WP/19674/2005 of Baswa Reddy, Vs The Government Of Andhra Pradesh, on 29 December 2005

O R D E R :

1. This writ petition has been filed by A.Baswa Reddy with a prayer to issue a writorder or direction more particularly one in the nature of writ of certiorari calling for therecords of Government of Andhra Pradesh represented by its Principal Secretary,Panchayath Raj Department, Secretariat, Hyderabad-1[st] respondent whichculminated in issue of G.O.Ms.No.315, dated 3-9-2005 and quash the same.

2. The facts of the case as set out in the writ affidavit, in brief are: - Petitioner-A.Baswa Reddy was elected as Chairman of Zilla Parishad, Warangal inthe year 2001. He belongs to Telugu Desam Party. He contested for assemblyconstituency of Jangaon in 2004 elections against Mr. Ponnala Lakshmaiah,Congress (I) candidate, who won the election and became a Minister. Congress-(I)came to power in the State in the Assembly elections held in 2004 and since thenPonnala Lakshmaiah made his efforts to dislodge the petitioner. As part of thescheme, he got moved “No Confidence Motion” on 24-5-2004 which came to bedefeated on 15-6-2004. A show cause notice dated 10-6-2005 vide Lr.No.1686/Mdl-11A/2005 comprising as many as fourteen allegations came to be issued to thepetitioner by the 1[st] respondent purported to be exercising powers under theprovisions of Section 249(1) of the Panchayath Raj Act. The petitioner submittedexplanation on 17-6-2005. Disciplinary proceedings have also been initiated by the1[st] respondent against the Chief Executive Officer of Zilla Parishad, Warangal.Pending departmental Enquiry, an order of suspension came to be passed againstChief Executive Officer. Assailing the order of suspension, the Chief ExecutiveOfficer filed O.A. and obtained interim stay of all further departmental proceedingsagainst him. The petitioner brought to the notice of the 1[st] respondent about theorders passed by the A.P. Administrative Tribunal, whereby and whereunderdepartmental proceedings against the Chief Executive Officer have been stayed. Incase the proceedings initiated by the Chief Executive Officer in the Andhra PradeshState Administrative Tribunal conclude in his favour, the allegations levelled againstthe petitioner would not be well founded. However, the Government issued G.O.315, dated 3-9-2005 impugned in the writ petition removing the petitioner from the office of the Chairman, Zilla Parishad, Warangal. The orders passed by the 1[st]respondent in removing the petitioner from the office of the Chairman, Zilla Parishad,Warangal is illegal, unconstitutional, malafide and motivated. The action of theGovernment, according to the petitioner, amounts to malafide exercise of powers.For better understanding of the grievance of the petitioner, I deem it appropriate torefer paras 11 to 14 of the writ affidavit and it is thus;

“It is submitted that 1[st] respondent purporting to act under theprovisions conferred under Section 249-1 of the PanchayatRaj Act issued a show cause notice dated 14-6-2005comprising of as many as 14 allegations which have beenreplied to by me by my representation dated 17-6-2005. It issubmitted that each of the said allegation would show one orthe other guidelines or order of the Government which underProvisions of Sec. 248 of the Act wcould be issued only to theChief Executive Officer and on the contravention if any of thesaid guidelines or order as the case maybe of the Governmentby the Chief Executive Officer disciplinary action against theCEO must be taken and only after finding CEO guilty of suchcontravention any action against the Chairperson could havebeen taken inasmuch as the action contemplated against theChairperson Under Section 249 is only not directing the CEOor not making the Chief Executive Officer to implement theguidelines of the Government.

A copy of my representation to the show cause notice dt. 14-6-2005 is filed in the material papers contents whereof are notrepeated herein in order to avoid the bulk of the record.

It is submitted that without prejudice to any of my contentionsreferred to above I had given an explanation to the show causenotice dt.10-6-2005 explaining the factual and legal position.The said explanation dt. 10-6-2005 may be read as part andparcel of this affidavit.

It is submitted that by the impugned order none of mystatements, averments and contentions made in my replydated 17-6-2005 have been referred at all. From the reading ofthe impugned order it is also obvious that the 1[st] respondentpassing the impugned order does not appear to have appliedits mind to the very provisions of the Act viz., Section 248 and249 thereof before passing the impugned order, Section 249 ofthe Act and the action supposed tobe taken is made subject toclause (2) of Section 248 i.e. to say on proof of the fact that theChief Executive Officer has failed to implement the directionsreferred to Sub-Section (1) of Sec. 248 and that such failure on the part of the Chief Executive Officer should lead todisciplinary action against him. The sub-section (2) of Sec. 248only puts an obligation on the Chairman to see that the ChiefExecutive Officer implements the directions but not theimplementation of the Government order by the Chairmanhimself. The contravention if any, by the Chairman, ZillaParishad in respect of the violation of provisions by the ChiefExecutive Officer is only to see that the CEO has notcontravened any directions referred to sub section (1) of Sec.248”.

