1. Writ of Certiorari under Article 226 challenging Administrative Tribunal order setting aside dismissal from service for lack of jurisdiction. (Para 1 , 2 )
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2025 Supreme(Online)(AP) 16125
HIGH COURT OF ANDHRA PRADESH
Ravi Nath Tilhari, Challa Gunaranjan, JJ
State of Ap – Appellant
Versus
S T Rafiuddin – Respondent
WRIT PETITION NO: 28617/2010
Important Points
Orders issued under the Presidential Order pursuant to Article 371D of the Constitution of India prevail over other service rules and administrative reorganizations due to the non-obstante clause in Article 371D(10), and territorial jurisdiction defined therein cannot be altered without the President's consent.
Subject
Service Law - Disciplinary Proceeding
Act Referred
Constitution of India: Art.226, Art.371D
Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991: R.9, R.14(2)(i)
Andhra Pradesh Civil Services (Conduct) Rules, 1964
Andhra Pradesh Public Employment (Organization of Local Cadres and Regulation of Direct Recruitment) Order, 1975
Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991: R.9, R.14(2)(i)
Andhra Pradesh Civil Services (Conduct) Rules, 1964
Andhra Pradesh Public Employment (Organization of Local Cadres and Regulation of Direct Recruitment) Order, 1975
Headnote
(A) Constitution of India - Art. 226 and Art. 371D - Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 - R. 9 and R. 14(2)(i) - Andhra Pradesh Public Employment (Organization of Local Cadres and Regulation of Direct Recruitment) Order, 1975 - Conflict between service rules and Presidential Order - Non-obstante clause under Art. 371D(10) ensures that the provisions of Article 371D and any order made by the President shall have effect notwithstanding anything in any other provision of the Constitution or in any other law for the time being in force. (Paras 12, 15)
(B) Jurisdiction - Administrative Reorganization - Territorial jurisdiction carved out in pursuance of a Presidential Order under Art. 371D cannot be altered or interdicted for administrative convenience via a Government Order unless there is consent of the President of India. (Para 16)
Facts of the case:
A Junior Assistant was suspended and subsequently dismissed from service by the Deputy Commissioner of Commercial Taxes, Eluru, on charges of misappropriation of government revenue. The employee challenged the dismissal before the A.P. Administrative Tribunal, contending that the initiating authority lacked jurisdiction. It was argued that according to the Presidential Order and G.O.Ms.No.581, the territorial jurisdiction for the region where the employee worked was vested in the Deputy Commissioner of Commercial Taxes, Kakinada, not Eluru. The Tribunal quashed the dismissal. The State challenged this order, asserting that the Deputy Commissioner, Eluru, was the appointing authority under Rule 14(2)(i) of the 1991 Rules and that subsequent reorganization via G.O.Ms.No.701 had conferred authority over the respondent.
Findings of Court:
The Court found that the jurisdictional layout established by G.O.Ms.No.581 in line with the Presidential Order vested authority in the Kakinada Division. Pursuant to Art. 371D(10), such orders prevail over the general provisions of Rule 14(2)(i) of the Rules, 1991. The Court further held that G.O.Ms.No.701 was issued for administrative convenience and without Presidential consent, and therefore could not denude the jurisdiction of the Kakinada authority or confer it upon the Eluru authority.
Issues: Whether the Deputy Commissioner of Commercial Taxes, Eluru, possessed the requisite jurisdiction to initiate disciplinary proceedings and impose a major penalty against the respondent in light of the Presidential Order issued under Article 371D.
Ratio Decidendi: Orders issued in terms of a Presidential Order under Article 371D of the Constitution of India override other statutory rules and administrative reorganizations because of the non-obstante clause in Article 371D(10); therefore, territorial jurisdiction established under such an order cannot be modified by executive orders for administrative convenience without the President's consent.
Result: Writ petition dismissed.
(B) Jurisdiction - Administrative Reorganization - Territorial jurisdiction carved out in pursuance of a Presidential Order under Art. 371D cannot be altered or interdicted for administrative convenience via a Government Order unless there is consent of the President of India. (Para 16)
Facts of the case:
A Junior Assistant was suspended and subsequently dismissed from service by the Deputy Commissioner of Commercial Taxes, Eluru, on charges of misappropriation of government revenue. The employee challenged the dismissal before the A.P. Administrative Tribunal, contending that the initiating authority lacked jurisdiction. It was argued that according to the Presidential Order and G.O.Ms.No.581, the territorial jurisdiction for the region where the employee worked was vested in the Deputy Commissioner of Commercial Taxes, Kakinada, not Eluru. The Tribunal quashed the dismissal. The State challenged this order, asserting that the Deputy Commissioner, Eluru, was the appointing authority under Rule 14(2)(i) of the 1991 Rules and that subsequent reorganization via G.O.Ms.No.701 had conferred authority over the respondent.
Findings of Court:
The Court found that the jurisdictional layout established by G.O.Ms.No.581 in line with the Presidential Order vested authority in the Kakinada Division. Pursuant to Art. 371D(10), such orders prevail over the general provisions of Rule 14(2)(i) of the Rules, 1991. The Court further held that G.O.Ms.No.701 was issued for administrative convenience and without Presidential consent, and therefore could not denude the jurisdiction of the Kakinada authority or confer it upon the Eluru authority.
Issues: Whether the Deputy Commissioner of Commercial Taxes, Eluru, possessed the requisite jurisdiction to initiate disciplinary proceedings and impose a major penalty against the respondent in light of the Presidential Order issued under Article 371D.
