Prathipati Ramakrishna vs The State Of Andhra Pradesh
2023 Latest Caselaw 4141 AP

 IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI

THE HON'BLE SRI JUSTICE GANNAMANENI RAMAKRISHNA PRASAD

             WRIT PETITION No. 34648 of 2022


ORDER:

Heard Sri N.Ashwani Kumar, Ld. Counsel for

the Writ Petitioner and Sri T.G.S. Srivastava, Ld.

Government Pleader for Services-I.

2. The prayer made in the present Writ Petition is

as under:

"It is prayed that this Hon‟ble Court in the interests of justice be pleased to issue an appropriate writ or order or direction more particular in the nature of "Writ of Mandamus" declaring the action of the Respondents, more particularly the 2nd Respondent in issuing the retirement / relieving proceedings vide Proc.No.SAAP/ A1/ 11024/2018, dated 18.10.2022 (served through E-Mail dated 20.10.2022), without being put on notice, without following the due process of law and in violation of principles of natural justice, without affording any opportunity of being heard, as being illegal, arbitrary and in violation of principles of natural justice, in violation Sub-Rule (2) of Rule

and in violation of Articles 14, 16 and 21 of the Constitution of India and consequently to set-aside the retirement

/ relieving proceedings vide Proc.No.SAAP /A1/ 11024/2018, dated 18.10.2022 and pass such orders as this Hon‟ble Court deems fit and proper to the circumstances of the case"

FACTS OF THE CASE:

3. Sri N.Ashwani Kumar, Ld. Counsel for the Writ

Petitioner has submitted the facts in this case to the effect

that the Writ Petitioner was appointed as Kho-Kho &

Kabaddi Coach on 23.09.1989, and that he was kept on

probation; that on completion of probation period, on

01.01.1993 the Writ Petitioner was regularised in service;

that, over the years, the Writ Petitioner has served as Kho-

Kho & Kabaddi Coach in the Districts of Chittoor,

Prakasam and West Godavari; that he was promoted in the

year 2000 as Chief Coach and was posted at Kakinada

District; that he worked as Chief Coach upto 2006; that the

Writ Petitioner was posted at Vizianagaram District as

District Sports Development Officer (DSDO) in the year

2006; thereafter under the same designation (DSDO), the

Writ Petitioner was posted in Guntur District and Krishna

District; that in the year 2016, the Writ Petitioner was

posted at the Head Quarters of the Respondent No.2

namely The Sports Authority of Andhra Pradesh (SAAP) at

Vijayawada as Sports Officer (Grade-I); and, that during

this period, the Writ Petitioner was diagnosed with a heart-

ailment (Ischemic Heart Disease), and that, he had been

taking treatment. It is further submitted that later the

Writ Petitioner was posted as Assistant Director (Technical)

& Administrative Officer in the Head Quarters of the

Respondent No.2 at Vijayawada.

CAUSE OF ACTION:

4. Ld. Counsel for the Writ Petitioner further

submitted that vide E-mail dated 20.10.2022, the Writ

Petitioner was compulsorily retired from service vide

Proceedings No.SAAP/A1/11024/2018, dated 18.10.2022

by invoking Sub-Rule (2) of Rule 25 of G.O.Ms.No.25,

Employment Generation and Youth Services (YSS)

Department, dated 04.05.1993. The Ld. Counsel for the

Writ Petitioner would submit the sequence of events to the

effect that while working as Assistant Director (Technical)

& Administrative Officer at Respondent No.2 Head

Quarters, vide Order dated 07.07.2022 bearing Proceedings

No.SAAP/A1/2368/2022 the Writ Petitioner was

transferred and posted to District Sports Authority, Alluri

Sita Rama Raju Paderu District as Grade-I Coach (for Kho-

Kho & Kabaddi) on „administrative grounds‟; that the Writ

Petitioner herein had joined at the transferred place on

14.07.2023 and applied for Medical Leave vide Letter dated

18.07.2022 owing to the fact that the Writ Petitioner was

suffering from "Ischemic Heart Disease, Post PTCA, DM

and HTN".

5. It is further submitted that the Writ Petitioner

underwent Percutaneous Transluminal Coronary

Angioplasty (PTCA). The Writ Petitioner had annexed the

relevant Medical Certificate (medical advice to take rest

from 18.07.2022 to 17.08.2022) issued by Dr.P.V.Raghava

Sarma, MD, DM, Chief Cardiologist along with his Letter

addressed to the Respondent No.2; that the Medical Leave

Application dated 18.07.2022 of the Writ Petitioner was

accepted by the Respondent No.2 vide Proceedings

No.SAAP/Estt/11030/6/2019, dated 17.08.2022. It is

further submitted by the Ld. Counsel for the Writ Petitioner

that while the Medical Leave Application was submitted on

18.07.2022 seeking medical leave up to 17.08.2022, the

Medical Leave was sanctioned only on the last day i.e. on

17.08.2022.

