WP(AT)/217/2021 of K.VENUGOPAL BABU Vs STATE OF ANDHRA PRADESH on 30 December 2022

ORDER :

This petition is filed under Article 226 of the Constitution of India for the following relief:- “….. to direct the respondents to regularize the gap period w.e.f 18.4.2008 to 4.3.2011 as on duty in view of the Government Memo No.6848/F.1/2014-02, dated 19.06.2014 and set aside the Letter No.209/U/2015, dated 19.06.2014 and set aside the Letter No.209/U/2015, dated 08.10.2015 issued by the 2[nd]respondent as being arbitrary, illegal, unconstitutional and declare the action of the respondents in not regularizing the gap period w.e.f. 18.4.2008 to 4.3.2011 as on duty in view of the Government Memo No.6848/F.1/2014-02, dated 19.06.2014 and pass such other or orders ….”

2. The case of the petitioner is that initially he was appointed as Compounder through employment and was posted at Government Dispensary, Ontimitta Primary Health Centre, Kadapa District and since then, the petitioner discharging his duties with utmost satisfaction and dedication. When the petitioner was on medical leave, he was transferred from Kadapa District to Chittoor District, Nagari under G.O.Ms.No.10. The petitioner was transferred vide G.O.Ms.No.353 Health, Medical and Family Welfare Department, dated 2.11.2007 and the consequential proceedings dated 5.3.2008 and the Memo dated 11.3.2008. Accordingly, the petitioner approached the A.P. Administrative Tribunal by way of filing O.A.No.2581 of 2008 and the Tribunal suspended the transfer proceedings vide order dated 10.04.2008. But the respondents have not admitted the petitioner to join duty. Therefore he filed another OA No.2853 of 2010 before the Tribunal and the Tribunal had granted interim order directed the respondents to issue posting orders vide order dated 30.04.2010. since no action has been taken by the respondents, the petitioner preferred CA No.922 of 2010 in OA No.2853 of 2010. Thereafter, the respondents have complied with the orders and issued proceedings No.68/U/2008, dated 4.3.2011 and admitted him to join duty at Ontimitta and accordingly the petitioner joined duty on 5.3.2011 and discharged his duties without any remark.

It is further stated that the petitioner worked at Ontimitta till 15.5.2013 and he was transferred to RIMS on 16.5.2013. Since then he is working at Government Unani Dispensary at RIMS, Kadapa District. The contempt case was closed on 8.3.2011 and thereafter OA No.2853 of 2010 was disposed of on 04.03.2013 with a liberty to make a representation to the respondents for regularization of the gap period and pass appropriate orders within a period of three weeks from the date of receipt of a copy of that order. The 1[st]respondent without considering his case as per the orders of the Tribunal, has issued impugned Memo No.4775/A.II/2010, dated 14.05.2014 sanctioned the eligible leave period i.e., from 20.4.2007 to 15.10.2007 as Earned Leave for 180 days; and from 16.10.2007 to 17.04.2008 as Commuted Leave for 185 days on Medical grounds and remaining 19 days balance of EL and 15 Half Pay leave at his credit as on 17.4.2008. But the respondents have not passed any orders in so far as the gap period from 18.4.2008 to 4.3.2011. Hence, the present writ petition has been filed.

3. Counter affidavit has been filed by the respondents denying all the allegations made in the petition and contended that the orders of the Tribunal could not be implemented since Sri J. Balu Naik, Compounder, Government Unani Dispensary, Kadiri, Anantapur District reported for duty at Government Unani Dipensary, Ontimitta, Kadapa District on 9.4.2008 and as such the petitioner was not accommodate at Government Unani Dispensary, Ontimitta, YSR District. The said transfer orders were issued by the Government under Six Point

Formula and as such the 3[rd] respondent was unable to take any action in this regard. The representation submitted by the petitioner was not considered by the Department since the entire laps is on the part of the petitioner for not joining duty at Government Unani Dispensary Nagari, Chittoor District. It is also stated that the gap period from 18.4.2008 to 4.3.2011 will have to be regularized by the competent authority when the petitioner was not given place of postings. But in the instant case the petitioner was posted to Government Unani Dispensary, Nagari in a clear vacancy as per Six Point Formula by the Government vide G.O.Ms.No.353 HM & FW (1.1) Department, dated 2.10.2007. The claim of the petitioner to treat the gap period from 18.4.2008 to 4.3.2011 as on duty is against to the rules and regulations of the Government.

