Andhra Pradesh High Court - Amravati

Ch Ramesh vs The Divisional Forest Officer, on 6 December, 2022

Bench: Venkateswarlu Nimmagadda

 HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

                 WRIT PETITION No. 20065 of 2019

ORDER:

Heard Sri P.V.Ramana, learned counsel for the petitioner, and

learned Government Pleader for Services-I appearing for the

respondents.

2. This writ petition is filed to declare the action of the respondents

in not continuing the petitioner in service as Forest Section Officer in

spite of submitting an application dated 08.08.2019 for issuing posting

order, as illegal, arbitrary and violative of Articles 14, 16 and 21 of the

Constitution of India.

3. The case of the petitioner is that initially, the Government of

Andhra Pradesh issued G.O.Ms.No.144, Environment, Forests, Science

& Technology (FOR.II) Department, dated 15.11.2006, according

permission to the 3rd respondent to engage 69 ministerial staff with

retired employees and also to engage 59 ex-servicemen for effective

restorative and management activities of Kolleru Wildlife Sanctuary on

contractual basis. Thereafter, the said G.O. was amended vide

G.O.Ms.No.152, Environment, Forests, Science & Technology (FOR.II)

Department, dated 07.12.2006, regarding engagement of ministerial

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staff with retired employees or suitable persons having requisite

qualification prescribed for the post. Accordingly, the 1st respondent

issued a notification dated 21.11.2006, pursuant to which, the petitioner

applied for the post of Forest Section Officer and he was selected for the

said post. After entering into an agreement with the respondent

authorities, the petitioner was given appointment order on 01.01.2007.

It is also the case of the petitioner that due to ill-health, he submitted an

application dated 01.02.2018 to the 1st respondent for grant of casual

leave initially for three days i.e., from 02.02.2018 to 04.02.2018 and the

same was granted. Thereafter, he submitted another application dated

04.02.2018 for grant of leave from 04.02.2018 to 04.04.2018 and later,

he submitted one more application dated 05.04.2018 for grant of leave

from 05.04.2018 to 05.07.2018 on the advice of the doctor to undergo a

surgery. The petitioner sent the medical certificate issued by Dr. G.

Apparao, Sri Devi Nursing Home, Palakol, to the 1st respondent by

registered post and the same was returned with an endorsement

"refused". Subsequently, the petitioner submitted an application dated

08.08.2009 to the 1st respondent seeking for regularization of the leave

period from 05.04.2008 to 21.07.2019 as loss of pay and for issuance of

posting orders. But, there is no response from the 1st respondent till date.

Hence the writ petition.

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4. The 1st respondent filed a counter affidavit admitting the

appointment of the petitioner as Forest Section Officer and submission

of application for grant of leave from 02.02.2018 to 04.02.2018 and

05.04.2018 to 05.07.2018. It is stated that the petitioner has to submit

leave application immediately after expiry of his leave by 05.07.2018.

But, he did not submit any leave application till 08.08.2019 though his

leave was expired on 05.07.2018. He was on unauthorized absence

from duty for 12 months and 16 days i.e., from 06.07.2018 to

08.08.2019. Further, the petitioner did not communicate with the 1st

respondent since 10.05.2018 to 08.08.2019 and he has been absconding

since 06.07.2018. The petitioner did not submit any medical leave

application from 10.05.2018 till 08.08.2019. It was proposed to refer

the petitioner to the Medical Board and the Medical Board allotted the

schedule for medical examination of the petitioner on 23.02.2018 and

the same was informed to the petitioner. However, the petitioner failed

to attend the Medical Board.

