B. Ravinder vs The State Of Telangana And 3 Others
2023 Latest Caselaw 2527 Tel

      THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI

                 WRIT PETITION NO.2518 OF 2023

                               ORDER

In this Writ Petition, the petitioner is seeking a Writ of Mandamus

declaring the action of respondent No.2 in suspending the petitioner

from the post of Hostel Welfare Officer, Grade-II vide proceedings

No.A1/654/2022 dt.31.12.2022 without any jurisdiction and contrary to

G.O.Ms.No.13 dt.16.08.2022, as illegal, arbitrary and violative of

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

direct the respondents to reinstate the petitioner into service and to pass

such other order or orders as this Court may deem fit and proper in the

circumstances of the case.

2. Brief facts leading to the filing of the present Writ Petition are

that the petitioner was appointed as a Watchman on 29.11.2006 in SC

Boys Hostel (C), Adilabad. Thereafter, he was promoted to the post of

Hostel Welfare Officer, Grade-II on 09.04.2010. He was posted to

Chinthaguda Village, Jannaram Mandal, Adilabad District.

Subsequently, he was transferred to the Government SC Boys Hostel,

Bela, Adilabad and since then, the petitioner was working in the same W.P.No.2518 of 2023

cadre. It is submitted that thereafter, G.O.Ms.No.212 dt.04.08.2021 was

issued by the Government of Telangana for reorganisation of local

cadres and that the post of Hostel Welfare Officer, Grade-II was a zonal

cadre post and as per G.O.Ms.No.13 dt.16.08.2022, Subordinate Service

Rules clinchingly show Rule 3 about the method of appointment and the

appointing authority for various clauses. It is submitted that in view of

the above Rule, the Hostel Welfare Officer, Grade-II being a zonal post,

the appointing authority is respondent No.3, i.e., Zone-II District

Collector, Nizamabad and not respondent No.2, i.e., the District

Collector, Adilabad. It is submitted that on the ground that the petitioner

did not attend to his duty and was unauthorisedly absent on 25.12.2022

which was a declared holiday and the students staged a dharna about

serving them with uncooked/under cooked food and that the same was

also reported in the newspapers, the petitioner was placed under

suspension. It is submitted that the petitioner had arranged food for

boarders at Bela Hostel on 25.12.2022 including lunch and dinner and

the same was informed to respondent No.2 in writing on 25.01.2023 and

requested to drop the suspension proceedings and further requested to

reinstate the petitioner into service on the ground that neither respondent

No.2 nor respondent No.4 has issued any show-cause notice prior to W.P.No.2518 of 2023

passing of the suspension order and that the petitioner was very much

present in the hostel and arranged the food to the boarders in the

Government SC Boys Hostel, Bela. However, the suspension order of

the petitioner was not revoked and challenging the same, this Writ

Petition has been filed.

3. Learned counsel for the petitioner submitted that the appointing

authority of the petitioner is the District Collector, Nizamabad who is

the Head of Zone-II and therefore, he is the authority who can place the

petitioner under suspension and not respondent No.2 under whose

jurisdiction, the petitioner was working. Therefore, challenging the

suspension order both on the jurisdiction of the officer who passed the

order and also on the merits, the present Writ Petition has been filed.

4. The respondents have filed a counter affidavit justifying the

suspension order and stating that the petitioner was absent from duty on

25.12.2022 without prior permission of the higher authority resulting in

the boarders taking an agitation for providing uncooked/under cooked

food for them and the same was published in the newspapers on

26.12.2022. It is submitted that after conducting a preliminary enquiry,

respondent No.2 has placed the petitioner under suspension. It is further W.P.No.2518 of 2023

submitted that respondent No.3 who is the Zonal Officer and also the

appointing authority for the post of Hostel Welfare Officer, Grade-II,

has ratified the order of respondent No.2 vide orders dt.27.03.2023. It is

submitted that since the appointing authority, i.e., the Zonal Officer has

ratified the decision of respondent No.2, as per the judgment of the

Hon'ble Supreme Court of India in the case of Maharashtra State

Mining Corpn. Vs. Sunil, S/o Pundikarao Pathak 1, the ratification is

with effect from the date on which the suspension order has been

passed. In respect of subsistence allowance from March, 2023 not paid

to the petitioner, it is submitted that the Government approval (Finance

Department) is pending and the same will be released immediately on

receipt of the approval. Therefore, the respondents prayed for dismissal

of the Writ Petition.