6. It is further submitted that the Writ Petitioner

herein submitted another Medical Leave Application

(second one) on 17.08.2022 with a request to extend the

medical leave for a period of 47 days from 18.08.2022 to

03.10.2022 with half pay commuted to full pay for the

above period; that the Writ Petitioner was advised by the

treating Cardiologist to take rest; that the leave sanctioning

authority has neither sanctioned the medical leave nor had

declined till the last day i.e., till 03.10.2022; that the Writ

Petitioner submitted an other Medical Leave Application

(third one) dated 04.10.2022 with a request to extend the

period of medical leave for another period of 45 days from

04.10.2022 to 17.11.2022 with half pay commuted to full

pay for the above period; that the Respondent No.3 has

forwarded the Medical Leave Application of the Writ

Petitioner dated 04.10.2022 for consideration of the

Respondent No.2; that the Medical Leave Applications

dated 17.08.2022 (second one) and 04.10.2022 (third one)

were also similarly supported by the Doctor Certificates of

Dr.P.V.Raghava Sarma, MD, DM, Chief Cardiologist of

Lalitha Super Specialities Hospital (P) Limited, Guntur;

that the Respondent No.2, on receipt of the Proceedings

dated 10.10.2022 from the Respondent No.3 along with the

Medical Leave Application supported by the Doctor

Certificates, had issued the Impugned Proceedings dated

18.10.2022 vide E-mail dated 20.10.2022 „compulsorily

retiring‟ the Writ Petitioner by invoking the Sub-Rule (2) of

Rule 25 of G.O.Ms.No.25 dated 04.05.1993.

SUBMISSIONS OF THE LD. COUNSEL FOR THE

WRIT PETITIONER

7. In this backdrop, the Ld. Counsel for the Writ

Petitioner contended that the Impugned Order has been

passed in violation of the principles of natural justice, and

that it is irrational and arbitrary, inasmuch as, the Writ

Petitioner was not served with any advance Notice as per

Sub-Rules (4) and (5) of Rule 25. It is further submitted

that invocation of Sub-Rule (2) of Rule 25 of G.O.Ms.No.25

dated 04.05.1993 is unwarranted and illegal insofar as the

Writ Petitioner is concerned and that the impugned action

by the Respondent No.2 is tainted with malice besides

being high handed and unilateral.

8. Ld. Counsel would submit that insofar as the

Writ Petitioner is concerned, the situations to invoke the

Sub-Rule (2) of Rule 25 are not existent as the „ascending

career‟ of the Writ Petitioner is a reflection of his efficiency,

sincerity and dedication towards work, and therefore, he

could not have therefore been treated as dead-wood, and is

unsuitable to continue employment in „public interest‟. It

is further submitted that ill-health and severe ailments are

a natural consequence in a human life cycle and that the

Respondent No.2 Authority ought to have „rationally‟ and

„objectively‟ considered the medical advice rendered by a

specialist and the request of the Writ Petitioner to grant

medical leave. He further submits that the approach of the

Respondent No.2 in „compulsorily retiring‟ the Writ

Petitioner without looking into his long and uneventful

service career by invoking such provisions (Sub-Rule (2) of

Rule 25) is irrational, arbitrary, unilateral and perverse.

9. Ld. Counsel for the Writ Petitioner would

further submit that the Writ Petitioner has not committed

any illegality and that seeking leave on medical grounds,

substantiated by proper medical advice by a specialist

ought to have been considered by the Respondent No.2 in a

just, reasonable and humane manner. Ld. Counsel for the

Writ Petitioner would submit that Ischemic Heart Disease

is a serious health condition and that for the sincere

services rendered without any blemish since 1989 till date

would warrant the Writ Petitioner to be given a suitable

ground job so as to utilise the vast experience of the Writ

Petitioner in Kho-Kho & Kabaddi Sports. Ld. Counsel for

the Writ Petitioner would also submit that soon before the

transfer of the Writ Petitioner to Alluri Sita Rama Raju

Paderu District as Grade-I Coach, the Writ Petitioner was

in fact serving at the Head Quarters in the capacity of

Assistant Director (Technical) & Administrative Officer at

Vijayawada diligently. Ld. Counsel for the Writ Petitioner

would submit that Sub-Rules (4) & (5) of Rule 25 of

G.O.Ms.No.25 E.G & Y.S (YSS) Dept., dated 04.05.1993

has not been followed by the Official Respondents and that

on this ground alone the Impugned Order has to be set

aside.

SUBMISSIONS OF THE LD. COUNSEL FOR THE

OFFICIAL RESPONDENTS

10. Sri T.G.S. Srivastava, Ld. Government Pleader

for Services-I would submit that the State is promoting

sports culture on priority basis and has been conducting

various tournaments to boost up to the zeal and spirit of

talented players and that the state was doing talent hunt

at gross root level. Ld. Government Pleader for Services-I

would submit that the State has taken up development of

infrastructure projects under Khelo India to provide access

to sports.