3. 1[st] respondent filed counter affidavit. It is stated in the counter affidavit that theDistrict Collector, Warangal brought to the notice of the Government certainallegations levelled by the Vice Chairman, Zilla Prishad, against the Chairman, ZillaParishad, Warangal i.e. petitioner herein in conducting and execution of variousZilla Parishad works. The Government appointed the Additional Commissioner,Panchayat Raj, Hyderabad as Enquiry Officer to enquire into the allegations levelledagainst the Chairman, Zilla Prishad vide G.O.Rt.No.758, dated 2-5-2005. TheEnquiry Officer submitted report on 4.6.2005. After examining the enquiry report,Government issued a show cause notice to the petitioner through Lr.No.1686/Mdl-IIA/2005, dt.10-6-2005 along with the enquiry report calling upon him to explain as towhy he should not be removed from the office of the Chairman U/Sec. 249(1) of A.P.Panchayat Raj Act, 1994. The petitioner submitted his explanation denying all theallegations made against him. The Government, on considering the material broughton record and on hearing the petitioner, passed orders in G.O.Ms.No.315 PanchayatRaj and Rural Development (Mandal-11A) Department, dated 3-9-2005 removingthe petitioner from the office of Chairman, Zilla Parishad, Warangal. The allegationmade by the petitioner that after the change of the Government in May, 2004attempts were made to dislodge him from the office of the Chairman, Zilla Parishadand no confidence motion was moved against him at the instance of Sri PonnalaLakshmaiah was not borne out by the record. The record discloses that out of thetotal 50 Z.P.T.C. members, 25 members moved the No Confidence Motion. Thebreak up of the political affiliations of the 25 members who moved no confidencemotion is; 20 members belong to TDP, 2 members belong to BJP which is the ally ofthe TDP, 2 belong to INC and one belongs to TRS.When the motion was put forvoting on 15-6-2004, 20 members out of 25 who signed the no confidence motion remained absent. Out of the 5 members who were present on the day of the meeting,three members belong to TDP and others were; the Chairman and the ViceChairman. The record falsifies the allegations of the petitioner that no confidencemotion was moved at the instance of Sri Ponnala Lakshmaiah who is said to be hisopponent in 2004 Assembly elections. The petitioner failed to perform the functionsof Chairman as per Section 193 of A.P.Panchayath Raj Act, 1994. The petitionergrossly violated the ban orders on transfers issued in G.O.Ms.No.767, dated 21-8-2002 and G.O.Ms.No.16 Finance Department, dated 25-1-2005. The show causenotice issued to the petitioner was preceded by an enquiry on a complaint madeagainst the petitioner by the Vice Chairman, Zilla Parishad, Warangal. The showcause notice was issued to the petitioner under Section 249(1) of A.P.PanchayathRaj Act and not under Section 248 of the said Act. The government examined all thematerial on record and found that the petitioner had violated the orders of theGovernment. Para 9 of the counter affidavit is to be noted and it is thus:

“With regard to the contention of the petitioner in para 10 thatas many as 10 items of the so called report of the enquiryofficer has to be proposed, initiated and implemented by theExecutive Authority, after obtaining the approval of theChairman clearly shows that the Chairman Zilla Parishadwhile approving any recommendations will be aware of allthose things so recommended.

a.

According to the Chapter 6 of SGRY guidelines, nowork can be taken up unless it forms the part ofAnnual Action plan. Contrary to this, Sri AdaboinaBasava Reddy, Chairman, Zilla Parishad,Warangal has neither got prepared the annualaction plan nor followed the due procedure. Hesanctioned the works in piecemeal mannerwithout preparing the Annual Action Plan which iscontrary to the provisions of the SGRY guidelines.work can be taken up unless it forms the part ofAnnual Action plan. Contrary to this, Sri AdaboinaBasava Reddy, Chairman, Zilla Parishad,Warangal has neither got prepared the annualaction plan nor followed the due procedure. Hesanctioned the works in piecemeal mannerwithout preparing the Annual Action Plan which iscontrary to the provisions of the SGRY guidelines.

b.

The Government through G.O.Ms.No.767 FinanceDepartment, dt. 21-8-2002 and G.O.Ms.No.16, dt.21-5-2005 have imposed ban on the generaltransfers of the employees. Contrary to thisGovernment order, Sri Adaboina Basava Reddy,Chairman, Zilla Parishad, Warangal has effected183 transfers of the employees willfully,intentionally by misusing and abusing his officialposition, though the staff submitted to theChairman in the respective files that there is a banDepartment, dt. 21-8-2002 and G.O.Ms.No.16, dt.21-5-2005 have imposed ban on the generaltransfers of the employees. Contrary to thisGovernment order, Sri Adaboina Basava Reddy,Chairman, Zilla Parishad, Warangal has effected183 transfers of the employees willfully,intentionally by misusing and abusing his officialposition, though the staff submitted to theChairman in the respective files that there is a ban

c.

d.

e.

on transfers. In spite of knowing about the ban ontransfer the petitioner issued orders effecting thetransfers of about 183 employees of ZillaParishad. Since it amounts to violation ofGovernment order, the impugned order is justifiedu/s 249 as is mentioned in the impugned order.

