IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT THE HON'BLE MR JUSTICE D.S.R.VARMA and THE HON'BLE MR JUSTICE K.C. BHANU WRIT PETITION NO. : 23478 OF 2006 DATED: 14-03-2008. Between: D.Ananthaiah, son of Late D.Ashappa, Retired Section Officer, Secretariat, R/o H.No.SI-B-329, Secretariat Colony, Vanasthalipuram, Hyderabad. ....PETITIONER AND 1.The Government of Andhra Pradesh, rep. by its Principal Secretary, General Administration (SU) Department, A.P. Secretariat, Hyderabad. 2. The Government of Andhra Pradesh, rep. by its Principal Secretary, Planning Department, A.P.Secretariat, Hyderabad. 3. The Government of Andhra Pradesh, rep. by its Principal Secretary, Revenue Department, A.P.Secretariat, Hyderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue an appropriate writ, order or direction, more particularly one in the nature of Writ of Certiorari calling for the records relating to or connected with the order of A.P. Administrative Tribunal, Hyderabad, dated 10-10-2006, in O.A.No.347 of 2006 and quash or set aside the same, and consequently set aside the impugned Memo No.40956/SU.I/205-I, dated 21-01-2006, along with the records relating to G.O.Ms.No.385, dated 25-11-2004, as illegal, arbitrary, opposed to principles of natural justice, violation of Articles 14 and 16 of the Constitution of India and contrary to A.P. Civil Services (Classification, Control & Appeal) Rules, 1991 and also Rules and procedure made under A.P. Civil Services (DPT) Rules; and to grant all consequential benefits to the petitioner and to pass such other order or orders as the Hon’ble Court may deem fit and proper in the circumstances of the case. COUNSEL FOR THE PETITIONER: MR.R.V.CHALAPATHI COUNSEL FOR THE RESPONDENTS: G.P. FOR SERVICES I The Court made the following: ORDER: (per THE HON’BLE SRI JUSTICE K.C.BHANU} This writ petition is directed against the order, dated 10-10-2006, passed by the Andhra Pradesh Administrative Tribunal, Hyderabad, (for brevity “the Tribunal”), in O.A.No.347 of 2006, wherein the petitioner challenged the Memo No.40956/SU.I/205-I, dated 21-01- 2006, along with the records relating to G.O.Ms.No.385, dated 25-11- 2004, on the ground that the respondents did not apply their independent mind and blindly followed the advice of the Vigilance Commissioner and that there was a discrimination in passing the impugned order, as in similarly situated case of one Noor Basha Khasim, a different standard has been adopted. 2. The Tribunal found that the impugned orders before it cannot be said to have been passed as per the advice of the Vigilance Commissioner, that there was no discrimination meted to the petitioner in rejecting the appeal and accordingly, dismissed the O.A. 3. Learned counsel appearing for the petitioner contended that the 3rd respondent should have dropped the further action in view of the fact that the Tribunal for Disciplinary Proceedings fully exonerated the petitioner of the charges, that the Government blindly followed the advice of the Vigilance Commissioner and passed the impugned order, which is discriminatory, that in view of the fact that in the case of Noor Basha Khasim, the Government accepted the report of the Tribunal for Disciplinary Proceedings and further action has been dropped, that in the present case the Government has not followed the uniform procedure and used different standards and hence, he prays to set aside the order of the Tribunal. 4. On the other hand, learned Government Pleader for Services I, appearing for the respondents contended that the original order of punishment was not under challenge and therefore, the question of deciding the validity or otherwise of the G.O.Ms.No.230, dated 13-08- 2004, cannot be decided, that each case has to be decided on its own merits, that as there is some material on record to show about the involvement of the present petitioner, the Government deviated from the findings of the Tribunal for Disciplinary Proceedings and after giving a show cause notice, proper punishment was imposed, that considering the case of the present petitioner under Rule 41 of the Andhra Pradesh Civil Services (CCA) Rules, 1991 (for brevity “the Rules”), the Government reviewed the punishment and therefore, there are no grounds to interfere with the order of the Tribunal. 5. What is challenged in the O.A. was Memo No.40956/SU.I/205- I, dated 21-01-2006, whereunder and whereby the appeal filed by the petitioner was rejected. The representation given by the petitioner was that as the Tribunal for Disciplinary Proceedings has fully exonerated of the charges against him, imposing punishment of reduction in the time scale of pay by three stages with cumulative effect is not justifiable and therefore, he requested the Government to drop the punishment against him as in the case of Noor Basha Khasim, which is similarly situated. 