11. It is further submitted that continuous

Applications of leave on medical grounds by the Writ

Petitioner is stalling all the sports activities stated supra,

thereby jeopardising the dreams of the players representing

the District which inevitably cause lot of inconvenience to

sports administration. It is further submitted that the

continuous Leave Applications on the part of the Writ

Petitioner would indicate that the Writ Petitioner cannot

discharge the field duties assigned to him, since the Writ

Petitioner is physically not fit to be a Coach. It is further

stated that since the Writ Petitioner is suffering from

chronic heart disease and unable to attend to training

duties, the Respondent No.2 was constrained to invoke the

Sub-Rule (2) of Rule 25 of G.O.Ms.No.25 dated 04.05.1993

in the interest of players representing the District of Alluri

Sita Rama Raju Paderu District.

     REJOINDER        OF    LD.    COUNSEL      FOR    WRIT

     PETITIONER

12. Ld. Counsel for the Writ Petitioner has drawn

the attention of this Court to Paragraph Nos.9 to 12 of the

Counter-Affidavit filed by the Respondent No.2 to submit

that the averments in these Paragraphs would reflect the

irrational, unjust and unreasonable approach on the part

of the Respondent No.2. The Ld. Counsel for the Writ

Petitioner would submit that from the date that the Writ

Petitioner was appointed as Kho-Kho & Kabaddi Coach in

the year 1989 until he was transferred to Alluri Sita Rama

Raju Paderu District as Chief Coach on 07.07.2022, the

Writ Petitioner had an ascending career; that since, after

his regularisation in the year 1993, he was promoted as

Chief Coach in the year 2000 and thereafter posted as

District Sports Development Officer at various Districts

before he was transferred to the Head Quarters of the

Respondent No.2 at Vijayawada for the utilisation of his

services coupled with long experience from 1989 to 2016.

13. Ld. Counsel would submit that even at the Head-

Quarters from 2016 until the date of his transfer to Alluri

Sita Rama Raju Paderu District as Grade-I Kho-Kho &

Kabaddi Coach on 07.07.2022 he was performing his

duties diligently and to the satisfaction of the Authority.

Ld. Counsel for the Writ Petitioner would submit that

except some averments in the Counter-Affidavit, the

Respondent No.2 has not placed any adverse material

against the Writ Petitioner till 07.07.2022 to substantiate

its stand.

14. Ld. Counsel for the Writ Petitioner would submit

that at 58 years of age, a person who has been appointed

as a Sports Coach in the year 1989 cannot be expected to

perform the very same function as field trainer for sports

persons and that the Sports Authority ought to have

utilised his long experience in the administration of

training of the sports persons and also in sports

administration, and he ought to have been continued at

Head Quarter.

15. Ld. Counsel for the Writ Petitioner has cited the

following Judgments:

i. Baldev Raj Chandha vs. Union of India and others ((1980) 4 SCC 321) at Paragraph No.8;

ii. S.Ramachandra Raju vs. State of Orissa ((1994) Supp (3) SCC 424) at Paragraph Nos.9, 10 & 11;

iii. Rajesh Gupta vs. State of Jammu and Kashmir and others ((2013) 3 SCC 514 at Paragraph Nos.29 & 31;

iv. State of Gujarat and another vs. Suryakant Chunilal Shah ((1999) 1 SCC

529) at Paragraph Nos.19, 20, 21, 26 and 28; and

The ratio laid down by the Hon‟ble Supreme Court in

the above mentioned cases is discussed herein below.

16. In Baldev Raj Chadha Vs. Union of India and

Ors: ((1980) 4 SCC 321), the Hon‟ble Supreme Court

considered the fact of unbriddled discretion exercised by

the „executive‟ in the guise of „public interest‟ and the scope

of Judicial Review by the Constitutional Courts during

such incidents. Para - 8 of the above Judgment is

extracted as under:

"8.................The Administration, to be competent, must have servants who are not plagued by uncertainty about tomorrow. At the age of 50 when you have family responsibility and the sombre problems of one's own life's evening, your experience, accomplishments and fullness of fitness become an asset to the Administration, if and only if you are not harried or worried by "what will happen to me and my family?" "Where will I go if cashiered?" How will I survive when I am

too old to be newly employed and too young to be superannuated?' ...................