SGRY Social Forestry; according to the guidelinesNo. 3,6 and 8 the Social Forestry Works aresupposed to be taken up only in the Rural areas toprovide wage employment for wage seekingfamilies. Contrary to this, Rs.10 lakhs worth ofwork under 10% SGRY Social Forestry weretaken up for the beautification of the ZillaParishad, premises and for the construction ofWatchman quarter behind Zilla Parishad building.In fact the said buildings same falls underMunicipal/Urban area which shows how thepetitioner abused his position, therefore, theaction u/s 249 for this also is justified.No. 3,6 and 8 the Social Forestry Works aresupposed to be taken up only in the Rural areas toprovide wage employment for wage seekingfamilies. Contrary to this, Rs.10 lakhs worth ofwork under 10% SGRY Social Forestry weretaken up for the beautification of the ZillaParishad, premises and for the construction ofWatchman quarter behind Zilla Parishad building.In fact the said buildings same falls underMunicipal/Urban area which shows how thepetitioner abused his position, therefore, theaction u/s 249 for this also is justified.

All works are to be sanctioned with the approval of theconcerned Standing Committees and GeneralBody Meetings. But contrary to this, theS.F.C./R.R.M. works were sanctioned inpiecemeal basis without any action plan pendingapproval of the standing Committees and GeneralBody, the files relating to the sanction of works arenot even routed through the Zilla Parishad officialsit was directly approved by the petitioner.concerned Standing Committees and GeneralBody Meetings. But contrary to this, theS.F.C./R.R.M. works were sanctioned inpiecemeal basis without any action plan pendingapproval of the standing Committees and GeneralBody, the files relating to the sanction of works arenot even routed through the Zilla Parishad officialsit was directly approved by the petitioner.

According to the SGRY Special ComponentGuidelines, the works are to be taken up toprovide wage employment for wage seekingfamilies in the drought effected mandals. The cashand kind are to be paid to the wage seekers ondaily/weekly basis at the work site by theExecuting Agencies. Contrary to this, withoutbudget provision, (31) works were sanctionedshowing the grants to be released during the year,2005-06 duly dovetailing the SGRY (S.C.)Rice forthe year 2004-05. It is clear case of willful abuseof official position”.Guidelines, the works are to be taken up toprovide wage employment for wage seekingfamilies in the drought effected mandals. The cashand kind are to be paid to the wage seekers ondaily/weekly basis at the work site by theExecuting Agencies. Contrary to this, withoutbudget provision, (31) works were sanctionedshowing the grants to be released during the year,2005-06 duly dovetailing the SGRY (S.C.)Rice forthe year 2004-05. It is clear case of willful abuseof official position”.

The Government examined each and every contention raised by the petitioner andcame to a conclusion with certainty that the petitioner misused and abused hisposition as the Chairman of Zilla Parishad. The petitioner failed to perform thefunctions in accordance with Section 193 of the A.P.Panchayath Raj Act, 1994 andwillfully omitted and abused his position and power vested in him and therefore the1[st] respondent has passed the orders in G.O.Ms.No.315 Panchayat Raj and RuralDevelopment (Mandal 11-A) Department, dated 3-9-2005 removing the petitionerfrom the office of the Chairman Zilla Parishad, Warangal in exercise of powers underSection 249 of A.P.Panchayat Raj Act, 1994 and the action of the 1[st] respondent isjust and proper.

4. Heard learned Senior Counsel appearing for the petitioner and learned AdvocateGeneral appearing on behalf of the respondents.

5. Learned Senior Counsel appearing for the petitioner submits that since theproceedings initiated against the Chief Executive Officer are under challenge in A.P.Administrative Tribunal and any action against the petitioner would be prematureand in case O.A. being allowed, the grounds on which the show cause notice hasbeen issued to the petitioner would no more be available. He further submits that thepost of Chairman of the Zilla Parishad is of supervisory nature and the ChiefExecutive Officer is responsible for implementing the Government Orders. He wouldfurther submit that files relating to transfers of various employees referred in theenquiry report originated from the Chief Executive Officer and therefore if there areany violations of the Government orders with regard to the transfers, it was the ChiefExecutive Officer who was responsible and not the petitioner. In elaborating hisarguments he would contend that the petitioner as Chairman of Zilla Parishad isonly an approving authority and even if the transfer orders are assumed to beirregular, the Government in exercise of review powers under Section 264 of A.P.Panchayat Raj Act, 1994 would have interfered with the transfer orders insteadresorting to the extreme step of removing the duly elected Chairman of ZillaParishad. He refers Sections 186, 193, 264, 247, 248 and 249 of the A.P.Panchayath Raj Act, 1994 in support of his submissions. He lastly submits that theaction of the State Government lacks bona fides and the exercise of powers by the State Government suffers from legal malice and ill will. He explains the legalmeaning of malice as ‘ill-will or spite towards a party and any indirect or impropermotive in taking an action. This is sometimes described as malice in fact. Legalmalice or malice in law means something done without lawful excuse. In otherwords, it is an act done wrongfully and willfully without reasonable or probablecause, and not necessarily an act done from ill feeling and spite. It is a deliberate actin disregard of the rights of others. In support of his submissions, reliance has alsobeen placed on the decisions of Supreme Court Shamarao Vs. Parulekar, TirathSingh Vs. Bachittar Singh, Mohinder Sing Gill Vs. The Chief ElectionCommissioner, New Delhi, S.Pratap Singh Vs. The State of Punjab,RustomCavasjee Coop Vs. Union of India, Barium Chemicals Limited, Vs. CompanyLaw Board and the decision of this Court in Amjadullah Khan Vs. Government ofA.P. Municipal Adminstration and Urban Development Department

