Katta Venkata Balaji vs The Secretary
2022 Latest Caselaw 8059 AP

 THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

              WRIT PETITION No.24480 OF 2020

ORDER:

This Writ Petition is filed under Article 226 of the

Constitution of India seeking a writ of mandamus declaring the

impugned Memo No.CV&SO/SO/AS.Vig/F.No.1037/2017,

C.No.534/2017, D.No.280/17, dated 28.12.2017 issued by the

respondent-Andhra Pradesh Power Generation Corporation

Limited (APGENCO) as being illegal, arbitrary, unjust, violative of

Articles 14, 16 and 21 of the Constitution of India and,

consequently, prayed to hold that the petitioner is entitled for

counting total service rendered by him in the post of Police

Constable by duly extending pay protection for the service

rendered by him in the post of Police Constable (AR & Civil)

consequent on his appointment to the post of Fireman in terms

of Fundamental Rule No.22(a)(iv) of the Fundamental Rules read

with Rule 26(1) of the Andhra Pradesh Revised Pension Rules,

1980, with all consequential and attendant benefits including

carry forwarding the leaves, et., by duly extending the judgment

of this Court in W.P.No.34269 of 2016 dated 20.10.2016.

2. The case of the petitioner is that he was originally

recruited as Police Constable (Armed Reserve) with effect from

02.02.2008 and subsequently, he appeared for direct

recruitment to the post of Police Constable (Civil) and selected to

the said post in Krishna District, vide D.O.No.38/2012,

C.No.102/A2/2009, dated 19.01.2012 and while discharging his

duties as Police Constable, he applied for the post in the

respondent-Corporation, which was notified vide Advertisement

No.01/J.S. (PER)/2013 dated 22.04.2013, wherein the

respondent-Corporation has invited applications from the eligible

candidates for direct recruitment to the post of Fireman and

Security Guards and since the petitioner is eligible and qualified

for the said post, he selected with Hall Ticket No.32725 and the

petitioner was appointed as Fireman, vide proceedings

No.G.O.O.No.445/JS (Per)/2016 dated 10.03.2016 with the time

scale of pay of Rs.18725-34775 with usual allowances. It is the

further case of the petitioner that prior to appointment as

Fireman in the respondent-Corporation, he worked as Police

Constable (A.R.) and (Civil) for a period of nearly 8 years and

according to Rule 26 of the Andhra Pradesh Revised Pension

Rules, 1980, he is entitled for pay protection. While discharging

his duties as Fireman, he made a representation on 28.11.2017

to the respondents 2 and 3 herein requesting to count his past

service as A.P.Police Constable to the APGENCO Fireman for the

purpose of pension and arrears and to carry forward his leave

accounts, GIS and other benefits from A.P.State Police Constable

and also to regularize his service for continuation of pension,

service and other benefits. The said representation came to be

rejected by the respondent-Corporation after careful examination

of the Service Regulations, stating that the re-appointment of

such person to any service shall be treated in the same way as a

first appointment to such service by direct recruitment and all

regulations governing such appointment shall apply and all such

re-appointments, he shall not be entitled to count any portion of

his previous service for any benefit of concession admissible

under any regulation or order. Accordingly, the representation

filed by the petitioner was rejected. Aggrieved by the said

rejection of the representation, the present Writ Petition came to

be filed and the petitioner relied on Rule 26 of the Andhra

Pradesh Revised Pension Rules, 1980 and Fundamental Rule

22(a)(iv), which is extracted hereunder for better understanding:-

"The pay of a regular Government Servant (not appointed under emergency provisions) when appointed directly to another post, under the Government on selection by Public Service Commission, shall be fixed in the new post at a stage which is not lower than the pay drawn by him in the earlier post."

3. The learned counsel for the petitioner would submit

that basing on the above said provisions, the petitioner is

entitled for pay protection in the post of Fireman and he also

relied on the judgment of a Division Bench of this Court in the

case of The Commissioner of Police, Vijayawada City,

Vijayawada, Krishna District and others v. A.Vanamala Rao and

others in Writ Petition No.34269 of 2016 dated 20.10.2016 and

he would further submit that the resignation submitted by him

to the post of A.P.Police Constable is a technical resignation for

the purpose of the present post and that does not disentitle the

petitioner to claim service benefits as indicated above.

4. Learned counsel for the respondent-Corporation filed

counter and he would submit that after careful examination of

APSEB Service Regulations Part - (I) Regulation 37(b), the

Respondent-Corporation has rightly issued rejection orders to

the petitioner vide Memo No.CV&SO/AS.Vig/F.No.1037/2017

/C.No.534/2017, D.No.280/17 dated 28.12.2017, which is

reproduced hereunder:

"(b) a member of service, shall if he resigns his appointment, forfeit not only the service rendered by him in the particular post held by him at the time of resignation but all his previous service a under the Board and the Government, if any.

The reappointment of such person to any service hall be treated in the same way as a first appointment to such service by Direct Recruitment and all regulations governing such appointment shall apply; and such reappointments he shall not be entitled to count any portion of his previous service for any benefit of concession admissible under any regulation or order. Therefore, the request of the petitioner was summarily rejected."

