WP/2786/2021 of ShaikSyavali Vs The State of Andhra Pradesh, on 31 December 2024

ORDER:

This Writ Petitionis filed under Article 226 of the Constitution of India,seeking the following relief:

to Issuea Writ or orderls more particularly oneIn the nature of Writ of Mandamus declaring theproceedings vide Rc.No.ESE02-14027/72021/EST4-CSE, dated 31.01.2021, Issued by the respondent No.2 andalso order dated 16.01.2021 passed In Rc.MNo.4949/B2/2013 by the respondent No.3 as being illegal, arbitrary,unconstitutional andviolative UArticles 14 &16of Constitution of India and consequently set asidetheproceedings vide Rc.Mo.ESE02-14027/2021/EST4-CSE, dated 31.01.2021 issued by the respondent No.2, asnull and void and be pleased to pass such other order/s as this Hon’ble Court may deem fit and proper In theinterest of justice....”

2. The grievance of the petitioner is that, while he was working asLanguagePundit(Telugu), MPUPS,Kethavaramvillage,OravalMandalLanguagePundit(Telugu), MPUPS,Kethavaramvillage,OravalMandal Kurnool Dist, he was suspended by the Respondent No.4 on 30-10-2009, withan ante-datei.e.12-10-2009. After completing enquiry, the petitioner wasreinstated on 16-12-2010 and he was given posting orders to ZPHS Gulyam,Halaharvi Mandal,KurnoolDistrictirregularly andillegally on16-12-2010.Challenging the same, the petitioner has filed O.A.No.263/2011before theA.P. Administrative Tribunal seekingdirectionto continue himat MPUPS,Kethavaram.But the same was dismissed andafter dismissal of thesaidO.A., the petitioner was again posted to ZPHS, Gulyam,[Halaharvi.]Further,as there are no relieving orders, the petitioner was not permitted to join in thenew posting place.Aggrieved by the same, the petitioner[has][ made][ several]representations.Basing on the same, the RJD has conducted enquiry on11.03.2013 andin the said enquiry,it was concluded[that][ the][ then][ MEO][ has]not prepared and not communicated the relieving orders to the petitioner. Tenthe RJD also reprimanded the then MEO and directed to give relieving ordersto the petitioner to join at MPUPS Kalaparri village.However,in spite ofdirectionsof thethenRJD,the then MEOdidnot communicateproperrelieving orders to thepetitioner.Thereafter, the[petitioner] made[ several]representations. Basing on the repeated complaints[to][ the][ 1^‘][ respondent,][ the]Hon’ble Chief Minister of A.P., for not permitting the petitioner to join duties,the 3'^^ respondent was appointed as Enquiry Officer in the year 2019.Duringpendency of the said enquiry, the 4*^ respondent has[issued][ show][ cause]notice to the petitioner,consequently, the petitioner[has][ submitted][ his][ reply.]Without considering the same, the4**^ respondent has issued proceedings

No. 1994/C 10/2008 dated 09.09.2020 imposed the penalty[of][ removal][ from]service of the petitioner for his un-authorized absence for more than eightyears under Rule 9(ix) of A.P Civil Services (CCA) Rules 1991.Challengingthe said proceedings, the petitioner filed an appeal before the respondentsNo.1to3 throughPost.After receiptof appeal,the1®‘ respondent hasdirected to the2"^*^ respondent to examine and take necessary action videMemoNo.1239531/Ser.ll.A.1/2020dated28.9.2020, whoin-turn,throughMemo No.1247143/Ser.ll.A.1/2020, dated 11.10.2020 has again directed the2^^ respondent to take necessary action in the appeal filed by the petitioner.During pendency of the said appeal, the petitioner[filed][ WP][ No.23734][ of][ 2020]before this Court seeking a direction to2"*^ respondent to disposeofhisappeal.This Court vide order dated 14.12.2020 while disposing of the saidappeal directed the 2^^ respondent to dispose of the appealfiledby thepetitioner within a period of two months from the date of receipt of the order.Though this Court directed the 2^^ respondent to dispose of the appeal, buthowever,contrarytotheorderspassedbythisCourt,theappeal wasdisposed of by the 3^'^ respondent. Questioning the same, the petitioner againfiled WP No.24483 of 2020 seeking declaring the action of the respondentNo.1 in disposing of the representation of the petitioner as illegal and arbitraryand consequently to direct the 1®* respondent to take[action.]The said writpetition was disposed of by this Court vide order dated 22.12.2020 directingthe respondent to dispose of the representation.