6. Before passing that order, the Government issued G.O.Ms.No.385, dated 25-11-2004, reviewing the punishment order by taking a lenient view on the petitioner under Rule 41 of the Rules and decided to impose reduction in the time scale of pay by three stages with cumulative effect. Admittedly, the petitioner was dismissed from service, by virtue of G.O.Ms.No.230, dated 13-08-2004 with immediate effect. That order has become final and the same was not challenged either before the Tribunal or before this Court on any grounds as illegal or arbitrary. So long as that order remains, the petitioner cannot now contend that the said order has been passed on the advice of the Vigilance Commissioner. Therefore, question of non-application of mind and up diction of power by the Vigilance Commissioner, does not arise at all. 7. Now, the only ground remains on record is that discrimination was shown to him and in similarly situated person viz., Noor Basha Khasim, the Government has accepted the report of the disciplinary proceedings and dropped further action. But, each case has to be decided on its own merits. In the case of Noor Basha Khasim, even if the Government accepted the report of the Tribunal for Disciplinary Proceedings, the same cannot be a ground for the Government to follow the same procedure because each case depends upon its own facts. After giving a show cause notice giving reasons differing with the findings of the Tribunal for Disciplinary Proceedings, appropriate punishment has been imposed. Thereafter, on the application filed by the petitioner, the Government has re-examined his case under Rule 41 of the Rules, and reviewed the order. 8. Rule 41 of the Rules, reads as follows: “Rule 41. Review:- The Government may exercise the power to review any order passed under these rules only on the reference made by the Head of the Department when any new material or evidence which could not be produced or was not available at the time of passing the order under review and which has the effect of changing the nature of the case, has come, or has been brought, to its notice: Provided that no order imposing or enhancing any penalty shall be made by the Government unless the Government servant concerned has been given reasonable opportunity of making a representation against the penalty proposed or where it is proposed to impose any of the major penalties specified in Rule 9 or to enhance the minor penalty imposed by the order sought to be reviewed to any of the major penalties and if an inquiry under Rule 20 has not already been held in the case, no such penalty shall be imposed except after inquiring in the manner laid down in Rule 20, subject to the provisions of Rule 25 and except after consultation with the Commission where such consultation is necessary. Provided further that the Government shall exercise the power of review within a period of three years.” 9. From the above rule, it is permissible only when a new material or evidence which could not be produced at the time of passing of order which has an effect of change in the nature of the case, then only the Government can exercise review powers, that too, on reference made by the Head of the Department. As seen from the G.O.Ms.No.385, dated 25-11-2004, it is clear that it does not indicate that reference has been made by the Head of the Department on finding of new material or evidence which could not be produced or was not available at the time of passing of the order. The Government has shown undue sympathy against the petitioner in passing the said order taking a lenient view and accordingly, the order of punishment of dismissal has been modified to that of stoppage of three increments with cumulative effect. Under no stretch of imagination, it can be said that the said order has been passed at the instance or instigation of the Vigilance Commissioner. Therefore, the grounds urged by the petitioner to quash the proceeding are totally unjustifiable, that they do not warrant for setting aside the proceedings impugned before the Tribunal, that the Tribunal rightly held that there was no discrimination with regard to the punishment imposed in respect of the petitioner with that of Noor Basha Khasim and that the petitioner failed to establish that the proceedings impugned before the Tribunal were passed at the behest of the Vigilance Commissioner. 10. Therefore, the Writ Petition is devoid of merit and is, accordingly dismissed. However, there shall be no order as to costs. --------------------------------- JUSTICE D.S.R.VARMA ------------------------------ JUSTICE K.C.BHANU DATED:14-03-2008 Hsd TO 1.The Government of Andhra Pradesh, rep. by its Principal Secretary, General Administration (SU) Department, A.P. Secretariat, Hyderabad. 2. The Government of Andhra Pradesh, rep. by its Principal Secretary, Planning Department, A.P.Secretariat, Hyderabad. 3. The Government of Andhra Pradesh, rep. by its Principal Secretary, Revenue Department, A.P.Secretariat, Hyderabad. 4.2 CCS to G.P. for Services I 5. 2 CD copies.