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2022 DIGILAW 1466 (AP)

B. v. V. Ramana Rao VS State of Andhra Pradesh

2022-12-14

VENKATESWARLU NIMMAGADDA

body2022
ORDER : The present Writ Petition is filed by the petitioner having aggrieved by the action of the respondents herein in removing the petitioner from the post of Ground Level Reservoir Operator (now removed from service), Hukumpet Gram Panchayat Rajamahendravaram Rural, East Godavari District without any charge memo and without conducting enquiry as contemplated under Rule 20 of CCA Rules as illegal and liable to be set aside the removal orders vide proceedings No.47711/2017-A5, dated 07.07.2017 and consequential order passed in appeal vide proceedings No.880114/CPR&RD/N3/2019, dated 11.01.2021. 2. Heard learned Counsel for the Petitioner and learned Government Pleader for Services – II & IV. 3. The case of the petitioner in brief is that, the petitioner herein was initially appointed as GLR Motor Tank Operator on 01.04.1981 at Hukumpet Gram Panchayat on payment of Rs.60/-per month and continued in service and by extending the service of the petitioner from time to time on temporary basis. Later, the respondent sanctioned minimum time scale to the petitioner on par with NMR/Daily wages, vide proceedings No.5362/91 dated 11.06.1991. Thereafter, enhanced the salary of Rs.900/- per month to the post of GLR Operator vide proceedings No.8150/93/A2 dated 18.09.1993. Thereafter, the petitioner was converted into Last Grade Service from 01.07.1994 in the minimum time scale of Rs.1372-25-1475-30-2375. 4. Petitioner is working at Hukumpeta G.P. Then it was merged into Rajamundry Municipal Corporation w.e.f. 25.03.1995 vide G.O.Ms. No.159 MA, dated 25.03.1995 and the petitioner worked till 28-02-1996 again the petitioner was sent back to Hukumpeta G.P. Later, the petitioner’s services were regularized and probation also declared vide proceedings No.1169/2012-A6 dated 12-12-2012 in the cadre of GLR Operator w.e.f 01.07.1994 and probation declared from 30.06.1996. Thereafter, the respondents also, sanctioned 8 years and 12 years promotion post scale 1A and SAPP 1B vide Proc.No.112/2014-A8, dated 18.01.2014. 5. Petitioner submitted that, District Panchayat Officer, Rajamundry has submitted service particulars of Panchayat staff working in erwhile, Hukumpeta Grama Panchayat under Rajamundry Rural Mandal to the 4th respondent vide proc.No.152/2017/A2 dated 09.02.2017 in respect of 25 employees who are working in the cadre of Sweeper/GLR Operators/Tank Operators etc., wherein the petitioner’s name is also placed at SI.No.16. But in the said proceedings dated 09.02.2017 it is mentioned that some entries were not made by the Sarpanch. But in the said proceedings dated 09.02.2017 it is mentioned that some entries were not made by the Sarpanch. Now the 4th respondent has issued a show cause notice vide file No.47711/2017-A5, dated 12.05.2017 on the ground that the service regularization particulars of the petitioner are not available in the respondent office, therefore there is no evidence that the petitioner’s services were regularized by the Government and called for explanation for removal from service. Thereafter, requested to drop further action, but the 4th respondent straightway, terminated the petitioner form service vide proceedings No.4711/2017-A5 dated 07.07.2017 without issuing any notice or opportunity while issuing charge memo and consequential enquiry as contemplated under Rule 20 and 21 of CCA rules. 6. Petitioner submitted that, the 2nd respondent passed the orders in appeal dated 18.04.2019 and rejected vide impugned proc. No.880114/CPR&RD/N3/2019, dated 11.01.2021 stating that, the 4th respondent/District panchayat officer E.G. District is not the competent authority to regularize the services of the petitioner under the G.O.Ms. No.212, Fin. & Planning Dept. dated 22.04.1994. As per said G.O, the Government is only the competent authority for regularization of services and there is no ground to consider the appeal. Accordingly, Appeal was rejected by confirming the removal order dated 07.07.2017. As such challenging the removal order dated 07.07.2017 and consequential rejection orders in appeal dated 11.01.2021 the present W.P is being filed. Contentions of the counsels: 7. Learned Counsel for the petitioner submitted that petitioner was granted minimum time scale of pay by the respondents on 11.06.1991 and later, the 4th respondent herein, regularized the service of the petitioner by converting his services as last grade service in the minimum time scale of pay vide proceedings dated 12.12.2012, the same were effected from 01.07.1994. 8. He further submitted that the 4th respondent also, conferred special grade scales to the petitioner on completion of more than 12 years of service. 9. He further submitted that petitioner was issued a show cause notice dated 12.05.2017 stating that, the service regularization particulars/proceedings are not available in the respondents office and therefore, there is no evidence, the petitioner’s services were regularized by the Government and called for explanation to the show cause notice dated 12.05.2017. 