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While the matter stood thus, as the MEO did not issue proper relievingorders in spite of repeated requests made by the petitioner, the petitioner hadsubmitted representation to therespondent. Basing on the same, the 4threspondent called for report from the MEO.Accordingly,the MEOhassubmitted his explanation to the 4*^ respondent.Being[not][ satisfied][ ^A/ith][ the]explanation,the4‘^respondentrequestedtherespondenttotakenecessary action.The 3^^ respondent vide Lr.Rc.No.4949/B2/2013/ 1, dated7.9.2017 directed the 4*^ respondent to take necessary action.Accordingly,the 4^^ respondent has conducted enquiry and submitted report.Basing onthe report of the 4‘^ respondent, the 3'"'^ respondent has initiated departmentalproceedingsandissuedproceedingsvideLr.Rc.No.2866/B2/2018dated12.10.2020.During pendency of the writ petition, the 2'^'^ respondent hasissuedaninRc.No.ESE02-14027/7/2021/EST4-CSEdated31.01.2020.Later, the 4^^ respondent has issued proceedings vide Rc.no. 1994/Cl0/2008,dated 05.02.2021 informing the petitioner that the 2"^^ respondent has rejectedthe appealof thepetitioner on31.01.2021.Evenbefore thereceiptofproceedings from 2'^'^ respondent, the 4**^ respondent has issued proceedingson 5.2.2021 stating that the appeal filed by the petitioner is rejected by the 2ndrespondent,itis statedthat, as the2"^^ respondent, whoiscompetentauthority has rejected the appeal of the petitioner vide proceedings dated31.01.2021 is highly illegal and arbitrary and the[same][ is][ liable][ to][ be][ set aside.]

3. HeardSri V. Venkata Mayur, learned counsel appearingfor thepetitioner and learned Government Pleader for Services-lll appearing for therespondents.

4. On hearing, learned counsel for the petitioner while reiterating theaverments made in the petition, submits that, the Respondent[No.3][ has][ not]consideredthepetitioner’sspecific pleathat the procedure contemplatedunder CCA Rules were not complied with.It is settled law that any punishmentimposed without following the procedure contemplated[under][ CCA][ Rules]isbad in law. Even the Respondent No.3 has not considered that the petitionerwasnot issuedrelievingorders by the Ex-MEO. The impugned orderiscontrary to the orders passed by the Respondent No.3 himself, wherein theRespondent No.3 has held that the Ex-MEO has not furnished the relievingorders and as such awarded punishment to Ex-MEO.He[further][ submits][ that]theRespondentNo.3haspassedimpugnedorderonlytoprotect theRespondentNo.4andEx-MEO.AstheRespondentNo.3himselfhasconcluded that he was not issued relieving orders, the petitioner’s terminationon the ground of unauthorized absence is illegal and contrary to the record.He mainly submits that without giving any opportunity, the 2'^'^ respondent hasrejected the appealof the petitioner whichishighlyillegal andarbitrary.Therefore, learnedcounselfor thepetitioner requeststhisCourt to passappropriate orders.

5. Percontra,learnedGovernmentPleaderfortherespondentsvehemently opposed and argued that the respondents[have][ filed][ their][ counter]

