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2009 DIGILAW 485 (AP)

T. Vijay Hanuman Singh v. D. K. Panwar

2009-07-22

G.BHAVANI PRASAD, P.S.NARAYANA

body2009
Judgment :- G. Bhavani Prasad, J. A petition to punish the Special Chief Secretary and Chief Commissioner of Land Administration, Hyderabad for disobedience of the orders in W.P. No.4176 of 2005, dated 15-03-2005. The petitioner originally appointed by the Collector, Nizamabad and allotted to Pochampad Project, was transferred to the office of the Commissioner of Land Revenue, Abids, Hyderabad as Typist, by which time he was an approved probationer in the District. When he was shown in the seniority list below the temporary employees, he represented against the same, on which it was tentatively decided to refix his seniority after the approved probationer Smt. K. Rajya Lakshmi, and notices were issued to all the affected persons. But when his case was later rejected by the Commissioner of Land Revenue and the Government, he filed O.A. No.6997 of 1994, in which the Andhra Pradesh Administrative Tribunal directed to take necessary action for fixing the petitioner among the approved probationers in the category of Typists as on the date of his joining the office of the Commissioner of Land Revenue. Accordingly, notices were issued again to all the affected persons and after hearing, the petitioner's case was again rejected. In O.A. No.178 of 2000 filed by the petitioner, the Andhra Pradesh Administrative Tribunal again directed to place him in the list of approved probationers as per the earlier order passed in favour of the petitioner by the Commissioner of Land Revenue and to promote him further on that basis with requisite notional and monetary benefits. W.P. No.13679 of 2004 by some of the respondents therein, Review W.P.M.P. No.8074 of 2005 in the said writ petition and W.P. No.4176 of 2005 filed by the Chief Commissioner of Land Administration against the orders of the Andhra Pradesh Administrative Tribunal failed and the High Court had observed in the order on the review petition that as no argument was raised relating to the applicability of Rule 27 and contentions were raised before the Tribunal and the High Court only regarding Rule 16 of the A.P. Ministerial Services Rules, 1966, which were taken into consideration, there were no grounds for review. The Chief Commissioner of Land Administration then issued orders in proceedings E1/623/2004, dated 07-07-2005 directing fixation of seniority of the petitioner below Smt. Ch. The Chief Commissioner of Land Administration then issued orders in proceedings E1/623/2004, dated 07-07-2005 directing fixation of seniority of the petitioner below Smt. Ch. Kamala and above Sri T.B.G. Alexander in the cadre of Typists, in the light of the declaration of probation of some individuals with retrospective effect in CLR's Ref.E3/541/1981, dated 28-04-1981. The representation of the petitioner against the same was ultimately rejected in the file on 23-09-2007 stating that under the circumstances referred to, it is not desirable to revise the seniority of the petitioner fixed with effect from 12-12-1978, the date of his joining in the office. Consequently, the petitioner filed the contempt case contending that the said action of the Special Chief Secretary and Chief Commissioner of Land Administration is in disobedience of the orders of this Court in the writ petition. The then Chief Commissioner of Land Administration filed his counter affidavit more or less repeating what has been stated in CCLA's proceedings E1/623/2004, dated 07-07-2005 stating the same to be strictly in compliance with the judgments of the Andhra Pradesh Administrative Tribunal and the High Court. Sri O. Manohar Reddy, learned counsel for the petitioner and the learned Government Pleader for services are heard at length. O.A. No.6997 of 1994 was between the petitioner and the official respondents only with none of the persons likely to be affected by the request of the petitioner therein having been made parties and noting the same, the Tribunal, therefore, directed the Commissioner of Land Revenue (predecessor to the present Chief Commissioner of Land Administration) to take necessary action for fixing the applicant among the approved probationers in the category of Typists as on the date of his transfer to the said office after issuing notices to all the persons likely to be affected, and there was no determination of as to who were the persons to be considered as approved probationers for the purpose. In O.A. No.178 of 2000, the petitioner impleaded 22 