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2022 DIGILAW 1127 (AP)

Katta Venkata Balaji v. Secretary

2022-10-28

TARLADA RAJASEKHAR RAO

body2022
ORDER : 1. This Writ Petition is filed under Article 226 of the Constitution of India seeking a writ of mandamus declaring the impugned Memo No.CV&SO/SO/AS.Vig/F.No.1037/2017, C.No.534/2017, D.No.280/17, dated 28.12.2017 issued by the respondent-Andhra Pradesh Power Generation Corporation Limited (APGENCO) as being illegal, arbitrary, unjust, violative of Articles 14, 16 and 21 of the Constitution of India and, consequently, prayed to hold that the petitioner is entitled for counting total service rendered by him in the post of Police Constable by duly extending pay protection for the service rendered by him in the post of Police Constable (AR & Civil) consequent on his appointment to the post of Fireman in terms of Fundamental Rule No.22(a)(iv) of the Fundamental Rules read with Rule 26(1) of the Andhra Pradesh Revised Pension Rules, 1980, with all consequential and attendant benefits including carry forwarding the leaves, et., by duly extending the judgment of this Court in W.P.No.34269 of 2016 dated 20.10.2016. 2. The case of the petitioner is that he was originally recruited as Police Constable (Armed Reserve) with effect from 02.02.2008 and subsequently, he appeared for direct recruitment to the post of Police Constable (Civil) and selected to the said post in Krishna District, vide D.O.No.38/2012, C.No.102/A2/2009, dated 19.01.2012 and while discharging his duties as Police Constable, he applied for the post in the respondent-Corporation, which was notified vide Advertisement No.01/J.S. (PER)/2013 dated 22.04.2013, wherein the respondent-Corporation has invited applications from the eligible candidates for direct recruitment to the post of Fireman and Security Guards and since the petitioner is eligible and qualified for the said post, he selected with Hall Ticket No.32725 and the petitioner was appointed as Fireman, vide proceedings No.G.O.O.No.445/JS (Per)/2016 dated 10.03.2016 with the time scale of pay of Rs.18725-34775 with usual allowances. It is the further case of the petitioner that prior to appointment as Fireman in the respondent-Corporation, he worked as Police Constable (A.R.) and (Civil) for a period of nearly 8 years and according to Rule 26 of the Andhra Pradesh Revised Pension Rules, 1980, he is entitled for pay protection. It is the further case of the petitioner that prior to appointment as Fireman in the respondent-Corporation, he worked as Police Constable (A.R.) and (Civil) for a period of nearly 8 years and according to Rule 26 of the Andhra Pradesh Revised Pension Rules, 1980, he is entitled for pay protection. While discharging his duties as Fireman, he made a representation on 28.11.2017 to the respondents 2 and 3 herein requesting to count his past service as A.P.Police Constable to the APGENCO Fireman for the purpose of pension and arrears and to carry forward his leave accounts, GIS and other benefits from A.P.State Police Constable and also to regularize his service for continuation of pension, service and other benefits. The said representation came to be rejected by the respondent-Corporation after careful examination of the Service Regulations, stating that the re-appointment of such person to any service shall be treated in the same way as a first appointment to such service by direct recruitment and all regulations governing such appointment shall apply and all such re-appointments, he shall not be entitled to count any portion of his previous service for any benefit of concession admissible under any regulation or order. Accordingly, the representation filed by the petitioner was rejected. Aggrieved by the said rejection of the representation, the present Writ Petition came to be filed and the petitioner relied on Rule 26 of the Andhra Pradesh Revised Pension Rules, 1980 and Fundamental Rule 22(a)(iv), which is extracted hereunder for better understanding:- "The pay of a regular Government Servant (not appointed under emergency provisions) when appointed directly to another post, under the Government on selection by Public Service Commission, shall be fixed in the new post at a stage which is not lower than the pay drawn by him in the earlier post." 3. The learned counsel for the petitioner would submit that basing on the above said provisions, the petitioner is entitled for pay protection in the post of Fireman and he also relied on the judgment of a Division Bench of this Court in the case of The Commissioner of Police, Vijayawada City, Vijayawada, Krishna District and others v. A.Vanamala Rao and others in Writ Petition No.34269 of 2016 dated 20.10.2016 and he would further submit that the resignation submitted by him to the post of A.P.Police Constable is a technical resignation for the purpose of the present post and that does not disentitle the petitioner to claim service benefits as indicated above. 4. Learned counsel for the respondent-Corporation filed counter and he would submit that after careful examination of APSEB Service Regulations Part – (I) Regulation 37(b), the Respondent-Corporation has rightly issued rejection orders to the petitioner vide Memo No.CV&SO/AS.Vig/F.No.1037/2017 /C.No.534/2017, D.No.280/17 dated 28.12.2017, which is reproduced hereunder: "(b) a member of service, shall if he resigns his appointment, forfeit not only the service rendered by him in the particular post held by him at the time of resignation but all his previous service a under the Board and the Government, if any. The reappointment of such person to any service hall be treated in the same way as a first appointment to such service by Direct Recruitment and all regulations governing such appointment shall apply; and such reappointments he shall not be entitled to count any portion of his previous service for any benefit of concession admissible under any regulation or order. Therefore, the request of the petitioner was summarily rejected." 