................................................................. So it is that we must emphatically state that under the guise of "public interest" if unlimited discretion is regarded acceptable for making an order of premature retirement, it will be the surest menace to public interest and must fail for unreasonableness, arbitrariness and disguised dismissal. To constitutionalise the rule, we must so read it as to free it from the potential for the mischiefs we have just projected. The exercise of power must be bona fide and promote public interest. There is no demonstrable ground to infer mala fides here and the only infirmity alleged which deserves serious notice is as to whether the order has been made in public interest. When an order is challenged and its validity depends on its being supported by public interest the State must disclose the material so that the court may be satisfied that the order is not bad for want of any material whatever which, to a reasonable man reasonably instructed in the law, is sufficient to sustain the grounds of "public interest" justifying forced retirement of the public servant. Judges cannot substitute their judgment for that of the Administrator but they are not absolved from the minimal review well settled in administrative law and founded on constitutional obligations. The limitations on judicial power in this area are well known and we are confined to an examination of the material merely to see

whether a rational mind may conceivably be satisfied that the compulsory retirement of the officer concerned is necessary in public interest." (emphasis supplied)

17. The Apex Court also held at Para - 16 as under:

"16.............One wonders how an officer whose continuous service for 14 years crossing the efficiency bar and reaching the maximum salary in the scale and with no adverse entries at least for five years immediately before the compulsory retirement, could be cashiered on the score that long years ago, his performance had been poor, although his superiors had allowed him to cross the efficiency bar without qualms. A short cut may often be a wrong cut. The order of compulsory retirement fails because vital material, relevant to the decision, has been ignored and obsolete material, less relevant to the decision, has influenced the decision. Any order which materially suffers from the blemish of overlooking or ignoring, wilfully or otherwise, vital facts bearing on the decision is bad in law. Likewise, any action which irrationally digs up obsolete circumstances and obsessively reaches a decision based thereon, cannot be sustained. Legality depends on regard of the totality of material facts viewed in a holistic perspective. For these reasons, the order challenged is obviously bad and we quash it............................................... ................................." (emphasis supplied)

18. In S. Ramachandra Raju Vs. State of Orissa :

((1994) Supp. (3) SCC 424), the Supreme Court has

considered the issue of objectivity which is required in the

preparation of Annual Confidential Reports (ACRs) and also

the requirement of informing an Employee about any

adverse remarks in their ACRs. Whereas, in the instant

case, the Competent Authority (Respondent No.2) has not

referred to any ACRs of the Writ Petitioner which would

have been the foundation for it to take a view that

continuation of the Writ Petitioner‟s service is not beneficial

and would not sub-serve the public interest any more.

19. In Rajesh Gupta Vs. State of Jammu &

Kashmir and Ors: ((2013) 3 SCC 514), the Hon‟ble

Supreme Court has dealt with the issue of Compulsory

Retirement which was based on one single Report against

the Petitioner therein submitted by a High Power

Committee. The Hon‟ble Supreme Court frouned upon

such a Report by holding: "......that the recommendation

made by High-Powered Committee was indubitably

arbitrary". (emphasis supplied)

20. The Hon‟ble Supreme Court held at Para Nos.29

& 31 in Rajesh Gupta's Case (supra) as under:

"29. The report also does not indicate that there is any irregularity in the bank accounts maintained by the appellant. The affidavit filed on behalf of the State of Jammu and Kashmir clearly shows that according to the Vigilance Organisation, three first information reports bearing Nos. 49 of 1991, 11 of 1995 and 63 of 1994 were registered by the State Vigilance Organisation against the appellant when he was posted as Executive Engineer (REW, Kathua). Upon investigation, all the FIRs were found to be "not proved". However, recommendation was made to initiate departmental action against the officer. In spite of the aforesaid recommendation, it has not been disputed before us, that no departmental action was ever initiated against the appellant. In fact, after the completion of the investigation into the FIRs, the appellant was promoted to the post of Executive Engineer on 15-12-1996. Therefore, it can be safely concluded that there were no material before the High-Powered Committee to conclude that the officer possessed assets beyond his known source of income.

31. In view of the aforesaid, the conclusion is inescapable, that the order passed by the State Government suffers from the vice of arbitrariness. The High Court erred in arriving at conclusions which were not borne out by the record produced before the High Court. In view of the settled law, it is not

possible for us to uphold the judgments of the Single Judge as also of the Division Bench."

21. In State of Gujarat and Anr. Vs. Suryakanth

Chunilal Shah: ((1999) 1 SCC 529), the Apex Court has

analysed various Judgments rendered by it and held at

Para No.26 as under:

"26. Applying the principles laid down above to the instant case, what comes out is that in compulsorily retiring the respondent from service, the authorities themselves were uncertain about the action which was to be taken ultimately against him. In fact, there was hardly any material on the basis of which a bona fide opinion could have been formed that it would be in public interest to retire the respondent from service compulsorily. The material which was placed before the Review Committee has already been mentioned above. To repeat, the respondent was promoted in 1981; the character roll entries for the next two years were not available on record; there were no adverse entries in the respondent's character roll about his integrity; he was involved in two criminal cases, in one of which a final report was submitted while in the other, a charge-sheet was filed. Although there was no entry in his character roll that the respondent's integrity was doubtful, the Review Committee on its own, probably on the basis of the FIRs lodged against the respondent, formed the opinion that the

respondent was a person of doubtful integrity....................................................... ..................................." (emphasis supplied)

ISSUES:

22. In the above premise, the following issue falls for

consideration before this Court:

a) Whether the decision taken by Respondent No.2 to compulsorily retire the Petitioner on a single ground of seeking continuous Medical Leave without there being any adverse remarks throughout the service career of the Writ Petitioner from 1989 till 07.07.2022 is sustainable in law?

b) Whether the Impugned Order is vitiated due to non-adherence of Sub-Rules (4) & (5) of Rule 25 of G.O.Ms.No.25 E.G & Y.S (YSS) Dept., dated 04.05.1993 ?