unofficial respondents also as parties to his application questioning the fixation of his seniority. The Tribunal while directing to place the petitioner immediately below the last person in the list of approved probationers as per the earlier order passed in favour of the applicant in CLR's Ref. No.E1/1515/78, dated 21-01-1980, did not go into or consider the effect of CLR's Ref. The Tribunal while directing to place the petitioner immediately below the last person in the list of approved probationers as per the earlier order passed in favour of the applicant in CLR's Ref. No.E1/1515/78, dated 21-01-1980, did not go into or consider the effect of CLR's Ref. No.E3/541/1981, dated 28-04-1981 under which probation of some individuals was declared with retrospective effect. To be fair, it should be noted that the said proceedings, dated 28-04- 1981 were not referred to by either party to O.A. No.6997 of 1994 or O.A. No.178 of 2000. It should also be noted that three of the respondents to O.A. No.178 of 2000 (respondents 4, 6 and 12) are among those whose probation was declared with retrospective effect under the proceedings, dated 28-04-1981. In W.P. No.13679 of 2004, W.P. No.4176 of 2005 and Review W.P.M.P. No.8074 of 2005 in W.P. No.13679 of 2004 while confirming the orders in O.A. No.178 of 2000, the effect of the proceedings, dated 28-04-1981, by which the probation of some individuals was declared with retrospective effect on the claims of the petitioner, was not specifically raised or considered or decided. In issuance of the proceedings, dated 07-07-2005, the following points were stated to have been considered by the Chief Commissioner of Land Administration: 1. Sri T.V. Hanuman Singh joined in this office at his own request on 12-12-1978. 2. As on 12-12-1978, the probation of Sri T.V. Hanuman Singh was already declared in Nizamabad District and hence he should be treated as approved probationer as on 12-12-1978. 3. Hence, his name has to be placed below the last approved probationer w.e.f. 12-12-1978 in this office. 4. Earlier some provisional orders were issued in CLR's Ref. E1/643/84 dated 29-06-1990, in which it was indicated that Smt. K. Rajya Lakshmi was the last approved probationer in this office as on the date of joining of Sri Hanuman Singh i.e. on 12-12-1978 and hence his name should be placed below Smt. K. Rajya Lakshmi and above Sri Y.V.R.K. Sastry. While issuing provisional orders, objections if any were called for from all the affected parties i.e., all the persons placed below the name of Sri Y.V.R.K. Sastry. 5. Sri J.S. Harinarayana Raju and other employees who were recruited in Typist Cadre (now superintendents) have also filed a representation stating that their probation has already been declared. 6. While issuing provisional orders, objections if any were called for from all the affected parties i.e., all the persons placed below the name of Sri Y.V.R.K. Sastry. 5. Sri J.S. Harinarayana Raju and other employees who were recruited in Typist Cadre (now superintendents) have also filed a representation stating that their probation has already been declared. 6. It is a fact that as on the date of joining of Sri T.V. Hanuman Singh in this office on 12-12-1978, the probation was declared up to Smt. K. Rajya Lakshmi only. But as on that date some others have also completed their probation, but the same was not declared and orders were not issued. 7. However, vide CLR's Ref.E3/541/81 dated 28-04-1981, probation of those individuals was declared with retrospective effect and these orders were not challenged by anybody in any court of law. 8. As seen from this list of persons whose probation was declared, the last person in the approved probationers in Typist category is Smt. Ch. Kamala whose probation was declared w.e.f. 11-10-1978. The next person is Sri T.B.G. Alexander and his probation was declared w.e.f. 29-12-1978. 9. As seen from the list, though the probations of the above individuals are declared on 28-04-1981, the same was done with retrospective effect. As per the provisions of Rule 25 of A.P. State and Subordinate Service Rules 1962, which were in force at the time of transfer of Sri T.V. Hanuman Singh, the individuals were deemed to have satisfactorily completed their probation with retrospective effect, unless otherwise an order in writing is issued postponing or extending declaration of probation. 10. In this case, no orders extending their probation were issued. Hence, the above order became final. 11. It means, that Smt. Ch. Kamala has to be treated as last approved probationer as on the date of joining of Sri T.V. Hanuman Singh in Typist category. 