5. Learned counsel for the respondent-Corporation would further submit that the Memo No.Addl.Secy/DS(L&P)/ AS(L)/PO(IR)/JPO-1/1065/03 dated 16.10.2008 is not applicable to them on two grounds, i.e., the petitioner was appointed as Police Constable (Armed Reserve) on 02.02.2008 and he was selected to the post of Police Constable (Civil) and he was posted in Krishna District on 19.01.2012 and the employees appointed prior to 01.02.1999 are covered under Andhra Pradesh Revised Pension Rules, 1980 and G.P.F. Regulations and the employees joined in APTRANSCO after 01.02.1999 by direct recruitment after submitting a technical resignation, they are entitled for pay protection as per the Andhra Pradesh Revised Pension Rules, 1980 and G.P.F. Regulations instead of Employees’ Provident Funds and Miscellaneous Provisions Act, 1952. The APTRANSCO Memo is not applicable to the petitioner and not binding on to the respondents herein, though the APTRANSCO is sister concern, as their Regulations are different from the APRANSCO. Learned counsel would further submit that the judgment relied on by the petitioner is not applicable to the present facts of the case and his resignation is not technical resignation and as per the service conditions of the APGENCO, they abide by their own regulations and as per the Regulations of the APTRANSCO, the petitioner is not entitled to count his past service for the purpose pension, service and other benefits. 6. The contention of the petitioner is that he submitted his resignation as tendered by the respondents for technical formalities and his pay should be fixed counting the past service under Fundamental Rule 22(a)(iv), which reads as under : "The pay of a regular Government Servant (not appointed under emergency provisions) when appointed directly to another post, under the Government on selection by Public Service Commission, shall be fixed in the new post at a stage which is not lower than the pay drawn by him in the earlier post." and hence, there shall be no forfeiture of past service in the provided benefit under Fundamental Rule 22(a)(iv) to which they are otherwise entitled and in view of the same, the impugned order suffers from manifest illegality. 7. The contention of the respondent-Corporation is that the petitioner was admittedly applied for the post of Fireman and got selected in terms of the notification on direct recruitment and was issued appointment order on 10.03.2016 and it was mentioned in the said appointment order that the provisions of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952, are applicable and the petitioner herein has agreed for those conditions and accepted his appointment order. It is the further contention of the respondents that neither in the recruitment notification nor in the appointment order mentioned any kind of pay protection to all the employees recruited through direct recruitment and the respondent-Corporation cannot now extent the benefit of pay protection or any other service benefits, in the absence of any such beneficial clause in the notification or appointment order. 8. 8. As per Regulation 37 of the Andhra Pradesh State Electricity Board Service Regulations, a member of service shall, if he resigns his appointment forfeit not only the service rendered by him in the particular post held by him at the time of resignation but all his previous service under the provisions and the re-appointment of such person to any service shall be treated in the same way as a first appointment to such service by direct recruitment. In view of the said Regulation, the petitioner is not entitled to seek any pay protection or for any other purposes for the services he rendered as Police Constable (A.R.) and Civil and the judgment relied on by the petitioner herein is not applicable to the facts of the present case, as the applicant therein as a Constable in Armed Reserve Police and he applied for the post of Civil Police Constable and the Fundamental Right 22(a)(iv) and the Andhra Pradesh Revised Pension Rules, 1980, are applicable to the applicant therein. In the present case, the above said Fundamental Rule or the provisions of the Andhra Pradesh Revised Pension Rules, 1980, are not applicable to the respondent-Corporation. Hence, in view of these reasons, the order passed by a Division Bench of this Court in W.P.No.34269 of 2016, on which reliance is placed by the petitioner, is not applicable to the facts of the present case, as the respondent- Corporation is having its own Regulations as they were not covered under the A.P.Revised Pension Rules and in view of the Regulation 37 of the APGENCO, the petitioner is not entitled for any relief. The Rules framed in exercise of the powers conferred under Article 309 of the Constitution of India are not applicable to the employees of Public Sector Undertakings (PSUs), as they are not civil servants and are not entitled to protection afforded by Article 311 of the Constitution of India. Mere fact that a Corporate body or Cooperative Society answers the definition of a ‘State’ does not make it the ‘State Government’ nor will the employees of such a body become holders of civil posts or employees of the State Government, even if the Corporation/ Company/Society is held to be a ‘State’ under Article 12 of the Constitution of India, it is an independent juristic entity and cannot be identified with or treated as the State Government. No doubt, the public sector undertakings are instrumentalities of the State under Article 12 of the Constitution of India and are governed by Part-III of the Constitution of India, that does not make the employees of these corporate bodies, government employees and the corporate bodies are independent entities and their employees cannot claim parity with the employees of the State Government. The petitioner herein relied on the Fundamental Rules 22(a)(iv), which are made under Article 309 of the Constitution of India and those Rules are not applicable to the respondent-Corporation. Hence, the petitioner cannot rely on the above said Rule for the relief claimed in the Writ Petition. As rightly contested by the learned counsel for the respondent- Corporation, the respondents framed their own Regulations for the purpose of their employees. In view of the foregoing reasons, the petitioner herein is not entitled for the relief claimed for counting his past service rendered by him in the post of Police Constable. In view of the same, the Writ Petition fails. Hence, the petitioner is not entitled for the relief claimed in the present Writ Petition and the impugned rejection order is in accordance with law. Therefore, this Court finds no flaw in the impugned order. 9. Accordingly, this Writ Petition is dismissed. There shall be no order as to costs of the Writ Petition. As a sequel, interlocutory applications pending, if any, in this Writ Petition shall stand closed.