Allowed

The Government of Andhra Pradesh v. Dr.N. Ramanjanamma

Telangana HC22 Jul 2013WP/35646/2012

Case brief

AI extract

What is this about?

The High Court allowed the Writ Petition filed by the State Government, holding that the Administrative Tribunal must record specific findings regarding the cause of delay before granting 'compulsory wait'. The matter was remanded for fresh consideration after hearing both parties and examining the petitioners' defense regarding the service member's initial request and subsequent default.

What did the court decide?

The order of the Tribunal dated 20.07.2011 is set aside; the matter is remanded to the Tribunal for fresh consideration after hearing both parties and examining the petitioners' counter, preferably wi

The Government of Andhra Pradesh Vs Dr.N… — Pension and Retirement Benefits | Telangana HC (2013)

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THE HON’BLE SRI JUSTICE R.SUBHASH REDDY AND THE HON’BLE SRI JUSTICE A.V.SESHA SAI

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WRIT PETITION No.35646 OF 2012

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ORDER: (Per Hon'ble Sri Justice R.Subhash Reddy)

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This Writ Petition is filed by the respondents in O.A.No.6836 of 2009, aggrieved by the order, dated 20.07.2011, passed by the Andhra Pradesh Administrative Tribunal, Hyderabad, in the aforesaid O.A.

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The respondent/applicant was working on deputation in the Andhra Pradesh State AIDS Control Society as a Joint Director. On completion of deputation, she was relieved from duties with effect from 31.12.2007 and repatriated to her parent department i.e., Director of Health, Andhra Pradesh, Hyderabad, for further posting and to that effect, orders were passed by the said Society on 18.12.2007 in Proceedings No.1730/AIDS/Estt/200407. After repatriation orders were passed, the respondent made a representation to the Director of Health, Andhra Pradesh, Hyderabad, on 01.01.2008 and it reads as under:

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“My Specialist qualification is M.D. (Venerology) and worked as Assistant Professor / Deputy Civil Surgeon from December 2009 to September 2006. As I did not

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get further promotion as Associate Professor on teaching side, I have opted for general line promotion and get promoted as Civil Surgeon (General line) in the year 2006.

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Now, I am willing to work under control of Director of Medical Education foregoing my promotion as Civil Surgeon on general line. Hence, I request you to surrender me to Director of Medical Education for further posting in my speciality.”

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In view of the said representation, Government has passed orders in G.O.Ms.No.114, Health, Medical and Family Welfare (A1) Department, dated 17.04.2008, giving appointment to the respondent as Assistant Professor on teaching side, while ordering deletion of her name from the seniority list of Civil Surgeons on non-teaching side. But, in spite of the same, she did not join on teaching side, instead she made a further representation to the Government vide representation, dated 11.06.2008, protesting her posting as Assistant Professor with last rank and requested to permit her to work again in the Director of Health side as Civil Surgeon on general line. Pursuant to such representation, further orders were passed by the Government in G.O.Ms.No.1324, Health, Medical and Family Welfare (B1) Department, dated 23.08.2008, giving posting as Civil Surgeon in general line in the Director of Health side and she was posted accordingly as a Zonal Malaria Officer, Hyderabad, in the existing vacancy. In the same order, the Government

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ordered the period from the date of repatriation to the Director of Health i.e., from 01.01.2008 to the date of joining as Zonal Malaria Officer, Hyderabad shall be treated as leave to which she is eligible, since the delay was happened on her request. Aggrieved by that portion of the order of the Government to treat the period from 01.01.2008 to the date of joining as Zonal Malaria Officer, Hyderabad as leave, the respondent approached the Tribunal by filing the present O.A.

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It appears, in the present O.A., counter-affidavit is not filed by the petitioners herein. But the Tribunal, by recording a finding that though the respondent applied for the post of Associate Professor in pursuance of G.O.Rt.No.133, Health, Medical and Family Welfare (A1) Department, dated 29.01.2007, she was posted as Assistant Professor, which is inferior post than the post she was holding by that date, has allowed the O.A. The Tribunal already recorded a finding that there was a lapse on the part of the petitioners herein, as such the respondent/applicant had to wait for posting orders from 01.01.2008 to 25.08.2008 i.e., for nearly eight months. In that view of the matter, the Tribunal while setting aside the order of the Government issued in G.O.Ms.No.1324, dated 23.08.2008, ordered to regularize the period from 01.01.2008 to 25.08.2008 as ‘compulsory wait’ and to issue proceedings within a period of four weeks fixing the

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pay and pension of the respondent and release all the pensionary benefits.