9. He further submitted that petitioner was issued a show cause notice dated 12.05.2017 stating that, the service regularization particulars/proceedings are not available in the respondents office and therefore, there is no evidence, the petitioner’s services were regularized by the Government and called for explanation to the show cause notice dated 12.05.2017. After receipt of the said show cause notice, the petitioner submitted a detailed explanation along with material and proceedings issued by the 4th respondent herein, regarding granting of minimum time scale by converting his services into last grade services in the year 1991 and regularization proceedings dated 12.12.2012 and also granting of special grade scales dated 18.01.2014 were also submitted. 10. He further submitted that without considering the explanation as well as the documents stated above submitted by the petitioner, the respondents straight away issued the proceedings of termination proceedings order vide proceedings dated 07.17.2017. 11. He further submitted that even in the impugned termination proceedings, the respondent Authorities specifically admitted that originally, the petitioner was appointed as G.L.R Operator on 01.04.1981 by the then Sarpanch of the Hukumpet Gram Panchayat, and his post was upgraded to full time scale of pay in last grade services and also regularization of the petitioner by the 4th respondent herein, then the petitioner assailed the order of removal dated 07.07.2017 by way of filing O.A No. 819/2019 before the A.P Administrative Tribunal, the Hon’ble Tribunal disposed off the said O.A vide order dated 16.05.2019 directing the 2nd respondent to consider representation of the petitioner dated 18.04.2019 and pass appropriate orders within period of 8 weeks. Basing on the said direction, the 1st respondent herein, issued a Memo dated 13.06.2019 and directed the 2nd respondent for further necessary action as per the rules in vogue. In turn, the 2nd respondent has directed the 4th respondent to submit the report in compliance of the said direction, the 4th respondent has submitted a report to the 2nd respondent vide proceedings dated 03.12.2019, wherein, the 4th respondent admitted all the facts about the appointment, upgradation of petitioner’s services as full time pay scale as last grade services, thereupon proceedings of regularization and also granting of special grade scale. But erroneously, the 4th respondent herein, also observed in his report that as per G.O.Ms. But erroneously, the 4th respondent herein, also observed in his report that as per G.O.Ms. No.212, the 1st respondent is the competent Authority for the regularization of the petitioner, but, not the 4th respondent who does not have jurisdiction for such regularization. Then, the petitioner preferred an appeal to the 2nd respondent herein, who in turn rejected the appeal on the ground of “no merits” vide proceedings dated 11.01.2021 challenging the removal order and order in appeal, the present Writ Petition is filed. 12. The learned Counsel for the Petitioner submitted that, the order in appeal dated 11.01.2021 is erroneous and without reasons and without considering the material facts put forth by the petitioner herein, and also in violation of Rule 20 and 21 of CCA Rules extracted as under: *Rule 20. Procedure for imposing major penalties:-(1) No order imposing any of the penalties specified in clauses (vi) to (x) of Rule 9 shall be made except after an inquiry held, as far as may be, in the manner provided in this Rule and Rule 21 or in the manner provided by the Andhra Pradesh Civil Services (Disciplinary Proceedings Tribunal) Act, 1960 or the Andhra Pradesh Lokayukta and Upa-lokayukta Act, 1983, where such inquiry is held under the said Acts. (2) Whenever the Disciplinary Authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Government Servant, it may itself inquiry into, or appoint under this Rule, as the case may be, authority to enquire into the truth thereof. *Rule 21. Action on the inquiry report (1) The disciplinary authority, if it is not itself the inquiring authority may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 20 as far as may be. He also submits that in view of the non observation of the Rule 20 and 21 of CCA Rules, the impugned proceedings dated 07.07.2017 as well as order in appeal dated 11.01.2021 are liable to be set aside. 13. He also submits that in view of the non observation of the Rule 20 and 21 of CCA Rules, the impugned proceedings dated 07.07.2017 as well as order in appeal dated 11.01.2021 are liable to be set aside. 