ANALYSIS:

23. The following facts are undisputed and stand

admitted:

i. That the Writ Petitioner, having joined the service of Sports Authority of Andhra Pradesh (SAAP) in the year 1989, got subsequently regularized and

grew up in ranks ascending to the positions of Coach (Grade-I), District Coach Development Officer and Sports Officer Grade - I (At SAAP Head Quarters) and as Assistant Director (Technical and Administrative Officer) at SAAP Head Quarters;

ii. Performance of the Writ Petitioner from 1989 upto 07.07.2022 (date on which the Order of „transfer on administrative grounds‟ was served) was diligent and steadfast while he was last working at the SAAP Head Office;

iii. There are „no adverse remarks‟ against the Petitioner either with regard to his efficiency or integrity because no such adverse material is cited as a reason for compulsorily retiring the petitioner;

iv. Neither the Impugned Order nor the Pleadings have made a mention of Annual Confidential Reports (ACRs). Neither of the Counsel have referred to even the existence of any practice and procedure of recording Annual Confidential Reports in this Sports Authority of Andhra Pradesh. Therefore, the Court can safely presume that there may not have been either a practice or a procedure of preparing ACRs for the Employees working in the Sports Authority of Andhra Pradesh; or, if at all there is any such practice

prevalent, in so far as the present Writ Petitioner is concerned, the Court can safely presume that there are no adverse remarks against the Writ Petitioner throughout his career.

v. The Review Committee contemplated under Sub-

Rule (5) and the Review of the case of the Writ Petitioner under Sub-Rule (4) of Rule 25 has not been done in the instant case.

24. The facts which are noted hereinabove would

indicate that until the Writ Petitioner was transferred on

07.07.2022 as Grade-I Kho-Kho & Kabaddi Coach to Alluri

Sita Rama Raju Paderu District „on Administrative

grounds‟, the Writ Petitioner has been serving in the Head

Quarter at Vijayawada since 2016. From 2016 up to

07.07.2022, the Writ Petitioner worked at the Head

Quarter at Vijayawada in different capacities namely as

Sports Officer Grade-I and as Assistant Director (Technical)

and Administrative Officer. The Medical Certificates would

indicate that the ailment of the Writ Petitioner is of a

chronic nature (Ischemic Heart Disease with other

complications), but the fact is that he was still doing a

ground job at the Head Quarters, from 2016 till

06.07.2022. He was able to perform his duties without any

problem despite his heart condition and the nature of

treatment that he has been undergoing. It has to be kept

in mind that the date on which the Writ Petitioner was

transferred i.e., on 07.07.2022, the Writ Petitioner is aged

about 58 years 04 months and 17 days (as mentioned in

the Impugned Order itself).

25. Analysis of several Judgments rendered by the

Hon‟ble Supreme Court on the „objective that is sought to

be achieved‟ by compulsorily retiring an employee, is

twofold: i) to weed-out the deadwood; and, or ii) to weed-

out, where the integrity of the employee is doubtful. The

Impugned Order in this case would fall in the first

category. The relevant portion of the Impugned Order

bearing Proc.No.SAAP/A1/11024/2018, dated 18.10.2022

(Ex.P1) which indicates the reason for compulsorily retiring

the Writ Petitioner is as under:

"Sri P. Rama Krishna, Grade-I Coach Date of Birth 01.06.1964, aged 58 years 04 months

17 days as on today and continuous absence to duty by applying medical leave and extending medical leave for a long period is presumed that the individual does not fit for continuing in service in SAAP as a coach as he is suffering from IHD (Ischemic Heart Disease-Post PTCA, DM, HTN) and he requires continuous rest as per his own letters."

26. The Official Respondents cited the above reason,

for compulsorily retiring the Writ Petitioner by invoking

Sub-Rule (2) of Rule 25 of G.O.Ms.No.25, dated

04.05.1993, Employment Generation and Youth Services

(YSS) Department, Government of Andhra Pradesh, which

reads as under:

"25. RETIREMENT:-

(1) An employee shall retire from the Service of

SAAP:

(a) on the afternoon of the last day of the month in which he/she attains the age of 60 years (Sixty years) in the case of pre. 1-11-1987 entrants of office establishment and 58 (Fifty eight) years of age in the case of post 1-11-1987 entrants.

Provided that in the case of Coaches continuance beyond 55 years of age shall be on the basis of year to year

review upto 58 years by the appointing authority and on his/her being declared physically fit by the Medical Authority as specified by the SAAP:

Provided further that an employee in last grade service post shall retire from service on the afternoon of the last day of the month in which he attains the age of 60 years:

Provided also that in the case of person appointed on "Contract or on Honorarium basis as Adviser these Provisions about retirement age will not apply".

