Allowed

G.Hari Kumar v. The Regional Dy. Controller (Head quarters) Legal

Telangana HC15 Dec 2023WP/17591/2017

Case brief

AI extract

What is this about?

The High Court allowed the writ petition challenging the termination of a Chowkidar's appointment. The Court set aside the termination order issued due to lack of Finance Department approval, directed the respondents to reinstate the petitioner, and ordered payment of unpaid salary with interest, applying the principle of 'no work no pay.'

What did the court decide?

Set aside termination order; Directed reinstatement; Ordered payment of salary for period in service from 16.09.2016 to 26.04.2017 with interest @7.50% p.a.

G.Hari Kumar Vs The Regional Dy. Controller (Head… — Service and Employment | Telangana HC (2023)

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[³³⁸³ ]

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IN THE HIGH^{COURT FOR THE STATE OF TELANGANA} AT HYDERABAD (Special Original Jurisdiction)

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FRIDAY, THE FIFTEENTH^{DAY OF DECEMBER} TWO THOUSAND AND^{TWENTY THREE}

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PRESENT

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THE HONOURABLE SRI^{JUSTICE LAXMI NARAYANA ALISHETTY}

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WRIT PETIT ION NO: 17591^{OF 2017}

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Between:

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G.Hari Kumar, S/o.(late)^{Mothilal Age 47 years, occ chowkidar.0/0 controllerof} Legal Metrology, Gandhinagar,^Hyderabad.

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...PETITIONER

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AND

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The Regional Dy.^{Controller(Head quarters) Legal, MetrologyDepartment,} Gandhi Nagar, HYderabad.

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The Controller of Legal^{Metrology,Gandhi Nagar, Hyderabad'}

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The Pay and^{Accounts OfficerTilak Road, Abids, Hyderabad}

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' The eoveinment state of^{Telangana, rep. by} Consrimer'Affbirs'and^{its commissioner andEx-Officio secretary} Food and Civil Supplies, Government of^to- Telangana, HYderabad.

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...RESPONDENTS

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Petition under Article^{226 of lhe constitutionof lndia praying that in the} circumstances^{stated in the affidavitfiled therewith, the High courtmaybe} pleased to issue a writ, order or^{direction more particularly one in the natureof} writ of Mandamus^{by declaring the entire action of the 1st fespondent in issuing} the^present impugned^{proceedingNo 39821E212013 dated26-4-2017is highly} illegal, arbitrary, unjust,^{improper, colorable exercise of power, clear violative of} all principles of natural^{justiceand contraryto various} iudicial^{pronouncements in} the subject matter^{and if necessarycall for the records relatingto the above} impugned orders and^{set aside or quash the same and consequentlyto directthe} respondents to continue^{his services as chowkidar in pursuance of appointment} order issued vide^{procs No 39821E212013dated 12-9-2016 of the',t st respondent}

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and also direct the respondents^{to pay his due salaries and continues to pay the} same.

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l.A. NO: 1OF 2017 WPMP.^{NO:,21478 OF 2017l}

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Petition under section^{151 cPc prayingthatin the circumstances statedin} the affidavit filed in support of^{the petition, the High court may be pleasedto} direct the respondents to continue^{the serviceof the petitioneras chowkidarin} pursuance of his appointment orders^{issued vide proceedingNo 39821E212O13} dated 12-9-2O.t6 of the 1"t respondent^{by dulySUSPENDINGthe operationof the} present impugned orders issued in^{proceeding No39821E212013dated 26-4-2017} of the 1 st respondent.

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Counsel for the Petitioner : SRI^{S.SAWANARAYANARAO}

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Counsel for the Respondents:^{GP FOR SERVICESI & lll}

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The Court made the following: ORDER

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HON'BLE^{SRI JUSTICE LAXMINARAYANAALISHETTY}

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WRIT PETITIONN^{0.17591 0F 2017}

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ORDER:

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The petitioner^{{iled the present ''rit petition seekingthe} following^relief:

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"...to declare^{the actionof the 1"' respondentin issuing the} present impugned^{proceeding No'3982/E2l2Ol3'dated} 26.O4.O17^{ishighly illegal, arbitrary,unjust'improper'} colorable^{exerdise of power' ciear violativeof all principles of} natural^{justice aldcontrary tovariousjudicial} pronouncements^{in the subject matter and if necessarycall} for rhe records^{relating to the aboveimpugned orders ald set} aside or^{quashthe same and consequently'to directthe} respondents^{tocontinue his services as Chowkrdar in} pursuance of^{appointment order issued videProcs No 3982/} E2l2O13^{dated 12.09.2016of the 1"' respondent and also} direct the^{respondentsto pay his due salaries and continues} to pay the^{same... ."}

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The brief^{facts leading to hling the presentwrit petltron are as} under:

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2.1. According^{to the petitioner,the 1st responclentvide letterdated} 12.05.2016^{requested the Zllla SainikWclfare Officer' Hyde rabad' to} sponsor a^{suitableEx-Servicemen to work as Chowkidarin2'd} respondent^{organization in the existing vacancy against quotameant} for Ex-servicemen^{ln responseto the above'Lhe Zllla Sainik Welfare} Offrcer,HyderabadDistrictvidehisletterdatedl6.05.20l6

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sponsored the name of the petitioner. Thereon, the lsr respondent vide Memo dated 12.O9.2016 issued appointment orders to the petitioner appointing him as Chowkidar in 2nd respondent office in the time scale of Rs.13,000-40270 /-. Accordingly, petitioner joined in the above post on 16.09.2016 and has been discharging his duties without any complaints.

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2.2. Though the petitioner joined on 16.09.2016 and discharged his duties as Chowkidar, he has not been paid salary for the period of his tenure. Instead of paying salary, the lsr respondent issued impugned order dated 26.04.20 17 cancelling the appointment on the ground that Pay and Accounts Officer sought ratification from Government for admitting salary and the matter was referred to the Government vide letter dated 10.O1.2077 to issue ratification orders, so as ro enable the office to pay the salary to the petitioner and the Government informed that the ratification is against Act 2 of 1994.

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2.3. The petitioner was appointed as Chowkidar in clear existing vacancy available in the oflice of 2nd respondent against Exserviceman quota. Therefore, there is no fault on the part of petitioner in any manner in securing the said appointment. The petitioner joined as Chowkidar by submitting resignation to other organization, in which he was working as Armed Guard. That in view of the

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impugned order, he lost his employment as^{well as his earlier post as} Armed Guard

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2.4. With regard to Act 2 ol 1994, the reason for^{passing the} impugned order dated 26.04.2017,^petitioner submitted^{that Act 2 of} 1994 prohibited the Government Departments,^{Corporations,} Universities and l,ocal bodies etc., from making^unauthorized appointments through the backdoor of NMRs, daily^wagesor appointments on consolidated^pay. However, said^act did^{not put any} ban on recruitments into public servants.^Therefore, the^entire procedure adopted by l"t respondent in issuing impugned order^is nothing but illegal, arbitrary and improper.

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Respondent no.l filed counter a{Iidavit and contended^that there was a vacant post of Chowkidar in the ofhce of the^2nd respondent. The Government has litted the ban on^postings/ recruitment etc., vide G.O.Rt.No. I 161, . General^{Administration} (Ser.D) Department, dated 24.05.2016 and keeping in view the exigencies, the matter was informed to 2"d^respondent to fiIl^the vacant post. Subsequently, Z1lla Sainik Welfare Ofhcer was requested to sponsor the candidates. Out of 12 candidates^sponsored by^the Zilla Sainik Welfare Ofhcer,^petitioner was selected and^appointment order was issued with a^condition that said appointment^{is purely}

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temporary and his services are liable for termination at any time without any notice and without assigning any reason.

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3.1. It is further contended that subsequently, pay bili of the petitioner was sent to Pay and Accounts ofhce in order to claim the salary. But, the Pay and Accounts Officer (3.a respondent) had objected to the bill stating that 'as per Govt. Memo No.275, Fin. & Plg. Power Cell Dept., dared 14. 12.1995, all departments and offices for every kind of post must necessarily send the requisition to Government in the Finance Department before filling up of the post. In view of the same, it was requested to clarify that the concurrence of the Finance Department was obtained before appointing the individual.

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3.2. This Office did not seek prior approval of the Finance Department and relied on G.O.Rt.No.1161 dated 24.05.2016 and therefore, the matter was brought to the. notice of the Government to issue suitabie ratification orders. The Government examined the matter and did not ratify the appointment as it would be against to Act 2 ol 1994 and directed to terminate the services of the individuai. Accordingly, the services o[ the petitioner were terminated since in the appointment order itserf it is indicated that the appointment is purely temporary and his services are liable for termination at any time without any notice and without assigning any reason.

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3.3. It^{is lurther contendedthat proposals weresent for hlling of} postsbasedontheAct2oflgg4andthepetitioner,scasewilibe considered^{for appointmentin the said post as soonas permission is} accorded^{bY the Government'}

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Heard learned^{counsel Sri S.Satyanarayana Rao for the} petitioner^{and the learned Government Pleaderfor Services-l & III} representing^{respondents 1,2 and 4'}

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The learned^{counsel for petitionerwouldsubmit that the} respondents^{have initiatedsteps for appointment of Chowkidar in} vacantpostintheofl-rceofController,LegalMetrologr,Hyderabad' The respondents^{have followeddue processand requestedthe zllla} Sainik^{WelfareOfficer,Hyderabad tosponsor asuitable Ex-} servicemen^{candidatefor selection,who} ate eligible and^have requisite^{qualifications for the post of Chowkidar} In furtherance of said requisition^{from Line ZIIIa Sainik Welfare Officer,the lst} respondent^{selectedthe petitioner.Consequently,appointmentorder} dated 12.09.2016^{was issuedby the lst respondentappointing the} petitioner in the^{office of Controller of trgal Metrologr,Hyderabadin} the existing^{vacancyin the time scaleof Rs' 13000-4O270/-'He was} also covered under^{the contributory pension scherneandwas} informed to report^{to duty within1O days from the dateof appointing} order.