5. Learned counsel for the respondent-Corporation

would further submit that the Memo No.Addl.Secy/DS(L&P)/

AS(L)/PO(IR)/JPO-1/1065/03 dated 16.10.2008 is not

applicable to them on two grounds, i.e., the petitioner was

appointed as Police Constable (Armed Reserve) on 02.02.2008

and he was selected to the post of Police Constable (Civil) and he

was posted in Krishna District on 19.01.2012 and the employees

appointed prior to 01.02.1999 are covered under Andhra

Pradesh Revised Pension Rules, 1980 and G.P.F. Regulations

and the employees joined in APTRANSCO after 01.02.1999 by

direct recruitment after submitting a technical resignation, they

are entitled for pay protection as per the Andhra Pradesh

Revised Pension Rules, 1980 and G.P.F. Regulations instead of

Employees' Provident Funds and Miscellaneous Provisions Act,

1952. The APTRANSCO Memo is not applicable to the petitioner

and not binding on to the respondents herein, though the

APTRANSCO is sister concern, as their Regulations are different

from the APRANSCO. Learned counsel would further submit

that the judgment relied on by the petitioner is not applicable to

the present facts of the case and his resignation is not technical

resignation and as per the service conditions of the APGENCO,

they abide by their own regulations and as per the Regulations of

the APTRANSCO, the petitioner is not entitled to count his past

service for the purpose pension, service and other benefits.

6. The contention of the petitioner is that he submitted

his resignation as tendered by the respondents for technical

formalities and his pay should be fixed counting the past service

under Fundamental Rule 22(a)(iv), which reads as under:

"The pay of a regular Government Servant (not appointed under emergency provisions) when appointed directly to another post, under the Government on selection by Public Service Commission, shall be fixed in the new post at a stage which is not lower than the pay drawn by him in the earlier post."

and hence, there shall be no forfeiture of past service in the

provided benefit under Fundamental Rule 22(a)(iv) to which they

are otherwise entitled and in view of the same, the impugned

order suffers from manifest illegality.

7. The contention of the respondent-Corporation is that

the petitioner was admittedly applied for the post of Fireman and

got selected in terms of the notification on direct recruitment and

was issued appointment order on 10.03.2016 and it was

mentioned in the said appointment order that the provisions of

the Employees' Provident Funds and Miscellaneous Provisions

Act, 1952, are applicable and the petitioner herein has agreed for

those conditions and accepted his appointment order. It is the

further contention of the respondents that neither in the

recruitment notification nor in the appointment order mentioned

any kind of pay protection to all the employees recruited through

direct recruitment and the respondent-Corporation cannot now

extent the benefit of pay protection or any other service benefits,

in the absence of any such beneficial clause in the notification or

appointment order.

8. As per Regulation 37 of the Andhra Pradesh State

Electricity Board Service Regulations, a member of service shall,

if he resigns his appointment forfeit not only the service rendered

by him in the particular post held by him at the time of

resignation but all his previous service under the provisions and

the re-appointment of such person to any service shall be treated

in the same way as a first appointment to such service by direct

recruitment. In view of the said Regulation, the petitioner is not

entitled to seek any pay protection or for any other purposes for

the services he rendered as Police Constable (A.R.) and Civil and

the judgment relied on by the petitioner herein is not applicable

to the facts of the present case, as the applicant therein as a

Constable in Armed Reserve Police and he applied for the post of

Civil Police Constable and the Fundamental Right 22(a)(iv) and

the Andhra Pradesh Revised Pension Rules, 1980, are applicable

to the applicant therein. In the present case, the above said

Fundamental Rule or the provisions of the Andhra Pradesh

Revised Pension Rules, 1980, are not applicable to the

respondent-Corporation. Hence, in view of these reasons, the

order passed by a Division Bench of this Court in W.P.No.34269

of 2016, on which reliance is placed by the petitioner, is not

applicable to the facts of the present case, as the respondent-

Corporation is having its own Regulations as they were not

covered under the A.P.Revised Pension Rules and in view of the

Regulation 37 of the APGENCO, the petitioner is not entitled for

any relief. The Rules framed in exercise of the powers conferred

under Article 309 of the Constitution of India are not applicable

to the employees of Public Sector Undertakings (PSUs), as they

are not civil servants and are not entitled to protection afforded

by Article 311 of the Constitution of India. Mere fact that a

Corporate body or Cooperative Society answers the definition of a

'State' does not make it the 'State Government' nor will the

employees of such a body become holders of civil posts or

employees of the State Government, even if the Corporation/

Company/Society is held to be a 'State' under Article 12 of the

Constitution of India, it is an independent juristic entity and

cannot be identified with or treated as the State Government. No

doubt, the public sector undertakings are instrumentalities of

the State under Article 12 of the Constitution of India and are

governed by Part-III of the Constitution of India, that does not

make the employees of these corporate bodies, government

employees and the corporate bodies are independent entities and

their employees cannot claim parity with the employees of the

State Government. The petitioner herein relied on the

Fundamental Rules 22(a)(iv), which are made under Article 309

of the Constitution of India and those Rules are not applicable to

the respondent-Corporation. Hence, the petitioner cannot rely on

the above said Rule for the relief claimed in the Writ Petition. As

rightly contested by the learned counsel for the respondent-

Corporation, the respondents framed their own Regulations for

the purpose of their employees. In view of the foregoing reasons,

the petitioner herein is not entitled for the relief claimed for

counting his past service rendered by him in the post of Police

Constable. In view of the same, the Writ Petition fails. Hence,

the petitioner is not entitled for the relief claimed in the present

Writ Petition and the impugned rejection order is in accordance

with law. Therefore, this Court finds no flaw in the impugned

order.

9. Accordingly, this Writ Petition is dismissed. There

shall be no order as to costs of the Writ Petition.

As a sequel, interlocutory applications pending, if any, in

this Writ Petition shall stand closed.

________________________________________ JUSTICE TARLADA RAJASEKHAR RAO

Date: 28.10.2022 siva

THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

WRIT PETITION No.24480 OF 2020

Date: 28.10.2022

siva