Allowed

Sk. Rahamtulla v. Anantharam

Andhra Pradesh HC6 Jan 2023CC/29/2022

Case brief

AI extract

What is this about?

The court allowed a writ petition reversing a departmental order that reverted a petitioner from Junior Assistant to Attender. The court held that principles of natural justice under Article 311 were violated as a pre-promotion enquiry did not suffice for reversion. A contempt case against non-compliance was dismissed.

What did the court decide?

Impugned proceedings dated 24.03.2021 set aside; petitioner reinstated with immediate effect.

Sk. Rahamtulla Vs Anantharam — Pension and Retirement Benefits | Andhra Pradesh HC (2023)

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HON’BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

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WRIT PETITION No. 9502 of 2021

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and

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CONTEMPT CASE No. 29 of 2022

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COMMON ORDER:

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The present writ petition is filed to declare the action of the 3^rd respondent in issuing proceedings dated 24.03.2021 reverting the petitioner from the post of Junior Assistant to the post of Attender without affording any opportunity as illegal and arbitrary.

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Heard learned counsel for the petitioner, learned Government Pleader for Services appearing for respondent Nos.1 to 4, and learned counsel for the 5^th respondent.

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The case of the petitioner in brief is that he was appointed as an Attender on 03.12.2003 and his services were regularized on 02.12.2005. Thereafter, he was temporarily promoted to the post of Junior Assistant vide proceedings dated 15.07.2020 issued by the 3^rd respondent and posted in the existing vacancy of the District B.C. Welfare Office, Prakasam District. While so, the 5^th respondent association complained of his seniority, basing on which, the 3^rd

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NV,J W.P.No.9502 of 2021 & C.C.No.29 of 2022

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respondent issued the impugned proceedings reverting the petitioner from the post of Junior Assistant to the post of Attender.

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The 3^rd respondent filed a counter affidavit contending that in pursuance of a complaint of the co-employees of the petitioner, the Assistant of B.C.Welfare Officer, Ongole, caused an enquiry and submitted a report stating that the petitioner was junior to the candidates in the seniority list and accordingly, the mistake was rectified and the 3^rd respondent issued the reversion orders. It is stated that at the time of serving a copy of the reversion orders, the petitioner was not available and he is not attending to the duties. It is also stated that a person, who is absent continuously for more than one year, is liable to face disciplinary proceedings as per Rule 20 of A.P.C.S. (CCA) Rules, 1991. The promotion orders were issued to the petitioner by mistake and the said mistake cannot be perpetuated and the rights of other senior employees who are over and above the petitioner may not be affected. As such, there is no illegality or infirmity in the impugned orders passed by the 3^rd respondent. In fact, the petitioner was absconded from duties from March, 2021 and he did not report to the duty either in the original place or in the place of reversion post. As the whereabouts of the

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NV,J W.P.No.9502 of 2021 & C.C.No.29 of 2022

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petitioner are not known till date, the respondent authorities are unable to implement the orders of this Court. It is also stated that recently, the petitioner was involved in a criminal case on the file of the Station House Officer, Kurichedu P.S., Prakasam District for the offence punishable under Section 420 IPC on the allegation that he cheated one lady by taking an amount of Rs.2.5 lakhs to provide a job to her and he was in the judicial custody for some time and later, he was enlarged on bail.

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Learned counsel for the petitioner submits that the present impugned orders were passed without providing any opportunity of hearing and in violation of the principles of natural justice. He further submits that the petitioner was promoted to the post of Junior Assistant on 15.07.2020 and he continued in the said post for more than six months. Therefore, the petitioner is entitled for prior notice/opportunity in case of reversion of promotion order as contemplated under Article 311 of the Constitution of India as well as Rule 23 of the A.P. State and Subordinate Services Rules, 1996 (for short ‘the Rules, 1996). He further submits that no order of reversion shall be passed without affording an opportunity of hearing to the petitioner and making his

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NV,J W.P.No.9502 of 2021 & C.C.No.29 of 2022

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representation against the proposed reversion. He further submits that the Division Bench of this Court in the State of Andhra Pradesh Vs. Y. Chinna Reddi¹ affirmed the finding of the learned Single Judge that the order of reversion not having been made in conformity with the provisions of Article 311 of the Constitution was bad in law and was rightly held to be so by the learned Judge.

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i) In Chinna Reddi (1 supra), the Division Bench of this Court held

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thus:

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“18. There was much debate and discussion before us as to what the position of an approved probationer is, in other words, whether the fact that he is declared to nave satisfactorily completed his probation would give him a vested right to continue in that post unless his services are terminated or he is reverted in accordance with the procedure held down by Article 311(2). That there is essential distinction between a person serving in a temporary capacity, a probationer and an approved probationer cannot be disputed. An approved probationer is a member of the service who has satisfactorily completed his probation and awaits appointment as a full member of that service. Before a probationer is declared to be an approved probationer, he has to prove his worth, his suitability for the higher post in which he is working. If his work is

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1 1962 Law Suit (AP) 112

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NV,J W.P.No.9502 of 2021 & C.C.No.29 of 2022

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found not to be satisfactory, he will be liable to be reverted to his original post even without assigning any reason.”

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ii) In view of the ratio laid down in the said judgment, the present impugned order is liable to be dismissed.

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iii) Learned counsel for the petitioner further submits that when the matter came up for admission, this Court passed an interim suspension of the impugned order as prayed for. However, the respondent authorities have not chosen to comply with the interim orders of this Court. Then, the petitioner preferred a contempt petition being C.C.No.29 of 2022 which is being disposed of along with the writ petition.

