Telangana High Court
K. Siddartha Kumar, vs The State Of Telangana on 2 February, 2024
THE HON'BLE SRI JUSTICE PULLA KARTHIK
WRIT PETITION No.28188 of 2023
ORDER:
This Writ Petition is filed seeking the following relief:
".... writ of Mandamus calling for the records of the 1st Respondent issuing Memo 1653/CS.II.LM/2023 dt 30-9-2023 and declaring the action of the 1st Respondent in directing to place the Respondent No.3 in a higher rank and cadre as Regional Deputy Controller, Warangal, who is a junior to the Petitioner in the cadre of Assistant Controller, is illegal improper, violation of principles of natural justice and in violation of Article 14, 16 & 21 of the Constitution and consequently set aside the Memo 1653/CS.II.LM/2023 dt 30-9-2023 of the 1st Respondent ..."
2) Heard Sri M. Surender Rao, learned senior counsel, appearing for Sri GVL Murthy, learned counsel for the petitioner, learned Government Pleader for Services-III appearing for respondents 1 and 2, and Sri A. Phani Bhushan, learned counsel appearing for respondent No.3.
3) It has been contended by the learned senior counsel appearing for the petitioner that the services of the petitioner in the cadre of Assistant Controller were regularized w.e.f.31.07.2012, his probation was declared from 30.07.2013, and seniority was assigned as rank No.1 vide proceedings No.919/E1/2020, dated 06.07.2020. Further, the petitioner is the only Assistant Controller, who is fully eligible to the next higher post i.e. Regional Deputy Controller (RDC), which is a State cadre post. Therefore, since 2020, he has been placed under full additional charge (FAC) of RDC, PK, J 2 WP_28188_2023 Warangal, in addition to the duties being discharged as Assistant Controller. While so, vide impugned Memo dated 30.09.2023, the first respondent has directed the second respondent to issue proceedings placing the third respondent as FAC RDC, Warangal, though the third respondent is junior to the petitioner and is being continued on adhoc basis as Assistant Controller. It is further submitted that neither his services were regularized in the Cadre of Assistant Controller nor his seniority was fixed in the feeder category as District Inspector. Therefore, placing the junior over and above the petitioner in rank and cadre of RDC is nothing but demoralizing the petitioner and is a stigmatic one. It is further contended that the third respondent had a track record of ACB trap case and the criminal appeal is still pending before this Hon'ble Court. Further, since the third respondent failed to discharge his legitimate duties as Controller, a Public Interest Litigation (PIL) was also filed before this Hon'ble Court wherein a direction was issued to relieve him from his In-charge duties as District Legal Metrology Officer, Nirmal, as he was not discharging his duties as Assistant Controller, Karimnagar. Pursuant to the orders of this Court in PIL, the third respondent was removed from his additional duties and therefore, the impugned proceedings amount to grave misconduct and disobedience of the orders of this Hon'ble Court. It is further contended that as the third respondent has failed to submit reports PK, J 3 WP_28188_2023 called for by the second respondent, charges were framed against the third respondent under Rule 20 of CCA Rules vide proceedings No.789/V/2019, dated 21.09.2019. Thereafter, the enquiry was conducted and the Enquiry Officer has submitted his report holding that the charges against the petitioner were proved vide letter No.782/V/2019, dated 31.10.2022. Inspite of the same, instead of imposing the punishment, the second respondent has simply warned the third respondent. In another case, for having failed to attend the statutory duties assigned to him and also to follow the timelines, the second respondent has framed charges against the third respondent vide charge Memo No.3651/T/2017 dated 09.06.2021 wherein an Enquiry Officer was appointed and the enquiry report is awaited and therefore disciplinary proceedings are not yet concluded and still pending against the third respondent. Learned senior counsel has further contended that the petitioner has been discharging his duties as Assistant Controller (Administration) at the office of the Controller of Legal Metrology (Head Office) Hyderabad, since 2018 and he was placed as FAC of RDC, Warangal, since 2021 and he is the only Assistant Controller who is fully eligible to the post of RDC. Further, the Assistant Controller (Administration) at Head Office has jurisdiction over the entire State. Therefore, placing his junior in the cadre and rank above the petitioner as RDC, Warangal, where the petitioner is PK, J 4 WP_28188_2023 having same jurisdiction as Assistant Controller, is exercising contradictory and conflicting powers and jurisdictions over one another. Further, without there being any complaint against the petitioner with regard to discharge of the duties as FAC RDC, placing the third respondent as FAC RDC, is against the principles of administrative law and has a cascading effect on administration and in the discharge of duties affecting the overall administration. The petitioner has been working as Assistant Controller since 12 years and his next promotion is to the post of RDC. The first respondent is not filling up the post of RDC to which the petitioner has got right of promotion and over and above that, filling the post by giving additional charge to his junior, who is having pending ACB trap case, disciplinary proceedings, will have demoralizing effect on the petitioner. Therefore, it is prayed to pass appropriate orders in the writ petition.