i) The petitioner approached the 1st respondent on 08.08.2019 with

a physical certificate which reveals that the petitioner was absent to duty

from 05.04.2018 to 21.07.2019. On verification of the same, it is found

that the dates of illness mentioned in the fitness certificate are not

tallying with that of those dates mentioned in the leave application. The

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petitioner reported before the 1st respondent on 08.08.2019 with a

representation dated 23.07.2019 seeking for posting orders. As per

Condition No.8 of the contractual agreement entered between the

petitioner and the respondents, the first party will presume that the

second party had abandoned the engagement on his own accord and the

second party shall be liable to pay one month emoluments to the first

party in lieu of notice for abandoning service in such a manner. The

petitioner has absconded from duty without proper leave and also not

attended before the Medical Board, thereby he violated Condition No.8

of the contractual agreement. Further, according to Note (4) of

G.O.Ms.No.260, General Administration (SER.C) Department, dated

04.09.2003, in all cases of unauthorized absence to duty for continuous

period exceeding one year, the penalty of removal from service shall be

imposed on the Government employee, after duly following the

procedure laid down in the Andhra Pradesh Civil Services (CCA) Rules,

1991 (for short "the CCA Rules"). The agreement was lapsed by

31.03.2018. Therefore, the petitioner has no right to seek CCA rules in

this case. For the aforesaid reasons, the writ petition is liable to be

dismissed.

NV,J W.P.No.20065 of 2019

5. Learned counsel for the petitioner would submit that the 1st

respondent sanctioned 59 posts of Forest Section Officers by way of a

direct recruitment vide G.O.Ms.No.144 dated 15.11.2006. Pursuant to

the sanction, a notification was issued and the process of recruitment

was completed as per the procedure contemplated for appointment of a

regular employee. The petitioner was selected as Forest Section Officer

and appointed on 15.12.2006 on contract basis against regular

sanctioned posts. He would further submit that the petitioner has

discharged his duties as per the terms and conditions of the agreement

from 2007 to 2018 without there being any break and blemish. He

further submits that the petitioner submitted a leave application on

01.02.2018 for a period of two days and the same was sanctioned and he

submitted another application on 04.02.2018 for sanction of leave from

04.02.2018 to 04.04.2018 and thereafter, he submitted an application for

extension of leave from 05.04.2018 to 05.07.2018. He further submits

that the respondent authorities neither sanctioned nor rejected the

application by express proceedings. Finally, the petitioner submitted an

application for continuing his services along with medical certificate for

his non-duty period. Even after receipt of the application and medical

certificate, the respondent authorities neither issued any proceedings nor

rejected the application of the petitioner. He further submits that the

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petitioner was not communicated regarding rejection of leave and also

any order under which the case of the petitioner was referred to the

Medical Board and no proof was filed along with the counter to show

that the referral order of Medical Board was served upon the petitioner.

He further submits that apart from the petitioner, all others have been

continuing and the petitioner cannot be deprived of the benefit. He

further submits that as per condition No.9 of the contract agreement

entered between the petitioner and the respondents dated 31.03.2018, the

CCA Rules shall be applicable to the petitioner in respect of conduct and

disciplinary matter as in the case of a regular employee of the

Department. In view of the said condition, the respondents shall follow

the procedure as contemplated under the CCS Rules for initiating any

disciplinary proceedings against the petitioner. Without adopting the

same, the services of the petitioner cannot be discontinued on permanent

basis on the ground that the petitioner is only a contract employee and

his contract period was already over and there is no renewal of contract.

i) The learned counsel would further submit that the A. P. Forest

Subordinate Service Rules (Special Rules) provided one year period and

renewing the same from 2007 to till this date is a device adopted and

this Court can look into the nature of original appointment for all

purposes under Articles 14, 16 and 21 of the Constitution of India.

NV,J W.P.No.20065 of 2019

Once the appointment is made after following regular rules governing

the service conditions for all purposes for appointment is to be treated as

substantive appointment and thereby, the persons are entitled for

constitutional protections under Articles 14, 16 and 21 of the

Constitution of India. He further submits that as per condition No.9 of

the agreement, the petitioner shall abide by the departmental rules and

regulations applicable under the CCA Rules in respect of disciplinary

matters as in the case of regular employees of the Department and the 1st

respondent is bound by the same without following Rule 20 of the CCA

Rules and therefore, the question of discontinuation of the petitioner

does not arise.

ii) The learned counsel for the petitioner would also submit that

once the respondents failed to follow even the terms and conditions of

the agreement i.e., condition No.9, the period commencing from

08.08.2019 i.e., the date on which the petitioner submitted an

application for permitting him to continue in service till the order for

continuation is issued, is to be treated as on duty, since the petitioner

was denied the employment arbitrary and illegally.

