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2001 DIGILAW 510 (AP)

Y. Mohan Rao v. A. P. Admn. Tribunal

2001-04-27

S.B.SINHA, V.V.S.RAO

body2001
S. B. SINHA, C. J. ( 1 ) THIS Writ Petition is directed against a judgment and order dated 1-2-2000 passed by the Andhra Pradesh Administrative tribunal whereby and whereunder the original application filed by the petitioner under Section 19 of the Administrative tribunals Act, 1985 was dismissed. ( 2 ) THE petitioner was appointed as medical Assistant on 27-12-1975 whereas the 4th respondent was appointed as Non- medical Assistant in the Leprosy Control unit on 28-2-1979. The petitioner admittedly was promoted to the post of health Educator on 16-10-1998. ( 3 ) THE qualification for holding the said post by way of transfer or promotion is governed by statutory rules known as health Educators in the National Leprosy control Programme Service Rules. Rule 5 of he Rules reads thus:qualifications: (i) By promotion: (a) The candidate must have put in a minimum period of three years of service of which two years should be in the category of Non-Medical assistant in the Andhra Pradesh medical Subordinate Service (Leprosy) Control Programme,, provided preference shall be given to the Graduates. (b) Must have passed S. S. C. or its equivalent examination, (ii) By transfer: (a) The candidate must have put in a minimum period of three years of service of which two years should be in the category of Non-Medical supervisor in the Andhra Pradesh medical Subordinate Service (Leprosy) Control Programme, provided preference shall be given to the Graduates. (b) Must have passed S. S. C. or its equivalent examination. ( 4 ) THE said rule was amended by reason of G. O. Ms. No. 73, dated 27-1-1986 and the following proviso has been added to Rule 5 (i) (b) and 5 (ii) (b): provided that other things being equal preference shall be given to candidates having Diploma in Health Education qualification. ( 5 ) ONE Mr. Krishna Rao, Health educator was promoted to a higher post in august, 1997 as a result whereof one post of health Educator fell vacant. The petitioner by an order dated 16-10-1998 was temporarily promoted to the said post which he joined on 6-11-1998. The 4th respondent, however, appeared in Diploma in Health Education Examination and his results were declared in December, 1998. The 4th respondent made a representation before the authorities for considering his case for regular promotion as Health educator upon replacing the petitioner. The 4th respondent, however, appeared in Diploma in Health Education Examination and his results were declared in December, 1998. The 4th respondent made a representation before the authorities for considering his case for regular promotion as Health educator upon replacing the petitioner. On 7-6-1999 the University of Calcutta issued the provisional pass certificate in Diploma in Health Education in favour of the 4th respondent, on which date the Regional director of Medical Services recommended his case for promotion. On or about 5-10-1999 the Director of Health directed to promote the 4th respondent. Thereafter the impugned orders dated 2-11-1999 were issued promoting the 4th respondent as health Educator and redeploying the petitioner as Non-Medical Supervisor. On 5-11-1999 the petitioner herein was asked to hand over charge to the 4th respondent herein. ( 6 ) QUESTIONING the aforementioned order the petitioner filed an original application before the Tribunal under Section 19 of the administrative Tribunals Act. By reason of the impugned order dated 1-2-2000 the said application was dismissed. ( 7 ) THE short question which arises for consideration in this application is as to whether the petitioner was qualified to hold the post of Health Educator or not. It is not in dispute that he having been holding the post of Non-Medical Assistant from 1975 for a period of three years had the requisite experience as provided for under Rule 5 of the said Rules. His educational qualification to hold the said post is also beyond any dispute. The proviso appended to the said Rule by reason of G. O. Ms. No. 73, dated 27-1-1986 would show that the same does not provide for any additional qualification. It merely states that all other things being equal, preference shall be given to a person holding a higher qualification. Promotion to the post of Health Educator would, therefore, be automatic and shall be considered on the basis of seniority-cum- merit and only in the event the cases of more than one person are considered and other things being equal, a candidate holding the additional qualification would be preferred. The learned Tribunal held:it is an admitted fact that the post of health Educator and Non-Medical supervisor are of the same cadre and of the same