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2023 DIGILAW 274 (AP)

G. Bhuloka v. State of Andhra Pradesh

2023-02-02

VENKATESWARLU NIMMAGADDA

body2023
ORDER : 1. The present Writ Petition is filed under Article 226 of the Constitution of India, seeking the following relief: “..to issue a Writ, Order or Direction, more particularly one in the nature of Writ of Mandamus declaring the action of the respondents not paying the salaries from 31.10.2018 to till today by Extracting work from the petitioner under the guise of the petitioner worked beyond 5 years on foreign service without Government Orders is illegal, and gross violation of Fundamental Rights under Article 16 and 21 of Constitution of India and consequently direct the respondents to pay the salaries along with other allowances by declaring the petitioner is entitled for pay and allowances with effect from 31.10.2018 onwards with interest and to pass such other order or orders..” 2. Heard learned counsel for the petitioner and learned Government Pleader for the respondent Nos.1 to 8. 3. Learned Counsel for the petitioner submits that the petitioner herein is not paid the salaries from 01.11.2018 to till today though, she is working at PHC, U. Cheedipalem, Koyyuru Mandal which is under control of respondents. It is further submits that, she belongs to local Scheduled Tribe of Paderu division and local candidate of Visakhapatnam District as per the Presidential Orders. Initially the petitioner was appointed as MPHA(F) on 16.06.1990 on consolidated pay vide Rc.No.1095/E1A/90, dt.30.04.1990 by the 3rd respondent and later she was appointed in the same cadre on regular basis w.e.f 07.03.1996 vide Rc.No.425/E1/1996, dt.25.02.1996 of the 4th respondent. a) Learned counsel for the petitioner further submits that the petitioner was transferred to Muchkund Hydro Electricity Project, Muchkund on 07.12.1996 and joined on 08.12.1996 vide Rc.No.162/B1/1996, dt.22.02.1996. Accordingly, she worked nearly 22 years i.e. from 08.12.1996 to 31.10.2018. Later she was surrendered to her parent department i.e., Medical and Health vide Memo.No. SE/08/MHE/ADM/D.No.62/2018, dt.17.10.2018 and joined at hospital at Muchkund w.e.f 31.12.2018, vide Memo.No.EE/CO/JPT/AD/C2/D.No.551/2018. Then the petitioner was transferred to the PHC, Labburu vide Rc.No.42/E1/2018, dt.08.02.2019. Thereafter, she was promoted as Multi Purpose Health Supervisor and posted to Primary Health Centre, U. Chidipalem, Visakhapatnam District by the 3rd respondent vide proceedings dated 19.11.2019. b) The learned counsel for the petitioner further submits that since from the date of repatriation to the parent department, petitioner not been paying salaries by the respondents. Thereafter, she was promoted as Multi Purpose Health Supervisor and posted to Primary Health Centre, U. Chidipalem, Visakhapatnam District by the 3rd respondent vide proceedings dated 19.11.2019. b) The learned counsel for the petitioner further submits that since from the date of repatriation to the parent department, petitioner not been paying salaries by the respondents. He further submits that the medical officer at Primary Health Centre, Labburu addressed a letter to the 4th respondent vide letter dated 17.10.2020 requesting to release the LPC bills and other bills of the petitioner and also brought to the notice of the authority but the same were rejected by the STO, Paderu, vide proceedings dated 12.06.2020 on the ground that petitioner had worked at foreign service on deputation beyond 5 years. He further submits that the 1st respondent also issued a memo dated 09.07.2021 to the 2nd respondent for necessary action in respect of the payment of salaries to be payable to the petitioner. Even after receipt of the proceedings and correspondence by the authorities as well as representation by the petitioner, the respondent authorities neither acted upon and nor paid salaries till today, even though the respondents are extracted the work from the petitioner from 31.10.2018. Having no option the petitioner preferred the present writ petition. 4. The learned Government Pleader for the respondent filed counter affidavit on behalf of the 3rd respondent, wherein it is stated that the petitioner services were not regularized and probation also not declared at the time of orders of deputation of the petitioner to the foreign service by the 5th respondent. The petitioner was relieved from the Sangada Sub centre, Primary Health Centre, Munchindpath on 08.12.1996. It is further stated that the 5th respondent is not competent authority to issue transfer / foreign deputation. He further submits that as per the foreign service rules deputation beyond five (5) years period is not permissible unless specific Government orders were issued to admit the claim of the petitioners foreign service beyond five years as regular service. a) It is also stated that as per Rule-18 of A.P. Fundamental Rules and A.P. Leave Rules, 1993, whoever continues on foreign service beyond the approved period of the Government i.e. more than five years shall be deemed to have resigned from the service. a) It is also stated that as per Rule-18 of A.P. Fundamental Rules and A.P. Leave Rules, 1993, whoever continues on foreign service beyond the approved period of the Government i.e. more than five years shall be deemed to have resigned from the service. b) Admittedly petitioner had continued in Foreign Service for more than five years i.e. 21 years 10 months without approval of the 1strespondent.Therefore she is not entitled to be continued here into service and to receive the salary and she is deemed to have resigned from the service, as there is no specific approval of the Government for continuation of the petitioners service on foreign deputation for a period of more than five years. c) As per Fundamental Rules from 110-127 amended by G.O.Ms.No.10 dated 22.01.1993 and read with rules framed under G.O.Ms.No.204 dated 21.05.1976, the competent authority to issue orders of foreign deputation services is not below to the rank of Deputy Secretary to the Government but in the present case in hand the orders of deputation were issued by the 5th respondent who is not the competent authority. d) He further submits that the 2nd respondent informed to the 3rd respondent vide proceedings dated 28.09.2021, as per the Rule-15 of A.P. Fundamental Rules and also Rule 5(b) of A.P. Leave Rules: (1) A person is absent from duty without authorization for a period of exceeding more than one year. (2) A person remains absent from duty for a period exceeding five years with or without permitted leave. (3) A person continues in Foreign Service beyond period of approval by the State Government, that person shall deemed to have resigned from the service. e) Then the 2nd respondent directed the 3rd respondent to conduct detailed enquiry in the matter and furnish the report along with specific recommendations, and also list the officers who are responsible for admitting the petitioner into service of the parent department and granting promotion in favour of the petitioner without prior approval from the Government and without verifying Service Register of the petitioner. It is further submitted that the 2nd respondent also addressed a letter to the 1st respondent dated 12.08.2021 requesting further action relating to the petitioner. 