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2021 DIGILAW 622 (AP)

State of Andhra Pradesh v. K. Bhagya Srinivas

2021-09-23

ARUP KUMAR GOSWAMI, NINALA JAYASURYA

body2021
JUDGMENT : Arup Kumar Goswami, J. 1. Heard Mr. N. Aswartha Narayana, learned Government Pleader for Services I appearing for the appellants. Also heard Mr. P. Narasimha, learned counsel appearing for the respondent/writ petitioner. 2. This writ appeal is preferred against the judgment and order dated 17.08.2020 passed by the learned single Judge in W.P. No. 13444 of 2020, by which, the writ petitioner sought a direction to respondent No. 2 (appellant No. 2 herein) to implement G.O.Rt. No. 185 dated 19.02.2020 issued by the respondent No. 1 (appellant No. 1 herein) for reinstating the petitioner into service as Police Constable in Anti Naxal squad, Kakinada, Eluru Range, East Godavari District. 3. The petitioner was appointed as police constable on 19.01.2012 and he was attached to the Anti Naxal Squad and later, he was posted as a security personnel for escort duties. 4. He was treated as a deserter with effect from 02.03.2015 and the disciplinary authority had passed an order awarding punishment of removal vide C. No. 25/OEPR/2016 dated 27.10.2017. 5. The order dated 19.02.2020, implementation of which was prayed for by the petitioner, reads as follows: "GOVERNMENT OF ANDHRA PRADESH ABSTRACT Police-Revision Petition of Sri. K. Bhagya Srinivas, (f) PC 2004 of ANS Kakinada, Eluru Range, East Godavari District against the punishment of "Removal from Service"-Punishment set aside and Out of Employment period treated as Not on Duty-Orders-Issued. HOME (SERVICES. II) DEPARTMENT G.O.Rt. No. 185 Dated: 19.02.2020 Read the following: 1. Representation of Sri. K. Bhagya Srinivas, formerly PC 2004 of ANS Kakinada, Eluru Range, East Godavari District, dated 06.03.2019. 2. Government Memo. No. 893(P)/Ser.I/A1/2019-1, Dt: 20.03.2019. 3. From the DGP, AP, Mangalagiri, Lr.Rc. No. 386/T1/2019, Dt: 12.09.2019. @ @ @ ORDER: In the reference 3rd read above, the Director General of Police, Andhra Pradesh has stated that the Superintendent of Police, East Godavari district, in the letter dated: 17.07.2019 has informed that Sri. K. Bhagya Srinivas, PC 2004, of ANS Kakinada, East Godavari District, was dealt with on a Major Charge under Rule 20 of A.P.C.S. (CC&A) Rules, 1991 vide Memorandum of Charge, dated: 26-09-2016, for the following delinquency :- Charge: "Sri. B. Srinivas, PC 2004 of ANS Kakinada has absented himself from duty on 02-03-2015 F.N. and completed 21 days desertion period by 22-03-2015 A.N. vide Special report of Reserve Inspector ANS Kakinada dated 10-03-2015 & 24-03-2015. As per order No. 184 of APPM Vol. B. Srinivas, PC 2004 of ANS Kakinada has absented himself from duty on 02-03-2015 F.N. and completed 21 days desertion period by 22-03-2015 A.N. vide Special report of Reserve Inspector ANS Kakinada dated 10-03-2015 & 24-03-2015. As per order No. 184 of APPM Vol. 1, he was declared as deserter with effect from 02-03-2015 F.N. vide D.P.O. vide 330/2015 in (C. No. 225/A-5/2015), dated 09-04-2015. Exhibited gross neglect of duty and misconduct by absenting himself from duty, which is unbecoming of a responsible PC (Govt. Servant) and thereby violated Rule 3 of APCS (CC&A) Rules, 1964." 2. The Superintendent of Police, East Godavari District duly following the procedure prescribed in the A.P.C.S. (CC&A) Rules, 1991, has awarded the punishment of "Removal from Service" and period covered by the medical certificate from 02-02-2015 F.N. to 01-03-2015 A.N. treated as 'eligible leave' and the absent period from 02-03-2015 F.N. to 29-10-2017 treated as 'Not on Duty', vide proceedings, dt: 27.10.2017. 3. The Appeal Petition was considered and 'rejected' by the Inspector General of Police, Guntur Range, Guntur, FAC Eluru Range, Eluru, vide Proceeding, Dt. 20-03-2018. The Revision was considered and Rejected by the Inspector General of Police (Personnel), vide proceedings, dated 13.03.2019. 4. Aggrieved by the above orders, the Charged Officer has submitted a Mercy Petition before the Government, requesting to set aside the punishment of "Removal from Service" on medical and humanitarian grounds. 5. Government, after careful examination of the matter with reference to the records made available, hereby set aside the punishment of "Removal from Service" in respect of Sri. K. Bhagya Srinivas (f) PC 2004 of ANS Kakinada, Eluru Range, East Godavari District and Out of Employment period is treated as Not on Duty. His probation is deemed to have been declared. 6. The Director General of Police, Andhra Pradesh is requested to take necessary further action in the matter accordingly. (BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH) K.R.M. KISHORE KUMAR PRINCIPAL SECRETARY TO GOVERNMENT" 6. Perusal of the above order would go to show that the petitioner was awarded punishment of removal from service on the ground of exhibiting gross neglect of duty and misconduct by absenting himself from duty for more than 2 years 6 months. The appeal preferred by the petitioner was considered and rejected by the Inspector General of Police, Eluru Range, Eluru by proceedings dated 20.03.2018. The appeal preferred by the petitioner was considered and rejected by the Inspector General of Police, Eluru Range, Eluru by proceedings dated 20.03.2018. The revision filed by the petitioner before the Inspector General of Police (Personnel) was rejected by proceedings dated 13.03.2019. 