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He further submitted that petitioner resigned from the existing employment of Armed Guard in the Security Mobile Van and joined thc services on 16.O9.2016 in respondent department duly submitting cash security deposit ol Rs.lO,00O/- as per rhe condition stipulated in the appointing order.

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Point for consideration is whether the lst respondent is justihed in terminating the services of the petitioner without any notice and whether the petitioner is entitled to continue in service as Chowkidar?

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Consideration:

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What emerges from the pleadings and material placed on record is that petitioner was appointed as Chora,kidar in a vacant post in l,egal Metrolory Department vide appointment order dated 12.09.2016 by the l"t respondent by following due process for appointment of petitioner. The lst respondent addressed a letter dated 16.05.2016 to the Zilla Sainik Welfare Ofhcer, Hyderabad with a request to sponsor a suitable ex-servicemen for appointment as Chowkidar. In response to the same, the Zll\a Sainik Welfare Officer had sponsored 12 names including the name of the petitioner and the 1.t respondent selected the pe titioner. The petitioner was appointed in the existing vacancy in the time scale of Rs. 13OOO-4O270/ - and was directed to report duty within 10 days lrom the date of appointment

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order and further directed to submit cash security deposit^of Rs.1O,OO0/-

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Petitioner reported to duty on 16.09.20 17 and submitted cash security deposil of Rs.lO,OOOl-. lt appears that pay bill of the petitioner was sent to Pay and Accounts Officer, however the same was rejected by the Pay and Accounts oflicer by referring to Govt.Memo No.275 dated 14.12.1995, as^per which, prior approval of the Finance Department is mandated for hlling of any post. In the present case, admittedly, respondents did not obtain prior approval and have appointed the petitioner re\ring upon G.O.Rt.No.1161, dated24 .O5 .2O 16. The 1"t respondent referred the matter to the Government, however the Government did not ratify the appointment by relying to Act 2 of 1994 and further directed the 1"t respondent to terminate the services of the petitioner.

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According to the learned counsel for petitioner, petitioner was appointed by lst respondent by duly following^process and therefore, the Act 2 of 1994 is not attracted. He further submitted that by Act 2 of 1994, unauthorized appointments through the backdoor of NMR's, daily wages or appointments on consolidated pay in Governme nt departments, corporations, universities and local bodies etc., were prohibited. He further submitted that no notice was given before

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issuing termination order dated 26.04.2O17 and further, the salary for the period, for which petitioner was on duty was also not paid.

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1 1 lrarned Government Pleader tried to justify the termination on the ground that appointment letter itself cleariy indicate that appointment is purely temporary and the same is tiable to be terminated at any time without any notice and without assigning any reason.

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The Legal Metrologr did not seek prior approval from the Finance Department and petitioner was appointed relying on G.O.Rt.No. 1 161, General Administration (Ser.D) Department, dated 24.05.2016 and therefore, the matter was referred to the Government for suitable ratification orders. However, the Government did not ratify the appointment as it would be against to Act 2 of 1994 and directed to terminate the services of the individual. Therefore, the services of the petitioner was terminated by letter dated 26.04.2017.

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It is not in dispute that l"t respondent issued appointment order dated 12.09.2016 appointing the petitioner in the existing vacancy and due process has also been followed while appointing the petitioner. Therefore, having appointed the petitioner, 1st responden[ is not justi{ied in terminating the services of the petitioner vide termination order dated 26.O4.2017 by merely referring to appointment letter, wherein it is mentioned that appoin tment is

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purely temporary and the same is liable to be terminated at any time without any notice and without assigning any reason.

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Admittedly, the termination order issued after seven months of appointment and that too without paying salary for the period, for which the petitioner discharged duties as Chowkidar. Interestingly, there is no whisper in the counter filed by the respondent no.1 with regard to payment of salary to the petitioner for the period for which he was in service.

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Perusal of the Act 2 of 7994 would indicate that the same was issued to lay down the norms and procedures for regulation of appointments to public services and rationalization of staffrng patterns and pay structures and the Act further prohibits the GovernmenI Depar[ments, Corporations, Universities and Local bodies etc., from making illegal unauthorized appointments through the backdoor as NRMs, daily wages or on consolidated pay. However, the Act 2 of 1994 did not put any ban on recruitment into public services. The petitioner is appointed by duly following the procedure in the existing vacancy and therefore, Act 2 of 1994 has no application to present case.

