Andhra Pradesh High Court - Amravati

T. Subbaiah, Visakhapatnam vs Govt. Of A.P, Hyderabad And 2 ... on 4 February, 2021

Bench: Battu Devanand

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        THE HON'BLE SRI JUSTICE BATTU DEVANAND

               WRIT PETITION No. 16358 of 2011

ORDER :

The present Writ Petition has been filed under Article

226 of the Constitution of India for the following relief:

"...to issue a Writ, Order or Direction(s) more particularly, one

in the nature of Writ of Mandamus:

(a) Call for the records relating to and connected with

Memo in Rc.No.A2/24391/2009, dated 15-04-2011

issued by respondent No.2 and set aside the same as

bad, arbitrary, illegal, unconstitutional and

discriminatory;

(b) Direct the respondents to regularize the services of

the petitioner as Record Assistant with effect from

date on which his colleagues and juniors were

regularized with all consequential benefits such as

fixation of pay, arrears of salary and seniority etc."

2) A counter affidavit has been filed by the respondent

No.2.

3) During the pendency of this writ petition, the original writ

petitioner (T.Subbaiah) left this world on 12.11.2017 leaving

behind his wife, two minor children and old aged father and

mother. The wife of the deceased petitioner filed I.A.No.1 of

2018 before this Court to come on record as legal heir of the

deceased petitioner. By order of this Court, dated 08.12.2020,

she was brought on record as legal representative of the

deceased petitioner by impleading as petitioner No.2.

4) Since the Petitioner died during the pendency of this Writ

Petition, is now represented by his Wife. However, for the

purpose of convenience, we shall refer to him as Petitioner in

the course of this order.

5) Heard Sri J. Sudheer, learned counsel for the petitioners,

learned Government Pleader for Respondent Nos. 1 and 2 and

Sri K. Madhava Reddy, learned Standing counsel for

Respondent No.3.

6) Sri J.Sudheer, learned counsel submits that that the

respondent No.2 rejected the claim of the petitioner for

regularization of his services without considering the fact that

the petitioner was kept out of service from 1997 to 2008

without any basis and though the colleagues of the petitioner

and his juniors regularized at the relevant time, the claim of

the petitioner was rejected illegally by the respondent No.2.

The contention of learned counsel for the petitioner is that it

was obligatory on the part of the respondent No.2 to put back

the petitioner in the same situation as his colleagues and

juniors were placed in view of the Order passed by the

Respondent No.1 vide G.O.Rt.No.1387, dated 01.07.2008

directing to reinstate the petitioner as Record Assistant. The

contention of the learned counsel for the petitioner that the

respondent No.2 failed to consider that the petitioner cannot

be penalized for the illegal action of the respondents in

terminating the services and dragging the issue for almost a

decade and that the petitioner was entitled to be treated with

his colleagues and juniors.

7) Learned counsel for the petitioner further submitted that

the petitioner having died during the pendency of this writ

petition, and now the wife of the petitioner came on record as

L.R., sought direction of this court to grant all benefits

including consequential benefits for which the petitioner is

entitled in favour of his Wife. i.e. Petitioner No.2 herein.

8) On the other hand, learned Government Pleader

appearing for the Respondent No.1 and 2 submits that the

petitioner could have been regularized as Attender only even

in the absence of criminal case and an NMR cannot be directly

appointed as Record Assistant. She further submits that the

services of other petitioners in W.P.No.6484 of 1998, were

regularized in the cadre of Attenders and thereafter promoted

as Record Assistants. The learned Government Pleader finally

submits that at best, the petitioner could have been

regularized as attender only as he was an NMR at that point of

time as per the stand taken in counter affidavit. The learned

Standing Counsel for Respondent No.3 also argued supporting

the contentions of the learned Government Pleader.

9) After hearing the learned counsel for both sides and on

perusal of the material available on record, this Court noticed

the following admitted facts:

(i) The petitioner was appointed as NMR in the third

respondent temple and has been working since 01.09.1992.

