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Andhra Pradesh High Court
Judges : OBUL REDDI
K.Anant Reddy - Appellant
Versus
State OF A.P. - Respondent
Decided On : 02-18-74
HYDERABAD CIVIL SERVICE RULES - RULE 29(2) - AUTOMATIC TERMINATION OF SERVICE - APPLICABILITY OF ARTICLE 311 OF THE CONSTITUTION - INQUIRY AGAINST GOVERNMENT SERVANT - POWER OF SECRETARY TO GOVERNMENT TO AGREE OR DISAGREE WITH REPORT OF ENQUIRY OFFICER - ALLOCATION OF FUNCTION OF GOVERNMENT UNDER CLASSIFICATION, CONTROL AND APPEAL RULES - MALA FIDES AGAINST MINISTERS AND SECRETARY TO GOVERNMENT - CHANGE OF GOVERNMENT - DIRECTIONS TO CHIEF MINISTER TO CONSIDER REPORT OF ENQUIRY OFFICER AND DECIDE ON MERITS - POSTING ORDER TO BE GIVEN TO PETITIONER IN ACCORDANCE WITH G.O. MS. NO. 10, DATED 2ND JANUARY, 1973 - APPOINTMENT OF PETITIONER AS EXECUTIVE ENGINEER UNDER G.O. MS. NO. 10, DATED 2ND JANUARY, 1973 TO BE SUBJECT TO RESULT OF DECISION TO BE TAKEN BY GOVERNMENT - CHARGE FRAMED BY ENQUIRY OFFICER ON 19TH NOVEMBER, 1971 QUASHED.
Fact of the Case:
The petitioner, a member of the Andhra Pradesh Engineering Service, filed a writ petition challenging the inquiry initiated against him under Rule 29(2) of the Hyderabad Civil Service Rules for continuous absence from duty for more than five years and seeking a direction to the respondents to give him posting orders in accordance with the judgment of the High Court in W.P. No. 1057 of 1963 and batch dated 23rd February, 1968.
Finding of the Court:
1. Rule 29(2) of the Hyderabad Civil Service Rules does not bring about automatic termination of the services of a civil servant and is subject to the protection given by Article 311(2) of the Constitution. 2. The Secretary to Government is not competent to address a D.O. letter to the enquiry officer without orders from the Ministers concerned. 3. The Government is the competent authority, on the report of the enquiry officer, to say whether there is a prima facie case to frame charges or to drop the enquiry against the petitioner. 4. The allegations of mala fides against the Secretary to Government have not been established. 5. In view of the apprehension entertained by the petitioner, it is desirable that another Secretary to Government or the Joint Secretary in the same department should deal with the file and submit the same to the Minister or Ministers concerned.
Issues: 1. Whether Rule 29(2) of the Hyderabad Civil Service Rules is violative of Article 311 of the Constitution? 2. Whether the Secretary to Government is competent to agree or disagree with the report of the enquiry officer? 3. Whether the Government is the competent authority to decide on the report of the enquiry officer? 4. Whether the allegations of mala fides against the Secretary to Government are established? 5. Whether the petitioner is entitled to a posting order in accordance with the judgment of the High Court in W.P. No. 1057 of 1963 and batch dated 23rd February, 1968?
Ratio Decidendi: 1. Rule 29(2) of the Hyderabad Civil Service Rules is not worded in the same terms or language as the rule referred to by the Patna High Court and the rules with which the Supreme Court was concerned in Jai Shanker v. State and Deokinandan Prasad v. State of Bihar. Rule 29(2) provides for an opportunity being given in accordance with the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules. Therefore, it cannot be contended that termination or cessation of the petitioner's services has come to an end automatically. 2. The Secretary to Government is not competent to address a D.O. letter to the enquiry officer without orders from the Ministers concerned. The Government is the competent authority, on the report of the enquiry officer, to say whether there is a prima facie case to frame charges or to drop the enquiry against the petitioner. 3. The allegations of mala fides against the Secretary to Government have not been established. The D.O. letter could have been written by the Secretary to Government (2nd respondent) only if there was such a direction by the minister concerned or the Chief Minister or the Council of Ministers. The file placed before the Court does not show that this D.O. is the result of the opinion expressed by the Ministers concerned on the report submitted by the enquiry officer. 4. In view of the apprehension entertained by the petitioner, it is desirable that another Secretary to Government or the Joint Secretary in the same department should deal with the file and submit the same to the Minister or Ministers concerned.