6. It is vehemently contended by the learned Senior Counsel that the party whichcame to power in the State during the year 2004 Assembly elections made a seriousattempt to unseat the petitioner from the post of Chairman, Zilla Parishad, Warangaland the said party being unsuccessful in the No Confidence Motion resorted to issuea show cause notice making out certain unfounded allegations to unseat thepetitioner from the post of Chairman, Zilla Parishad, Warangal. The contention primafacie appears to be sound. But on close scrutiny, it does not last long to be rejected,as out of 25 members who signed the No Confidence Motion, 20 being of his ownparty i.e. T.D.P. This fact is evident from the Counter affidavit of the respondents.There seem to be no reply affidavit from the petitioner contradicting this factualaspect. For better appreciation of this factual aspect, I may refer para 2 of the counteraffidavit and it is thus:

“In reply to para 4 of the affidavit, it is submitted that thepetitioner was elected as Chairman of Zilla Parishad Warangalin the year 2001. The allegation made by the petitioner thatafter the change of the Government in May, 2004 attemptswere made to dislodge him from the office of the ChairmanZilla Parishad, and no confidence motion was moved againsthim by Sri Ponna Laxmaiah , on behalf of the Congress is notborne out by the record. The record discloses that out of thetotal 50 Z.P.T.C. members, 25 members moved the NoConfidence Motion. The break up of the political affiliations of the 25 members who moved no confidence motion are givenas below:

20 members belong to TDP

2 members belong to BJP which is the ally of the TDP

2 belong to INC and

1 belongs to TRS

When actually the motion was put for voting on 15-6-2004 20members of the 25 who signed the no confidence motion wereabsent from the meeting. Out of the 5, who were present on theday of the meeting 3 members belong to TDP the otherpersons were the Chairman and Vice Chairman. It is therefore,evidence that the no confidence motion was stage managedso as to avoid such moves by some other political party at alater point of time in view of the ban contained under Section245 of Act. This was done as the party to which the petitionerbelonged, lost the power, and as a different political partycame to be power on 14-5-2004 the No Confidence Motionwas moved within 10 days i.e on 24-5-2004. The recorddiscloses that only 2 Congress members signed the NoConfidence Motion and others are either from party ofpetitioner or their political allies and they too obtains form themeeting to consider their own motion of no confidence. So, theallegation made that the other political party was bent upon toremove him from the post of Chairman Zilla Parishad may notbe correct.

It is submitted that Sri Adaboina Basava Reddy, Chairman,Zilla Parishad, Warangal, the petitioner grossly failed toperform the functions as per Sec. 193 of A.P.P.R. Act, 1994”.

7. Learned Advocate General appearing for the respondents submits that thepetitioner effected transfers of 183 employees in Zilla Parishad, Warangal inviolation of the Government Orders. He further submits that he misused the funds ofZilla Parishad and spent the amounts under SGRY scheme indiscriminately withoutthere being any action plan. It is further submitted by him that the petitioner misusedthe Zilla Parishad funds by taking 31 works without getting the budget approved bythe Government. It is also submitted by him that the petitioner diverted the funds ofsocial forestry for beautification of the Zilla Parishad premises and construction ofwatchman quarters behind Zilla Parishad office contrary to the guidelines of SGRY.

He placed on record the photo stat copies of the note files relating to the transfers ofemployees during the tenure of the petitioner as the Chairman, Zilla Parishad,Warangal.