7. The petitioner had not assailed the order passed by the appellate authority in appeal and/or the order passed by the revisional authority by initiating appropriate proceedings. However, he had chosen to submit a "Mercy Petition" before the Government requesting to set aside the punishment of removal on medical and humanitarian grounds. On such mercy petition being filed, the Principal Secretary to Government, Home (Services II) Department, set aside the punishment of removal from service and directed the Director General of Police to take necessary further action. 8. The Director General of Police wrote a letter dated 10.07.2020 to the Principal Secretary to Government, Home (Ser. II) Department, in response to the order of the Government dated 19.02.2020, stating that the Government order dated 19.02.2020 is against the relevant rules and spirit of all service principles and standards, and thereby, requesting to re-examine the aforesaid Government order and to rescind the same. 9. The learned single Judge in the order dated 17.08.2020 observed as follows: "5. G.O.Rt. No. 185 has been issued by the Government dated 19.02.2020. Para-5 of the said GO reads as under: "5. Government, after careful examination of the matter with reference to the records made available, hereby set aside the punishment of "Removal from Service" in respect of Sri. K. Bhagya Srinivas, (f) PC 2004 of ANS Kakinada, Eluru Range, East Godavari District, and Out of Employment period is treated as Not on Duty. His probation is deemed to have been declared." 6. A reading of the said G.O. reveals that the Government after careful examination of the matter has passed orders. The letter addressed by 2nd respondent to the 1st respondent to reconsider the G.O., is left open to the Government. Until and unless the Government considers the G.O. and passes any amendment to it or passes another fresh G.O., till such time, the G.O. passed by the Government, shall be in force. 7. Therefore, since it is the matter, within the mechanism of the Government, the G.O., once issued by the Government, it has to be implemented. Until and unless the Government considers the G.O. and passes any amendment to it or passes another fresh G.O., till such time, the G.O. passed by the Government, shall be in force. 7. Therefore, since it is the matter, within the mechanism of the Government, the G.O., once issued by the Government, it has to be implemented. Hence, the 2nd respondent is directed to implement the G.O. issued by the Government, within four (04) weeks from the date of receipt of a copy of this order." 10. Mr. N. Aswartha Narayana, learned counsel for the appellants, submits that there is no provision contemplated under the Andhra Pradesh Civil Services (Classification, Control And Appeal) Rules, 1991 (for short, 'CCA Rules') for mercy petition, and that appellant No. 1 had no authority to set aside the punishment of removal from service, which was imposed in accordance with the rules. It is further submitted that when the letter dated 10.07.2020 issued by the Director General of Police was under consideration, the writ petition came to be filed on 30.07.2020 and accordingly, appellant No. 1, who issued the order dated 19.02.2020, has filed this appeal along with the Director General of Police and the Superintendent of Police. It is submitted that when the order dated 19.02.2020 is ex facie without jurisdiction, no direction could have been issued for implementation of the same and the learned single Judge erred in law in holding that since the order issued by the Government was within the mechanism of the Government, it has to be implemented. 11. Learned Counsel for the writ petitioner supports the impugned order of the learned single Judge and submits that when the Government had issued the order dated 19.02.2020 on due consideration of the matter, no interference of this Court is called for with the order of the learned single Judge. 12. We have considered the submissions of the learned counsel for the parties and perused the materials on record. 13. It is an admitted position that the concept of mercy petition is alien to the scheme of CCA Rules. A statutory regime is prescribed under the CCA Rules providing remedies by way of appeal, revision etc., in case of being aggrieved by imposition of any penalty. The Inspector General of Police being the appellate authority had passed the order dismissing the appeal filed by the petitioner. 14. A statutory regime is prescribed under the CCA Rules providing remedies by way of appeal, revision etc., in case of being aggrieved by imposition of any penalty. The Inspector General of Police being the appellate authority had passed the order dismissing the appeal filed by the petitioner. 14. In the light of the scheme of CCA Rules, it is, ex facie, evident that entertaining of a "mercy petition" is wholly without jurisdiction and no direction could have been issued on the basis of a "mercy petition" to the appellate authority under the CCA Rules or his superior to act in a particular manner and therefore, we have no hesitation to hold that such uncalled for interference in the disciplinary matter cannot be allowed to stand. If the petitioner was really aggrieved, he should have taken recourse to assail the order of removal from service and the order in appeal and in revision by initiating appropriate proceedings in accordance with law. The learned single Judge failed to take note of these aspects of the matter and proceeded to hold that the Government order has to be followed overlooking the fact that such intervention was not within the jurisdiction of the Government. 15. In view of the above discussion, the order of the learned single Judge is set aside and the writ appeal is allowed. No order as to costs. All pending miscellaneous applications shall stand closed.