept his joining report.

In our opinion, the writ petition is meritless and is liable to bedismissed summarily. It is an undisputed position that respondent No.6 was promoted as Superintendent in August, 2006 and she hadjoined duty on 31-8-2006. It is also an admitted position that as on thedate of passing order dated 27-09-2006, respondent No. 6 was already holding the post of Superintendent. This being the position, it isdifficult to fathom any rational reason for the action of theSuperintending Engineer to promote the petitioner and thereby createa situation for reversion of respondent No.6 to the lower post. Thequestions whether the petitioner could have been promoted asSuperintendent on temporary basis replacing respondent No.6 andwhether respondent No.2 acted illegally by not allowing him to joinduty in furtherance of order dated 27-9-2006 are yet to be adjudicatedby the Tribunal after considering the pleadings of the parties, thedocuments produced by them and hearing the arguments of theirrepresentatives/advocates. Therefore, at this stage, we do not considerit proper to express any opinion which may prejudice the cause ofeither of the parties. However, we do not have the slightest hesitationto observe that learned Member of the Tribunal gravely erred bypassing an ex parte interim mandatory direction for implementation oforder dated 27-09-2006 and the order under challenge does not sufferfrom any jurisdictional error or patent illegality warranting interferenceunder Article 226 of the Constitution of India.

It is settled law that while deciding the prayer for interim relief,the Courts and other judicial fora are required to bear in mind thefactors like the prima facie case, balance of convenience, irreparableinjury and above all the element of public interest. An interim order,which has the effect of virtually granting final relief to the party, cannotbe passed by the Court or the Tribunal except when it is fullyconvinced that non-grant of such relief will cause irreparable injury tothe aggrieved person and will result in miscarriage of justice. Even ina case falling in that category, interim order cannot ordinarily bepassed without giving notice and opportunity of hearing. The case ofthe petitioner does not fall in the category of exceptional cases inwhich the Tribunal should have passed interim order and that toowithout issuing notice and hearing the affected parties.

In view of the above, we hold that the learned Member of the Tribunal rightly vacated the ad-interim order and restored thepossession which was obtaining on 17-11-2006.

In the result, the writ petition is dismissed.

As a sequel to dismissal of the writ petition, WPMP No.34798 of2006 filed by the petitioner for interim relief is also dismissed.

December 29, 2006

G.S. SINGHVI, C.J.

C.V. NAGARJUNA REDDY, J.