Andhra Pradesh High Court - Amravati

P Brahmaiah vs The State Of Ap on 19 October, 2022

        HONOURABLE SMT. JUSTICE V.SUJATHA

              WRIT PETITION No.7832 of 2019

ORDER:

The present Writ Petition came to be filed under Article

226 of the Constitution of India seeking the following relief:-

"to issue any writ or direction more particularly one in the nature of Writ of Mandamus declaring the proceedings of the commissioner in COE - 13021(41) /3/2017-C SEC-Endowment dt.29.8.2017, the proceedings of the Executive Officer in R.C.No.26/2017 dt.1.9.2017 directing reduction of the pay scales allowed to the Petitioners and fixing a sum of Rs.10,000/- as consolidated salary as per the report of the Regional Joint Commissioner, Tirupathi wide Lr.No.A2/2376/2017, dt.2.6.2017 as bad, illegal, arbitrary and violative of Articles 14, 19 and 21 of the Constitution of India and violative of the principles of natural justice and contrary to the rules and consequently direct the respondents to release the time scales allowed to the petitioners w.e.f. 1.9.2017 and pay arrears with all consequential benefits and pass such other orders".

2. The facts of the case are that the 1st petitioner was initially

appointed as Bhajantri in the existing vacancy on 30.11.1988,

the 2nd petitioner was appointed on 31.08.1991 on a

consolidated salary of Rs.500/-, the 3rd petitioner was appointed

on 30.11.1998 on a consolidated salary of Rs.700/- and the 4th

petitioner was appointed on 30.11.1998 on a consolidated salary

of Rs.800/- per month. While so, in pursuance of the

G.O.Ms.No.261, Revenue Department, dated 20.05.2002 and as

well as the proceedings of the Commissioner, Endowments

Department, dated 05.06.2002, the petitioners made a

representation on 01.12.2002 to the 4th respondent requesting to

extent the time scale to them, basing on which, the 4th

respondent issued proceedings dated 18.12.2002 fixing the

petitioners' time scale in R.P.S.1993 with effect from 01.04.2002

in the scale of Rs.2000-3920 with usual allowances such as

D.A., H.R.A., I.R. and C.C.A applicable thereunder and were also

extended with the benefit of R.P.S. 1999 and as well as R.P.S.

2005 by circular instructions vide Rc.No.E2/27527/2006, dated

20.09.2006 with effect from 12.02.2009, which was given effect

from 01.03.2009.

3. While the matter being so, basing on a complaint made

before the Lokayuktha by one Sri Challa Lakshmana alleging

various irregularities in the 4th respondent temple, the

Lokayuktha issued notice to the 2nd respondent on 16.03.2017

directing to submit a report, who in turn, directed the 3rd

respondent to enquire into the irregularities and submit a report

vide proceedings dated 01.05.2007. The 3rd respondent

submitted a report on 02.06.2017 duly informing the

Commissioner that an enquiry was held on 29.05.2017 in the

temple premises. While recording a finding on allegation No.2,

the 3rd respondent has found that the time scale that was

extended to the Bhajantries without obtaining any prior

permission from the Commissioner and concluded that

Bhajantries shall be paid Rs.10,000/- per month. In pursuance

of the said report, the Commissioner, Endowments i.e. the 2nd

respondent herein issued proceedings, dated 29.08.2017

revising the pay scales of the petitioners and directed the 4th

respondent to pay Rs.10,000/- to the petitioners on consolidated

basis, who in turn issued proceedings dated 01.09.2017

informing the same to the petitioners, challenging which, the

present writ petition is filed.

4. The main grievance of the petitioners is that their pay

scales were revised/reduced to Rs.10,000/- per month to be

paid on consolidated basis in pursuance of an enquiry

conducted behind them basing on a complaint raised by one Sri

Challa Lakshmana even without issuing any notice/opportunity

to the petitioner.