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On the other hand, learned Government Pleader for Services submits that the original promotional orders dated 15.07.2020 were issued only on a temporary basis. The promotion orders were issued to the petitioner by mistake and the said mistake cannot be perpetuated and the rights of other senior employees who are over and above the petitioner may not be affected. As such, there is no illegality or infirmity in the impugned orders passed by the 3^rd respondent. He

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NV,J W.P.No.9502 of 2021 & C.C.No.29 of 2022

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further submits that as per Rule-17 of the A.P. State Ministerial Service Rules, 1998, the seniority list cannot be overlooked while effecting promotions. Therefore, the petitioner is not entitled for promotion as the promotion order was issued under a mistake of fact and it can be revised when it was brought to the notice of the authority concerned. While rectifying the said mistake of fact, the beneficiary is not entitled for the principles of natural justice and due process.

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i) The learned Government Pleader further submits that the petitioner is not qualified to be promoted as Junior Assistant as per the final seniority list dated 14.07.2020. A notice was issued to the petitioner, a preliminary enquiry was conducted and the petitioner participated in the enquiry and submitted his explanation. After considering his explanation, a preliminary enquiry report was submitted. Therefore, having availed an opportunity of hearing in the enquiry, the petitioner cannot plead as if he was not provided with any opportunity of hearing and the petitioner is not entitled for any further opportunity of hearing either under Article 311 of the Constitution or Rule-23 of the Rules, 1996. The learned Government Pleader submits that it is a settled law that till finalization of the vacate stay petition, the respondents

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NV,J W.P.No.9502 of 2021 & C.C.No.29 of 2022

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cannot be found fault with and therefore, it would not come under the purview of Sections 10 to 12 of the Contempt of Courts Act, 1971 and there is no disobedience of the orders of this Court. He relied upon a judgment rendered by this Court in P. Anjamma Vs. Niroop Kumar Prasad² wherein it is held as follows:

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“22. The above mentioned facts were not mentioned by the petitioners in the Writ Petition. As rightly contended by the learned Senior Counsel appearing for the respondents, the reasons contained in the interim order of this Court suggest that the premise on which the respondents were directed to remove the locks and handover possession was that the shops were locked for non-payment of the arrears of rents and that huge arrears shown in the demand notices were quite improbable in the light of the receipts produced by the petitioners paying off all the arrears upto 31-8-2011. Had it been brought to the notice of this court that an eviction order was already passed in December 2010 and that the unauthorized occupants were evicted under the panchanama dated 20-8-2011, this Court probably would not have granted the interim order dated 16-9-2011, as it did, at that stage. The respondents have averred, and it has not been denied by the petitioners that immediately on receipt of the interim order, they have taken legal advice and started making efforts to file a counter-affidavit and vacate stay petition. The fact that there was a general strike in the name of 'sakala janula samme' during that period, during which

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2 (2013) 1 ALT 124

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NV,J W.P.No.9502 of 2021 & C.C.No.29 of 2022

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administration in the State was almost paralysed, is also undisputed. Inspite of all these set-backs, the respondents were able to file the counter-affidavit within a week from the date of passing of the interim order by this Court.”

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ii) In view of the facts and circumstances stated above, the writ petition as well as the contempt case are liable to be dismissed.

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Having regard to the submissions made by the learned counsel for the petitioner and the learned Government Pleader for Services appearing for respondent Nos.1 to 4, the contention of the petitioner that he was not given any opportunity of hearing before issuing the impugned proceedings dated 24.03.2021 in violation of Article 311 of the Constitution of India and Rule-23 of the Rules, 1996, is valid for the reason that issuance of notice and participation/submission of explanation in the preliminary enquiry cannot be treated as if the principles of natural justice were complied with as envisaged under Article 311 of the Constitution and Rule-23 of the Rules, 1996, which are meant for specifically at the time of issuance of the impugned order. The other contention of the petitioner that in view of non-observation of due process as well as the principles of natural justice, the impugned

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NV,J W.P.No.9502 of 2021 & C.C.No.29 of 2022

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order is liable to be set-aside and the petitioner should be reinstated by remanding the matter for fresh consideration should be considered.

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The contentions of the learned Government Pleader for Services

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that the petitioner is not at all eligible for getting promotion bypassing the seniors as per the final seniority list dated 14.07.2020, is tenable, but, that can be rectified after observing the principles of natural justice.

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The petitioner filed the contempt case complaining the willful disobedience of the interim orders of this Court dated 07.05.2021 even after submission of representations dated 24.05.2021 and 07.07.2021 requesting to allow him to discharge his duties as Junior Assistant and hence, the respondents are liable for punishment under sections 10 to12 of the Contempt of Courts Act, 1971. The said complaint of the petitioner that the respondents have not complied with the orders of this Court could not weigh for the reason that the respondents herein immediately filed counter affidavit along with a vacate stay petition. It is a settled principle that till finalization of the vacate stay petition, the respondents cannot be found fault with and therefore, it would not come under the purview of Sections 10 to 12 of the Contempt of Courts Act,

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NV,J W.P.No.9502 of 2021 & C.C.No.29 of 2022

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As such, it can be safely concluded that there is no disobedience of the orders of this Court. Accordingly, the Contempt is closed.

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In view of the foregoing discussion, the present impugned proceedings dated 24.03.2021 issued by the 3^rd respondent are liable to be set aside.

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Accordingly, the Writ Petition is allowed and the impugned proceedings dated 24.03.2021 issued by the 3^rd respondent are set aside. The respondent authorities are directed to reinstate the petitioner into service with immediate effect. No order as to costs.

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Consequently, miscellaneous applications, if any, pending shall

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stand closed.

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____________________________________ VENKATESWARLU NIMMAGADDA, J

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6^th January, 2023 knr/cbs

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NV,J W.P.No.9502 of 2021 & C.C.No.29 of 2022

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