(ii) Basing on the resolution, dated 29.06.1994 of the Trust

Board of the third respondent temple, the second respondent

i.e., the Commissioner of Endowments sanctioned

consolidated salary of Rs.1200/- per month with effect from

01.09.1994 for the petitioner and 4 others.

(iii) The respondent No.3 fixed basic scale of pay of Record

Assistant with effect from 01.01.1996 to the petitioner and

others vide proceedings, dated 24.01.1996 subject to

ratification of the respondent No.2.

(iv) The respondent No.2 vide proceedings, dated

22.01.1997, cancelled the proceedings, dated 24.01.1996

issued by the respondent No.3 and the same was

implemented by the respondent No.3 vide proceedings, dated

18.03.1997.

(v) Against the proceedings, dated 22.01.1997 of the

respondent No.2 and 18.03.1997 of the respondent No.3, the

petitioner and two others filed Writ Petition No.6484 of 1997

and similar Writ Petition No.6501 of 1997 was also filed by

other two similarly situated employees. Both the Writ Petitions

were allowed by this Court on 03.03.2000 and the impugned

proceedings therein were set aside directing the respondents

to consider the case of the petitioners for regularisation in

accordance with law.

(vi) On the ground that a theft had taken place in the

premises of the respondent No.3 on the night of 25.04.1997,

the petitioner and three others were arrested and released on

bail and a criminal case was registered.

(vii) The services of the petitioner and three others were

terminated by the respondent No.3 on 06.10.1997. The

petitioner and others filed appeal before the Additional

Commissioner of Endowments and the said appeal was

allowed on 21.10.2003 remanded the matter to the

respondent No. 3 to conduct discrete enquiry and ordered for

conversion of the order of termination into suspension without

any financial benefit from duty, till the completion of the

enquiry/till they are exonerated of their cases.

(viii) The respondent No.3 without conducting an enquiry

as directed by the Additional Commissioner of Endowments,

once again issued proceedings, dated 08.12.2004 terminating

the services of the petitioner.

(ix) The petitioner and others were acquitted by the VI

Metropolitan Magistrate, Visakhapatnam by its judgment,

dated 09.09.1999 in C.C.No.322 of 1998.

(x) The petitioner preferred an appeal before the

respondent No.2 against the termination order, dated

18.12.2004 issued by the respondent No.3 and the said appeal

was dismissed on 18.08.2007.

(xi) Aggrieved by the same, the petitioner filed

representation/appeal before the respondent No.1. The

respondent No.1 allowed the appeal of the petitioner vide

G.O.Rt.No.1387, dated 01.07.2008 directed the respondent

No.3 to reinstate the petitioner into service with immediate

effect as a Record Assistant, as the whole case was foisted

against the petitioner based on rumours and hearsay and

there is no evidence against the petitioner.

(xii) Accordingly, the petitioner was reinstated into service

as Record Assistant on 09.07.2009 and reported to duty on

the same day in the respondent temple.

(xiii) The petitioner submitted representation, dated

13.12.2008 to the respondent No.3 temple and one more

representation to the respondent No.2 in May, 2009 and the

respondent No.2 sought for information on the subject from

the respondent No.3 vide proceedings, dated 01.07.2009.

(xiv) Accordingly, the respondent No.3 submitted report,

dated 08.07.2009 to the respondent No.2 wherein it was

informed that persons who are similarly situated and who are

appointed along with the petitioner and his juniors were also

regularized.

(xv) The respondent No.2 vide Memo, dated 21.01.2010

sought for furnishing the copies of orders through which the

services of others, who are working along with the petitioner

were regularized.

(xvi) The respondent No.2 also sought remarks on

certain points vide Memo, dated 21.09.2010 pertaining to the

petitioner and in response to the same, the respondent No.3

vide letter, dated 23.10.2010 informed the respondent No.2

that the petitioner was paid only Rs.1535/- of 1993 pay

scales, i.e., the scale in which he was working at the time of

his termination.