13. The learned Counsel for the petitioner also relied upon the judgments rendered by the Hon’ble Apex Court in Punjab Urban Planning and Development Authority and another VS Karamjit Singh, 16 SCC 782(2019) on 15 April, 2019, wherein, in paragraphs 2.15, 5.5, 7, 8 & 9 it is held as under:- “2.15. Aggrieved by the Order passed by the Industrial Tribunal, the Respondent filed Writ Petition No. 21519 of 2014 before the Punjab & Haryana High Court. A Single Judge of the High Court vide Order dated 07.02.2018, allowed the Writ Petition filed by the Respondent, and set aside the Order dated 15.10.2013 passed by the Industrial Tribunal, Patiala. The learned Single Judge held that “rightly or wrongly” the Respondent’s services had been regularized on 26.12.2001 under the revised Policy of the State Government. Thus, permanent status had been given to the Respondent w.e.f. 26.12.2001. The learned Single Judge held that it was necessary for the Appellant – Authority to have issued a charge- sheet, conduct an enquiry against a permanent employee, before terminating or dismissing him from service under the Regulations. Undisputedly, since no charge-sheet had been issued, or enquiry conducted, the action of terminating the services of the Respondent by merely issuing a Show Cause Notice, and granting a personal hearing was not sufficient compliance with the Regulations. The order of termination dated 22.05.2003, and the Award of the Industrial Tribunal were set aside. The learned Single Judge granted liberty to the Appellant – Authority to take necessary action against the Respondent under the statutory Regulations. It was ordered that the Appellant – Authority pass a final order after conducting a disciplinary enquiry against the Respondent. The Respondent shall be deemed to be under suspension, from the date on which his services were terminated i.e. 22.05.2003 till the date of passing of the final order. The Appellant – Authority was further directed to calculate, and disburse subsistence allowance to the Respondent from 22.05.2003 onwards, and continue to disburse the same till conclusion of the disciplinary proceedings against him. “5.5. The Appellant – Authority was further directed to calculate, and disburse subsistence allowance to the Respondent from 22.05.2003 onwards, and continue to disburse the same till conclusion of the disciplinary proceedings against him. “5.5. It is well settled that an order of regularization obtained by misrepresenting facts, or by playing a fraud upon the competent authority, cannot be sustained in the eyes of law. [Devendra Kumar v. State of Uttaranchal & Ors. (2013) 9 SCC 363 ] In Rajasthan Tourism Development Corporation & Anr. v. Intejam Ali Zafri, (2006) 6 SCC 275 . it was held that if the initial appointment itself is void, then the provisions of the “7. The question of holding disciplinary proceedings as envisaged under Article 311 of the Constitution, or under any other disciplinary rules did not arise in the present case since the Respondent was admittedly not an “employee” of the Appellant – Authority, and did not hold a civil post under the State Government. He was merely a daily wager on the muster rolls of the Appellant – Authority. “8. It is abundantly clear from the facts of the case, and the material on record that the regularization of the services of the Respondent was illegal and invalid. The Respondent was provided a full opportunity to adduce evidence to establish that he had 3 years’ continuous service prior to 22.01.2001. However, he failed to furnish any proof whatsoever to substantiate his claim. “9. In light of the aforesaid discussion, the present Civil Appeal is allowed, and the Order dated 09.07.2018 passed by the Division Bench of the Punjab & Haryana High Court is set aside. The appointment of the Respondent on regular basis was invalid since the Respondent did not have the pre-requisite experience of 3 years’ continuous service prior to 22.01.2001. The Respondent had sought to secure regularization on the basis of interpolation in the final list of employees recommended for regularization. Such an appointment would be illegal and void ab initio, and cannot be sustained. The Appellant – Authority rightly terminated the Respondent vide Order dated 22.05.2003. 14. The Respondent had sought to secure regularization on the basis of interpolation in the final list of employees recommended for regularization. Such an appointment would be illegal and void ab initio, and cannot be sustained. The Appellant – Authority rightly terminated the Respondent vide Order dated 22.05.2003. 14. The learned counsel for the petitioner also relied upon the judgment rendered by the Hon’ble Apex Court in the State Of Odisha and others VS Sulekh Chandra Pradhan, 2022, 7 SCC 482(2022) in paragraph 34 it is held as under: “34 It is not in dispute that the appointment of all the applicants/respondents/teachers have been made directly by the respective Management without following the procedure as prescribed under the Rules/Statute. It is a trite law that the appointments made in contravention of the statutory provisions are void ab initio. Reference in this respect could be made to the judgments of this Court in the cases of Ayurvidya Prasarak Mandal and another vs. Geeta Bhaskar Pendse (Mrs) and others, J & K Public Service Commission and others vs. Dr. Narinder Mohan and others, Official Liquidator vs. Dayanand and others, and Union of India and another vs. Raghuwar Pal Singh. 