(b) on his/her being declared medically unfit for service by a Medical board to be designated by the Appointing Authority, in this behalf.

(2) Notwithstanding anything contained in clause (1) above the Appointing Authority, if it is for opinion that it is in the interest of SAAP so to do, shall have the absolute right to retire any employee by giving him/her notice of not less than three month‟s pay and allowances in lieu of such notice after he/she has attained the age of 55 years.

(3) An employee may, by giving notice in writing of not less than three month‟s retire from service after he/she attains the age of 55 years or on completion of 20 years of service. In the latter case the employee will have to

seek prior approval of the Appointing Authority;

Provided that in both cases it shall be open to the Appointing Authority to withhold permission to an employee under suspension who seeks to retire, under this clause;

Provided further that the provisions of this clauses will not apply to persons appointed on contract or on honorarium basis.

(4) The review of the case of each employee shall be taken up sufficiently in advance so as to give him/her the notice of intention to retire his/her from a particular date and he/she shall be informed three months in advance.

(5) The review committee should be constituted with the Vice Chairman and Managing Director as the Chairman and the Director and Deputy Director as members."

27. While the Learned Counsel for the Writ Petitioner

has stoutly contended that the Writ Petitioner had a

blemishless record even in terms of performance while he

was posted at Head Quarter, knowing full well that the

Writ Petitioner was at the fag end of his tenure of service,

posting the Writ Petitioner at a remote place where the

required medical facility is unavailable and assigned the

duty of Grade-I Coach to train the sports persons, is only

with an intent to deliberately cause the irreparable

hardship to the Writ Petitioner. Learned Counsel would

submit that merely because the Writ Petitioner was taken

into service in the year 1989 as Coach, it does not mean

that he can physically give the similar training that he had

given during the earlier years of his career. The Writ

Petitioner has not only secured lot of experience in training

sports persons but at an age when he is close to 60 years,

just about to superannuate, with a heart-condition, he

could have been put to such duties which he could

perform. Learned Counsel would also submit that even

while he was transferred to a remote place as Grade-I Kho-

Kho & Kabaddi Coach, the intention of the Writ Petitioner

was only to join and perform the duty that is assigned to

him, whereas his health condition, just at a time that he

was transferred, did not permit him as is clearly evident

from the medical advisory. Ld. Counsel would further

submit that the solo incident of ill-health coupled with the

medical advice „to take rest‟ cannot be the sole reason for

invoking the Sub-Rule (2) of Rule 25 of G.O.Ms.No.25,

dated 04.05.1993.

28. From the facts as projected and considered by

this Court and from the analysis of the judgments cited

above, this Court is of the opinion that an employee should

have consistent history of non-performance reasonably

spread over for a considerable period of time for

compulsorily retiring him from service. In the present case,

the sole incident of continued medical leave as per the

medical advisory given by a Cardiologist holding the Degree

of M.D, D.M (Doctor of Medicine), which is a „Super

Speciality‟, is not in the teeth of the law laid down by the

Hon‟ble Supreme Court in respect of Compulsory

Retirement. The Respondents have invoked the statutory

regulation to retire the Writ Petitioner compulsorily only on

one single ground that the Writ Petitioner is suffering from

Ischemic Heart Disease. The Respondents did not, even for

a moment, thought about utilising the services and the

long experience of the Writ Petitioner by allowing him to

continue in the same Head Quarter. This is one alternative

which the Respondents ought to have explored before

taking the hasty decision to compulsorily retire the Writ

Petitioner.

29. The nature of the job into which the Writ

Petitioner was taken is certainly the job of a Coach. A

Coach has to be on the field to physically train the sports

persons. As the years pass by, the Coach gains experience

in not only coaching the sports persons in their respective

sports but would also gain experience in so far as the

efficient administration of a particular „sport‟ is concerned.

Unlike in the ordinary Government Employment where the

employee would be at his desk from the beginning of his

employment career until he/she superannuates, the job of

a Coach is certainly different. It is different because the

physical ability of a person, however healthy he or she may

be, would be „inversely proportional' to the progression in

age. This is an inescapable natural process. Therefore, in

such jobs where the employees are expected to perform

only in terms of physical ability, this Court has to hold that

for persons employed in sports organisations as Coaches,

as the age progresses, they should be considered for

utilizing their services and experience in the administration

of a sport rather than expecting them to perform as Coach

and physically train the sports persons in the manner in

which they have done few decades ago.

30. If the Respondents were of the view that the

Employee is medically unfit, the least that the Respondents

could have done is to refer the case of the Writ Petitioner to

a Medical Board under Clause (b) of Sub-Rule (1) of Rule

25 to examine and report whether the Writ Petitioner is

unfit to perform a job of any nature or that he would not be

able to perform physical training but he will be able to do

the ground job at either the Head Quarter or at any other

place. Since the Respondents have not done this exercise,

this Court is of the opinion that there is absence of

objectivity in the impugned action by the Respondents.

