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2025 DIGILAW 237 (AP)

Pappu Sankara Rao v. Regional Deputy Director

2025-02-07

K.MANMADHA RAO

body2025
ORDER : K MANMADHA RAO, J. The writ petition is filed under Article 226 of the Constitution of India for the following relief: “……to issue a Writ order or direction more particularly one in the nature of Writ of Mandamus by declaring the action of the respondent herein in issued the impugned proceeding SA No 66 dated 9.11.2022 by canceling Annual Grade Increments sanctioned earlier vide Proc SA No 202/2019 dated 24.7.2019, as highly illegal, arbitrary and discrimination and also contrary to the law and consequentially the Honble Court may pleased to set aside the proceeding dated 9.11.2022 by declaring the petitioner is entitle for Annual Grade Increments as per the Proceeding dated 24.7.2019 and also by declaring the petitioner probation in the cadre of Asst Audit Officer and may pass such other order or orders may deem fit and proper in the circumstances of the case…. Main Prayer amended/substituted as per Court Order dated 11 09 2024 Vide I A No 1 of 2023 in WP No 17280 of 2020….. “…..to issue a Writ, order or direction more particularly one in the nature of Writ of Mandamus by declaring the action of the respondent herein in issued the impugned proceeding. SA.No.66, dated 9- 11-2022, by canceling Annual Grade Increments sanctioned earlier vide Proc.SA.No.202/2019, dated 24-7-2019 as highly illegal, arbitrary and discrimination and also contrary to the law and consequentially the Hon'ble Court may pleased to set aside the proceeding dated 9-11-2022 by declaring the petitioner is entitled for Annual Grade Increments as per the Proceeding dated 24-7-2019 and also by declaring the petitioner probation in the cadre of Asst. Audit Officer and may pass such other order….” 2. The grievance of the petitioner is that the 1 st respondent herein has issued Notification No.31/2007 for the post of Assistant Audit Officers (AAO) under Group-I Services, which is a zonal post. In pursuance of the same, the petitioner applied for the said post under ST category and provisionally selected as AAO under ST category, but not issued posting orders to the petitioner on par with the other selected candidates without assigning any reasons, at the same time, the status of ST is intact. In pursuance of the same, the petitioner applied for the said post under ST category and provisionally selected as AAO under ST category, but not issued posting orders to the petitioner on par with the other selected candidates without assigning any reasons, at the same time, the status of ST is intact. Therefore, the petitioner filed O.A.No.10723 of 2009 before the A P Administrative Tribunal, Hyderabad and the same was disposed of on 5.12.2009 with a direction to the APPSC and also to the 1 st respondent herein to appoint the petitioner as AAO under ST category, pending enquiry in respect of the petitioner’s social status. Following the said orders, the APPSC has selected the petitioner and appointed the petitioner as AAO vide Proc. Roc. No.498/A3/2009, and posted at District Audit Office, Srikakulam and joined in service on 10-01-2010 and presently working at District Audit Office, Visakhapatnam. It is stated that, after joining into service on 10.01.2020 only One increment was granted in the month of January 2011. Thereafter, from January 2012 onwards the respondents stopped the Annual grade increments till now and also not granted the Revised Pay Scales, without any valid reasons and also not regularized on par with other appointed AAOs under the guise of an enquiry is pending in respect of ST Caste Certificate and caused great mental agony and monetary loss to the petitioner. Therefore the petitioner has submitted a representation to declare the probation and release annual grade increments pending enquiry, as his juniors drawing higher pay than the petitioner. Later, the 1 st respondent considered the entire issue and rightly released the Annual Grade Increments from 01.01.2012 to till 01.01.2019 vide proc. AS No.202/2019, but till this date the same was not forwarded by the 1 st respondent to the 3rd respondent/ the District Audit Officer, Visakhapatnam by declaring the petitioner's probation. Questioning the same, the present writ petition is filed. 3. The counter affidavit has been filed by the respondents No.1, 2 and 5 denying all the allegations made in the petition. Questioning the same, the present writ petition is filed. 3. The counter affidavit has been filed by the respondents No.1, 2 and 5 denying all the allegations made in the petition. It is stated that the individual was also directed from time to time through the notices given in Form-VI issued by the collectors office Visakhapatnam and informed to attend the enquiry regarding social status claim in Joint Collectors chamber, Collector Office, Visakhapatnam and also a Show-cause Notice was issued vide (M) Rc.No.913/2009/C5 Dt.20-07-2012 of the Collectors Office, Visakhapatnam and the same was served on to the individual on 27-07-2012. It is stated that the individual was again directed through the notice served in FORM-VI issued by the Collectors Office Visakhapatnam Vide (M) Rc.No.913/2009/C5 Dated, 18-12-2021 to attend the enquiry regarding social status claim on 27-12-2021. But the status of enquiry and other information on verification of the social status claim as required has not been received so for. But the Enquiry Report on verification of the social status of the individual is pending receipt from the competent authority. In the circumstances and in the light of the facts mentioned above the Annual Grade increments from 2012 were not