Andhra Pradesh High Court - Amravati
S.Mahammad Basha vs The State Of Andhra Pradesh, on 6 September, 2024
1
*HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
+WRIT PETITION No.5681 of 2022
Between:
# S. Mohammad Basha, S/o S.Khaja Hussain
... Petitioner
And
$ The State of Andhra Pradesh, rep. by its
Principal Secretary, Transport Department,
Secretariat, Velagapudi, Amaravati and 2 others.
.... Respondents
JUDGMENT PRONOUNCED ON 06.09.2024
THE HON'BLE DR.JUSTICE K. MANMADHA RAO
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments?
- Yes -
2. Whether the copies of judgment may be marked to Law
Reporters/Journals
- Yes -
3. Whether Their Ladyship/Lordship wish to see the fair
copy of the Judgment?
- Yes -
___________________________________
DR.JUSTICE K. MANMADHA RAO
2
* THE HON'BLE DR.JUSTICE K. MANMADHA RAO
+WRIT PETITION No.5681 of 2022
% 06.09.2024
Between:
# S. Mohammad Basha, S/o S.Khaja Hussain
... Petitioner
And
$ The State of Andhra Pradesh, rep. by its
Principal Secretary, Transport Department,
Secretariat, Velagapudi, Amaravati and 2 others.
.... Respondents
! Counsel for the Petitioner : Sri M. Chinnapa REddy
Counsel for Respondents: G.P for Services-II
<Gist :
>Head Note:
? Cases referred:
3
APHC010089412021
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3310]
(Special Original Jurisdiction)
FRIDAY ,THE SIXTH DAY OF SEPTEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE DR JUSTICE K MANMADHA RAO
WRIT PETITION NO: 5681/2021
Between:
S.mahammad Basha ...PETITIONER
AND
The State Of Andhra Pradesh and Others ...RESPONDENT(S)
Counsel for the Petitioner:
1. M CHINNAPA REDDY
Counsel for the Respondent(S):
1. GP FOR SERVICES II
The Court made the following:
ORDER :
This writ petition is filed under Article 226 of the Constitution of India for
the following relief:
"....to issue a writ orders or direction more particularly one in the nature of Writ of Mandamus declaring the
action of the respondents in not passing any orders on petitioner representations Dt 5.9.2012 and 16.07.2020
and on different proceedings from respondents and the action of the respondents more particularly
respondent No 3 / Deputy Transport Commissioner Kadapa in not allowing the petitioner for duties on daily
wages basis in the existing services, as arbitrary, illegal and violation of principles of natural justice
consequently direct the respondents more particularly 3rd respondent to consider for conversion to the post
of office subordinate in the existing clear vacancy in the office of the 3rd respondent i.e., Deputy Transport
Commissioner, Kadapa and to pass...."
2. The grievance of the petitioner is that he applied for the post of
Generator Operator-Cum-Water boy to meet his family necessities as he
is only the bread winner of the family since having aged parents. The
Deputy Transport Commissioner, Kadapa has issued appointment
orders as Generator Operator-Cum- Water Boy on daily wages basis to
work in his office, vide proceedings Roc.No.3695/B1/2010, dt.10.8.2010,
and the petitioner has been working without any unblemished record as
contingent worker on a wage @Rs.600/- p.m. Further, the Petitioner
has submitted an application to the Transport Commissioner, A.P.,
through the Deputy Transport Commissioner, Kadapa on 05.09.2012
with a request to consider for conversion to the post of last Grade
Services i.e., with an existing vacancy Office Subordinate since he
fulfilled requisite qualification and being in service. It is further stated
that due to major repairs of Diesel Generator, the petitioner could not
get his wages from May 2012 onwards. Later, the petitioner came to
know that since five posts of Office Subordinate are vacant in the
Transport Dept., Kadapa, therefore, he made an application to
respondents for the said post on 5.9.2012 requesting to consider for
conversion to the post of last Grade Services (Office Subordinate) to
adjust in the already existing clear vacancy in the same office. Inspite of
existing clear vacancies and several communications and
recommendations made by the Officers concerned, no action was taken
by the Respondents. Hence, the present writ petition.
3. This Court vide order dated 28.7.2022 this Court held that, since
long time the respondents did not choose to file counter and again they
sought time for filing counter. In spite of time granted by this Court on
earlier occasions, they failed to comply with Rule 12(1) of the Writ
Rules, therefore the respondents were directed to file counter along with
leave petition. Thereafter, the respondents filed leave petition vide I.A
No.1 of 2022 along with counter affidavits explaining the delay for filing
counter affidavit. The said I.A.No.1 of 2022 was allowed and the
counter affidavits are taken on record.