5. The 4th respondent filed his counter stating that the

petitioners' appointment was purely on temporary basis and

fixing and extending of pay scales are effected to the petitioners

without obtaining prior permission from the 2nd respondent,

which mistake came to be realized by the 4th respondent at a

later stage and therefore, an enquiry was conducted by the 3rd

respondent and a finding was given by the 3rd respondent stating

that illegality/ irregularity has crept in/occasioned in making

appointments and grant of pay scales in relation to the

petitioners and basing upon the said report, the 2nd respondent

had issued certain instructions on 29.07.2017 and accordingly,

pay scaled accorded to the petitioners stood withdrawn which is

neither illegal nor in violation of principles of natural justice.

6. Heard Sri V.S.K. Rama Rao, learned counsel for the

petitioners, learned Government Pleader for Endowments for

respondents 1 to 3 and Sri K.Madhava Reddy, learned Standing

Counsel for the 4th respondent.

7. A perusal of appointment orders of the 1st petitioner, who

was appointed vide order dated 30.11.1988, reads as follows:

"In exercise of the powers vested in him u/s 35(1) of the Act.30/87 of the A.P.C.H.R.I. and Endowments hereby appoints Sri Patehava Brahmaiah S/o Kondaiah as Bhajantri (Dolu) in the establishment of Sri Jaganadha Swamy Temples etc., Guntur Town on a monthly salary of Rs.335/- (Rupees Three hundred and Thirty five only) in lumpsum in the existing vacancy caused due to demise of Sri K.Siddaiah.

We informed that his appointment is purely temporary and is liable for termination at any time without any notice."

The appointment order dated 31.08.1991 issued in favour

of the 2nd petitioner reads as follows:

"Sri P.Rama Brahmaiah, S/o Kondaiah of Guntur is hereby appointed as Piper (Nadaswara Vidvan) in the establishment of Sri Venkateswara Swamy Temple, Lalapet, Guntur Town in the vacancy caused due to demise of Sri Bhairava Murthy on a consolidated monthly salary of Rs.500/- (Rupees five hundred only).

His appointment is purely temporary and he is liable for termination without notice or assigning any reasons."

The appointment order dated 30.11.1998 issued in favour

of the 3rd petitioner reads as follows:

"..... Sri K.Janardhana Rao, Guntur is hereby accepted his tender application as Dolu Vidvan in the Establishment of Sri Jagannadha Swamy etc., temples, Lalapet, Guntur town on contract basis through tender system on a consolidated salary of Rs.700/- (Rupees seven hundred only) per month.

He is directed to report for duty forthwith. This contract basis is purely temporary and liable for termination without notice at any time."

The appointment order dated 30.11.1998 issued in favour

of the 4th petitioner reads as follows:

".....Smt. K.Padmavathi, Guntur is hereby accepted her tender application as Sannai Vidvan in the Establishment of Sri Jagannadha Swamy etc., temples, Lalapet, Guntur town on contract basis through tender system on a consolidated salary of Rs.800/- (Rupees eight hundred only) per month.

She is directed to report for duty forthwith. This contract basis is purely temporary and liable for termination without notice at any time."

Admittedly, though the appointment of the petitioners was

purely on temporary basis, later on, vide proceedings dated

18.12.2002, the Revision of Pay Scales, 1993, 1999 and as well

as 2005 were extended in their favour, as they were appointed in

the existing vacancies.

8. A perusal of Sections 3 and 4 of the Office Holders and

Servants Punishment Rules, 1987 issued in pursuance of

G.O.Ms.No.830 Revenue (Endowments-I), dated 18.08.1989,

reads as follows:-

"3. In addition to the penalties specified in sub-section (1) of Section 37 of the Act, the following penalties may also be imposed by the competent authority on an office holder or servant attached to a charitable or religious institution or endowment, namely:

            (i)      Censure;
            (ii)     With-holding of increments or promotion;
            (iii)    Reduction to a lower rank in the Seniority
                     list or to a lower grade or to a lower
                     stage in a time-scale of pay; and
            (iv)     Recovery from pay of the whole or any part
                     of the pecuniary loss caused to the

Government or to a charitable or religious institution or endowment by negligence or breach of orders.