Final Decision: 1. The writ petition is allowed in part to the extent indicated above. 2. The Chief Minister or the Minister concerned or both of them shall consider the report of the enquiry officer and decide on merits Whether the enquiry should be dropped or should be proceeded with. 3. The enquiry report and the other connected papers relating to the enquiry shall be submitted to the Minister or the Chief Minister as the case may be, by a Secretary of another department or by the Joint Secretary of the Public works Department, as may be determined by the Chief Minister. 4. The Government shall give posting order to the petitioner in accordance with G.O. Ms. No. 10, dated 2nd January, 1973. 5. The appointment of the petitioner as executive Engineer under G.O. Ms. No. 10, dated 2nd January, 1973 shall be subject to the result of the decision to be taken by the Government. 6. The charge framed by the enquiry officer on 19th November, 1971 after the D.O. letter of the 2nd respondent dated 27th October, 1971 is quashed in view of the directions given above.
( 2 ) THE facts leading to the filing of the writ petitions are these: The petitioner is a graduate in Engineering. He joined in the Engineering Service of the erstwhile government of Hyderabad in 1949 as a graduate supervisor. In 1954, he went on study leave to the United States of America and obtained M. S. degree in civil Engineering from the University of Wisconsin, Madison in 1955. On his return from study leave, he Was allotted to the State of Andhra Pradesh. In january, 1958, he was promoted as an assistant Engineer. As he was given a reduced scale of pay admissible to the assistant Engineers of Andhra Cadre, he filed W. P. No. 767 of 1962 which was dismissed by this Court observing that it is a matter which the Government of India has to decide. In 1961, the petitioner went on three months leave. That leave was granted on loss of pay treating him as a temporary employee. That was again assailed by filing a writ petition in this court. That Writ petition Was dismissed with certain directions by this Court. He next complained that the Government of Andhra Pradesh was promoting his juniors from the Andhra Region without preparing a common gradation list, by filing W. P. No. 1057 of 1963. Later, he filed some more Writ petitions, W. P. No. 175 of 1964 in this Court and W. P. No 115 of 1964 under Article 32 of the constitution in the Supreme Court assailing the validity of certain regularisations made and denial of promotion to him as an Executive Engineer. The supreme Court, it would appear from the petition, said that the list sent to the central Government was only provisional. The State Government filed an affidavit stating that they Were ready and willing to abide by the decision of the Government of India on the representations made by the petitioner and other members of tbe erstwhile Hyderabad Service. The government of India allowed the representations made by the petitioner and others. The validity of the decision of the government of India was challenged by the Engineers of Andhra Region in W. P. No. 1363 of 1966. On the suggestion or representations made by the State government, the Government of India reversed their earlier orders. Then, a batch of writ petitions was filed assailing the decision of the Government of India dated 24th December, 1966. The petitioner had also filed a separate writ petition. This Court upheld the validity of the decision of the Government of India dated 24th December, 1966 and quashed the subsequent decision. Then, the petitioner addressed a letter to the Secretary, P. W. D. (2nd respondent) on 20th may, 1969 asking the Government to implement the orders of this Court and give him a suitable posting to enable him to join duty forthwith. It is the petitioner s case that he was on leave from 1st June, 1964 to prosecute the Writ petition he had filed in this Court. It is also the case of the petitioner that the State government failed to implement the decision of this Court dated 23rd February, 1968 rendered in a batch of writ petitions and without implementing the judgment of this Court, he was asked to join duty on or before 31 st May, 1969. It is further alleged that he asked for a posting in accordance with the directions given by this Court and no such posting was given to him. A memo dated 23rd May, 1969 was however, given to him intimating that he was put in charge of the post of executive Engineer, Constuction Division No. 3 Godavari Valley Circle No. 4 and was advised to join duty on
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