6. On the other hand, learned Government Pleader for Services-I

would submit that except the leave application for two days, all other

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leave applications were not sanctioned and the same was intimated over

phone to the petitioner. The services of the petitioner are on contract in

nature and no agreement was entered between the petitioner and the

respondents after completion of the contract agreement by 31.03.2018

and there is no agreement for the year 2019-2020. He would contend

that as per condition No.8 of the agreement, once the petitioner is absent

for a period of ten days after expiry of the leave, the contract shall

automatically come to an end without any notice or information from

the first party. The first party will presume that the second party has

abandoned the engagement of his own accord and the second party shall

be liable to pay one month emoluments to the first party in lieu of notice

for abandoning the services in such a manner. Therefore, since there is

no continuation of the agreement and as the petitioner has absconded for

a period of 12 months 16 days, he is not entitled for the relief claimed by

him. He would further contend that the medical leave of the petitioner

for the period from 04.02.2018 to 04.04.2018 was referred to the

Medical Board vide proceedings dated 14.02.2018. Even though

schedule was given to the petitioner to appear before the Medical Board,

he failed to attend the Medical Board as per schedule. He would further

submit that the petitioner approached the 1st respondent on 08.08.2019

with a representation dated 23.07.2019 and requested him to issue

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necessary posting orders and also submitted a medical certificate, since

he suffered from ill-health from 05.04.2018 to 21.07.2019 which is a

fair document to get favourable benefit. He would also submit that the

agreement period was lapsed by 31.03.2018 and as per condition No.8,

the petitioner was absconded from duty for a period of more than ten

days. Therefore, the rights of the petitioner were exhausted by

31.03.2018 and the 1st respondent need not respond to the leave

application of the petitioner. Hence, the writ petition is liable to be

dismissed.

7. Having regard to the submissions made by the learned counsel

for the petitioner as well as the learned Government Pleader, it is an

admitted fact that the 1st respondent sanctioned 59 posts of Forest

Section Officers through direct recruitment. It is also an admitted fact

that the petitioner along with others were recruited by following the due

procedure as contemplated for appointment of a regular employee as per

the A.P. Forest Subordinate Services Rules (Special Rules). It is also an

admitted fact that the petitioner was appointed against a regular

sanctioned post, but on time period/temporary vacancy.

8. The contention of the learned counsel for the petitioner that the

petitioner had rendered 11 years of service on contract basis without any

NV,J W.P.No.20065 of 2019

break and in view of condition No.9, the respondents shall abide by the

CCA Rules for initiating any disciplinary action against the petitioner

and therefore, without following the CCA Rules and contrary to its own

condition No.9 of the agreement, the petitioner cannot be discontinued

from services, is sustainable for the reason that condition No.9 of the

contract agreement entered between the petitioner and the respondents

from 01.04.2007 to 31.03.2018 categorically reveals that the CCA Rules

shall be applicable to the petitioner. The other contention of the learned

counsel for the petitioner that since the petitioner was appointed after

following the regular rules governing the service conditions, such

appointment is to be treated as substantive appointment and thereby, the

persons so appointed are entitled for constitutional protection under

Articles 14, 16 and 21 of the Constitution of India, is also sustainable for

the reason that the petitioner was appointed against the regular

sanctioned post as per the procedure contemplated for a regular

employee and also for the reason that even a contract employee is also

entitled for the benefits under Articles 14, 16 and 21 of the Constitution

of India. The other contention of the petitioner that the respondents did

not observe Rule 20 of the CCA Rules before taking action for any

misconduct, negligence or unauthorised absence of the petitioner from

duty, is also to be considered for the reason that the

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petitioner was never issued any notice calling upon him to submit an

explanation nor was he communicated as to rejection of the leave

application and also reference to the Medical Board in pursuance of his

leave applications. Therefore, the respondents neither followed the due

process of law as required under Rule 20 of the CCA Rules nor

observed the principles of natural justice.