4) On 11.10.2023 while issuing notice before admission, this Court has directed the respondents to maintain status quo obtaining as on today in respect of the post of RDC, Warangal, and the said interim order has been extended from time to time. Seeking to vacate the said interim order, respondents 1 and 2 and 3 have filed separate IAs.
PK, J 5 WP_28188_2023
5) Per contra, the learned Government Pleader has contended that keeping in view the exigency of work and in view of the increase in burden of work at the Head office due to placing the petitioner as FAC to the post of RDC, Legal Metrology, Warangal, he was unable to be available at Warangal regularly, which caused inconvenience to the stakeholders of Legal Metrology Department. Therefore, the first respondent has taken a decision to change the FAC arrangements to the post of RDCLM, Warangal, and therefore, impugned orders were issued directing the second respondent to place the third respondent as FAC to the post of RDCLM, Warangal, in the place of petitioner vide Government Memo No.1653/CS.II- LM/2023, dated 30.09.2023. It is further contended that (7) Assistant Controller posts were sanctioned in the Legal Metrology Department, out of which, (6) posts were vacant due to non- availability of eligible candidates. Therefore, in the year 2018, vacancies were filled up on adhoc basis and third respondent was one of those candidates who were promoted temporarily on adhoc basis as Assistant Controller and he has been working in Karimnagar. It is further submitted that one ACB case is pending against the third respondent before this Hon'ble Court vide Crl.A.No.332/2017 and the third respondent is also facing disciplinary proceedings under Rule 20 of TS CCA Rules vide charge Memo dated 09.06.2021 of the Controller of Legal Metrology, PK, J 6 WP_28188_2023 Telangana State, Hyderabad, and the same is pending. It is further contended that the post of RDC, Legal Metrology, Warangal, is not filled up on promotion but only making FAC arrangements. Therefore, among the existing Assistant Controllers of Legal Metrology, third respondent was considered for appointment as FAC to the post of RDC, Warangal, within Multi Zone-1, in the place of the petitioner, for smooth functioning of the department. Therefore, the official respondents are justified in passing the impugned Memo.
6) Learned counsel for respondent No.3 has contended that respondent No.3 was initially appointed as Inspector, Legal Metrology Department, on 01.06.1996, later he was promoted as District Inspector on 09.08.2007, thereafter as Assistant Controller on 07.04.2018. While so, first respondent had issued the impugned Memo placing the third respondent as FAC to the post of RDC, Warangal. In pursuance thereof, respondent No.3 had reported for duty on 30.09.2023 itself and the same is evident from the endorsement made by the 1st respondent and he had also signed in the attendance register to that effect. Therefore, the third respondent is discharging his duties as RDC, Warangal, as on the date of filing of the writ petition. Learned counsel has further contended that suppressing the same, the petitioner has approached this Court with unclean hands by concealing material PK, J 7 WP_28188_2023 facts. It is further contended that as per Rule 18 of Telangana State and Subordinate Service Rules, 1996 (in short 'Service Rules'), if the probation of an employee is not declared under Rule 16 of Service Rules, the probation of that incumbent is deemed to have been declared after successful completion of stipulated period and a formal order has to be passed by the competent authority to that effect. In the case on hand, the third respondent was promoted as Assistant Controller on 07.04.2018 and completed one year period of probation within two years of probation time. As such, the probation of third respondent is deemed to have been declared under the provision of Rule 18 of the Services Rules and therefore the ground put forth by the writ petitioner cannot stand to the legal scrutiny and liable to be rejected. Learned counsel has further contended that in Ramakant Shripadh Sinai Advalpalakar v. Union of India 1, the Hon'ble Supreme Court has held that for making arrangements for placing full additional charge, rule of seniority need not be followed and the said ratio was followed by the Division Bench of erstwhile High Court of Andhra Pradesh in K.V. Narasimha Murthy v. Andhra Pradesh Administrative Tribunal 2. Therefore, the contention of the petitioner that for making FAC arrangements, seniority has to be followed cannot be accepted and liable to be rejected. It is further contended that the 1 1991 Supp (1) SCC 733 2 2001 LawSuit (AP) 763 PK, J 8 WP_28188_2023 petitioner is working as Assistant Controller in Head Office, which is situated at Hyderabad, and the post of RDC is situated at Warangal. As such, the petitioner cannot be regularly available for the stakeholders. It is further contended that the third respondent was acquitted in the ACB case by the competent Court of Law with a finding that he is not guilty of the offence under Sections 7 and 13 (1) (d) read with13 (2) of Prevention of Corruption Act, against which the State has preferred an appeal before this Hon'ble Court vide Crl.A.(SR) No.28204 of 2014 and the same is pending adjudication. As regards disciplinary proceedings, learned counsel has contended that though the third respondent has submitted his explanation to the charge memo dated 21.09.2019, without considering the same, an Enquiry Officer was appointed, but no enquiry report was submitted. Therefore, as of now, the third respondent is neither convicted in criminal case nor under currency of any punishment, to disentitle him for placing as FAC. Learned counsel has further contended that placing as FAC to a post is not a promotion and such arrangements are made only in public interest. Hence, seniority vis-à-vis merit and suitability of the individuals for placing as FAC are insignificant, in view of the law laid down in Ramakant Shripad Sinai Advalpalkar (referred supra). It is further contended that the attendance register would establish that the third respondent has taken charge of the said post on 30.09.2023 PK, J 9 WP_28188_2023 and thereafter on 11.10.2023 this Hon'ble Court has directed to maintain status quo and by virtue of the said interim order, the third respondent is entitled to discharge the duties of the post of FAC of RDC, Warangal. But, the petitioner is deliberately not handing over the charge of the said post, which is nothing but deliberate and wilful violation of the interim orders of this Court, dated 11.10.2023. Therefore, it is prayed to dismiss the writ petition. Learned counsel has also placed reliance on K.D Sharma v. Steel Authority of India Limited 3 in support of his arguments.
