N. Vijay Kumar vs The State Of Ap
2021 Latest Caselaw 832 AP

Citation : 2021 Latest Caselaw 832 AP
Judgement Date : 15 February, 2021

Andhra Pradesh High Court - Amravati

N. Vijay Kumar vs The State Of Ap on 15 February, 2021

Bench: M.Satyanarayana Murthy

     THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                   WRIT PETITION No.3601 OF 2021

ORDER:-


         This   writ    petition   is   filed    under     Article   226     of   the

Constitution of India seeking the following relief:-

           "......pleased      to issue a     writ,    order   or   direction,   more
     particularly one in the nature of WRIT OF MANDAMUS and after
     calling for the records pertaining to the impugned order vide
     Rc.No.18022/45/VIG/2019, dated 14.06.2019 passed by the 2nd
     respondent awarding the punishment of censure and treating the

suspension period as EOL (Extra Ordinary Leave) and set aside the same by declaring as illegal, arbitrary, vagueness of charge, unconstitutional, contrary to the APCCA Rules and violative of Articles 14, 16 and 21 of the Constitution of India and pass such other order ....."

2. Heard Sri G.Tuhin Kumar, learned counsel for the petitioner,

and the learned Government Pleader for Services - III appearing for

the respondents.

3. Initially, the petitioner was appointed as Junior Assistant on

compassionate grounds on 7.12.2009 and posted in the office of

D.C.H.S., West Godavari District. The services of the petitioner

were regularized by an order, dated 7.2.2011, in the category of

Junior Assistant and later, transferred to the office of the

Commissioner, A.P.Vaidya Vidhana Parishad under 25% quota on

10.3.2011. The probation of this petitioner was declared in the

category of Junior Assistant on 9.1.2012.

The petitioner was promoted as Senior Assistant on 6.4.2013

and his probation was declared in that category on 28.4.2014. By

virtue of G.O.Ms.No.103, HM & FW, dated 4.8.2019, the allocation

was finally done and presently, he was allotted to Telangana

Vaidya Vidhana Parishad i.e., respondent No.3 herein.

On 26.4.2019, the petitioner was placed under suspension

by respondent No.2 vide Rc.No.18022/45/VIG/2019. The

petitioner submitted a representation, dated 3.5.2019, to

respondent No.2 requesting to revoke the suspension order and

reinstate him into service but no purpose was served. However, on

17.5.2019, vide Rc.No.18022/45/VIG/2019, his suspension order

was revoked and he was reinstated into service. On 21.5.2019,

vide proceedings Rc.No.18022/45/VIG/2019/VC/2019, a Charge

Memo was issued calling for written statement of this petitioner for

a sole charge. The petitioner submitted his objections/explanation

on 3.6.2019. On 14.6.2019, respondent No.2, vide proceedings

Rc.No.18022/45/VIG/2019, awarded punishment of censure and

treated the suspension period as Extra Ordinary Leave.

The petitioner now challenged the punishment imposed

against him raising several contentions viz., the order imposing

punishment of minor penalty against this petitioner is contrary to

law and that it is violative of Andhra Pradesh Civil Services

(Classification, Control and Appeal) Rules, 1991 and the order is

vague and requested to set aside the same.

4. During hearing, Sri G.Tuhin Kumar, learned counsel for the

petitioner, reiterated the contentions and requested to set aside the

impugned order.

5. Learned Government Pleader for Services - III appearing for

the respondents contended that a statutory remedy of appeal is

available under Rule 33(1) of A.P.C.S.(CCA) Rules and when a

statutory remedy is available, the petitioner cannot invoke the

jurisdiction of this Court directly under Article 226 of the

Constitution of India.

6. Undoubtedly, the impugned order is passed imposing

penalty of censure treating the period of suspension as Extra

Ordinary Leave (EOL) exercising power under F.R.53(b) of the

Andhra Pradesh Fundamental Rules but the same was questioned

on various grounds. Those grounds can be urged before the

appellate authority, as an appeal lies against the order impugned

under Rule 33 of A.P.C.S. (CCA) Rules.

7. Rule 33 of A.P.C.S. (CCA) Rules reads as under:-

"33. Orders against which appeal lies: - (1) Subject to the provisions of Rule 32 a Government servant may prefer an appeal, as hereinafter provided against all or any of the following orders, namely :

(i) an order of suspension made or deemed to have been made under Rule 8;

(ii) an order imposing any of the penalties specified in Rule 9 or Rule 10 whether made by the disciplinary authority or by an appellate or revising authority;

(iii) an order enhancing any penalty imposed under Rule 9 or Rule 10;

(iv) an order discharging him in accordance with the terms of his contract, if he has been engaged on a contract for a fixed or for an indefinite period and has rendered under either form of contract, continuous service for a period exceeding five years at the time when his services are so discharged; and

(v) an order reducing or withholding the maximum pension, including an additional pension, admissible to him under the rules governing pension.

(2) Subject to the provisions of Rule 32, a member of a subordinate service may, as here-in-after provided, prefer an appeal against an order passed by an authority subordinate to

the Government (i) varying to his disadvantage his conditions of service, pay, allowances or pension as regulated in rules or in a contract of service, and (ii) interpreting to his disadvantage the provisions of any rules or contract of service whereby his conditions of service, pay, allowance or pension are regulated.

Explanation :- In this rule, the expressions 'Government Servant' and 'Member of a Subordinate Service' include a person who has ceased to be in Government Service."

Thus, an appeal is provided against the impugned order but

without preferring the appeal against the impugned order, the

petitioner straight away approached this Court invoking

discretionary jurisdiction of this Court under Article 226 of the

Constitution of India. But this Court cannot exercise such

jurisdiction when a statutory remedy of appeal is available to the

petitioner in view of the law declared by the Apex Court in Genpact

India Private Limited vs. Deputy Commissioner of Income Tax

and another1. By applying the principle laid down in the

judgment referred above, the petitioner is directed to approach the

appellate authority in terms of Rule 33 of A.P.C.S. (CCA) Rules.

8. With the above direction, this Writ Petition is disposed of at