4. The counter affidavit has been filed by the 3rd respondent. While
denying the allegations made in the writ petition, contended that, the
request of the petitioner for absorption in the post of office subordinate
in clear vacancy is not feasible as the Collector and District Magistrate is
only competent to allot the eligible candidates to the District Offices. It is
submitted that averments made by the petitioner that he was neither
paid the salaries for the period from October 2014 nor termination letter
was issued, is not correct as he was terminated on 09.09.2014. It is
further stated that the very appointment of Sri Mohammed Basha on
daily wages was highly irregular for which the explanation of the Deputy
Transport Commissioner, Kadapa was also called for. An order given
without authority by any official cannot be a grant for the Petitioner any
right to continue his services in the department. Such continuation of
illegal appointment would not only put a financial burden on the
Government but also would spoil the fair chances of those candidates
who would have got the appointment if due procedure was followed. It is
stated that his subsequent representations for conversion were also not
considered as there is no provision for such absorption/conversion of
adaily wage employee in the last grade service post.It is further stated
that the Petitioner was terminated on 9.09.2014 itself and he is no
longer in service and the contention of the Petitioner saying that Deputy
Transport Commissioner Kadapa is not allowing him to work on daily
wage basis is not correct in view of the existing instructions given by the
Government. Moreover the terminate proceedings was issued to the
petitioner on 09-09-2014 and the petitioner has not questioned the same
till 2014 and after 2014 the department has not utilized the service of
petitioner therefore, the question of payment of salaries does not arise.
5. It is further stated in the counter affidavit that, the representation
given by Shaik Mohammad Basha for conversion as Office Subordinate
cannot be considered as his appointment as Generator Operator cum
Water Boy given by Deputy Transport Commissioner, Kadapa on daily
wages vide proceedings dated 10.08.2010 itself is in violation of Section
3 of ActAndhra Pradesh Acts ordinance and Regulations of 1994 and as
such he was terminated on 09.09.2014. As he is not a regular
employee, conversion as Office Subordinate does not arise and as such
his representation for conversion as Office Subordinate was rejected by
Transport Commissioner, on 03rdMay 2022. Therefore, prayed to
dismiss the writ petition.
6. Reply affidavit has been filed by the petitioner to the counter
affidavit filed by the respondents and stated that the Transport
Commissioner, A.P., Hyderabad in Memo letter No.1869/C1/C4/2013,
dated 04.11.2015 addressed to the Deputy Transport Commissioner,
Kadapa had discussed appointment of petitioner stating that the
Government have requested to furnish detailed report as to whether or
not Audit objections were raised by the Principal Accountant General's
office for payments made to contingent staff when appointments on
contingency basis were prohibited in Government Offices under Act 2,
1994 during the period from 1994 to 2014 and requested the Deputy
Transport Commissioner, Kadapa to furnish details of Audit paras raised
by the Principal Accountant General's office for payment made to
contingent staff. It is further stated that, no any Audit objection has
been arisen by the A.G., Α.Ρ. Hyderabad towards payment made
contingent staff, and that no reply has been sent to the Transport
Commissioner, A.P. Hyderabad by the Deputy Transport Commissioner,
Kadapa in this regard. It is further stated that the application is likely to
be in live process being prolonged to consider further appointment to the
last grade service, being understood favour of the petitioner but not
closed file either in the office of the Transport Commissioner, A.P.
Vijayawada or Deputy Transport Commissioner, Kadapa. And it is very
pertinent and Kind attention is invited towards his antecedent during his
tenure period from 10.08.2010 to 09.09.2014 for more than 04 years
that no adverse remarks of Moral turpitude grave dereliction towards his
attitude, knowledge, skill behavior, which needed vital facts and figure to
attend public service.
7. It is further stated in the reply affidavit that, As per appointment
order the appointing authority i.e., the then Deputy Transport
Commissioner, Kadapa has clearly mentioned in its order the
appointment is on contingent basis and evidently proved the salary bills
was drawn from the District Treasury Officer, Kadapa and audited by the
Accountant General, A.P. Hyderabad and also disciplinary action was
initiated by the Transport Commissioner, A.P. Hyderabad and charges
framed against the then Deputy Transport Commissioner, Kadapa and
charges were dropped the Government on technical grounds for the
reasons stated that the then Deputy Transport Commissioner, Kadapa
has low vision quota selected by APPSC though she is Group-I Officer
and knowledge of Fundamental and Constitutional and also passed
Transport Departmental tests and also applied for conferred IAS the
mistake done by the appointing authority cannot excused under any
circumstance and hence the petitioner is entitled under G.O.Ms. No.
212, Govt. of A.P. with all consequential benefits from the date of
unauthorized termination otherwise the petitioner is for all benefits and
reinstate into service with back wages as per rules and citations of
catena judgments of Hon'ble Supreme Court and Hon'ble High Court
and also requested to take contempt action against the then Deputy
Transport Commissioner, Kadapa and also she was recently promoted
as Joint Transport Commissioner by the Government.
8. Heard Sri M. Chinnapa Reddy, learned counsel appearing for the
petitioner and learned Assistant Government Pleader for Services
appearing for the respondents.
9. On hearing, learned counsel for the petitioner while reiterating
the averments made in the petition submits that the Rule 32 states that
the Head of the Department is competent to relax rules relating to
transfer promotion or other service conditions governed by these rules
or special rules in respect of posts carrying a scale of pay less than that
of Junior Assistant in his Department. Therefore, learned counsel
requests this Court to pass appropriate orders.