4. No order imposing, on an office-holder or servant attached to a Charitable or Religious Institution or Endowment, any of the penalties specified in Section 37 and Rule 3 above other than an order based on facts which have led to the conviction of the office-holder or servant by a Criminal Court shall be passed except after following the procedure laid down in Rule 19 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1963.

Provided that this rule Provided that this rule shall not apply where the authority competent to impose the penalty is satisfied that, for reasons to be recorded in writing, it is not reasonably practicable to hold inquiry or give opportunity as required under aforesaid Rule 19."

As per the above rule, it is clear that whenever a

punishment as enumerated in Section 37 of the Act No.30 of

1987, is intended to be imposed, the same can be imposed only

by following the procedure laid down in Rule 19 of the Andhra

Pradesh Civil Services (Classification, Control and Appeal)

Rules, 1963.

9. Now coming to Rule 19 of the Andhra Pradesh Civil

Services (Classification, Control and Appeal) Rules, 1963, which

deals with the procedure of instituting disciplinary proceedings,

reads as follows:-

"19. Authority to institute proceedings: - (1) The Government or any other authority empowered by it by general or special order may-

(a) institute disciplinary proceedings against any Government servant;

(b) direct a disciplinary authority to institute disciplinary proceedings against any Government servant on whom that disciplinary authority is

competent to impose under these rules any of the penalties specified in Rule 9 or Rule 10.

(2) A disciplinary authority competent under these rules to impose any of the penalties specified in clauses (i) to (v) of Rule 9 or in Rule 10 may institute disciplinary proceedings against any Government servant for the imposition of any of the penalties specified in [clauses (vi) to (x)] of Rule 9 notwithstanding that such disciplinary authority is not competent under these rules to impose any of the latter penalties.

10. In the present case, the fact remains is that the wages of

the petitioners were revised/reduced to Rs.10,000/- only basing

upon a report and an enquiry being conducted by the 3rd

respondent behind the petitioners in pursuance of a complaint

raised before the Lokayuktha. It is also the case of the

petitioners that neither any notice nor any opportunity was given

to the petitioners during the course of the enquiry and on the

other hand, having implemented R.P.S. 1993, 1999 and 2005,

the respondents cannot straight away revise/reduce their wages

to Rs.10,000/- to be paid on consolidated basis from 01.09.2017

duly cancelling the grant of pay scales earlier granted to the

petitioners which is admittedly bad in law and in violation of

principles of natural justice.

11. Learned counsel for the petitioners relied upon a judgment

in Union of India vs. Goel1, wherein it was held at para No.17

as follows:

"In this connection, we may add that unless the statutory rule or the specific order under which an officer is appointed to hold an enquiry so requires, the enquiry officer need not make any recommendations as to the punishment which may be imposed on the delinquent officer in case the charges framed against him are held proved at the enquiry; if, however, the enquiry officer makes any recommendations, the said recommendations like his findings on the merits are intended merely to supply appropriate material for the consideration of the Government. Neither the findings, nor the recommendations are binding on the Government, vide A.N. D'Silva v. Union of India, AIR 1962 SC 1130."

12. Learned counsel for the petitioners also relied upon a

judgment in A.N. D'Silva v. Union of India2, wherein it was

held at para No.6 as follows:

"In the communication addressed by the Enquiry Officer the punishment proposed to be imposed upon the appellant if he was found guilty of the charges could not properly be set out. The question of imposing punishment can only arise after enquiry is made and the report of the Enquiry Officer is received. It is for the punishing authority to propose the punishment and not for the enquiring authority. The latter has, when so required, to appraise the evidence, to record its conclusion and if it thinks proper to suggest the appropriate punishment. But neither the conclusion on the evidence nor the punishment which the enquiring authority may regard as appropriate is binding upon the punishing authority. In the present case after the report