8. Before dwelling on rival contentions of the parties, I deem it appropriate toconsider the extent of judicial review contained in Article 226 of the Constitution ofIndia. The scope and extent of power of Judicial review of the High Court containedunder Article 226 of the Constitution of India would vary from case to case, thenature of the order, the relevant statute as also the other relevant factors includingthe nature of power exercised by the public authorities, namely, whether the poweris statutory, quasi judicial or administrative. The power of judicial review is notintended to assume a supervisory role or done the robes of omnipresent. The poweris not intended either to review governance under the rule of law nor do the Courtsstep into the areas exclusively reserved by the supreme lex to the other organs ofthe State. Decisions and actions which do not have adjudicative disposition may notstrictly fall for consideration before a judicial review Court. The limited scope ofjudicial review succinctly put are: (i) Courts, while exercising the power of judicialreview, do not sit in appeal over the decisions of administrative bodies; (ii) A petitionfor a judicial review would lie only on certain well defined grounds; (iii) An orderpassed by an administrative authority exercising discretion vested in it, cannot beinterfered in judicial review unless it is shown that exercise of discretion itself isperverse or illegal, (iv) A mere wrong decision without anything more is not enoughto attract the power of judicial review. The supervisory jurisdiction conferred on aCourt is limited to seeing that Tribunal functions within the limits of its authority andthat its decisions do not occasion miscarriage of justice, (v) The Courts cannot becalled upon to undertake the Government duties and functions. The Court shall notordinarily interfere with a policy decision of the State. Social and economic belief ofa Judge should not be invoked as a substitute for the judgment of the legislativebodies.

9. It is well settled that while exercising the power of judicial review the Court ismere concerned with the decision making process than the merit of the decision itself. But, while examining and scrutinizing the decision making process it becomesinevitable to also appreciate the facts of a given case as otherwise the decisioncannot be tested under the grounds of illegality, irrationality or proceduralimpropriety. How far the Court of judicial review can re-appreciate the findings offacts depends on the grounds of judicial review. For example, if a decision ischallenged as irrational, it would be well-nigh impossible to record a finding whethera decision is rational or irrational without first evaluating the facts of the case andcoming to a plausible conclusion and then testing the decision of the authority on thetouchstone of the tests laid down by the Court with special reference to a given case.The system of judicial review is radically different from the system of appeals. Whilehearing an appeal, the Court is concerned with the merits of a decision; is it correct?While subjecting some administrative Act or Order to judicial review, the Court isconcerned with its legality; is it within the limits of the powers granted? On appealthe question is right or wrong? On review the question is lawful or unlawful.

10. The genesis for initiation of proceedings against the petitioner is the complaintgiven by the Vice Chairman, Zilla Parishad, Warangal and other Z.P.T.C. Members.The Additional Commissioner enquired into the allegations leveled against thepetitioner and submitted a report dated 4-6-2005. Enquiry seems to have beenconducted on certain allegations. For convenience sake it can be said that theallegations comprise ten charges;- firstly, misuse of amounts earmarked for socialforestry under Sampoorna Grameena Rozgar Yojana (SGRY); secondly, executionof works with SFC grants dovetailed with SGRY (S.C.) rice during the last threeyears in piecemeal manner without proper approval of the concerned committees ofthe Zilla Parishad; thirdly, execution of RRM works without there being any actionplan; fourthly, taking up works from Zilla Parishad General Funds in a piece mealmanner without considering the need and the balance; fifthly, demanding 5% of thecommission for passing bills and making payments to the Contractors who haveexecuted works under SFC; sixthly, failure to follow the procedure in carrying outrepairs to the Z.P. Hall, Z.P. Guest House, Quarters and purchase of furniture,intercom, A.C. Stationary etc., during last three years; seventhly, failure to follow theprocedure in drilling of R.W.S. Bore wells, purchase of motors etc., during last threeyears; eighthly, illegal demand for release of funds for RWs works; ninthly,utilization, sanction of individual beneficiary schemes under SGRY 22.5% S.C./S.T.

component for 2003-04; and tenthly, deployment of Officers/Staff of Z.P. and theirtransfers contrary to Government Orders during the last three years. The EnquiryOfficer did not find any material to substantiate the charges 6,7 and 9. A show causenotice dated 10-6-2005 came to be issued to the petitioner by the 1[st] respondent inexercise of powers conferred under Section 249(1) of A.P. Panchayath Raj Act,1994 calling upon him to explain as to why he should not be removed from the postof Chairman, Zilla Parishad, Warangal. Para 3 of the show cause notice needs to benoted and it is thus:

“In this regard, serious irregularity is made out againstyou that you have diverted ZP general fund amounts towardssalaries/pensions and the ZP went ahead with sanction of (31)works purporting to be taken up with ZP general fundspertaining to the year 2005-06, though the budget for the nextfinancial year 2005-06 is yet to be approved by the ZP GeneralBody and thereafter by Government. The Enquiry Officerfurther revealed that ZP is not running on proper lines and theChairman has failed to act as per the Government ordersissued from time to time, muzzling the official voice in ZP andmisused his power and persistently failed in properlydischarging his duties violating the established norms andprocedures. Thus, you failed to perform your functions andduties as per the Act”.