5. The learned counsel for the petitioner has filed a reply affidavit

stating that the ratification of the order can only be by an authority

higher in rank and not by an officer who is equal in rank to the authority

who passed the order. He submitted that respondents 3 and 4 both being

District Collectors are of the same cadre and therefore, the ratification

by respondent No.3 is not legal. In support of his contentions, he placed

(2006) 5 SCC 96 W.P.No.2518 of 2023

reliance upon the judgment of a Coordinate Bench of this Court in

W.P.No.31145 of 2018 dt.03.10.2018.

6. Having regard to the rival contentions and the material on

record, it is noticed that for unauthorised absence on 25.12.2022 which

appears to be an holiday, the petitioner was placed under suspension.

But, this Court finds that the petitioner was working as Hostel Welfare

Officer, Grade-II and was required to take care of the facilities at SC

Boys Hostel, Bela, Adilabad and was required to be present on the said

date. The allegation against the petitioner is that he was not present and

uncooked/under cooked food was served to the students. Therefore, the

petitioner was placed under suspension by the District Head, i.e.,

District Collector, Adilabad. However, as per the Telangana State and

Subordinate Service Rules, 1996, the post of Hostel Welfare Officer is a

zonal post and therefore, the appointing authority is the Zonal Head, i.e.,

District Collector, Nizamabad. Therefore, an order of suspension can

also be passed by the appointing authority, i.e., Zonal Head, i.e.,

respondent No.3. Therefore, the order of suspension is not passed by the

competent authority and after filing of the Writ Petition by the petitioner

on 30.01.2023, the respondents have filed a counter affidavit enclosing W.P.No.2518 of 2023

the ratification order passed by the District Collector, Nizamabad, i.e.,

respondent No.3 and it is dated 27.03.2023. As held by the Hon'ble

Supreme Court in the case of Maharashtra State Mining Corpn. Vs.

Sunil, S/o Pundikarao Pathak (1 supra), an order of ratification related

back to the date of order and is retrospectively validated. The question

before this Court is whether the order of respondent No.2 as ratified by

respondent No.3 has to be considered as valid ratification by the

competent authority. The competent authority herein being the 3rd

respondent, is the authority who has to pass the order of suspension and

the order of ratification can also be by the competent authority if the

order has been passed by an officer lower in rank. In this case, the

learned counsel for the petitioner argued that both respondent No.2 and

respondent No.3 are of the same cadre and are in equivalent rank and it

is only respondent No.3 who is in-charge of the zone, whereas

respondent No.2 is the head of a particular District and therefore, the

ratification by respondent No.3 of the order of respondent No.2 cannot

be held to be a valid ratification. However, this Court finds that where

an order is passed by an incompetent authority, for it to become valid, it

has to be ratified by the competent authority and when ratified, it dates

back to the order of suspension and not to the order of ratification.

W.P.No.2518 of 2023

7. In such circumstances, this Court is satisfied that the order of

suspension dt.31.12.2022 passed by respondent No.2 is ratified by the

competent authority. However, against a suspension order, there is an

appeal provision. Therefore, the petitioner is permitted to file an appeal

and the respondents are directed to consider the appeal, if any, filed by

the petitioner within a period of four weeks from the date of filing of the

appeal.

8. The Writ Petition is accordingly disposed of. No order as to

costs.

9. Miscellaneous petitions pending, if any, in this Writ Petition

shall stand closed.

___________________________ JUSTICE P. MADHAVI DEVI

Date: 20.09.2023 Svv