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denying all the allegations made in the petition.In the counter affidavit, the 4threspondent statedthat,he has framed charges againstthethenMandalEducational Officer, Orvakal (M) for taking necessary disciplinary action perrules. Vide Lr.Re.No. 1994/C 10/A3/2010, Dt.05-03-2019, a detailed report wasalso submitted to the 2nd Respondent on his request, to permit the petitionerto join at MPUPS Kallapari(V), Kodumur(M) (now upgraded as high school)without insisting relieving orders or he may be posted to his original place i.e..MPUPS,Kethavaram(V),Orvakal(M)byreplacingSmt.G.UmadeviL.P.Telugu from MPUPS, Kethavaram(V), Orvakal (M) as per his request.Inpursuance of the same, vide Progs.Rc.No.2570/Estt. IV/2018, Dt; 25/04/20192nd Respondent has permitted the said Individual to join at MPUPS Kallapari(V), Kodumur (M) Kurnool District without insisting reliving orders immediately.Accordingly, vide Procgs.Rc.No. 1994/Cl0/A3/10, Dt.15.05.2019.[orders][ have]been issued to the petitioner permitting him to join at MPUPS Kallapari (V)Kodumur(M)KurnoolDistrictwithoutinsistingrelievingorderswithinstructions to the Headmaster, ZPHS, Kallapari (V), Kodumur (M) to allow thepetitioner to join a ZPHS Kallapari(V) Kodumur (M)in the existing dearvacant post of Languag Pandit -Telugu at ZPHS Kallapari (V) Kodumur (M)withoutinsistingrelievingorders.Hesubmitsthat,videLr.No.2570/Estt.lV/2018,dt:10-07-2019,the2ndRespondenthadissuedinstructions to take necessary action as per rules. Though, the petitioner wasconsidered and given ample opportunities to join duties as Language Pandit(Telugu)at ZPHS,Kallaparri(V), Kodumur (M) without[insisting][ relieving]

orders, he did not join the duties which, clearly appears that the petitioner is awillful disobedient towards his legitimate duties, avoided and evaded joiningduties.

6. Learned Government Pleader further submits that,it is very muchevident that thepetitioneris absent fromhisdutieswillfullyforaperiodexceeding more than 08 years. Accordingly, as per Rule 18(4) of F.R readwith9(ix)of APCS(CCA)Rules,1991,whichsays"EveryGovernmentemployee shall be devoted to his duty and shall maintain absolute integrity,discipline,impartiality anda senseof propriety andkeepinginviewofdeviating from Rule 3 (1, 2& 3) of A.P. Civil Services (conduct) Rules 1964which says that "No Govt, employeeshall behaveina manner whichisunbecoming of such employee or derogatory to the prestige[of Govt."][ The][ act]and conductof thepetitioner attractsdisciplinary actionasper APCivilServices (CCA) Rules, 1991 as amended vide G.O.Ms.No.127[General][ Admn.](Service C) Department, dated; 15-09-2017. Further,[after][ careful][ examination]of the entire issue, the written explanations submitted by the said individual tothe Show Cause Notices issued to him,itis found that, the explanationssubmitted by him are not convincing and do not justify his argument and alsothey areunsatisfactory.Therefore,being the appointingauthority, the 4threspondent, after careful examination of the entire matter imposed the penaltyof removal from service on the petitioner for his un-authorized[absence][ for]more thanEight years under Rule9(ix) of Andhra PradeshCivil Services(CCA)Rules1991asamendedinG.O.M.s.No.127GeneralAdmn (services.C) Department, Dt: 15-09-2017 read with Rule 18, Note (4) of F.R.duly treating the un authorized absence period of the charged officer from01.04.2012 onwards as "dies-non" vide Progs.Rc.No. 1994/Cl0/2008, Dt; 09-09-2020 of the 4th Respondent. After removal from service of the petitionerthe entire issue was noticed to the Collector and District Magistrate, Kurnool.He further submits that, every possible action has been taken in the matter bygiving ample opportunities to the petitioner whereas, the petitioner willfullymisutilizedall the opportunities givento him and failedto joinhis dutiesdisobeying the orders of the higher authorities issued[in][ the][ matter][ from][ time]to time.Therefore, learned Government Pleader prayed[to][ dismiss][ the][ writ]petition.

7. Perused the material on record.

8. In Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others^ regardingmaintainability of writpetitioninthecontextofavailability of alternative and efficacious remedy, the Apex Court held thus;

14. The power to issue prerogative writs under Article 226 of the Constitution is plenaryin nature and is not limited by any other provision of the Constitution. This power can beexercised by the High Court not only for issuing writs in the nature of Habeas Corpus,Mandamus, prohibition.Qua Warranto and Certiorari for the enforcement of any of theFundamental Rights contained in PartIIIof theConstitution but alsofor "any otherpurpose".in nature and is not limited by any other provision of the Constitution. This power can beexercised by the High Court not only for issuing writs in the nature of Habeas Corpus,Mandamus, prohibition.Qua Warranto and Certiorari for the enforcement of any of theFundamental Rights contained in PartIIIof theConstitution but alsofor "any otherpurpose".