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It is relevant [o refer to G.O.Msd.No.211, Fin. (pCIII) Dept., dated 122.O4.t994, by which the Government issued orders on the t procedure to be followed in scrutinizing the requests for direct

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t- \ t.-/ tt f' \o 1;i9t^{qt )01'}

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recruitment^{and forward all requeststo the recruiting agenctes} The Finance^DePartment through^{theFinanceDePartment'} scrutinizes^{all requests for fresh recruitmenton a case-by-casebasis'} including^{the need and justificatlon , the possibilityof redeplovment of} surplus^{staff and the likely financial burden and placesthe proposal} before^{the cabinetfor obtainingrrnar orders.c)nce the competent} authority^{has taken af-rnaldecision,theFinance DePartment like} A.P.Public^{Service Commtsstonor District Selection Committeeto} make^{the recruitmenttothe extentaPProved'}

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17.^{In AmarkanthRai v' State of Bihar and othersl ' the Hon'ble} Apex^{Court at paragraph-S held as under:}

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"8: Insofar^{as contention oI the respondent that the appointment of} the appellant^{was made by the Principal rvho is not a competent} authority^{to make suchappointment andis in violation of the Bihar} State^{UniversitiesAct and hence the appointmentisillegal} appointment'^{it is Pertinent to note thatthe appointmentof the} appellant^{as nightguardwas done out of necessityand concern for} the College'^{Rs noticed earlier' the Principalof the Collegevide} letters^{dated 11-3-1988' 7-lo-rgg3'a-l -2OO2arld l2-7 -2OO4} recommended^{the case of the appellant for regularisationon the} post of^{night guard and the University was thus wellacquainted} with the^{appointment of the appellant by the then Principal even} though^{the Principal was not a competent authoritY to make such} appointments^{and thusthe appointment of the appellant and other} employees^{was brought to the noticeof the Universityin I988 ""}

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'^{(zors)a scc zos}

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In the^{case referred supra,the Hon'ble ApexCourt directed the} respondent authorities to^{regularize the services of the appellant} considering his long service^{though he was appointedby the} Principal, who is not a competent^{authority to appointthe appellant} and is in violation of Bihar State^{UniversitiesAct.}

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Ig. In the present case, the^{petitioner was appointedin the existing} vacancy after due process of^{selection. However, the petitioner was} terminated only on the^{ground that there was no prior approvalof the} Finance Department.

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In considered opinion of^{this Court,not obtainingprior} approval by 1't respondent^{from the Finance Departmentin} appointing the petitioner in^{a vacant post is an issue concerning two} Departments, therefore,^{petitioner cannotbe penalized and put to} loss by the action/inaction of^{the respondents. Further,the} termination of services of^{petitioner by} 1"t^{respondent is contrary to} the principles of natural^{justicesince, admittedly, no noticewas} issued prior to termination of services^{of petitioner.}

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Conclusion:

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In the result,^{Writ Petitionis aliowed with the following} directions

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I',\A J ltP l'o.l759lo[2017

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i) The impugned proceedings No.3982/E2lO13, dared 26.04.2017 issued by 1"t respondent is set aside.

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ii) The respondents are directed to pay the salary for the period for which the petitioner discharged duties i.e., from 16.09.2016 to 26.04.2017 together with interest @7.5o/o^{per annum withina period} of eight weeks from the date of receipt of copy of this order.

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iii) The respondents are also directed to reinstate the petitioner in pursuance of appointment order issued by 1st respondent vide proceedings No.39a2 /82 / 2023 , dated 12.09.2016. However, following the principle "No work no pa5r", petitioner is not entitled to salary for the period not in service.

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There shall be no order as to costs

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Pending miscellaneous appiications if any shali stq4{ qlotedThat Rule Nisi has been made absolute as above. Witness THE HON'BLE THE CHIEF JUSTTCE ALOK ARADHE,^{on this Friday,} The Fifteenth Day Of December, Two Thousand And Twenty Three

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SD/- T.JAYASR ASSISTANT REGlS R

//TRUE COPY//

SECTIO FFICER

To,

The Regional Dy. Controller^{(Head quarters)} Legal, Metrology^Department, Gandhi Nagar, Hyderabad.

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The Controller of Legal Metrology, Gandhi Nagar, Hyderabad.

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The Pay and^Accounts Officer Tilak Road, Abids, Hyderabad

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The Commissioner and Ex-Officio Secretary to Government Consumer^Affairs and Food and Civil Supplies, State of Telangana, Government of Telangana, Hyderabad.

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