15. On the other hand, the learned Government Pleader for Services filed counter affidavit, on behalf of the 2nd respondent herein, wherein it is stated that the petitioner was removed from the services vide proceedings dated 07.07.2017 by the 4th respondent herein, who is competent Authority and also followed due procedure as contemplated by issuing show cause notice and after receipt of the explanation then termination proceedings were issued as such, due procedure of notice has been followed even in appeal also. The proceedings dated 07.07.2017 was confirmed by observing that the orders of termination were passed after following due procedure only. 16. He further submitted that the alleged regularization proceedings issued by the 4th respondent herein dated 12.12.2012 is frabricated one and 4th respondent has no Authority to pass such proceedings in view of the G.O.Ms. No.212. As per the said G.O, the 1st respondent Government is only competent Authority for regularization of services of any employee. 17. He further submitted that since, the petitioner fabricated the proceedings dated 12.12.2012 under which his services were regularized, as such, the petitioner does not have any right to claim whatsoever to agitate for implementation of Rule 20 and 21 of CCA Rules. 17. He further submitted that since, the petitioner fabricated the proceedings dated 12.12.2012 under which his services were regularized, as such, the petitioner does not have any right to claim whatsoever to agitate for implementation of Rule 20 and 21 of CCA Rules. Therefore, the present Writ Petition is liable to be dismissed. 18. Having regard to the submissions made by the learned counsel for the petitioner as well as learned Government Pleader for the respondents, that the contention of the counsel for petitioner is the petitioner was appointed as Ground Level Operator in the year 1981 and later he was granted minimum time scale on 11.06.1991, and thereafter his services were converted into last grade services in a minimum time scale of pay by the 4th respondent vide proceedings dated 03.08.1994 and later, the proceedings of 4th respondent regularizing the services of the petitioner vide proceedings dated 12.12.2012 but, not in accordance with the G.O.Ms. No.212 and also granting special grade scale by the 4th respondent on 18.01.2014 are valid and sustainable in view of all the proceedings filed herewith are admitted except proceedings dated 12.12.2012 and the authorities connected there upon acted and had been paid salaries to the petitioner from 1991 to 2017. The other contention of the learned counsel for the petitioner is that since the petitioner is a regular employee for any adverse action more particularly for termination of the services of the petitioner, the respondent Authorities shall observe the procedure as contemplated under rule 20 and 21 of CCA rules is also valid and acceptable due to the proceedings issued by the respondents and subsequent conduct of the respondents in payment of salaries for all these years as if he is regular employee. The other contention of the learned counsel for the petitioner that the allegation of the respondents that the regularization proceedings dated 12.12.2012 was fake and fabricated is without proper enquiry or complaint by the concerned Authority but, invented for the purpose of termination of the services of the petitioner in the year 2017 after lapse of 5 years, contrast to the facts that, the then local authority passed resolution and implemented the regular scale to the petitioner and later, a special grade scales are also granted by the 4th respondent herein on 18.01.2014 indicated that petitioner services were duly regularized, not in accordance with G.O.Ms.No.212. But due to entitlement by rendering 20 years of service. 19. On the other hand, the contention of the learned Government Pleader that the regularization proceedings dated 12.12.2012 are fake and fabricated since he has no jurisdiction to issue such proceedings as per G.O.Ms. No. 212 in not acceptable for the reason the specific case of the petitioner that his services were not regularized under G.O.Ms.No.212. But, the services were regularized basing upon the long services rendered by him in last grade services since more than 20 of service. 20. The other contention of the learned Government Pleader that the Authorities followed procedure and issued show cause notice and also received explanation from the petitioner and passed impugned proceedings of termination since, the petitioner is not a regular employee, the rule 20 and 21 of CCA rules are not applicable to the petitioner, is untenable and erroneous in view of the series of proceedings issued by the respondents and continuation of the services of the petitioner as last grade regular employee since 1991. 21. Having regard to all the facts and circumstances as stated above and in view of the foregoing discussion as mentioned above, the present Writ Petition is allowed by setting aside the impugned removal order dated 07.07.2017 and also, order in appeal dated 11.01.2021 and petitioner is entitled to all the consequential monetary benefits to the post of petitioner. Accordingly, the Writ Petition is allowed. 22. Consequently, Miscellaneous Petitions, if any, pending in the writ petition shall stand closed.