5. It is further submitted that the 2nd respondent also addressed a letter to the 1st respondent dated 12.08.2021 requesting further action relating to the petitioner. 5. Having regard to the submissions made by the learned counsel for the petitioner as well as the learned Government Pleader for the respondents, it is an admitted fact that the petitioner joined into service on 16.06.1990. Later her services were already regularized on 07.03.1996 vide proceedings issued by the respondent 25.02.1996 and later the 5th respondent posted and transferred the petitioner to the project hospital Muchkand in the existing vacancy. Pursuant to the said proceedings only, she joined at project hospital Muchkand on 08.12.1996. 6. The contention of the learned counsel for the petitioner that the petitioner was transferred to APGENCO project hospital at Muchkand not by way of deputation, by way of transfer only. Therefore, the services of petitioner were purely posted at APGENCO project hospital Muchkand only by way of transfer but not on deputation is valid and reasonable. In view of the proceedings of the 5th respondent dated 22.02.1996 wherein it is specifically indicates that petitioner is transferred from PHC, Munchunput to APGENCO project hospital, Munchkund Orissa in existing vacancy. 7. The other contention of the learned counsel for the petitioner that after completion of nearly 22 years of service at project hospital, Muchkund, she was duly surrendered and relieved by the competent authority of APGENCO on 31.10.2018 addressing to the respondents and pursuant to the said proceedings the petitioner was admitted into parent department and she submitted joining report on 08.02.2018, after availing medical leave, then the 5th respondent posted the petitioner to Sub Centre, Sanbagh, Primary Health Centre at Lubburu vide proceedings dated 08.02.2019 and later she was promoted from Multi Purpose Health Assistant to Multi Purpose Health Supervisor by the 3rd respondent vide proceedings dated 19.11.2019 and posted at Primary Health Centre, U.Chidipalem and she has been continuing services at Chidipalem is an admitted fact and should be considered, in view of the proceedings as mentioned above. 8. 8. The other contention of the learned counsel for the petitioner that in view of those proceedings issued by the respondent Nos.3 to 5 and the petitioner has been discharging her services as MPHS, as such she is entitled for salaries from 08.02.2019 and all other benefits which are entitled from 01.11.2018 to till date is valid and sustainable for the reason that she was duly admitted into the parent department by the respondent Nos.4 and 5 treating the services at APGENCO as continuous, since the same are by way of transfer and after retransfer to the parent department she was promoted by the 3rd respondent who is the competent authority for granting promotion. 9. On the other hand, the contention of the learned Government Pleader for the 5th respondent is not the competent authority to issue proceedings transferring the petitioner to APGENCO which is foreign deputation service as per fundamental Rule 18 and Rule 5 (b) of A.P Leave rules is not valid and not acceptable. In view of the specific proceedings issued by the 5th respondent dated 22.02.1996, wherein it is stated that it is only transfer to the APGENCO project hospital but not deputation into foreign services. 10. The other contention of the learned Government Pleader, since the petitioner continued for a period of more than five years on foreign deputation service without prior approval of the 1st respondent and the services of the petitioner should be deemed as resigned from the services is also untenable and unreasonable for the reason that the petitioner was not deputed into foreign service but only posted by way of transfer only. So the rules which are mentioned above are not applicable in the present case in the hand. 11. So the rules which are mentioned above are not applicable in the present case in the hand. 11. The other contention of the learned Government Pleader that the petitioner continued beyond five years of services on foreign deputation service without prior approval of the 1st respondent and the further action of the respondents admitting the petitioner into parent department and granting promotion to the petitioner by the respondents herein is nothing but violation of A.P. fundamental rules and beyond the authority of the respondents for which the 2nd respondent appointed 3rd respondent as an enquiry officer for submission of detailed report for initiating disciplinary proceedings against the responsible officers of their misdeeds is also untenable and unreasonable for the reason the 3rd respondent who was appointed as an enquiry officer he himself issued the promotion orders to the petitioner. The other respondents issued only posting orders pursuant to the promotion orders. It is also an admitted fact that the 2nd respondent addressed letter to the 1st respondent as per the counter, seeking for further necessary action. 12. Having regard to the facts and circumstances and material placed on record and in view of the foregoing discussion as stated above, this court is of the considered opinion that the present writ petition is disposed of directing the respondent Nos.1 and 2 to take appropriate action against the other respondent Nos.3 to 8 as per the enquiry report to be submitted and respondent Nos.1 and 2 herein are also specifically directed to take all steps for regularization of the services of the petitioner from 01.11.2018 to till date and take steps to pay the salaries and all other benefits to the petitioner as per her entitlement from 01.11.2018 to till date within a period of three months from the date of receipt of copy of this order. 13. Accordingly, the writ petition is disposed of. There shall be no order as to costs. Consequently, Miscellaneous Petitions, if any, pending in this Writ Petition shall stand closed.