ORDER
B. Subhashan Reddy, J.
1. This writ appeal raises an important point for consideration with regard to maintainability of an appeal directly before the Government under Section 89 of the Andhra Pradesh Education Act, 1982 (for short “the Act”) against an order passed by an officer or authority other than the Director.
2. The lis arose inter se two lady lecturers, the writ petitioner-appellant herein and the 3rd respondent, with regard to their continuance of service in the College of the 2nd respondent. The appellant was appointed as Junior Lecturer, while the 3rd respondent was appointed as a lecturer. It is stated that there was no post of Junior Lecturer and as such, the appellant was later on treated as a Lecturer. The 3rd respondent was appointed as a lecturer temporarily during the leave period of one Mr. P. Sudarshan. Since the said Sudarshan returned and resumed the post, the services of the 3rd respondent were terminated by order dated 30-9-1983. The writ petitioner-appellant was appointed in the post held by Mr. E. Ganga Reddy, who firstly went on deputation and later resigned. But, nevertheless, her appointment was also temporary. Permanent appointments were to be made keeping in view the vacancy position and after complying with the procedure contemplated under the relevant law governing the said permanent recruitment.
3. As against her termination orders, the 3rd respondent filed an appeal before the Director of Higher Education. But, that appeal was transferred by him to the Regional Joint Director of Higher Education, Warangal. The Regional Joint Director of Higher Education, Warangal, directed the 2nd respondent-college to advertise calling for applications to fill up the vacancy created by the resignation of E. Ganga Reddy on regular basis. The appellant, feeling that she was a regular incumbent inasmuch as she was appointed to the post held by E. Ganga Reddy, that because of his resignation, there was a regular vacancy; and that she was to be deemed to be a regularly appointed candidate, has filed an appeal before the Director of Higher Education who was the authority to deal with the matter under Section 89(a) of the Act. But the said Director has referred the matter to the Government on the ground that as he has already transferred the appeal filed by the respondent No .3 to the Regional Joint Director of Higher Education, Warangal and that the said Regional Joint Director has passed the orders in the said appeal. After such a reference by the Director of Higher Education, the 1st respondent has passed the orders contained in G.O.Rt.No. 1626, dated 2-12-1987 even going a step further, by directing the appointment of the 3rd respondent in the regular vacancy caused by the resignation of Mr. E. Ganga Reddy. It is this order which was impugned in Writ Petition No. 74 of 1988. At the time of admission of the writ petition, an order of interim suspension was granted on 5-1-1988, which subsisted till the disposal of the writ petition.
4. At issue, is the authority and jurisdiction of the 1st respondent to entertain the matter which was filed as a statutory appeal under sub-section (a) of Section 89 of the Act, but was referred suo motu by the Director of Higher Education, instead of disposing of the same by himself as the statute warrants. It is contended by Mr. P. Krishna Reddy, the learned counsel for the appellant that the impugned order was passed without hearing the appellant and that it was in violation of the principles of natural justice. Even holding so, we are not inclined to remand the matter, as it will only result in further delay in making regular appointments and also for the view, which we are taking with regard to jurisdiction of the 1st respondent.
5. The other question which arises for our consideration before dwelling upon the jurisdictional factor, is the propriety of the action of the 1st respondent in directing the 2nd respondent to appoint the 3rd respondent in regular vacancy caused by the resignation of Mr. E.Ganga Reddy. Admittedly, both, the appellant and the 3rd respondent were appointed as lecturers in Economics on temporary basis. The regular vacancy arose only when Mr. E. Ganga Reddy resigned. Even though the appellant was labelled as Junior Lecturer, there was no post of Junior Lecturer and both the appellant and the 3rd respondent were treated as lecturers, and rightly so. We are not here adjudicating the respective merits of the appellant and the 3rd respondent. But, merely because the 3rd respondent reported to duty on 24-2-1981, a day before the appellant reported, though, both have applied pursuant to advertisement dated 21-1-1981 and interviewed on 22-2-1981 and were selected temporarily, the appellant was asked to report to duty on or before 2-3-1981 with original certificates and she joined duty on 25-2-1981, that fortuitous circumstance of the 3rd respondent joining duty a day earlier to the appellant, cannot make the 3rd respondent a senior or more meritorious so as to entitle her to be appointed to the post of lecturer in Economics ipso facto. As such, the governmental order on this aspect is illegal and erroneous and we clarify that the order passed by the Regional Director treating the vacancy of E. Ganga Reddy as a regular vacancy and the appellant and the 3rd respondent as temporary candidates and to advertise the said post and call for applications and interview and select the candidates in accordance with the procedure contemplated under law, stands, and we confirm the same.
