IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY FOURTH DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE C.V.RAMULU WRIT PETITION NO : 26783 of 1999 Between: A.V.Surender S/o.A.V.Ramanaiah O/o.Home for Aged Uppal, Rangareddy District. ..... PETITIONER AND Principal Secretary to Government Social Welfare Department Government of A.P., Secretariat, Hyderabad .....RESPONDENT 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 issue an order, direction or Writ of Mandamus more particularly in the nature of writ of mandamus directing the respondent to retain and continue the petitioner as Junior Assistant in the Social Welfare Department as if the impugned orders were never passed by holding the judgment of the Hon'ble Tribunal Dt.10/6/99 in OA.No.298/92 and also the impugned GO.Ms.No.20, dt.9/1/92 as illegal, arbitrary, and unjustiﬁed and discriminatory and violative of Articles 14, 16 of Constitution of India and pass such other order or orders as this Hon’ble Court may deem fit and proper. Counsel for the Petitioner: MR.GOPALA RAO GANDRAKOTA Counsel for the Respondent : GP FOR SOCIAL WELFARE The Court made the following : ORDER:: THE HON’BLE SRI JUSTICE GHULAM MOHAMMED & THE HON’BLE SRI JUSTICE C.V. RAMULU WRIT PETITION No.26783 of 1999 ORDER: ( per Hon’ble Sri Justice C.V. Ramulu) This writ petition is directed against the order dated 10-6-1999 passed in OA No.298 of 1992 by the Andhra Pradesh Administrative Tribunal, Hyderabad. 2. The applicant in the OA is the petitioner herein. According to the petitioner, he was initially appointed as contingent worker in Social Welfare Department on temporary basis in the year 1978 and while working as contingent worker, he made an application to the District Social Welfare Oﬃcer (General) Urban-II on 15-4-1979 for appointment as Chowkidar. In pursuance of the said application, the petitioner was appointed as Chowkidar by the proceedings dated 12-7-1979 by the District Social Welfare Oﬃcer, Hyderabad, with eﬀect from 1-7-1979. It is stated that in the year 1978 he was deputed to work in the Home for Blind, Kazipura, Hyderabad, and while so, by proceedings dated 16-12-1980, the Director of Social Welfare appointed him as full time contingent watchman. Thereafter the petitioner was appointed as Teacher in the Social Welfare Department and further by proceedings dated 28-3-1982, the Director of Social Welfare appointed him as Junior Assistant by transfer under sub-Rule 8 of Rule 3 of AP Ministerial Service Rules. When it is brought to the notice of the Government that the very appointment of the petitioner was illegal and irregular, the Government by Memo No.2123/A2/82-17, dated 29-1-1983 terminated the services of the petitioner. Aggrieved by the same, the petitioner approached the Tribunal by ﬁling RP No.396 of 1987. The Tribunal by an order dated 4-4-1987 quashed the termination order on the ground that no procedure contemplated under the rules was followed. Thereafter, the petitioner was suspended by the Government by Memo No.282/A2/87-11, Social Welfare Department, dated 24-7- 1987 and on the same day, the Joint Director of Social Welfare, Andhra Pradesh, Hyderabad, was appointed as enquiry oﬃcer. It is stated that the enquiry oﬃcer has conducted enquiry and submitted his report on 28-6-1983 holding the petitioner not guilty of the charges levelled against him. However, the Government did not accept the report of the enquiry oﬃcer and on consideration of the entire material placed before it, issued GO Rt. No.20, dated 9-1-1992 and dismissed the petitioner from service. Aggrieved by the same, the petitioner ﬁled the above said OA. The Tribunal after elaborate consideration of the matter held thus: “Now it is brought to the notice of this Tribunal that the applicant is the only son of his parents. His father who was a Government employee died and that the applicant is also married person and he has to maintain his wife, two children and his old mother. It is further brought to the notice of this Tribunal that the applicant’s family is in dire financial stress. It is the further submission of the learned advocate that even assuming for a moment that considering that there were certain lapses, including mis-representation on the part of the applicant in getting various appointments, it is only on account of his dire necessity to secure some job. We need not go into such aspects as well at this stage. The fact remains that his earlier service as Chowkidar were terminated by the order of the respondent dated 23-10-1980. By the order of the respondent dated 16-12-1980, he was appointed afresh as Watchman. No doubt, later while working as Watchman, in order to build up his carrier, he committed certain lapses including mis-representation. But in our considered view, dismissal of the applicant from service for such lapses and irregularities appears to be too severe and excessive. In the facts and circumstances present herein, the applicant is directed to make a mercy petition bringing forth all the facts and circumstances as narrated supra and we leave it to the wisdom of the Government to consider his case sympathetically, atleast for continuing him as watchman or in any one of the posts in last grade service as such appointment was not vitiated by any irregularity. The applicant is thus directed to make such representation within 15 days from the date of receipt of a copy of this order and the Government is directed to consider his case within 2 months thereafter and pass appropriate orders. The OA is disposed of accordingly with the aforesaid directions.” 4. Aggrieved thereby, the present writ petition is ﬁled. Heard the learned counsel on both sides. 5. Learned counsel for the petitioner strenuously contended that though the enquiry oﬃcer submitted report holding the petitioner not guilty of the charges framed against him, when the Government disagrees with the said report, the Government ought to have communicated such disagreement so as enable the petitioner to defend himself against the decision of the Government and the Tribunal erred in not noticing these aspects of the matter and, therefore, the impugned order passed by the Tribunal is liable to be set aside. 5. Learned Government Pleader for Social Welfare appearing for the respondent, on the other hand, supported the order passed by the Tribunal. He further submitted that the petitioner misrepresented the facts and got employment with the help of his father, who worked as Superintendent in the same department. Inasmuch as his appointment to the post of teacher and further appointment as junior assistant by transfer was irregular and illegal, the Government rightly terminated his services and, therefore, the writ petition is devoid of merits and liable to be dismissed. 6. We have given our anxious consideration to the respective submissions made by the learned counsel on either side and other material made available on record. Perused the impugned order. 7. It is more than 10 years now since the petitioner has been terminated from service. On facts, the Tribunal held that the petitioner’s appointment as teacher and thereafter as junior assistant by transfer was irregular and such transfer of cadre was eﬀected even before the completion of one year in the post of teacher and the appointment to the said post (teacher) itself was made, contrary to the rules, and under those circumstances the Tribunal upheld the action of the Government in terminating the services of the petitioner. However, having regard to the fact that the petitioner initial worked as full time contingent employee, directed the petitioner to make a mercy petition to the Government and on such mercy petition being made, it was directed to be disposed of within a timeframe. 8. In this view of the matter, we do not ﬁnd any irregularity or illegality in the impugned order passed by the Tribunal warranting interference by this Court. The writ petition being devoid of merits is accordingly dismissed. It is stated that though the petitioner stated to have made mercy petition, it has not seen light of the day. If any mercy petition made by the petitioner to the Government and if the same is still pending, the respondent is directed to pass appropriate orders, in accordance with law within a period of six weeks from the date of receipt of this order. No order as to costs. ______________________ Ghulam Mohammed, J ______________________ C.V. Ramulu, J Dated: 24th July, 2008 Nrg. ..... 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