stopped but withheld for as the individual was not placed on Probation for want of Enquiry Report on his social status. It is not a loss to the individual and all consequential benefits will be released if the Social status of the individual is proved correct.It is a fact that the Enquiry Report is pending and also pertinent to state that the enquiry report is not pending with the department, but pending with Tribal welfare department who are not the party to this case. Further the regularization in another department has a remote consequence to the present case and no comment is possible to pass on that regularization.It is stated that, the individual approached the APAT in the O.A.No.2446 of 2018 aggrieved by the Memo. SA. No182/SA1/2018, dated 02-07-2018 of the District Audit officer, State Audit, Visakhapatnam and the OA was heard and notices were issued and on receipt of the notices, the District Audit Officer, State Audit, Visakhapatnam has filed Counter Affidavit, and the OA is pending at APAT. Meanwhile, the District Audit Officer, State Audit, Visakhapatnam has erroneously released Annual Grade Increments from 01-01-2012 to till 01-01-2019 Vide Proc.SA. Meanwhile, the District Audit Officer, State Audit, Visakhapatnam has erroneously released Annual Grade Increments from 01-01-2012 to till 01-01-2019 Vide Proc.SA. No.202/2019, dated 24-07-2019 which is oxymoron to the statement made in the counter Affidavit. It is further stated in the counter affidavit that, it is not true that the petitioner was placed on probation as per para 3 of Progs. Roc.No.498/A3/2009 dt: 05-01-2010, but a condition was laid down that the order issued is subject to outcome of the court orderdated 24-07-2019.It is further stated that the order of the District Audit Officer, State Audit, Visakhapatnam releasing the Annual Grade Increments from 01-01-2012 to till 01-01-2019 Vide Proc.SA. No.202/2019, dated 24-07-2019 is erroneous, as the rules quoted in the said order are not in conformity of those rules. As such the order issue is null and void. It is finally stated that the petitioner was provisionally appointed on the direction of the Hon'ble APAT, by the Regional Deputy Director, State Audit, Zone-1, Visakhapatnam subject to genuineness of Kondakapu of ST Caste which is under inquiry and the findings of inquiry report cannot be presumed either side. The Positive Enquiry Report is a sine-que-non for regularization of the services and declaration of probation in the cadre of Assistant Audit Officer in the light of A.P State and Subordinate Service Rules, 1996 issued vide GO.MS. No.436 GA (SER.D) Department dated 15-10-1996. Any further action may adversely affect the interests of the exchequer if the final report is not in favor of the Petitioner.Therefore, there is no illegality behind the action of the 1 st respondent herein. Therefore, the relief of the applicant in W.P.No.17280of 2020 is wholly misconceived, unreasonable and contrary to the Rules of State and Subordinate Service Rules, 1996 and hence prayed to dismiss the same. 4. Heard Sri M.R. Tagore, learned counsel appearing for the petitioner and learned Government Pleader for Finance & Planning appearing for the respondents. 5. On hearing, learned counsel appearing for the petitioner while reiterating the contents made in the petition, prayed to allow the writ petition. Whereas, learned Government Pleader appearing for the respondents also while reiterating the contents made in the counter affidavit, opposed for allowing the writ petition and prayed to dismiss the same. 6. Perused the material on record. 7. 5. On hearing, learned counsel appearing for the petitioner while reiterating the contents made in the petition, prayed to allow the writ petition. Whereas, learned Government Pleader appearing for the respondents also while reiterating the contents made in the counter affidavit, opposed for allowing the writ petition and prayed to dismiss the same. 6. Perused the material on record. 7. It is not in dispute that the petitioner had applied for the post of AAO under Group-I services through APPSC under ST Category. Though the petitioner was provisionally selected as AAO under ST category, but not issued posting orders to the petitioner on par with the other selected candidates. Therefore, the petitioner approached APAT by way of filing O.A No.10723 of 2009 and the same was disposed of with a direction to the respondents to appoint the petitioner as AAO under ST category pending enquiry in respect of petitioner’s social status. 8. It is pertinent to mention here that, as per the Regulation 5 of AP [SCs, STs, and Bcs,] Regulation of issue of Community Certificate Act, 1993, the respondents have every right to cancellation caste certificate after conducting an enquiry and as per the regulation of 21 of the above Act, 1993 which reads as follows: "A community certificate issued by any authority competent to issue the same under the relevant rules or orders before the commencement of the Act shall, unless it is cancelled under the provision of this Act, be valid and shall be deemed to have been issued under the Provision of this Act.” 9. Therefore, in view of the above, learned counsel for the petitioner submits that the law is well settled unless the STcaste certificate is cancelled the same is valid. Therefore, the petitioner rightly appointed as Assistant Audit Officer by Proceedings dated 05-1-2010 and joined in service on 10-01-2010 as Assistant Audit Officer, since then the petitioner is working as AAO and now completed more than 10 years long service. 