scale. Further, it is also an ; undisputed case that the feeder category for these posts is Non- medical Assistant. The learned Tribunal held:it is an admitted fact that the post of health Educator and Non-Medical supervisor are of the same cadre and of the same scale. Further, it is also an ; undisputed case that the feeder category for these posts is Non- medical Assistant. As per rules, Non- medical Assistant with three years experience is eligible for promotion to the above posts i. e. , Health Educator and Non-Medical Supervisor which carry the same scales of pay. However, as per the amendment made to the rules i. e. , G. O. Ms. No. 73, Mandh department, dated 27-1-1986 a proviso is added to the effect that other things being equal, preference shall be given to the candidates having Diploma in health Education. Further, in the instant case, it is a fact that when the : applicant in O. A. No. 6687/99 was promoted on 16-10-1998, the applicant. , was seniormost among the feeder ] category candidates and at that time no other person possessing Health education Diploma in the feeder category was available. However, it is also a fact that the department is aware that the applicant in O. A. No. 7175/99 was deputed to study diploma course at Calcutta and he wrote examination on 25-8-1998. Thus, the department is aware that the applicant in O. A. No. 7175/99 is likely to get additional qualification required shortly, but the authorities having promoted the applicant in O. A. No. 6687/99 as Health Educator on 16-10-98. However, the results were published in the month of December, 1998. At the instance of the applicant in VMA, the official respondent promoted the applicant in VMA as health Educator vide proceedings dated 2-11-99 and posted him in place of the applicant in O. A. No. 6687/99 and the applicant in O. A. No. 6687/99 was posted as Non-Medical supervisor. ( 8 ) DESPITE the aforementioned finding, the Tribunal took into consideration the irrelevant fact viz. , that the official respondent is. having right to post the petitioner as Non-Medical Supervisor since there was no change of status. ( 9 ) IT further held:further, as per the administrative convenience, the official respondent has every reason to appoint the applicant in VMA as Health Educator in view of the fact that he possessed diploma in Health Education. ( 10 ) THE findings of the learned Tribunal are based on extraneous consideration. ( 9 ) IT further held:further, as per the administrative convenience, the official respondent has every reason to appoint the applicant in VMA as Health Educator in view of the fact that he possessed diploma in Health Education. ( 10 ) THE findings of the learned Tribunal are based on extraneous consideration. The order impugned in the writ petition reads thus:in pursuance of the orders contained in G. Os cited and instructions issued by the Director of Health, Andhra pradesh, Hyderabad, Sri Y. Mohana rao, Health Educator, Government leprosy Control Unit, Paderu who is holding the post of Health Educator without requisite qualification of diploma in Health Education is now re-deployed and posted as Non- medical Supervisor in the time-scale of pay of Rs. (2525-5390) 4850-10250 kotauratla, Mobile Leprosy Control unit, Narasipatnam to fill in the existing vacancy. The officers concerned are requested to relieve and admit the candidate for duty and inform the date of relief and joining promptly. ( 11 ) PLAIN language of the said order together with the background in which it was passed, as narrated hereinbefore, will leave no manner of doubt that the petitioner was purported to have redeployed and in fact reverted as he, according to the regional Director, was not having the requisite qualification. The impugned order has been passed by the said authority suffers from the vice of total non- application of mind. On the date on which the petitioner was promoted i. e. , 16-10-1998, the question of giving preference to the 4th respondent by reason of his having a higher qualification did not arise. The petitioner is admittedly senior to the 4th respondent. Admittedly his case was considered in isolation. In any event, the result of the 4th respondent having been published in december, 1998 acquisition of a qualification of Diploma in Health education would not entitle him to supersede the petitioner inasmuch as it is not the case of any of the parties that the petitioner did not have the requisite minimum qualification to hold the post. ( 12 ) THE 2nd respondent herein posed himself a wrong question and thus misdirected himself in law. A Division bench of the Calcutta High Court in santiniketan Society vs. State has noticed what would constitute an error of law thus:in De Smith, Woolf and Jowell on judicial Review of Administrative action, 5th Edn. ( 12 ) THE 2nd respondent herein posed himself a wrong question and thus misdirected himself in law. A Division bench of the Calcutta High Court in santiniketan Society vs. State has noticed what would constitute an error of law thus:in De Smith, Woolf and Jowell on judicial Review of Administrative action, 5th Edn. , page 286, it is stated: the concept of error of law includes the giving of reasons that are bad in law of (where there is a duty to give reasons) inconsistent, unintelligible or substantially inadequate. It includes also the application of wrong legal test to the facts found, taking irrelevant considerations into account and failing to take relevant considerations into account, exercising a discretion on the basis of any other incorrect legal principles, misdirection as to the burden of proof, and wrongful admission or exclusion of evidence, as well as arriving at a conclusion 1. 2001 (1) ICC 449. without any supporting evidence. Error of law also includes decisions which are unreasonably burdensome or oppressive. Thus whether or not the drawin g of an inference from the primary facts, or the application of a statutory term to the facts and inferences drawn therefrom, is held or assumed to be a matter of fact (or fact and degree) of a matter of law, the court may still hold the decision erroneous in points of law if any of the above defects is present. This aspect of the matter has also been considered in Sushil Kumar Sasmal vs. State of West Bengal, reported in 1999 (1) CHN 92, wherein it has been held if a statutory authority takes into consideration irrelevant fact and fails to take into consideration, relevant fact, an error on the fact of the record is committed. It is further well- known that a statutory authority must pose unto himself the correct question so as to acquaint himself with the fact of the matter with a view to answer the jurisdictional question, failing which he would be guilty of commission of misdirection in law. ( 13 ) IN Dr. Shyamanand Singh vs. State of bihar it is observed:. . . . . . IT is well settled that where the words used in a document are clear, there is no scope for putting gloss over the language used. ( 13 ) IN Dr. Shyamanand Singh vs. State of bihar it is observed:. . . . . . IT is well settled that where the words used in a document are clear, there is no scope for putting gloss over the language used. The language employed in Annexure-1 is clear and as such it has to be held that, as disclosed in Annexure-1, the petitioners have been suspended on the ground that they were prima facie found guilty of misappropriation. There was no material on the basis of which a prima facie conclusion could be arrived at that the petitioners were guilty of actual misappropriation. ( 14 ) IN Secretary of State vs. Tameside Lord diplock held:. . . . . . HAD there been factual foundation on the basis of which reasonable conclusion could be arrived at that the petitioners were guilty of actual misappropriation it would have been a different matter. Here it appears that the authority passing the impugned order did not ask itself the right question and take reasonable step to acquaint itself with the relevant information to enable it to answer it correctly. This amounts to misdirection in law. ( 15 ) THE submission of Mr. P. V. Krishnaiah to the effect that no injustice has been caused to the petitioner is said to be rejected. It is now a well settled principle of law that when a statutory authority passed a statutory order, the reasons stated therein cannot be supplemented by any affidavit. In any event, having committed an ex facie illegality, the 4th respondent cannot take up the plea on behalf of the 2nd respondent as to why he did it. In Mohinder Singh vs. Chief election Commr. it is observed thus:. . . . . . . WHEN a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. ( 16 ) THE very fact that the 4th respondent prayed for promotion in place of the petitioner which had been recommended and ultimately accepted clearly go to show that grave injustice has been caused to the petitioner. ( 16 ) THE very fact that the 4th respondent prayed for promotion in place of the petitioner which had been recommended and ultimately accepted clearly go to show that grave injustice has been caused to the petitioner. The action on the part of the concerned respondents to favour the 4th respondent, being for unauthorized purpose suffers from malice in law. The learned Tribunal, as noticed hereinbefore also did not address itself the correct question. Consequently its order suffers from an illegality. ( 17 ) FOR the reasons aforementioned, the impugned order dated 2-11-1999 cannot be sustained which is set aside. Consequently the writ petition is allowed with costs quantified at Rs: 2,000/- (Rupees two thousand only ).