4. Heard Sri P.Srinivasa Rao, learned counsel appearing for the petitioner and learned Government Pleader for Services-IV appearing for the respondents.

5. During hearing, learned counsel for the petitioner while reiterating the averments made in the petition, submits that the action of the respondents is wholly arbitrary, illegal and unconstitutional. He submits that the 2[nd] respondent has sent letter vide letter No.209/U/2015, dated 8.10.2015 to the 1[st] respondent stating that the individual has no right claim to treat the period as compulsory wait as per FR 9(b). The issue of compulsory wait arises only when the individual was not given any posting orders consequent of transfer. In the present case, the petitioner received posting orders from the Senior Medical Officer on 24.3.2008. He further submits that the 2[nd]respondent without referring any of the orders of the Tribunal passed in O.As, were not referred to in their orders and the 1[st]respondent issued the Memo dated 19.06.2014 in favour of the petitioner regularizing the period from 18.4.2008 to 4.3.2011 and only requested to send the proposals. Inspite of the same, the 2[nd] respondent neither issued nor sent proposals therefore once again issued the Memo dated 26.8.2015.

6. On the other hand, learned Government Pleader strenuously submits that as per the transfer of the petitioner from Government Unani Dispensary, Votimitta, Kadapa, YSR District to Government Unani Dispensary, Nagari, Chittoor District under Six Point Formula, he never reported for duty at Government Unani Dispensary, Nagari, to which dispensary he was transferred from YSR District. The department did not initiate any steps for the transfer of the petitioner. the Government as a policy decision under Six Point Formula, he was transferred from Kadapa to Chittoor and as a loyal government Servant he was forced to obey the orders of the Government but the petitioner disobeyed the orders of the government and straightaway approached this Court. As the petitioner was given place of postings to Government Unani Dispensary, Nagari, as such he is not entitled for regularization of gap period from 18.4.2008 to 30.03.2011 as per FR 9(6).

7. On hearing, this Court observed that when the petitioner was on medical leave he was transferred from Kadapa District to Chittoor under G.O.Ms.No.610. The petitioner was transferred vide G.O.Ms.No.353, dated 2.11.2007 and consequential proceedings dated 5.3.2008 and Memo dated 11.3.2008. Questioning the same the petitioner has preferred OA No.2581 of 2008 before the Tribunal and the Tribunal has suspended the transfer proceedings vide order dated 10.04.2008. As the respondents have not admitted to duty at Ontimitta, the petitioner has preferred another OA No.2853 of 2010 and the Tribunal has granted interim order on 30.04.2010 directed the respondents to issue posting orders. When no action has been taken by the respondents, the petitioner preferred CA No.922 of 2010 in OA No.2853 of 2010. Thereafter, the respondents have complied with the order and issued proceedings dated 4.3.2011 admitted the petitioner into duty at Ontimitta. Thereafter, OA No.2853 of 2010 was disposed of vide order dated 4.3.2013 with a liberty to the petitioner to make representation to the respondents for regularization of the gap period and the same has to be considered and pass orders within a period of three weeks from the date of that order. However, the respondents have not taken any action.

8. Having regard to the facts and circumstances of the case and upon perusing the entire material available on record, this Court is of the considered view that while setting aside the Letter No.209/U/2015, dated 8.10.2015, declaring the action of the respondents in not regularizing the gap period from 18.4.2008 to 4.3.2011 as on duty in view of the Government Memo No.6848/F.1/2014-02, dated 19.06.2014, as illegal, directing the respondents to consider the case of the petitioner and regularize the gap period w.e.f. 18.4.2008 to 4.3.2011 as on duty and pass appropriate order in accordance with law. The entire exercise shall be completed within a period of eight (08) weeks from the date of receipt of a copy of this order. There shall be no order as to costs.

9. With the above observation, the Writ Petition is disposed of. There shall be no order as to costs.

As a sequel, all the pending miscellaneous applications shall stand closed.

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DR. K. MANMADHA RAO, J.

Date : -12--2022 Gvl

Gvl

HON’BLE DR. JUSTICE K. MANMADHA RAO

WRIT PETITION (AT) No.217 of 2021

Date : .12.2022