IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE FOURTEENTH DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NO : 25916 of 2007 Between: S.Gopichand, S/o.S.Nancharaiah, Sri Varalaxmi Polytechnic Machilipatnam, R/o.Machilipatnam,Krishna Dist ..... PETITIONER AND 1 Govt.of A.P, Rep.by its Commissioner,Technical Education,Hyd 2 The Regional Joint Director of Technical Education,Kakinada 3 Sri Varalaxmi Polytechnic Rep.by its Secretary and Correspondent,Machilipatnam,Krishna Dist 4 The Principal, Sri Varalaxmi Polytechnic,Machilipatnam,Krishna Dist .....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 a writ,order or direction(s)particulary one in the nature of writ of Mandamus declaring that the impugned proceedings B/A.O/51/2007, dt.19-11-2007 issued by the respondent No.3 herein as illegal,invalid,without jurisdction and violative Sections 79 and 83 of Andhra Pradesh Education Act, 1983 and set aside the same directing the respondent herein to continue the petitioner in service as Assistant Librarian in the Respondent No.3 college with all consequential benefits and attendant benefits including pay scale attached to the post of Assistant Librarian,arrears of Salary,seniority etc and pass such other order or orders Counsel for the Petitioner:MR.P.R.PRASAD Counsel for the Respondent No.: GP FOR TECHNICAL EDUCATION The Court made the following : THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NO : 25916 of 2007 ORDER: The petitioner was initially appointed as Junior Assistant by the 3rd respondent-institution on 14.06.1991 on a consolidated pay of Rs.1,250/- per month. Subsequently on 03.08.1998, he was appointed as Assistant Librarian in the pay scale of Rs.2075-4270. The petitioner remained absent unauthorisedly between 03.07.2005 and 25.11.2005. Therefore, he was not permitted to join duty and vide notice, dated 06.01.2006, he was required to appear before a committee on 17.01.2006. The version of the petitioner was heard on that day and ultimately, a notice, dated 18.02.2006, was issued proposing some punishment. The petitioner submitted his explanation on 01.03.2006. Not being satisfied with that, the 3rd respondent passed an order, dated 22.03.2006, relieving the petitioner from duty. The petitioner submitted an appeal before the 2nd respondent under Section 80 of the A.P. Education Act. The 2nd respondent is said to have informed the petitioner that the appeal would not be entertained, since he is not the prescribed authority. The petitioner made a representation to the 3rd respondent to revoke the order, dated 22.03.2006. Thereupon, the respondents issued an order, dated 19.11.2007, appointing the petitioner as Junior Assistant, for a period of five months on consolidated pay of Rs.4,500/- per month. The petitioner contends that the 3rd respondent did not follow the procedure prescribed by law, nor did he obtain the order of competent authority. It is also stated that the order, dated 22.03.2006, does not amount either to removal or retrenchment, and the one, dated 19.11.2007 is to a lower post. The respondents filed a counter affidavit, stating that the petitioner was removed from service, on disciplinary grounds, and on a compassionate view, he was appointed as Junior Assistant afresh. It is sated that even the order, dated 19.11.2007, was revoked on 28.11.2007, since the petitioner did not join the duty. Heard Sri P.R.Prasad, learned counsel for the petitioner, learned Government pleader for Higher Education and Sri T.D.Pani Kumar, learned counsel for respondents 3 and 4. On account of the absence of the petitioner for a period of about four months, disciplinary proceedings came to be initiated, though not with the service of a well-drafted charge sheet. A committee was constituted and the petitioner was required to put forward his defence before it. On the basis of the observations of the committee, a show cause notice was issued and thereafter, the proceedings, dated 22.03.2006, were issued relieving the petitioner from service. The question as to whether the act of relieving the petitioner from service amounts to dismissal or retrenchment does not warrant the detailed consideration at this stage, inasmuch as the petitioner has to avail the remedy of appeal against the said order. As a matter of fact, the petitioner did avail the remedy, but before a different authority. The various contentions, touching on the procedure as well as the merits, need to be canvassed in the appeal before the competent authority. Having passed the order, dated 22.03.2006, the 3rd respondent had issued a fresh order of appointment to the petitioner on 19.11.2007, may be, to the post of Junior Assistant. Not withstanding the fact that it was revoked on 28.11.2007, there must not be any difficulty for the 3rd respondent in continuing the petitioner on that basis. The petitioner, in turn, can avail the remedy of appeal and he can serve the 3rd respondent, on the basis of the appointment order, dated 19.11.2007, without prejudice to his right in the appeal. Since the period of appeal had expired in the process of availing it before a different authority, adequate time can be granted to the petitioner. Hence, the writ petition is disposed of directing that- (a) it shall be open to the petitioner to avail the remedy of appeal against the order, dated 23.03.2006, passed by the 3rd respondent before the prescribed appellate authority and if it is presented within four (4) weeks from today, it shall be entertained without raising any objection as to limitation; and (b) the petitioner shall be taken in service on the same conditions, as provided for under the order, dated 19.11.2007, and such continuance shall be without prejudice to the right of the petitioner in the appeal. There shall be no order as to costs. _________ 14.07.2008 Note: Issue C.C. in three days. (B/o) JSU ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{BMR} THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NO : 25916 of 2007 Date: 14.07.2008 JSU