9. The contention of the learned Government Pleader that since

there is no agreement between the petitioner and the respondents for the

year 2019-2020 and as the petitioner was appointed on contract basis,

the continuation of services of the petitioner does not arise, is not

tenable for the reason that the petitioner was appointed even though on

contract basis, but against the sanctioned vacant posts. After following

the regular procedure, which is meant for regular employees, more so,

after rendering 11 years of services, without observing the principles of

natural justice and without following due process, the services of the

petitioner cannot be discontinued. The other contention of the learned

Government Pleader that in view of condition No.8 of the agreement, in

the absence of an employee from duty for a continuous period of ten

days after expiry of the leave, the contract shall automatically come to

an end without any notice or intimation from the respondents and in

view of that the petitioner was absconded from duty for a period of 12

NV,J W.P.No.20065 of 2019

months without sanctioning the leave, his services automatically come

to an end, is not acceptable, in view of non-observation of condition

No.8 of the agreement which contemplates that the respondents shall be

liable to pay one month emoluments to the first party in lieu of notice

for abandoning the services of the petitioner in such a manner. The

other contention of the learned Government Pleader that the leave

application of the petitioner from 04.02.2018 to 04.04.2018 was referred

to the Medical Board vide proceedings dated 14.02.2018 and the

Medical Board gave schedule for medical examination and informed to

the office of the petitioner i.e., the 1st respondent, but the petitioner

failed to attend the Medical Board and therefore, the petitioner is not

entitled for continuation of his services in view of condition No.8 of the

agreement, is also not sustainable, due to the reason that the respondents

did not choose to produce any evidence before the Court in proof of

service of orders dated 14.02.2018 and 20.02.2018 upon the petitioner.

Admittedly, the petitioner is out of duties. So, sending notices to his

office is nothing but wilful act on the part of the respondents under

which the case of the petitioner was referred to the Medical Board.

Moreover, in the absence of any express rejection regarding the leave

applications submitted by the petitioner, it can be presumed that the

leave applications of the petitioner have been sanctioned by the

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respondents. In view of that, it cannot be said that the petitioner was

absent from duties for a period of more than 12 months unauthorisedly.

10. In K. Ragupathi Vs. State of Uttar Pradesh1, the Hon'ble

Supreme Court held in paras 10, 14 and 15 of its judgment as under:

"10. It is thus clear that the appellant was appointed after he underwent the entire selection process. Even as per the University, though the appointment shows that it is on a contractual basis, for all the purposes, it is on a regular basis. It could thus be seen that even for the appointment on a contractual basis in the said University, a candidate is required to undergo the entire selection process. Though he is appointed on a contractual basis, his terms and conditions are almost like a regular employee. It will be relevant to note that the Annual Performance Assessment Report (for short "APAR") of the appellant during the period 2012-2013 show his performance to be outstanding. Every other parameter in his APAR is shown as excellent. With regard to his integrity, it is mentioned that there is nothing against the appellant adversely reflecting his integrity. It is further stated in his APAR that he enjoys a good reputation and his integrity is good.

14. It could thus be seen that though the communication of the said University dated 12.8.2014 states that the appellant's contractual period has expired, in the facts of the present case, it would reveal that his services were discontinued on account of the allegation made against him by the Dean of the said

(2022) 6 SCC 346

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University. Since even according to the said University, though the employment was contractual but the employee was entitled to get all the benefits of a regular employee, we find that in the facts of the present case, the appellant's services could not have been terminated without following the principles of natural justice. We therefore find that the present appeal deserves to be allowed on this short ground.

15. In the result, the impugned order dated 23.5.2018 passed by the High Court of Judicature at Allahabad, thereby dismissing the writ petition filed by the appellant and the communication passed by the said university dated 12.8.2014, thereby discontinuing the services of the appellant, are quashed and set aside. The appellant is directed to be reinstated with continuity in service. However, the appellant would not be entitled to any back wages."

11. In view of the facts and circumstances as mentioned above, this

Court is of the opinion that the judgment of the Hon'ble Apex Court

referred to supra is applicable to the facts of the case on hand. Further,

it is an admitted fact that the respondent authorities neither followed the

due process of law as required under condition No.9 of the agreement

for which they have to follow the procedure as per the CCA Rules

which are applicable for regular employees nor observed the principles

of natural justice on any occasion, more particularly, either for granting

or rejecting the leave applications of the petitioner or at the time of

serving notice about the reference to the Medical Board as well as the

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schedule of the Medical Board to the petitioner but serving the same to