IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE THIRTIETH DAY OF OCTOBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE G.BHAVANI PRASAD WRIT PETITION NO : 23420 of 2008 Between: P. Appa Rao, S/o. C.S. Patrudu, Rural Development, M.P.P., Gulugonda, Visakhapatnam District, presently R/o. Kapu Street, Narsipatnam, Visakhapatnam District. ..... PETITIONER AND 1 The Government of Andhra Pradesh, Rep by its Principal Secretary, Panchayat Raj Rural Development (EVA) Department, Secretariat, Hyderabad. 2 The Chief Executive Officer, Zilla Parishat, Visakhapatnam. 3 The Commissioner of Panchayat Raj and Rural Development, A.P. 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 will be pleased to to issue an appropriate writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the the judgement of the Hon'ble A.P. Administrative Tribunal in OA No. 5412 of 2004 dated 20-6-2008 is contrary to law and set aside the same and consequently set aside the Memo No. 49938/EV/A2/2002-4, dated 01-6-2004 of the 1st respondent and consequentially direct the respondents to treat the period from 30-7-92 to 23-02-93 as duty period from all consequential benefits and pass Counsel for the Petitioner :MR.B.NAGESWARA RAO Counsel for the Respondent No.: GP FOR PANCHAYAT RAJ & RURAL DEV. The Court made the following : HON’BLE SRI JUSTICE GHULAM MOHAMMED AND HON’BLE SRI JUSTICE G.BHAVANI PRASAD Writ Petition No.23420 of 2008 ORDER: (Per Hon’ble Sri Justice Ghulam Mohammed) This petition is filed challenging the order dated 20-06-2008 passed in O.A.No.5412 of 2004 on the ﬁle of Andhra Pradesh Administrative Tribunal, Hyderabad, and also seeking to set aside the Memo No.49938/Ev/A2/2002-4, dated 01-06-2004 issued by the ﬁrst respondent. The petitioner further seeks direction to the respondents to treat the period from 30-07- 1992 to 23-02-1993 as ‘on duty’ for all consequential benefits. 2. The facts, in nutshell, are that the petitioner, while in service, was sent on deputation as Senior Assistant to work in Andhra Pradesh State Housing Corporation, Visakhapatnam, by the second respondent vide his order dated 23-07-1990 and he was repatriated to his parent Department–Panchayat Raj Department with eﬀect from 15-07-1992, and relieved of his duties by order dated 28-07-1992. The case of the petitioner is that the place of posting was not mentioned in the orders, but later he was posted as Senior Assistant in M.P.P., Chintapalli, vide proceeding dated 31-07-1992, which was not served on him, and as such, the period of absence has to be treated as ‘on duty’ especially when he had retired from service. The oﬃcial respondents, inter alia, contended that the petitioner had been surrendered to his parent department on certain allegations and administrative reasons and that the posting order was communicated to the Deputy Executive Engineer, Housing Corporation, Narsipatnam, for service on the petitioner and the Deputy Executive Engineer in his letter dated 25-01-1993 stated that the applicant refused to take the posting order when the same was sent by registered post to the address available in the oﬃce record, and subsequently acknowledged the receipt of the order on 23-02-1993. The Tribunal, after considering the rival contentions and the material on record, dismissed the O.A. upholding the Memo dated 01-06-2004. Hence, the applicant preferred this writ petition. 3. Heard learned counsel for the petitioner and learned Government Pleader for respondents. 4. Learned counsel for the petitioner contended that the petitioner was not given posting order and therefore, he could not join the duty and in such situation, the absence of the petitioner has to be treated as ‘on duty’. On the other hand, learned Government Pleader contended that the order of posting was sent by registered post, to the address available as per oﬃce record, which was refused by the petitioner, and he wanted to evade the transfer on the verge of retirement. 