(xvii) The respondent No.2 vide Memo, dated 15.04.2011

rejected the claim of the petitioner for regularization of his

services. Aggrieved by the same, the present writ petition is

filed.

10) As seen from the material available on record, it is an

admitted fact that the petitioner was one amongst 5

petitioners in the judgment, dated 03.03.2000 in Writ Petition

No.6484 of 1997 and W.No.6501 of 1997. It is also an

admitted fact that except the petitioner, all others services

were regularized at the relevant time, on the ground that the

petitioner is not in the service in the respondent temple at

that time in view of the order of termination, dated

06.10.1997 issued by the respondent No.3 in view of the

registration of the criminal case against the petitioner.

11) However, after acquittal of the petitioner in C.C.No.322

of 1998 by its judgment, dated 09.09.1999, on the file of VI

Metropolitan Magistrate, Visakhapatnam, the respondent No.1

(i.e) the Government of A.P. after examining the factual

position and after hearing the counsel for the temple and the

counsel for the petitioner allowed the appeal filed by the

petitioner vide G.O.Rt.No.1387, dated 01.07.2008. The

findings of the respondent No.1 herein while allowing the said

appeal are very crucial for the present case and those findings

are extracted hereunder:

"Government felt that, the basic issue in this case is, whether, there is any evidence to show that the accused committed any offence. The criminal case filed by the temple ended in the acquittal of all the persons including the present Appellant. In fact the judge, in his judgment dated 09.09.1999 has stated that there is no

whisper in the evidence about the accused committing such offence. The appellant herein has stated that there is no prima-facie case which has been established. The whole case was initiated only on rumours and hearsay. The connected records do not show any evidence to prove the guilt of the petitioner. While the regular employees have been reinstated, the present appellant has been terminated from services without giving him an opportunity on the technical ground that he is not yet confirmed in the services and he is only under probationer. But, the Government felt that the very foundation of the case rests on the incident of theft in which the present appellant was also implicated. Further, since the judgment in the criminal case is very clear, there seems to be no justification in proceedings with further action on any of the accused persons including the present appellant.

Government after careful consideration of the matter, hereby direct that the appellant Sri T. Subbaiah, S/o Sri RajeshwaraRao, Record Assistant, Sri Kanakamaha Lakshmi Ammavari Temple, Burujupet, Visakhapatnam be reinstated into service with immediate effect, since no case has been established against him and the whole case was initiated only on rumours and hearsay and the connected records do not show any evidence to prove the guilt of the petitioner."

12) On careful examination of the findings of the respondent

No.1 in the Order in appeal, it is clear that no case was proved

against the petitioner and the whole case was initiated only on

rumours and hearsay and the connected records do not show

any evidence to prove the guilt of the petitioner. In view of

the categorical findings of the respondent No.1 while allowing

the appeal and directing the respondent No.2 to reinstate the

petitioner into service with immediate effect, it is clearly

established that the petitioner's services were illegally

terminated by the respondent No.3 on 06.10.1997.

13) It is also to be noted from the record that as and when

the petitioner challenged the initial termination order, dated

06.10.1997 issued by the respondent No.3 by way of appeal

before Additional Commissioner of Endowments, the same was

allowed by remanding it to the respondent No.3 to conduct

discrete enquiry by duly affording an opportunity to the

petitioner and others vide order, dated 21.10.2003. But, in

spite of specific directions of the Additional Commissioner of

Endowments, the respondent No.3 without conducting any

enquiry as directed, once again issued proceedings, dated

08.12.2004 terminating the services of the petitioner on the

ground that the petitioner was a temporary employee and was

under probation and therefore the requirement of Rule 20 of

the CCA Rules need not be followed, as the same is not

applicable to the petitioner.

14) It appears the respondent No.2 in the appeal preferred

by the petitioner without considering all the aspects in a

proper perspective dismissed the same on 18.08.2007

confirming the order of the respondent No.3. However,

respondent No.1 having considered and examined all the

aspects in a proper perspective allowed the Appeal of the

petitioner and directed the respondent No.2 to reinstate the

petitioner into service vide G.O.Rt.No.1387, dated

01.07.2008.