15. Under Article 226 of the Constitution, the High Court, having regard to the facts ofthe case, has discretion to entertain or not to entertain a writ petition. But the High Courthas imposed uponItself certainrestrictions one of[which]isthatif aneffectiveandefficacious remedy is available, the High Court would not normally exercise its jurisdiction.But the alternative remedy has been consistently held by this court not to operate as a barin atleast three contingencies, namely, where the Writ[Petition][ has][ been]filed for theenforcement of any of the Fundamental rights or where[there][ has][ been][ a][ violation][ of][ the]the case, has discretion to entertain or not to entertain a writ petition. But the High Courthas imposed uponItself certainrestrictions one of[which]isthatif aneffectiveandefficacious remedy is available, the High Court would not normally exercise its jurisdiction.But the alternative remedy has been consistently held by this court not to operate as a barin atleast three contingencies, namely, where the Writ[Petition][ has][ been]filed for theenforcement of any of the Fundamental rights or where[there][ has][ been][ a][ violation][ of][ the]

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principle of natural justice or where the order or proceedings are wholly without jurisdictionor the vires of an Act is challenged (emphasis supplied).

The instant case falls in one of the exceptions carved out by the ApexCourt, the principles of natural justice is a casualty[here.]

9. Having regard to the facts and circumstances of the case and onperusing the material available on record, without touching the merits of thecase, this Court is inclined to dispose of the writ petition by setting aside theimpugned order in this writ petition and also inclined to remand back thematter to the respondent authorities concerned for proper appreciation, whiledeclaring the proceedings in Rc.No. ESE02-14027/7/2021/EST4-CSE,[dated]31.01.2021issuedbythe2ndrespondentandalsoorderinRc.No.4949/B2/2013 dated16.01.2021issued by the3'^'^respondent,asillegal and arbitrary.

10. Accordingly,theimpugnedproceedingsvideRc.No.ESE02-14027/7/2021/EST4-CSE, dated 31.01.2021 issued by the 2"'^ respondent ishereby set aside.Further, the matter is remanded back to the concernedrespondentauthoritiestopassappropriatefreshreasonedorders,afteraffording an opportunity to the petitioner,in accordance withlaw, within aperiod of eight (08) weeks from the date of receipt of a copy of this order.14027/7/2021/EST4-CSE, dated 31.01.2021 issued by the 2"'^ respondent ishereby set aside.Further, the matter is remanded back to the concernedrespondentauthoritiestopassappropriatefreshreasonedorders,afteraffording an opportunity to the petitioner,in accordance withlaw, within aperiod of eight (08) weeks from the date of receipt of a copy of this order.

11. With the above observations, the Writ Petitionis disposedof.There shall be no order as to costs.There shall be no order as to costs.

12. As a sequel, interlocutory applications, if any[pending,][ shall][ stand]

closed.

SDI- G.HELANAIDU//TRUE COPY//assistant registrar To, SECTION OFFICER

TF

1. The Principal Secretary, School Education Dept,[A.P A.P][ Secretariat,]Velagapudi, Guntur District, Amaravati, A.P. Pin -[522238]Velagapudi, Guntur District, Amaravati, A.P. Pin -[522238]

2. TheDirector/CommissionerofSchoolEducation,StateofAP,Ibrahimpatnam, Vijayawada, Krishna District, A.P. Pin[-][ 521456]Ibrahimpatnam, Vijayawada, Krishna District, A.P. Pin[-][ 521456]

3. The Regional Joint Director of School Education,[Pragathi][ Bhavan,][ Koti]Reddy Circle Kadapa, YSR Kadapa District, A.P. Pin[-][ 516001.]Reddy Circle Kadapa, YSR Kadapa District, A.P. Pin[-][ 516001.]

4. The Dist. Educational Officer, Collectorate Complex,[Kurnool.][ Kurnool]District, Pin 518002.District, Pin 518002.

5. One CC to Sri V Venkata Mayur Advocate [OPUC]

6. Two CCs to GP for Services III, High Court of Andhra[Pradesh.][ [OUT]]

7. Three CD Copies

HIGH COURT

DATED:31/12/2024

ORDER

WP.No.2786 of 2021

S> 5 FEB 2B25o\Co-Current Section

DISPOSING OF THE W.P., WITHOUT COSTS