THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
WRIT PETITION NO.2518 OF 2023
ORDER
In this Writ Petition, the petitioner is seeking a Writ of Mandamus declaring the action of respondent No.2 in suspending the petitioner from the post of Hostel Welfare Officer, Grade-II vide proceedings No.A1/654/2022 dt.31.12.2022 without any jurisdiction and contrary to G.O.Ms.No.13 dt.16.08.2022, as illegal, arbitrary and violative of Articles 14, 16 and 21 of the Constitution of India and consequently to direct the respondents to reinstate the petitioner into service and to pass such other order or orders as this Court may deem fit and proper in the circumstances of the case.
2. Brief facts leading to the filing of the present Writ Petition are that the petitioner was appointed as a Watchman on 29.11.2006 in SC Boys Hostel (C), Adilabad. Thereafter, he was promoted to the post of Hostel Welfare Officer, Grade-II on 09.04.2010. He was posted to Chinthaguda Village, Jannaram Mandal, Adilabad District. Subsequently, he was transferred to the Government SC Boys Hostel, Bela, Adilabad and since then, the petitioner was working in the same W.P.No.2518 of 2023 2 cadre. It is submitted that thereafter, G.O.Ms.No.212 dt.04.08.2021 was issued by the Government of Telangana for reorganisation of local cadres and that the post of Hostel Welfare Officer, Grade-II was a zonal cadre post and as per G.O.Ms.No.13 dt.16.08.2022, Subordinate Service Rules clinchingly show Rule 3 about the method of appointment and the appointing authority for various clauses. It is submitted that in view of the above Rule, the Hostel Welfare Officer, Grade-II being a zonal post, the appointing authority is respondent No.3, i.e., Zone-II District Collector, Nizamabad and not respondent No.2, i.e., the District Collector, Adilabad. It is submitted that on the ground that the petitioner did not attend to his duty and was unauthorisedly absent on 25.12.2022 which was a declared holiday and the students staged a dharna about serving them with uncooked/under cooked food and that the same was also reported in the newspapers, the petitioner was placed under suspension. It is submitted that the petitioner had arranged food for boarders at Bela Hostel on 25.12.2022 including lunch and dinner and the same was informed to respondent No.2 in writing on 25.01.2023 and requested to drop the suspension proceedings and further requested to reinstate the petitioner into service on the ground that neither respondent No.2 nor respondent No.4 has issued any show-cause notice prior to W.P.No.2518 of 2023 3 passing of the suspension order and that the petitioner was very much present in the hostel and arranged the food to the boarders in the Government SC Boys Hostel, Bela. However, the suspension order of the petitioner was not revoked and challenging the same, this Writ Petition has been filed.
3. Learned counsel for the petitioner submitted that the appointing authority of the petitioner is the District Collector, Nizamabad who is the Head of Zone-II and therefore, he is the authority who can place the petitioner under suspension and not respondent No.2 under whose jurisdiction, the petitioner was working. Therefore, challenging the suspension order both on the jurisdiction of the officer who passed the order and also on the merits, the present Writ Petition has been filed.
4. The respondents have filed a counter affidavit justifying the suspension order and stating that the petitioner was absent from duty on 25.12.2022 without prior permission of the higher authority resulting in the boarders taking an agitation for providing uncooked/under cooked food for them and the same was published in the newspapers on 26.12.2022. It is submitted that after conducting a preliminary enquiry, respondent No.2 has placed the petitioner under suspension. It is further W.P.No.2518 of 2023 4 submitted that respondent No.3 who is the Zonal Officer and also the appointing authority for the post of Hostel Welfare Officer, Grade-II, has ratified the order of respondent No.2 vide orders dt.27.03.2023. It is submitted that since the appointing authority, i.e., the Zonal Officer has ratified the decision of respondent No.2, as per the judgment of the Hon'ble Supreme Court of India in the case of Maharashtra State Mining Corpn. Vs. Sunil, S/o Pundikarao Pathak 1, the ratification is with effect from the date on which the suspension order has been passed. In respect of subsistence allowance from March, 2023 not paid to the petitioner, it is submitted that the Government approval (Finance Department) is pending and the same will be released immediately on receipt of the approval. Therefore, the respondents prayed for dismissal of the Writ Petition.
5. The learned counsel for the petitioner has filed a reply affidavit stating that the ratification of the order can only be by an authority higher in rank and not by an officer who is equal in rank to the authority who passed the order. He submitted that respondents 3 and 4 both being District Collectors are of the same cadre and therefore, the ratification by respondent No.3 is not legal. In support of his contentions, he placed 1 (2006) 5 SCC 96 W.P.No.2518 of 2023 5 reliance upon the judgment of a Coordinate Bench of this Court in W.P.No.31145 of 2018 dt.03.10.2018.
6. Having regard to the rival contentions and the material on record, it is noticed that for unauthorised absence on 25.12.2022 which appears to be an holiday, the petitioner was placed under suspension. But, this Court finds that the petitioner was working as Hostel Welfare Officer, Grade-II and was required to take care of the facilities at SC Boys Hostel, Bela, Adilabad and was required to be present on the said date. The allegation against the petitioner is that he was not present and uncooked/under cooked food was served to the students. Therefore, the petitioner was placed under suspension by the District Head, i.e., District Collector, Adilabad. However, as per the Telangana State and Subordinate Service Rules, 1996, the post of Hostel Welfare Officer is a zonal post and therefore, the appointing authority is the Zonal Head, i.e., District Collector, Nizamabad. Therefore, an order of suspension can also be passed by the appointing authority, i.e., Zonal Head, i.e., respondent No.3. Therefore, the order of suspension is not passed by the competent authority and after filing of the Writ Petition by the petitioner on 30.01.2023, the respondents have filed a counter affidavit enclosing W.P.No.2518 of 2023 6 the ratification order passed by the District Collector, Nizamabad, i.e., respondent No.3 and it is dated 27.03.2023. As held by the Hon'ble Supreme Court in the case of Maharashtra State Mining Corpn. Vs. Sunil, S/o Pundikarao Pathak (1 supra), an order of ratification related back to the date of order and is retrospectively validated. The question before this Court is whether the order of respondent No.2 as ratified by respondent No.3 has to be considered as valid ratification by the competent authority. The competent authority herein being the 3rd respondent, is the authority who has to pass the order of suspension and the order of ratification can also be by the competent authority if the order has been passed by an officer lower in rank. In this case, the learned counsel for the petitioner argued that both respondent No.2 and respondent No.3 are of the same cadre and are in equivalent rank and it is only respondent No.3 who is in-charge of the zone, whereas respondent No.2 is the head of a particular District and therefore, the ratification by respondent No.3 of the order of respondent No.2 cannot be held to be a valid ratification. However, this Court finds that where an order is passed by an incompetent authority, for it to become valid, it has to be ratified by the competent authority and when ratified, it dates back to the order of suspension and not to the order of ratification.
W.P.No.2518 of 2023 7
7. In such circumstances, this Court is satisfied that the order of suspension dt.31.12.2022 passed by respondent No.2 is ratified by the competent authority. However, against a suspension order, there is an appeal provision. Therefore, the petitioner is permitted to file an appeal and the respondents are directed to consider the appeal, if any, filed by the petitioner within a period of four weeks from the date of filing of the appeal.
8. The Writ Petition is accordingly disposed of. No order as to costs.
9. Miscellaneous petitions pending, if any, in this Writ Petition shall stand closed.
___________________________ JUSTICE P. MADHAVI DEVI Date: 20.09.2023 Svv