31. The Rule 25 of G.O.Ms.No.25 E.G & Y.S (YSS)

Dept., dated 04.05.1993 has been extracted in its entirety

in Paragraph No.26 supra. Admittedly, the Respondent

No.2 did not pitch the case of the Writ Petitioner under

Clause (b) of Sub-Rule (1) of Rule 25 by constituting a

Medical Board and subjecting the Petitioner for a Medical

Review. The Respondent No.2 has invoked Sub-Rule (2) of

Rule 25 for compulsorily retiring the Writ Petitioner on the

sole ground that the Writ Petitioner has continuously

applied for Medical Leave due to his sufferance from IHD

(Ischemic Heart Disease, Post PTCA, DM, HTN) and that

the Writ Petitioner requires rest as per the medical advice.

Sub-Rule (4) of Rule 25 mandates that the Review of the

case of each employee be taken-up sufficiently in advance

with a view to give Notice of intention to retire him/her

from a particular date. Sub-Rule (5) of Rule 25 mandates

the Respondent No.2 to constitute a Review Committee

with the Vice-Chairman and Managing Director as the

Chairman and the Director and Deputy Director as

Members.

32. The Paragraph No.3 of the Impugned Order

would indicate that the Vice Chairman & Managing

Director has exercised the power under Sub-Rule (2) of

Rule 25 to compulsorily retire the Writ Petitioner. This

makes it clear that the Review Committee has not been

constituted so as to Review the case of the Writ Petitioner,

and therefore, it is apparent that the Vice Chairman &

Managing Director, as an individual, has subjectively

decided to invoke Sub-Rule (2) of Rule 25 of G.O.Ms.No.25

E.G & Y.S (YSS) Dept., dated 04.05.1993. The Counter-

Affidavit filed by the Respondent No.2 dated 28.10.2022 is

also bereft of any detail as regards the constitution of a

Review Committee for Reviewing the case of the Petitioner.

This gives credence to the allegation made by the Writ

Petitioner that the decision taken by the Respondent No.2

is not based on a recommendation of a Review Committee,

but it is only at the sole subjective discretion of the Vice

Chairman and Managing Director of the Respondent No.2

in his individual capacity. This approach is impermissible

in law. Therefore, this Court holds that the Impugned

Order suffers from the vice of arbitrariness and

irrationality.

33. In view of the findings of this Court that the

power vested under Sub-Rule (2) of Rule 25 has been

wrongly invoked by the Respondent No.2 while citing the

heart ailment as a reason for doing so, this Court is

constrained to refer to a Judgment of the Hon‟ble Supreme

Court in Smt. S.R.Venkataraman vs. Union Of India &

Anr. ((1979) 2 Supreme Court Cases 491). The facts in

the case dealt with by the Hon‟ble Supreme Court are very

much identical to the facts in the present Writ Petition.

The appointing authority has prematurely retired the

Appellant therein under the guise of „public interest‟. In

the said case, after examining the Judgments in Shearer

vs. Shields ((1914) AC 808, 813); Pilling vs. Abergele

Urban District Council ((1950) 1 KB 636: (1950) All ER

76); and The Queen on the Prosecution of Richard

Westbrook vs. Vestry of St. Pancras ((1890) 24 Q BD

371), the Hon‟ble Supreme Court held at Paragraph Nos.8

& 9 therein as under:

"8. We are in agreement with this view. It is equally true that there will be an error of fact when a public body is prompted by a mistaken belief in the existence of a non- existing fact or circumstance. This is so clearly unreasonable that what is done under such a mistaken belief might almost be said to have been done in bad faith; and in actual experience, and as things go these may well be said to run into one another.

9. The influence of extraneous matters will be undoubted where the authority making the order has admitted their influence. It will therefore be a gross abuse of legal power to punish a person or destroy her service career in a manner not warranted by law by putting a rule which makes a useful provision for the premature retirement of government servants only in the "public interest". An administrative order which is based on reasons of fact which do not exist must therefore be held to be infected with an abuse of power." (emphasis supplied)

CONCLUSIONS:

34. The above discussion would lead to the following

conclusions:

i. The Annual Confidential Reports have not been produced. Hence, there is no previous history

against the Writ Petitioner with regard to deficiency or short coming in the work during his entire career;

ii. The illness suffered by the Writ Petitioner did not disable him from doing administrative work, as he had already been working at the Headquarters until 07.07.2022 without any complaint;

iii. The medical advice given to the Writ Petitioner „to take rest‟ is by a Cardiologist possessing the qualification of Super Speciality (D.M.-Doctorate of Medicine), which cannot be ignored, and therefore, the Writ Petitioner should have been considered for soft job in the alternative (administrative in nature). This is in the light of the fact that the medical advice to deal with heart condition cannot be taken lightly by the patients;

iv. The Court takes judicial notice of the fact that the physical ability is „inversely proportional‟ to the advancement in age; and this is a relevant factor to be considered in respect of persons employed in the physical-training activities; and

v. The temporary illness as indicated by the Writ Petitioner is an isolated incident, and therefore,