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In this Writ Petition, it is the case of the Government that after repatriation, the respondent herself has filed a representation, dated 01.01.2008, in which she expressed her willingness to forego promotion as Civil Surgeon on general line and requested to surrender her to the Director of Medical Education for further posting. It is stated that in view of the proceedings, dated 16.01.2008, issued by the Director of Health, Andhra Pradesh, Hyderabad in Rc.No.36049/E1.A/08, orders were passed by the Government in G.O.Ms.No.114, dated 17.04.2008, allowing the respondent to be on teaching side by posting as Assistant Professor. It is submitted that in spite of such orders, which were passed at her request, the respondent again made a representation on 11.06.2008, pursuant to which the orders of the Government in G.O.Ms.No.1324, dated 23.08.2008, came to be passed. It is also submitted that inasmuch as there was only lapse on the part of the respondent, her request was not considered to treat the period from 01.01.2008 till the date of her joining as Zonal Malaria Officer, as compulsory wait.

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On the other hand, it is submitted by the learned counsel appearing for the respondent that at the request of the respondent pursuant to representation, dated 01.01.2008, she was not given the corresponding post on

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teaching side by posting her as a Professor, as such she made a further representation, dated 11.06.2008 and basing on which, orders were passed by the Government in G.O.Ms.No.1324, dated 23.08.2008. It is submitted that as there was a lapse on the part of the petitioners, the respondent is entitled to convert the period from 01.01.2008 till the date of her joining as a Zonal Malaria Officer, Hyderabad as a compulsory wait.

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Compulsory wait is a provision which is contemplated in the Rulings 13, 14 and 15 appended to Rule 9(6)(b) of the Andhra Pradesh Fundamental Rules and they read as under:

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“(13) When a Government servant on return from leave has compulsorily to wait for orders of posting, such periods of waiting should be treated as duty. During such periods he will be entitled to pay according to Rule 20.

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(14) When Government servants are sent abroad under the various training schemes of the United Nations, the Colombo Plan, etc., the period of deputation will be treated as ‘duty’ and full pay allowed for the entire period.

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(15) The period of absence from the duty of the members of the Andhra Pradesh Civil Services Joint Staff Council in attending its meeting including journey time, if any, will be treated as duty.”

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From a perusal of the said Rulings, it is clear that the Government servant on return from leave has to wait for orders of posting and such period of waiting alone can be

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treated as ‘compulsory wait’ by treating the said period as on duty. But in the instant case, it is to be noticed that in the representation, dated 01.01.2008, while stating that she worked earlier as Assistant Professor on teaching side, she also stated that she is ready to forego the promotion as Civil Surgeon on general line and requested to surrender her to the Director of Medical Education for further posting in her specialty. Thereafter, pursuant to the said representation and reference to further order of the Director of Health, Andhra Pradesh, Hyderabad in Rc.No.36049/E1.A/08, dated 16.01.2008, an order in G.O.Ms.No.114, dated 17.04.2008 was passed by the Government. Even in spite of the said order, she has not chosen to join and again made a representation protesting her posting as Assistant Professor with last rank, that resulted in passing of the order by the Government in G.O.Ms.No.1324, dated 23.08.2008.

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From the perusal of the order passed by the Tribunal, it is clear that the aforesaid aspects were not gone into so as to treat the period from 01.11.2008 to the date of joining as Zonal Malaria Officer, Hyderabad as compulsory wait. Unless findings are recorded as to whether the respondent was made to wait for orders of posting on account of lapses on the part of the petitioners herein, she is entitled to seek the period as ‘compulsory wait’. Inasmuch as the order passed by the Tribunal was

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in absence of counter and the stand of the petitioners herein and as the Tribunal did not consider whether the respondent was given the corresponding post pursuant to her request on teaching side or not, whether any lapses were there on the part of the petitioner, which resulted in delay of her posting or not - these are the matters which are required to be considered before extending the relief to the respondent to treat the period from 01.01.2008 to the date of joining as Zonal Malaria Officer, Hyderabad as a compulsory wait. In that view of the matter, we are of the view that it is a fit case to remit the matter to the Tribunal for fresh consideration. It is also made clear that it is open for the petitioners to put-forth their defence by way of counter.

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For the aforesaid reasons, the Writ Petition is allowed and order, dated 20.06.2011 passed by the Tribunal in the present O.A. is set aside. The matter is remitted to the Tribunal for fresh consideration, after hearing both the parties and after looking at the counter to be filed by the petitioners herein, and to pass appropriate orders as expeditiously as possible, preferably within a period of three (3) months from the date of receipt of this order. No order as to costs.

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Miscellaneous Petitions, if any, pending in this Writ Petition, shall stand closed.

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____________________________ JUSTICE R.SUBHASH REDDY ________________________ JUSTICE A.V.SESHA SAI 22^nd July, 2013 Anr

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THE HON’BLE SRI JUSTICE R.SUBHASH REDDY AND THE HON’BLE SRI JUSTICE A.V.SESHA SAI

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WRIT PETITION No.35646 OF 2012 (Per Hon'ble Sri Justice R.Subhash Reddy)

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22^nd July, 2013

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Anr

The Government of Andhra Pradesh v. Dr.N. Ramanjanamma

Case brief

What is this about?

What did the court decide?

The Government of Andhra Pradesh v. Dr.N. Ramanjanamma

Case brief

What is this about?

What did the court decide?

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