6. Coming to the aspect of jurisdiction of the Government, the 1st respondent herein, to entertain the appeal referred by the Director of Higher Education, the same was properly filed before the Director of Higher Education by the appellant. Section 89(a) of the Act, in clearest terms, provide an appeal to the Director of Higher Education against an order passed by an officer or authority other than the Director. In the instant case, as the Regional Joint Director, Warangal, having jurisdiction only ‘over some’ of the districts and being a subordinate to the Director of Higher Education, his orders were appealable only to the Director of Higher Education and the appeal was validly filed by the appellant before him. It is ununderstandable as to how the Director of Higher Education could just refer the matter to the Government. No such power exists empowering him to do so under the Act. The learned single Judge held that inasmuch as the Director of Higher Education has earlier referred the appeal filed before him by the 3rd respondent to the Regional Joint Director, he was justified in referring the appeal filed by the appellant also as the two matters were interlinked and that in any event, as the Government was having a revisional power under Section 90 of the Act and the said revisional power being a vast one, it can be deemed that on the reference of the Director of Higher Education, the Government has suo motu exercised its power under Section 90 of the Act. The same is sought to be defended by Mr. P. Balakrishna Murthy, the learned counsel for the 3rd respondent by advancing the same argument and in addition citing a decision reported in M. Nagalakshmaiah v. State of A.P., 1973 (2)S.L.R. 105. rendered by a Full Bench of this Court in a service mater arising out of a suspension pending enquiry by invoking the Rule 13 of A.P. Civil Services (Classification, Control and Appeal) Rules, 1963. The contention of Mr. P. Balakrishna Murthy, the learned counsel for the 3rd respondent is that inasmuch as the Government is the superior authority than the Director of Higher Education, following the above ruling of this court, the impugned order stands and that it is not vitiated by lack of jurisdiction. We are afraid, we cannot accede to this contention for the reason that the ratio decided in the above full bench case in M. Nagalaxmaiah v. State of A.P., 1973 (2) S.L R 105 has got no application to the facts of this case. It is well settled that suspension pending enquiry is not a punishment, but an employee is kept out of duties inorder to facilitate the disciplinary authorities concerned to enquire and dispose of the disciplinary proceedings in a smooth and fair manner. The suspension pending enquiry cannot be equated to an order inflicting punishment. What was held in the above Full Bench case was that the order of suspension pending enquiry was an administrative order and not a quasi-judicial order and as such, not only the appointing authority, but also the authority superior to appointing authority could also invoke the powers of placing an employee under suspension and such an invocation of power by a superior authority could not vitiate the orders. The facts in this case are entirely different as the termination orders, one passed against the 3rd respondent specifically and another resulting in termination of the appellant in view of the impugned order passed by the Regional Joint Director has resulted in civil consequences and are quasi-judicial in nature for which appeal remedy has been specifically provided by the legislature under Section 89 of the Act and the appellate authority is also named by the legislature.
7. In the instant case, there was reason for the Director of Higher Education to refer the matter to the Regional Joint Director, Warangal. The services of the 3rd respondent were terminated on account of the return of Mr. Sudarshan from leave. She was agitating against the said termination orders and in fact, such termination orders under the scheme of the Act, which is traceable to Section 83 thereof, could be effected only with the prior approval of the competent authority and the said competent authority being the Regional Joint Director, Warangal. In view of the same, the action of the Director of Higher Education was perfectly legal and valid in referring the matter to the said competent authority i.e., the Regional Joint Director, Warangal, as the termination of the 3rd respondent was made without his prior approval. The word ‘retrenchment’ employed under Section 83 of the Act means the termination by the employer of the service of employee for any reason whatsoever, otherwise than as punishment inflicted by way of disciplinary action. That is made more clear by the Act in view of the separate provision contained under Section 79 thereof dealing specifically with dismissal, removal or reduction in rank or suspension etc., for employees of private institutions. Against any order passed under Section 79 inflicting any punishment, the same is appealable under Section 80. In the said disciplinary proceedings passed under Section 79 of the Act, the 1st appellate authority is the competent authority under Section 80 and against any such orders passed by the said competent authority under Section 80, a further appeal is provided to the Government under Section 81 of the Act. Inasmuch as the termination of the 3rd respondent was not by virtue of any disciplinary proceedings and was termination simpliciter in view of Hie fact that she was holding a post temporarily during the absence of P. Sudershan, who has gone on leave for faculty improvement programme, the same amounts to retrenchment within the meaning of Section 83 of the Act and as the said retrenchment was effected without the prior consent of the Regional Joint Director Warangal, the said competent authority was the person to deal with the said matter and rightly the Director of Higher Education has referred the matter to him in consonance with the said statutory provision. But, after the order was passed by the said competent authority, the same is only appealable under Section 89 of the Ac firstly to the Director under sub-section (a) thereof and a second appeal to the Government under sub-section (b) thereof, against any order passed by the Director. In view of what is stated supra, we hold that the Director of higher Education was obligated to hear and dispose of the appeal filed by the appellant on merits and neither he was competent to refer the matter to the Government nor the Government was competent to entertain or dispose o0f the same.