Sub-Rule (2) of Rule 25 of G.O.Ms.No.25, Employment Generation and Youth Services (YSS) Department, dated 04.05.1993 cannot be applied for compulsorily retiring the Writ Petitioner. Hence, compulsorily retiring the Writ Petitioner by invoking Sub-Rule (2) of Rule

and Youth Services (YSS) Department, dated 04.05.1993 is arbitrary, irrational and illegal, and therefore, cannot stand the test of Article 14 of the Constitution of India. Consequently this Court holds that the power exercised by the Respondent No.2 under Sub-Rule (2) of Rule 25 in „colourable‟ in nature.

35. In view of the above mentioned conclusions, the

Writ Petitioner succeeds. The Writ Petition is allowed. The

Impugned Order bearing Proceedings No.SAAP/A1/11024/

2018, dated 18.10.2022 (Ex.P.1) is set aside on the ground

that it is violative of Article 14 of the Constitution of India.

The Writ Petitioner shall be reinstated into service within

two weeks from today. He shall also be paid the arrears of

salary from the date of the Impugned Order i.e., from

18.10.2022 till the date of joining in service. No order as to

costs. Interlocutory Applications, if any, stand closed in

terms of this Order.

_____________________________________________ GANNAMANENI RAMAKRISHNA PRASAD, J

Dt: .09.2023.

SDP/VNS/JKS

THE HON'BLE SRI JUSTICE GANNAMANENI RAMAKRISHNA PRASAD

WRIT PETITION No. 34648 OF 2022

____.09.2023

W

SDP/VNS/JKS

IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI **** WRIT PETITION No. 34648 of 2022

Between:

Prathipati Ramakrishna, S/o.Samba Siva Rao, Aged about 58 years, Occ: Govt. Servant, Employed as Coach (Grade-I), R/o.Door No.26-44-86, Veera Raghava Nilayam, Venkata Raman Colony, 5th Line, Guntur, Andhra Pradesh - 522 002. .....Petitioner AND

1. The State of Andhra Pradesh, Rep. by its Principal Secretary, Sports, Youth Advancement, Tourism & Culture Department, Secretariat Buildings, Velagapudi, Guntur District, Andhra Pradesh.

2. The Sports Authority of Andhra Pradesh, Rep. by its Vice Chairman & Managing Director, Indira Gandhi Municipal Corporation Stadium, Vijayawada, Krishna District, Andhra Pradesh.

3. The District Sports Authority, Alluri Seetharama Raju District, Paderu, Rep., Chief Executive Officer, DSa, Paderu. .....Respondents

DATE OF JUDGMENT PRONOUNCED : 11.09.2023. SUBMITTED FOR APPROVAL HON'BLE Mr. JUSTICE GANNAMANENI RAMAKRISHNA PRASAD

1. Whether Reporters of Local Newspapers may be allowed to see the Judgments ? Yes/No

2. Whether copies of Judgment may be marked to Law Reporters/Journals ? Yes/No

3. Whether Your Lordships wish to see the fair copy of the Judgment ? Yes/No

_____________________________________________ GANNAMANENI RAMAKRISHNA PRASAD,J

* HON'BLE Mr. JUSTICE GANNAMANENI RAMAKRISHNA PRASAD

+ WRIT PETITION No. 34648 of 2022

% 11.09.2023 Between:

# Prathipati Ramakrishna, S/o.Samba Siva Rao, Aged about 58 years, Occ: Govt. Servant, Employed as Coach (Grade-I), R/o.Door No.26-44-86, Veera Raghava Nilayam, Venkata Raman Colony, 5th Line, Guntur, Andhra Pradesh - 522 002. ....Petitioner Versus $ 1. The State of Andhra Pradesh, Rep. by its Principal Secretary, Sports, Youth Advancement, Tourism & Culture Department, Secretariat Buildings, Velagapudi, Guntur District, Andhra Pradesh.

2. The Sports Authority of Andhra Pradesh, Rep. by its Vice Chairman & Managing Director, Indira Gandhi Municipal Corporation Stadium, Vijayawada, Krishna District, Andhra Pradesh.

3. The District Sports Authority, Alluri Seetharama Raju District, Paderu, Rep., Chief Executive Officer, DSa, Paderu. .....Respondents

! Counsel for the Petitioner : Sri N.Ashwani Kumar

^ Counsel for the Respondents: Sri T.G.S. Srivastava, Ld.

Assistant Government Pleader for Services-I.

< Gist :

> Head Note:

? Cases Referred:

(1980) 4 SCC 321 (1994) Supp (3) SCC 424 (2013) 3 SCC 514

(1999) 1 SCC 529 (1979) 2 SCC 491 (1914) AC 808, 813 (1950) 1 KB 636 (1950) All ER 76 (1890) 24 Q DB 371