7) This Court has taken note of the submissions made by the respective counsel.
8) A perusal of the record discloses that admittedly, the petitioner was promoted to the post of Assistant Controller on 31.07.2012, his probation was also declared on 30.07.2013 and stood at Sl.No.1 in the seniority list of Assistant Controller, Legal Metrology, issued vide proceedings No.919/E1/2020, dated 06.07.2020 whereas in case of respondent No.3, he was given adhoc promotion as Assistant Controller (Legal Metrology), in relaxation of the Rules vide G.O.Rt.No.36, Consumer Affairs, Food and Civil Supplies (CS.I-LM) Department, dated 07.04.2018. Further it is 3 (2008) 2 SCC 481 PK, J 10 WP_28188_2023 evident from the counter filed by the official respondents that the probation of respondent No.3 was not declared in the feeder cadre of District Inspector, on the ground that 'ACB case against him pending in the Hon'ble High Court'.
9) Further, the impugned Memo dated 30.09.2023 is bereft of reasons. A perusal of the same reveals that 'Government hereby directed to place Sri K.Vijayasarathy, Assistant Controller of Legal Metrology, Karimnagar in Full Additional Charge to the post of Regional Deputy Controller of Legal Metrology, Warangal in place of Sri K. Siddartha Kumar, Asst. Controller (Admn), who is presently I/c RDCLM, Warangal with immediate effect.' Thus, absolutely no reasons are mentioned in the impugned order for changing the FAC arrangements, which action on the part of the respondent authorities is not sustainable in view of the law laid down in Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing, Kota vs. Shukla and Brothers 4, wherein the Hon'ble Supreme Court has held as under:
".... while exercising the power of judicial review on administrative action and more particularly the judgment of courts in appeal before the higher court, providing of reasons can never be dispensed with. The doctrine of audi alteram partem has three basic essentials. Firstly, a person against whom an order is required to be passed or whose rights are likely to be affected adversely must be granted an opportunity of being heard. Secondly, the authority concerned should provide a fair and transparent 4 (2010) 4 SCC 785 PK, J
11 WP_28188_2023 procedure and lastly, the authority concerned must apply its mind and dispose of the matter by a reasoned or speaking order ...
.... A litigant who approaches the court with any grievance in accordance with law is entitled to know the reasons for grant or rejection of his prayer. Reasons are the soul of orders. Non-recording of reasons could lead to dual infirmities; firstly, it may cause prejudice to the affected party and secondly, more particularly, hamper the proper administration of justice. These principles are not only applicable to administrative or executive actions, but they apply with equal force and, in fact, with a greater degree of precision to judicial pronouncements. The orders of the court must reflect what weighed with the court in granting or declining the relief claimed by the applicant."
10) Further, coming to the judgment of the Hon'ble Supreme Court in Ramakant Shripad Sinai Advalpalkar (referred supra), followed by the Division Bench of erstwhile High Court of Andhra Pradesh in K.V. Narasimha Murthy (referred supra), on which, much reliance has been placed by the learned counsel for respondent No.3 to contend that seniority is not the criteria for making incharge arrangements, this Court does not dispute the above settled proposition of law. But, coming to the case on hand, admittedly, the third respondent is a probationer in the cadre of District Inspector, which is the feeder cadre of Assistant Controller, and he was given adhoc promotion to the post of Assistant Controller by relaxing the Rules vide G.O.Rt.No.36, dated 07.04.2018. It is also an admitted fact that the petitioner is working as Assistant Controller (Administration) at the office of PK, J 12 WP_28188_2023 Controller of Legal Metrology (Head Office), Hyderabad, since 2018 and is fully eligible to the post of RDC. Hence, the above referred judgments cannot be made applicable to the facts of the present case and are distinguishable on facts of the present case.
11) In view of the above, the impugned Memo dated 30.09.2023, cannot be sustained in law and the same is liable to be set aside.
12) Accordingly, the impugned Memo No.1653/CS.II.LM/2023, dated 30.09.2023, is set aside and the Writ Petition is allowed.
Miscellaneous petitions pending, if any, shall stand closed. No costs.
____________________ PULLA KARTHIK, J Date : 02-02-2024 sur