15) It is also to be noted that subsequent to reinstating into

service, the petitioner made representations to the respondent

Nos.2 and 3 that he was paid the minimum scale of Record

Assistant as he was drawing when he was terminated in the

year, 1997 without taking note of subsequent Pay Revision

Commission scales and for regularization of services, the

respondent No.2 sought information on the subject from the

respondent No.3 vide proceedings, dated 01.07.2009 and

accordingly, the respondent No.3 submitted a report, dated

08.07.2009. In the report vide Rc.No.B1/705/2008,

dt.08.07.2009 of the respondent No.3 sent to the respondent

No.2, all the factual facts are narrated, out of which the

following paragraphs are extracted hereunder from that

report, which are very crucial for adjudication of the present

case:

"In this context, I am to submit that the Government have ordered for the reinstatement of Sri T. Subbaiah, as Record Assistant with immediate effect since there is no prima-facie and there is no evidence and justification in proceedings with further action on him

and exonerated from the charge. As per the service particulars furnished in the reference 6th cited, Sri T. Subbaiah, Record Assistant has been working since 01.09.1992 and stood at serial No.2 in the seniority wise. Has he been continued in service, his services should have been regularised on par with other petitioners in W.P.Nos.6484 and 6501 of 1997, since he acquired required qualifications for the post of Record Assistant; keeping in view the orders of Hon'ble High Court of Andhra Pradesh.

Further I submit that the percentage of establishment charges for the year 2008-2009 is less than the statutory limit of 30%.

I finally submit in view of the orders of Hon'ble High Court of Andhra Pradesh and orders of Government suitable orders may be passed considering request of Sri T. Subbaiah, Record Assistant."

16) Upon careful scrutiny of the report Dt.08-07-2009 of the

respondent No.3, it is clear that the petitioner services should

have been regularized on par with other petitioners in

W.P.Nos.6484 and 6501 of 1997 since, he acquired the

required qualifications for the post of Record Assistant,

keeping in view of the orders of this Court. But, very

surprisingly, the respondent No.2 issued the impugned Memo,

dated 15.04.2011 inventing some other new grounds and

rejected the representation of the petitioner for regularization

of service.

17) Upon perusal of the material available on record, this

court noticed that one of the colleagues of the petitioner i.e.,

G. Srinivasa Rao involved in a criminal case and due to that

reason, his case was not considered for regularization, while

considering the cases of other similarly situated persons while

issuing proceedings in Rc.No.A1/31739/97, dated 05.08.2000.

However, his services were regularized vide Rc.No.A1/429/94,

dated 19.04.2001 basing on the permission accorded by the

respondent No.2 vide his proceedings in

D.Dis.No.A1/31739/97, after considering the judgment, dated

10.03.2000 in C.C.No.398 of 1998 on the file of the III

Metropolitan Magistrate, Visakhapatnam, in which the said G.

Srinivasa Rao was acquitted from the criminal case.

18) It is unfortunate to note that the respondent Nos.2 and 3

atleast did not choose to consider the request of the petitioner

to extend the time scale of pay of Rs.4260-Rs.9520 of Revised

Pay Scales, 2003 on par with his colleagues and juniors as per

the orders of the Government and following the judgment of

this Court in Writ Petition Nos. 6484 and 6501 of 1997 and he

was paid the salary of Rs.5035/- which is the initial basic pay

of Record Assistant of Revised Pay Scales of 1993, even after

reinstatement of the petitioner into service on 09.07.2008.

19) On perusal of all the facts placed before this Court and

after careful examination of the entire material available on

record, this Court is left with no option except to come to a

conclusion that the respondent No.2 has illegally rejected the

claim of the petitioner for regularization of his services without

considering the fact that the petitioner was kept out of service

from 1997 to 2008 without any basis. Though the services of

the colleagues of the petitioner and his juniors were

regularized at the relevant time and the claim of the petitioner

was rejected illegally by the respondent No.2.