10. Moreover, it is the contention of the respondents that the Seniority of the individual will be fixed as per roster points fixed by the APPSC irrespective of their date of joining in the Service as per the rule 33 of State and Subordinate Service Rules, 1996 issued vide GO.MS. No.436 GA (SER.D) Department dt. 15-10-1996. 10. Moreover, it is the contention of the respondents that the Seniority of the individual will be fixed as per roster points fixed by the APPSC irrespective of their date of joining in the Service as per the rule 33 of State and Subordinate Service Rules, 1996 issued vide GO.MS. No.436 GA (SER.D) Department dt. 15-10-1996. The fixation of Seniority is not relevant to the present case, the petitioner will automatically continue in the seniority list till the Enquiry Report is received. The further contention of the respondents that the Proceedings SA.No.202/2019, dated 24-07-2019 issued by District Audit Officer, State Audit, Visakhapatnam are hereby cancelled vide Progs.SA.No.66 Dt: 09-11-2022 0/0 District Audit Officer, State Audit, Visakhapatnam due to the enquiry report not received till to date. 11. It is to be noted that as per The State and Subordinate Service Rules, 1996 issued vide GO.Ms. No.436 GA (SER.D) Department dt. 15-10-1996., wherein Rule 16(a) & (c ) extracted hereunder: 16(a) Commencement of Probation for direct recruits: A person appointed in accordance with rules, otherwise than under rule 10, by direct recruitment shall commence his probation from the date of his joining the duty or from such other date as may be specified by the appointing authority: Provided that a person having been appointed temporarily under Rule10 to a post in any service, class or category or having been so appointed otherwise than in accordance with the rules governing appointment to such post, subsequently appointed to the same post, in the same service or class or category, in the same unit of appointment, in accordance with the rules, shall commence his probation from the date of such subsequent appointment or from such earlier date as the appointing authority may determine, subject to the condition that his commencement of probation from an earlier date shall not adversely affect any person who has been appointed. earlier or simultaneously, to the same service, class or category in the same unit. … …. (c ) Period of probation :-Unless otherwise stated in the special Rules or in these rules, the period of probation shall be as follows: (i) Every person appointed by direct recruitment to any post shall, from the date on which he commences his probation be on probation for a period of two years on duty within a continuous period of three years. (ii) Every person appointed to any post either by promotion or by transfer (not by transfer on tenure) shall, from the date on which he commences his probation, be on probation for a period of one year on duty within a continuous period of two years. (iii) A probationer in any category, class or service shall be eligible to count for probation his service in a higher category of the same service or class, as the case may be, or in any other service (State or Subordinate Service) towards his probation in the former service, to the extent of the period of duty performed by him in the latter service during which he would have held the post in the former service but for such appointment in the latter service.” 12. On a plain reading of the above, it is observed in the present case that, the petitioner probation will automatically commenced from the date of his joining in duty and such probation period is 2 years on duty with continuous period of 3 years, accordingly the petitioner probation period commenced from 10.1.2010 and completed by 9.1.2013. It is further observed that, as per Rule 18(b)(ii) if any lapses during probation period has to take decision whether to discharge during probation or to suspend etc., within a period of 8 weeks after expiry of the probation period and if not done so, as per the Rule 18 (b)(ii) of the said Rules, if no order as referred to in sub Rule(a) is issued within one year from the date of expiry of the prescribed or extended period of probation, the probation is deemed to be completed the probation with retrospective effect from the date of expiry of the prescribed or extended period of probation. 13. In view of the above, this Court is of the view that , as per the rule position, the petitioner probation was deemed to be declared from the date of expiry period i.e., 9.1.2013 itself as stated by learned counsel for the petition that the 1 st respondent rightly released the annual grade increments with arrears vide Memo dated 2.7.2019. In view of the above, this Court is of the view that , as per the rule position, the petitioner probation was deemed to be declared from the date of expiry period i.e., 9.1.2013 itself as stated by learned counsel for the petition that the 1 st respondent rightly released the annual grade increments with arrears vide Memo dated 2.7.2019. Once the DDO has released the annual grade increments by quoting the rule position by proceedings dated 2.7.2019, it is not appropriate to the 1 st respondent in not forwarding the same to the 3 rd respondent by declaring the probation as required by the 3 rd respondent for releasing the arrears of increments. Therefore, this court deems fit to allow the present writ petition while declaring the action of the respondents in not releasing the annual grade increments, as illegal and arbitrary. 14. Accordingly, the Writ Petition is allowed. The impugned proceedings SA No.66, dated 9.11.2022 by cancelling annual grade increments sanctioned earlier vide proc. SA No202/2019 dated 24.7.2019, is hereby set aside. No costs. 15. As a sequel, all the pending miscellaneous applications in the writ petition, shall stand closed.