10. On the other hand, learned Assistant Government Pleader has
also while reiterating the averments made in the counter, submits that,
the petitioner who worked as Generator Operator cum Water Boy on
daily wages was given termination orders vide proceedings
No.3/A1/2014 dated 9.9.2014 as per instructions of the Joint Transport
Commissioner (Vigilance). She further submits that the contention of
the petitioner that DTC, Kadapa is not allowing the petitioner to work on
daily wage basis is not correct in view of the existing instructions given
by the Government and moreover the terminate proceedings were also
issued to the petitioner. Therefore, the petitioner is not entitled for any
relief sought for in this writ petition and prayed to dismiss the same.
11. On a perusal of the material on record, it is observed that, asper
letter No.4767/A1/2012, dated 28.01.2015, wherein it was mentioned
that on 10.08.2010, the then Deputy Transport Commissioner, Kadapa
was appointed Sri Shaik Mohammed Basha, as Generator Operator
cum Water Boy in the O/o the DTC, Kadapa, on daily wage basis vide
Roc No.3695/B1/2010. Again on 10.09.2014 the then Deputy Transport
Commissioner terminated and cancel the above proceedings issued on
10.8.2010 as per the instructions of Joint Transport Commissioner
(Vigilance).
12. It is further observed that, the Government vide Memo
No.1947/Ser.IV/(1)/2013 Tr.R&B Department (Ser.IV) dated 27.2.2013,
the request of the petitioner was received and thereafter the
Government vide Memo No.9589/Tr.II(2)/2014, dated 10.12.2014
requested the Transport Commissioner to look into the matter and take
necessary action. Thereafter, the Transport Commissioner examined
further as per Section 3(1) of the Act 2 of A.P. Acts Ordinance and
Regulations of 1994 and concluded the appointment of Sri Shaik
Mohammed Basha as Generator Operator on contingent basis was
irregular and DTC, Kadapa was advised to reject the request of the
individual vide Memo No.1869/C1/2013 dated 20.03.2015 and further
called for explanation from Smt. Krishnaveni, the then DTC, Kadapa
who gave appointment to the petitioner as Generator Operator on
contingent basis which was irregular in terms of provisions of Act II of
AP Acts Ordinance and Regulations of 1994. Accordingly,
Smt.B.Krishnaveni has given explanation vie R.No.532/A1/2015, dated
26.03.2015 stating the particulars of "The circumstances for appointing
Sri Shaik Mohammad Basha as Generator Operator cum Water Boy"
and also stating about the "Reasons for cancellation of appointment
orders" etc.After considering the explanation, the Government vide
Memo No.4976/Vig.Tr/2/2015((181924) dated 08.04.2021, has dropped
further action against Smt.B.Krishnaveni, the then DTC, Kadapa.
13. This Court further observed that, in the present case, the
petitioner herein has filed salary slips/Advance Receipts for the period
from March 2014 to July 2014 only as material papers. Therefore, it is
evident that from the date of termination dated 09.09.2014 there are no
salary slips/ advance receipts and there is no proof of evidence to show
that he is continuing in the post of Generator Operator cum Water Boy.
This Court further observed that the very appointment of the petitioern
on daily wages was highly irregular for which the explanantion of DTC
was also called for. An order given without auhtoirty by any official
cannot be a ground for the indivudal to continue his services in the
department. Such continuation of illegal appointment would not only put
a financial burden on the government but also would spoil the fair
chances of those candidates who would have got the appointment on
merit if due procedure was followed. Therefore the representations
which were given by the petitioner for conversion as Office Subordinate
cannot be considered as appointment as Generator Operator cum
Water Boy given by DTC, Kadapa on daily wages videproceedings
dated 10.08.2010 itself is in violation of orders of Government in Section
3 of the Act 2 of 1994 and as such he was terminated. Further, the said
representation was rejected by the by the Transport Commissioner vide
Letter No.13030/7/C4/2018, (Old File 1869/C1/C4/2013) dated 3.5.2022
stating that as the petitioner is not a regular employee, conversion as
Office subordinate does not arise.
14. In view of the foregoing discussion, this Court further observed
that, during pendency of the enquiry against SmtBKrishnaveni, the then
DTC, the representations were not considered by the respondent
authority till 2022. Later, when the action against the said
Smt.B.Krishnaveni was dropped by the Government, then the authorities
issued the rejection orders dated 3.5.2022.Therefore, this Court found
no merit in the present writ petition and the same is liable to be
dismissed.
15. Accordingly, the Writ Petition is dismissed. However, the
petitioner is at liberty to challenge the rejection proceedings dated
3.5.2022 before the appropriate authority. There shall be no order as to
costs.
16. As a sequel, all the pending miscellaneous applications shall stand
closed.
_________________________
DR. K. MANMADHA RAO, J.
Date : -09-2024
Gvl
HON'BLE DR. JUSTICE K. MANMADHA RAO
Date :06.9.2024
Gvl