11. The petitioner submitted explanation dated 17-6-2005 to the show cause notice.His explanation, in brief, is: - The scheme of Social Forestry is to be initiated by the Deputy Conservator of Forest,Warangal and implemented by the Chief Executive Officer, Zilla Parishad incoordination with each other. The Chairperson of the Zilla Parishad has no role inspending the amounts allotted under social forestry. The RRM works are beingtaken up based on the representations of the Public representatives, and theproposals are submitted by the Executive Engineer PR Division concerned to theChief Executive Officer, Zilla Parishad, Warangal for perusal of the Chief ExecutiveOfficer, Zilla Parishad, Warangal. After approval of the proposals by the ChiefExecutive Officer, the files are circulated to the Chairman, Zilla Parishad Warangal.The Chief Executive Officer issues orders of administrative sanction on obtaining theapproval of the Standing Committees/General body of Zilla Parishad. The

Chairperson does not come into the picture of the implementation of these works.Sanction of 50 community halls worth about 75 lakhs in Sangam Mandal is not true.There were only 34 community halls and youth buildings, which were sanctioned bythe Collector as proposed by the Zilla Parishad. The total cost of community hallsincluding the Rice component was Rs.51,42,500/- (Rs.30,25,000/- cash andRs.21,17,500/- rice component). This allegation would not have been countenancedat all by any responsible officer of a rank of Additional Commissioner. TheAdditional Commissioner has not referred to any written or sworn statement of theVice Chairman. Items No. 6,7 and 9 need not be referred to inasmuch as the EnquiryReport itself eloquently declares them as non-existing. With regard to Item No.10which refers deployment, transfers and promotions of the members of the staff; theG.Os or directions of the Government are within the meaning of Section 248 and theviolation thereof, if any, is the sole responsibility of the Chief Executive Officer andunless disciplinary action is taken against the Chief Executive Officer for violation ofthe directions contained in the G.Os, the action proposed against the Chairpersonunder Section 249 will amount to an illegality and an action without jurisdiction. It issuffice to refer para VIII of the explanation submitted by the petitioner to the showcause notice and it is thus:

“Now coming to the last part of the report (without anypara number thereto) namely with reference 31 workspurported to be taken up under Zilla Parishad funds for theyear 2005-06 it is submitted as follows:

At the outset these works are only proposals sanctionedto be taken during the year 2005-06.

As given in the schedule hereof each one of the 31works has been proposed by the Chief Executive Officer andthe Chairman and ultimately by the Collector. Each one of theworks was also sanctioned by the concerned standingcommittee namely either by Standing Committee NO. 7 or byStanding Committee No.1 and some by the General Bodyitself. The copies of the all proceedings reflecting theproposals of the CEO and the sanction by the Chairman or thecollector can always be inspected or verified by your goodselves. While I am not aware whether the Enquiry Officer haslooked into them I have no objection if the same can onceagain be inspected either by the same Enquiry Officer or yourgood selves. The sheet volume of those sanctions preventsme from filing the copies making this reply a voluminous andbulky one. Suffice it to submit that every such work was proposed and sanctioned in due course by the StandingCommittees 1 and 7 and General Body at the recommendationof the Chief executive Officer and approval of the Collector. Inany case no work so far has been implemented nor evenundertaken. The statement that the minutes are also notproperly recorded is also not correct which would be found tobe untrue on a proper inspection of the files. In any case theallegation the Chairman has failed to act as per theGovernment orders from time to time is once again acontravention of provisions of Sec. 248 r/w Sec. 249.

‘I wish to bring to your kind notice that paragraph No. 3of the show cause which reads as follows:

‘In this regard, serious irregularities is made out againstyou that you have diverted Zilla Parishad General Fundamount towards salaries pensions and the Zilla Parishad wentahead with sanction of 31 works etc., etc., Obviously there is ajumbling of two different transactions namely irregularity inpayment of salaries and pensions and sanction of 31 worksetc., while these 31 works have been referred to by the EnquiryOfficer in his report which has been replied to by me hereinabove, there is no reference whatsoever in the report of theEnquiry Officer of any serious irregularity as regards thesalaries and pensions etc., Obviously this reference toirregularity in your show cause notice in regard to salaries andpension is a mistake which may kindly be appreciated andtreated as nonest. IN any case the payment of salaries andpensions is a matter of record of the Zilla Parishad and theEnquiry Officer was himself not obviously convinced of anyirregularity in that regard.

‘From the narration of the facts above and even from thecontents of the so called Enquiry Report it is eloquently clearthat entire attempt is based on malafides to oust me from theelected post of Zilla Parishad merely because I belong to theparty in opposition i.e. the Telugu Desam Party having failed intheir attempt to oust me by process of no confidence this falseand fictitious allegations are made.

Therefore, request you to kindly drop the proposedaction in the show cause notice in the interest of justice andgood conscious.”.

13. Learned Senior Counsel appearing for the petitioner would contend that all thetransfers have been effected on the proposals put up by the Chief Executive Officerof the Zilla Parishad, Warangal and if there are any violations of the Governmentalorders in effecting the transfers, it was the Chief Executive Officer who wasresponsible.

14. Learned Advocate General contends that the transfers have been effected underthe orders of the petitioner inspite of the fact of bringing to his notice theGovernmental orders with regard to ban on transfers.