5. We have considered the rival contentions of both the counsel and perused the material on record. Admittedly, the petitioner was sent on deputation to work as Senior Assistant in A.P. State Housing Corporation, Visakhapatnam, vide order dated 23-07-1992 and later repatriated and relieved of his duties vide order dated 28-07-1992. The petitioner had been posted to M.P.P., Chintapalli, vide proceedings dated 31-07- 1992, which was communicated through the Deputy Executive Engineer, Housing Corporation, Narsipatnam, for service. It is also stated that the posting order sent by registered post to the petitioner, as per the address available in the service record, was returned, and that the proceedings posting him to MPP – Chintapalli sent on 16-02-1993 was acknowledged by him on 23-2-1993, but he did not join duty. In any case, the petitioner had been posted to M.P.P., Chintapalli, vide proceedings dated 31-7-1992 and he did not join the duty. The petitioner has not put forth any plausible explanation as to why he kept quiet for about 7 months while remaining absent from duty. 6. In the above circumstances, a notice dated 24-04-1993 had been issued to the petitioner to explain as to why his unauthorised absence should not be treated as ‘dies non’ under FR-18 and Rule 5 of A.P. Leave Rules and Note-1 thereunder. After considering the explanation, the District Development Oﬃcer, Z.P.P., Visakahapatnam, vide his order dated 18-05-1993 held that the wilful absence of the petitioner from 30-07-1992 is ordered to be treated as ‘dies non’, which was impugned in O.A.No.2640 of 1993. The said O.A. was disposed of with direction to the petitioner to make a representation to the Government, which was done, and the order dated 18-5- 1993 was conﬁrmed vide Memo dated 01-6-2004 issued by the Government. 7. In the instant case, the petitioner had been given posting order dated 30-07-1992 and even assuming the said order was not served, a Government servant in the normal course would enquire from oﬃce as to his status since he was repatriated to the parent department. In the facts and circumstances, the petitioner remained absent from duty from 30-07-1992 without authorisation from the competent authority. Therefore, the authority concerned issued the notice as stated above and after considering the explanation, treated the period of unauthorised absence as ‘dies non’. F.R.18 governing the ‘Leave’ reads as follows: “Unless the Government in view of the exceptional circumstances of the case otherwise determine, no Government servant shall be grant leave of any kind for a continuous period exceeding five years. Note-1: Wilful absence from duty not covered by grant of any leave will be treated as ‘dies non’ for all purposes viz., increment, leave and pension.” In this connection, Circular Memo No.C-9101-4/8/FR-I/91 of Fin. & Plg. (FW: FR-I) Dept., dated 25-12-1991, had been issued by the Government, taking into consideration FR-18, and Rule 5-A of the A.P. Leave Rules, and the Note-1 thereunder to the eﬀect that no Government servant should be granted leave of any kind for a period exceeding ﬁve years and that wilful absence from duty not covered by grant of any leave shall be treated as ‘dies non’ for all purposes viz., increments, leave and pension. It was further clariﬁed that this treatment of unauthorised absence as ‘dies non’ is distinct from disciplinary action taken or to be taken against the employee concerned. In the case on hand, FR-18 and also the relevant Leave Rules have been applied to the facts. 8. The petitioner did not report to duty even though posting orders have been issued, that too without authorisation from the competent authority. If that were so, it can be safely concluded that his absence is unauthorised and the absence was not regularised at all. The oﬃcial respondents have followed the FR-18 as also the said Leave Rules and in view of the unauthorised absence, have treated the period of unauthorised absence as ‘dies non’, which is not as a measure of penalty arising from disciplinary action. In the foregoing circumstances, the impugned order and Memo do not suﬀer from any inﬁrmity, legal or otherwise, calling for interference in exercise of judicial review under Article 226 of the Constitution of India. 9. Accordingly, the writ petition is dismissed at the stage of admission. ___________________________ GHULAM MOHAMMED, J. __________________________ G.BHAVANI PRASAD, J. 30-10-2008 bsc