12. Accordingly, Smt. Ch. Kamala was the last approved probationer as on the date of joining of Sri T.V. Hanuman Singh in CCLA office i.e. on 12-12-1978. 13. The date with effect from which probation is declared is important. The date of order itself is not important. Though Smt. K. Rajya Lakshmi was the last approved probationer as on 12-12-1978, the retrospective declaration of probation of some individuals under the proceedings in CLR's Ref. 13. The date with effect from which probation is declared is important. The date of order itself is not important. Though Smt. K. Rajya Lakshmi was the last approved probationer as on 12-12-1978, the retrospective declaration of probation of some individuals under the proceedings in CLR's Ref. No.E3/541/81, dated 28-04-1981 is claimed to have resulted in placing his name below the name of Smt. Ch. Kamala and above the name of Sri T.B.G. Alexander in the cadre of Typists in strict compliance with the orders of the Andhra Pradesh Administrative Tribunal, which directed to place the petitioner in the list of approved probationers as per CLR's Ref. No.E1/1515/78, dated 21-01-1980, which stated that he should take the last rank among the approved probationers in the category of Typists as per Rule 16 of the Andhra Pradesh Ministerial Service Rules. While the Chief Commissioner of Land Administration claims the same to be in strict compliance with the judgments of the Andhra Pradesh Administrative Tribunal and the High Court, which confirmed the directions of the Tribunal, the petitioner contends the same to be in utter disregard of and nullifying the said judicial verdict reflecting wilful and contumacious disobedience. Though it is true that the impugned proceedings were based on declaration of probation of some individuals with retrospective effect by proceedings, dated 28-04-1981, it was never referred to before the Tribunal or the High Court. It is also true that in spite of three of the persons covered by the said proceedings being parties to O.A. No.178 of 2000 and the writ petitions, there was no reference to or consideration of the said proceedings or their effect on the claims of the petitioner or the truth or otherwise of the claim that those covered by the said proceedings had, in fact, completed their probation by 12-12-1978 though specific orders declaring their probation were not passed or issued by that date. Though the petitioner is, thus, compelled to meet a challenge to his request on an altogether new ground about 15 years after he approached the Tribunal first in O.A. No.6997 of 1994, as the said question involves the rights of the persons who were not parties to the litigation at any stage (except three of them) and as the retrospective declaration of their probation cannot be considered as untrue or illegal or nonest in these contempt proceedings, the impugned proceedings, dated 07-07-2005 of the Chief Commissioner of Land Administration cannot be straight away considered to be in contumacious and wilful disobedience of the judgments of the Andhra Pradesh Administrative Tribunal and the High Court. The principles applicable in such cases were laid down in J.S. Parihar v. Ganpat Duggar and others ((1996) 6 Supreme Court Cases 291), wherein the Apex Court considered the question whether the seniority list is open to review in the contempt proceedings and held that once there is an order passed by the Government on the basis of the directions issued by the Court, there arises a fresh cause of action to seek redressal in an appropriate forum and the preparation of the seniority list may be wrong or may be right or may or may not be in conformity with the directions. The Supreme Court stated that that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review and that cannot be considered to be wilful violation of the order. The Apex Court held that the Court cannot exercise the jurisdiction to consider the matter on merits in the contempt proceedings and issue any fresh direction to redraw the seniority list. On the application of the said principles to the facts of the present case, it is clear that the 1st respondent cannot be condemned of committing contempt while the petitioner is at liberty to pursue all his remedies in accordance with law against the proceedings of the Chief Commissioner of Land Administration No.E1/623/2004, dated 07-07-2005 and the later reiteration of the same by the Chief Commissioner of Land Administration from time to time. Accordingly, subject to the above observation, the contempt case is closed.