15. Section 248 deals with powers of the Government to issue directions, which readas follows:

“248 Power of Government to issue directions: (1)Notwithstanding anything contained in this Act, it shall becompetent for the Commissioner or the Government to issuesuch directions as they may consider necessary to theExecutive Authority, Mandal Parishad Development Officer orthe Chief Executive Officer for the proper working of the GramPanchayat, Mandal Parishad, or as the case may be, the ZillaParishad or for the implementation of the resolutions thereofand the Executive Authority, Mandal Parishad DevelopmentOfficer or as the case may be, the Chief Executive Officer shallimplement those directions, failing which, he shall be liable fordisciplinary action under the relevant rules.

2.

The Sarpanch of the Gram Panchayat, the President ofMandal Parishad or as the case maybe, theChairman of the zilla Parishad shall ensure that theExecutive Officer, Mandal Prarishad DevelopmentOfficer or as the case maybe, the Chief ExecutiveOfficer implements the directions issued by theGovernment under sub-section(1) and shall not doanything in derogation to the directions of theGovernment aforesaid. The Sarpanch, the Presidentor the Chairman who contravenes the provisions ofthis section shall be deemed to have willfully omittedor refused to carry out the orders of the governmentfor the proper working of the Gram Panchayat,Mandal Parishad or as the case may be, the ZillaParishad within the meaning of Section 249”.

16. By referring the provisions of Sec.248, learned senior counsel would contendthat it is the Chief Executive Officer who shall implement the Government Ordersand in case of contravention of the Government Orders, the Chief Executive Officershall be liable for disciplinary action and therefore, the petitioner as Chairman ofZilla Parishad cannot be made liable for non-implementation of the GovernmentOrders. I do not see any substance in his contention for the reason that Sec.248comprises two sub sections. Sub Section (1) obligates the Chief Executive Officer toimplement the directions of the Government. Sub-Section (2) cast a duty on theChairman to see that Chief Executive Officer implement the directions and he shallnot do anything in derogation to the directions of the Government. The Chairmanwho contravenes the provisions of this section shall be deemed to have willfullyomitted or refused to carry out the orders of the Government for the proper working ofthe Gram Panchayat, Mandal Parishad or as the case may be, the Zilla Parishadwithin the meaning of Section 249.

17. A strenuous contention has been made by learned senior counsel that pendingproceedings against the Chief Executive Officer before the Andhra PradeshAdministrative Tribunal, no action can be initiated against the petitioner. What hemeans to say is that in case the O.A. filed by the Chief Executive Officer questioningthe disciplinary proceedings initiated against him is allowed, there would not be anyvalid grounds to initiate action against the petitioner. I do not see any merit in hiscontention since sub-section (2) of Section 248 clearly mandates that the petitioneras Chairman shall see that the Chief Executive Officer implements the directionsand he shall also not do anything derogatory to the directions of the government.Even if the O.A. filed by the Chief Executive Officer ends in his favour, the petitionercannot be absolved of the charges leveled against him.

18. The principal allegations leveled against the petitioner are:

Firstly, spending the amounts under Sampoorna Grameen Rozgar Yojana (SGRY)scheme without there being any action plan prepared; secondly, effecting transfers

19. Learned senior counsel appearing for the petitioner further submits that all theadministrative sanctions for spending the amounts under SGRY scheme got theapproval of the respective standing committees and therefore the petitioner cannotbe said to have violated the guidelines.

20. Learned Advocate General appearing for the respondents submits that forspending any amount under SGRY scheme an action plan is required to beapproved and thereafter works are to be sanctioned. He refers to Chapter 6 of theGuidelines issued in respect of SGRY scheme. Chapter 6 of the guidelines dealswith the planning, works and execution of SGRY scheme. The relevant portion of theChapter 6 reads as under:

“ 6.1.1 Each Zilla Parishad/ DRD, Intermediate Level and VillagePanchayat shall independently prepare and approve, before thebeginning of each financial year, an Annual Action Plan equivalent invalue of about 125 percent of its share of funds allocated in thepreceding year. No work can be taken up unless it forms part of theAnnual Action Plan. The exercise of approval of Annual Action Planshould be completed by the end of February of the preceding financialyear.

2. To ensure meaningful utilization of resources underthe SGRY routine division of resources among thewards of the Gram Panchayat and among theConstituencies of the Panchayat Samiti and of theZilla Parishad is prohibited. Works included in theAnnual Action Plan should be need based andproperly prioritized. Looking to the priorities of worksand the availability of resources only that many worksshould be taken up which can be completed within ayear and in exceptional circumstances in a maximumperiod of two years.the SGRY routine division of resources among thewards of the Gram Panchayat and among theConstituencies of the Panchayat Samiti and of theZilla Parishad is prohibited. Works included in theAnnual Action Plan should be need based andproperly prioritized. Looking to the priorities of worksand the availability of resources only that many worksshould be taken up which can be completed within ayear and in exceptional circumstances in a maximumperiod of two years.

3. While preparing the Annual Action Plan, completionof the incomplete works including those of theEAS/JGSY should be given priority over the taking upof new works. No work shall be taken up whichcannot be completed in one year or at the most withintwo financial years.”of the incomplete works including those of theEAS/JGSY should be given priority over the taking upof new works. No work shall be taken up whichcannot be completed in one year or at the most withintwo financial years.”