1963 Law Suit (SC) 183

1962 AIR (SC) 1130

of the Enquiry Officer was received the appellant was called upon to show cause against his proposed dismissal from service. After considering the representation made by the appellant the President came to the conclusion that not dismissal but removal from service was the appropriate punishment. In imposing punishment of removal the President did not violate the guarantee of reasonable opportunity to show cause against the action proposed to be taken against the appellant. The appellant was told about the action proposed to be taken and he was afforded an opportunity to make his defence. Thereafter a lighter punishment was imposed. There is nothing on the record to show that the President found the appellant guilty of the second charge and imposed punishment proposed by the Enquiry Officer for the first charge."

13. Learned counsel for the petitioners further relied on a

judgment in Y.Prakasham and others vs. Deputy Inspector

General of Registration and Stamps, Visakhapatnam and

others3, wherein it was held at para No.10 as follows:-

"Probably, we may say, in the facts and circumstances of the case, in the absence of factual position being placed before us, it would be very difficult for us to give a clear finding whether the 1st respondent has shown proper roster points relating to each category. However, without going into that controversy, from the submissions made by the learned amicus curiae, it looks to us, the 1st respondent has not followed the procedure contemplated under Rules 23 and 25 of State and Subordinate Service Rules, inasmuch as when certain benefits conferred on a member of a service, when sought to be withdrawn, they are entitled to an opportunity in the matter. Rule 23 of the Rules make it clear that the order of appointment given to a member of a service to a higher post could be withdrawn or revised while affording an opportunity to the affected party, likewise Rule 25 of the Rules empowers, the State Government on its motion or otherwise to review any original order promoting a member of a service to a

2000 (2) ALT 201 (D.B.)

higher post, subject to affording an opportunity to the affected party. The 1st respondent passed the order of reversion of the petitioners only on the basis of a judgment of the APAT in OA No.3659 of 1996 and in the light of the decision rendered by the Supreme Court (cited supra). This order, in our view, is in clear violation of principles of natural justice and also in violation of the rules prescribed under the State and Subordinate Service Rules as none of these petitioners were parties before the Tribunal in OA No.3659 of 1996 nor the 1st respondent has made efforts to examine whether the ratio laid down by the Supreme Court in Sabharwal's case (supra) could be made applicable to the facts of this case. Added to this, the learned APAT, before whom the order of reversion issued by the 1 st respondent against these petition was questioned in the OA No.7099 of 1999, failed to decide the matter on merits, but disposed of the matter on the basis of the oral representations made by the Government Pleader and the Counsel for the un-official respondents, without going into the merits of the contentions. Looking this matter from these aspects, we are convinced, the order of the APAT in OA No.7099 of 1999 dated 30-11-1999 cannot be sustained and it is accordingly set aside. Consequently, we declare that the order passed by the 1st respondent in Proceedings No.El/1223-A/98-l, dated 26-11-1999 reverting these petitioners from the post of Sub-Registrar, Grade-II, and giving promotions to the un-official respondents 2 to 4 in their place is in clear terms of violation of Rules 23 and 25 of the Rules. Accordingly, the order passed by the 1st respondent in Proceedings No.E1/1223-A/ 98-1, dated 26-11-1999, reverting the petitioners, is set aside and the consequential order promoting the respondents 2 to 4 posting them in the places of the petitioners shall also stand quashed. The petitioners are entitled to continuance in the post of Sub-Registrar, Grade II."

14. In view of the ratio laid down in the above judgments and

in view of the facts and circumstances of the case, it is clear that

reduction of pay scale is nothing but imposing a major

punishment on the petitioners, which admittedly cannot be done

without issuing any notice. In the present case, it is an

admitted case that the punishment was imposed behind the

back of the petitioners basing on a complaint made by some

other person before the Lokayuktha, in which case, the

petitioners are no way concerned and thereafter in pursuance of

the said complaint also, the respondents did not even conduct

any enquiry by duly issuing notice or giving any opportunity to

the petitioners, but straight away revised/reduced their salary to