Ratio Decidendi: Orders issued in terms of a Presidential Order under Article 371D of the Constitution of India override other statutory rules and administrative reorganizations because of the non-obstante clause in Article 371D(10); therefore, territorial jurisdiction established under such an order cannot be modified by executive orders for administrative convenience without the President's consent.
Result: Writ petition dismissed.
Legal Category Hierarchy
- constitutional law
- administrative law
- practice and procedure
- service law
Advocates:
For the Petitioners: GP FOR SERVICES II
For the Respondents: G L NARASIMHA RAO
For the Petitioners: GP FOR SERVICES II
For the Respondents: G L NARASIMHA RAO
Table of Contents
2. Petitioners argued disciplinary authority was competent as appointing authority under Rules, 1991 and relied on subsequent reorganization G.O. (Para 3 , 4 )
3. Presidential Order under Article 371D prevails over Rules, 1991; jurisdiction under G.O.Ms.No.581, 1976 cannot be altered without Presidential consent. (Para 6 , 10 , 11 , 12 , 13 , 14 , 15 )
4. Executive orders issued under Presidential Order under Article 371D prevail over service rules due to non-obstante clause in Article 371D(10). (Para 12 , 15 )
5. Writ petition dismissed; Tribunal's order setting aside dismissal for lack of jurisdiction upheld. (Para 19 )
6. Does a Presidential Order under Article 371D prevail over service rules made by the State Government?
Yes, due to the non-obstante clause in Article 371D(10), the Presidential Order and orders issued thereunder prevail over any other law or rule. (Para 12 , 15 )
7. Can administrative convenience justify altering territorial jurisdiction carved out under a Presidential Order without Presidential consent?
No, territorial jurisdiction fixed under a Presidential Order cannot be altered for administrative convenience by an executive order without the consent of the President. (Para 16 )
8. Is a plea of non-joinder of necessary party available if not raised before the Tribunal?
No, a plea of non-joinder cannot be raised for the first time in a writ petition if it was not pleaded before the Tribunal. (Para 17 )
The Court made the following order:
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
&
THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN
WRIT PETITION No:28617 OF 2010
JUDGMENT
(per CHALLA GUNARANJAN, J):
This writ petition one in the nature of Writ of Certiorari is filed under Article 226 of the Constitution of India seeking to call for the records relating to the orders of the A.P. Administrative Tribunal passed in O.A. No.1240 of 2007, dated 26.03.2009 and quash the same as being perverse, in excess of jurisdiction and contrary to law and for a consequential direction.
2. The brief facts of the case in a nutshell are that:
(a) The 1st respondent, while working as Junior Assistant in the office of the Commercial Tax Officer, Akividu, alleging that he indulged in grave irregularities of misappropriation of Government Revenue, was placed under suspension, besides issuing memo dated 05.07.2004 proposing articles of charges. The Deputy Commissioner of Commercial Tax, Eluru Division, East Godavari District – i.e., the 2nd petitioner, who initiated the above proceedings in his charge memo has alleged that the 1st respondent collected an amount of ₹7,900/- towards professional tax and sales tax unauthorizedly from different dealers and misappropriated the same rather than depositing the said amounts with the treasury or the Deputy Commercial Tax Officer-I, Akividu, and thereby, misused his official position and misappropriated the amounts so collected, which was in violation of A.P. Civil Services (Conduct) Rules, 1964.
(b) The Commercial Tax Officer – I, Tanuku, so appointed by the 2nd petitioner, upon conducting enquiry into the above charges submitted report dated 17.11.2004 holding that the above said charges were proved against the 1st respondent. In pursuance to the same, the 2nd petitioner after issuing a proper show-cause notice, enclosing the enquiry report and considering the objections of 1st respondent thereon, by proceedings Ref. No.B2/2019/2003, dated 01.07.2006, imposed major penalty of dismissal from service.
(c) Aggrieved by the same, the 1st respondent has preferred appeal before the 3rd petitioner – Appellate Authority, who by proceedings CCT's Ref.No.V4/281/2005, dated 17.02.2007, dismissed the same and confirmed the order of dismissal.
(d) Aggrieved by the aforesaid proceedings dated 01.07.2006 issued by the 2nd petitioner imposing major penalty of dismissal from service and as confirmed by the 3rd petitioner by order dated 17.02.2007, the 1st respondent preferred O.A. No.1240 of 2007 before the A.P. Administrative Tribunal.
(e) In the above said O.A., the 1st respondent has mainly contended that the charge memo dated 05.07.2004 and the consequential proceedings of dismissal from service issued by the Deputy Commissioner of Commercial Taxes, Eluru, was without jurisdiction and he is incompetent to exercise such power. It was the specific pleaded case that in view of G.O.Ms.No.581, Revenue (SPE) Department, dated 24.05.1976 issued in pursuance to Presidential Order, more particularly Paragraph 11 thereof r/w Annexure-I, the appointing authority to the post of Lower Division Clerks being the Deputy Commissioner, the territorial jurisdiction over the revenue district of East Godavari and West Godavari District being conferred on Deputy Commissioner of Commercial Taxes, Kakinada, he alone could have exercised the power and jurisdiction but not the Deputy Commissioner of Commercial Taxes, Eluru i.e., the 2nd petitioner herein. In support of the above submission, the 1st respondent relied on the judgment rendered by the Hon'ble Apex Court in S.Prakasha Rao and another v. Commissioner of Commercial Taxes and others , (AIR 1990 SC 997), besides the Tribunal's order in O.A. No.4205 of 1998.
(f) Opposing the aforesaid contention, the petitioners herein have, in their counter, contended that the Deputy Commissioner of Commercial Taxes, Eluru, the District Head (West Godavari District) of Commercial Taxes Department, being the appoi