8. The revisional power contained under Section 90 of the Act is no way concerned with the exercise of the appellate powers under Section 89 and that is a general residuary power against any order passed by the authority subordinate to the Government. When a specific power of appeal is provided under Section 89 of the Act, there is an automatic exclusion of revisional power under Section 90. Further, as against the very order passed under sub-section (a) of Section 89, a further appeal is maintainable to the Government under sub-section (b) of Section 89 and as such, when appeal remedy is invoked under Section 89, the general revisional power contained under Section 90 is automatically excluded. As otherwise, it will result in anomalies and deprivation of precious and valuable right of appeal/s, if the interpretation placed by the learned single Judge is accepted. In that situation, even if the order is appealable, that can be thwarted and deprived by a suo motu revision by the Government purporting to be in exercise of its revisional powers under Section 90 of the Act bypassing an appeal, eventually resulting in deprivation of right to exercise appeal which the legislature provides.
9. A right of appeal is not merely a matter of procedure. It is a matter of substantive right. Such a substantive right vests the aggrieved party of a decision of inferior authority, as of right to appeal to a superior authority as contemplated under the Act. Such a conferment of substantive right by the legislature cannot be altered or scuttled by an executive action. In fact, it was authoritatively held by the Supreme Court time and again and followed by various High Courts including this High Court that the right of appeal vests in the parties thereto on the date when the original action is initiated and that the said right of appeal is to be governed by the law as it prevailed on that date, that is to say, on that day the parties acquired the right, if unsuccessful, to go up in appeal from the inferior authority to the superior authority. It is true that nobody can claim that an appeal has to be provided as of right, but when the legislature in its wisdom provided a right of appeal, then the person aggrieved by an order which is appealable under the statute, has got a right to avail of the said appeal remedy and the said person cannot be deprived of the said appeal under the guise of exercising the revisional power. In that event, what is granted by the legislature under a statute will be taken away by an executive under the guise of exercising revisional power, the result of which will be that not only a person loses a right to exercise the 1st appeal, but also the 2nd appeal which are to be adjudicated on a different basis with re-appreciation of not only legal aspects, but also all facts and material relevant thereto as compared to delicate aspects and truncated scope of the revisional powers. The marked distinction between an appeal and the revision are well known. Appeal remedy if provided under law is exercised as a matter of right, general revision has got no such characteristics. A revision is not a matter of right. The revisional authority in its discretion may entertain a revision or not.
10. In view of what is stated supra, the impugned order is illegal and without jurisdiction and is liable to be struck down and is accordingly struck down and quashed.
11. There is yet another aspect for consideration, namely, with regard to age qualification of both the appellant and the 3rd respondent entitling them to apply for the post of Lecturer in the 2nd respondent-college when notification is issued for appointment on regular basis. It is not out of place to mention that these two ladies were trying to out-wit and over-reach each other. While the appellant was trying to cling on to the temporary post on the ground that she was deemed to be a permanent incumbent on the resignation of Mr. Ganga Reddy, the 3rd respondent was claiming to be a senior to the appellant and was asserting her rights that she was entitled to hold the said permanent post in preference to the appellant. The assumptions of each of them are illusory and baseless. By their infighting, they have prevented authority from making regular selection to the regular vacancy occurred years back. A decade has passed by in this process of litigation. If, by now, the appellant and the 3rd respondent are age-barred, they will not be eligible to apply to the regular vacancy/s to be notified. Justice always should be tempered with mercy. It is also true that undue mercy is harmful to the cause of justice. But, striking a balance we invoke mercy in favour of these two ladies, in so far as age qualification is concerned, and freeze their respective ages as on 30-1-1984 i.e., the date of passing of the orders of the Regional Joint Director of Higher Education, Warangal in his proceedings Rc.No. 1927/B2/1983-84.
12. In result, we pass the following order:
(1) The G.O.Rt.No. 1626, dated 2-12-1987 is set aside as being illegal and without jurisdiction;
(2) The appellant and the 3rd respondents were appointed on temporary basis and were not entitled to be construed as regularly appointed candidates to the posts of lecturers in Economics;
(3) The order of the Regional Joint Director of Higher Education, Warangal and competent authority dated 30-1-1984 passed in his proceedings Rc.No. 1927/ B2/1983-84 is upheld;
(4) The 2nd respondent is directed to advertise, interview and select the suitable candidate to the post/s of lecturer/s in Economics within a period of two months from the date of the receipt of this order without fail; and
(5) The respective ages of the appellant and the 3rd respondent shall be forzen as on 30-1-1984 for the purpose of entitling them to the posts to be advertised pursuant to clause (4).
13. The Writ Appeal is allowed to the extent indicated above. However, we make no order as to costs.