20) In the opinion of this Court, the impugned Memo, dated

15.04.2011, in which the claim of the petitioner for

regularization of his services was rejected by inventing a new

ground to reject the claim of the petitioner citing a judgment

of the Hon'ble Apex Court, which is not applicable to the facts

and circumstances of the present case. The contention of the

respondent No.2 that an illegal order cannot be a precedent in

the subsequent cases is also not tenable due to the reason

that regularizing the services of the petitioner's colleagues and

juniors at the relevant time as per the direction of this court

and basing on their eligibility was not an illegal order and as

such, the respondent No.2 is not entitled to take such stand

saying that the regularization of the petitioner's colleagues

and Juniors is an illegal action.

21) As rightly pointed out by the learned counsel for the

petitioner that the petitioner was not responsible for the

present situation and the same was caused only due to the

illegal action of the respondent Nos.2 and 3, which was finally

rectified in the year, 2008 by the respondent No.1 by ordering

reinstatement of the petitioner, as such, he cannot be treated

differently.

22) This Court is of the opinion that the respondent No.2

issued the impugned memo with non-application of mind due

to the reason that the request of the petitioner with regard to

payment of scale as rightly applicable to the petitioner was

also not considered. This Court is of the considered opinion

that the claim of the petitioner for regularization of his service

has to be considered keeping in view of the procedure as

applicable at the relevant time as and when his colleagues and

juniors were regularized into service. Basing on the facts and

circumstances of the case, this Court is holding that the

petitioner is entitled for the scale of Record Assistant which

was already granted to other similarly situated employees in

the light of the judgment, dated 03.03.2000 of this court in

W.P.No.6484 of 1997.

23) It is brought to the notice of this Court that the

petitioner died on 12.11.2017 due to heart attack leaving

behind his wife and two minor children and old aged parents.

Having considered the happenings between 1997 to 2017

basing on the correspondence between the respondent No.3

and respondent No.2 which is available on record with regard

to the petitioner's issue and after noticing the fact that from

the year 2009 i.e. after reinstatement into service also, the

deceased petitioner was paid only Rs.1535/- of 1993 pay

scales (i.e.) the pay scale in which he was working at the time

of his termination, this Court is also of the opinion that the

mental agony and financial problems being faced by the

petitioner between the period from 1997 to 2017 may be the

reason for the untimely death of the petitioner No.1 at the age

of 42 years who had left the family (i.e.) his wife and two

minor children and old aged parents in deep sorrow. If the

respondent No.2 has examined the entire issue of the

petitioner in a proper perspective and with application of mind

by following the law applicable at the relevant time to consider

the claim of the petitioner, the things would have been

different and the family of the petitioner may not be in such

an indigenous and destitute condition as on today. In view of

the same, it is to be held that the Petitioner No. 2 is entitled

for all the benefits for which her husband i.e. the deceased

petitioner was entitled and all other consequential benefits as

he died in harness.

24) The view of this court is supported by a Judgment of this

Court in B.V. Rama Lakshmi vs. A.P.S.R.T.C.1 while dealing

with an issue with regard to granting of benefits to the legal

heirs of the employee in the event of his death, pending

proceedings, it was held as extracted hereunder:

"It can be stated that in any service dispute involving the benefits accruing to the estate of the employee, in an event of the employees' death pending proceedings, the benefits arising therefrom the said deceased employee was entitled, would be treated as his estate, which can be represented by his legal heirs and representatives."

25) For the aforementioned reasons, this Court holds that

the memo issued by the respondent No.2 in Rc.No.A2/24391/

2009, dated 15.04.2011 as illegal, arbitrary, unjust and

against the principles of natural justice and it was passed in a

casual way without application of mind and as such, it is

unsustainable in the eye of law and accordingly, it is liable to

be set aside, as it is violative of Articles 14 and 21 of the

Constitution of India.

2014 (4) ALT 705

26) In the result, this writ petition is allowed with the

following directions:

(a) The Memo in Rc.No.A2/24391/2009, dated 15.04.2011