The petitioner stated in his explanation to the show cause notice that no work so farhas been implemented nor even undertaken. 1[st] respondent has not adverted to thisplea in the order impugned in the writ petition. It is not clear from the order impugnedin the writ petition as to whether the amounts were spent after ratification of theadministrative sanctions by the respective standing committees. The petitionerplaced on record various resolutions where under administrative sanctions of thepetitioner have been ratified by the respective committees. The petitioner has notreferred those resolutions in the explanation to show cause notice. Had thepetitioner referred those resolutions, the 1[st] respondent must have taken intoconsideration and the outcome of the show cause notice, in my considered view,would not have been in a way which resulted in passing the order impugned in thewrit petition.

21. The next serious allegation made against the petitioner is with regard to effectingtransfer of employees’ inspite of there being a ban order. The petitioner took the pleathat all the proposals for transfers were put up by the Chief Executive Officer andtherefore he is not responsible for contravention of ban orders, if any. The learnedAdvocate General placed on record copies of note files relating to the transfer ofemployees. At this juncture, it is trite to refer the Government Orders where underban on transfers have been imposed. The Government issued consolidatedinstructions with regard to the transfer of employees in G.O.Ms.No.767, dated21.8.2002 where under all transfers are banned with immediate effect except thefollowing:

i. Transfers, which are inevitable on account of disbandment of posts,reversions, retirements, promotions, repatriations, deputationsand disciplinary proceedings.reversions, retirements, promotions, repatriations, deputationsand disciplinary proceedings.

ii. Transfers in respect of skilled doctors in Tubectomy/Vasectomy in A.P.Medical and Health Services. District Collectors are permitted toaffect the transfers of doctors within their district only.Medical and Health Services. District Collectors are permitted toaffect the transfers of doctors within their district only.

iii. Transfers in respect of employees within Adilabad and from outside toAdilabad district.Adilabad district.

iv. Transfers from outside to any of the Backward Mandals notified by thePlanning Department.Planning Department.

v. Transfers involving posting of married couples in the same place. Onlyone of the spouses can be shifted following the prescribedprocedure.one of the spouses can be shifted following the prescribedprocedure.

vi. Transfers of Government Servants on medical grounds for the diseases(either self, or spouse or dependent children) of Cancer, heartOperation, neuro Surgery, Bone, T.B., Kidney transplantation toplaces where such facilities are available.(either self, or spouse or dependent children) of Cancer, heartOperation, neuro Surgery, Bone, T.B., Kidney transplantation toplaces where such facilities are available.

vii. Transfer of employees on account of poor performance following dueprocedure laid down in para 4 below.procedure laid down in para 4 below.

viii. The employees on leave for less than three months shall be givenposting orders to the places from where they proceeded onleave. For leave of more than three months, it is not necessary tokeep the post vacant for so long. In such cases for Gazetted andNon-Gazetted officers returning from leave of more than threemonths the authority competent to transfer is authorized to issueposting orders at his level to any vacant post available in theDepartment.posting orders to the places from where they proceeded onleave. For leave of more than three months, it is not necessary tokeep the post vacant for so long. In such cases for Gazetted andNon-Gazetted officers returning from leave of more than threemonths the authority competent to transfer is authorized to issueposting orders at his level to any vacant post available in theDepartment.

ix. Transfers approved by the Government following due procedure.

ix. Transfers approved by the Government following due procedure.

22. Learned senior counsel appearing for the petitioner submits that all the transferorders are coming within the purview of the exceptions mentioned in the above-referred categories of the Government Order. He placed on record a list containingthe names of some of the employees, who have been transferred from one place tothe other, and the grounds for transfer. The petitioner has not chosen to indicate thedetails in the explanation offered to the show cause notice. However, the note filesplaced on record by learned Advocate General are self-explanatory. Since thepetitioner himself has not submitted details in the explanation, 1[st] respondent cannotbe found fault in not referring the grounds of transfer in the order impugned in the writpetition. Both the 1[st] respondent and the petitioner are equally to be blamed for notdetailing the grounds on which transfers are affected. Had the petitioner mentionedthe grounds on which transfers have been affected in his explanation, 1strespondent would have definitely considered those grounds while passing the orderimpugned in the writ petition.

23. In view of the above discussion, this writ petition is allowed setting-aside the order impugned in the writ petition and directing the Government to reconsider thematter keeping in view all the resolutions passed by various standing committees ofZilla Parishad, Warangal and various note files relating to transfer orders, and passappropriate orders. The petitioner is at liberty to furnish any additional material insupport of his explanation submitted by him to the show cause notice. The 1[st]respondent shall pass appropriate orders within four weeks from the date of receiptof a copy of this order. No costs.

Dt: 29-12-2005. ( B.Seshasayana Reddy,J )

Km/tnb

THE HONOURABLE SRI JUSTICE

B.SESHASAYANA REDDY

W.P.No. 19674 OF 2005

29[th] December, 2005