THE HON’BLE SRIJUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE R.KANTHA RAO W.P.NO. 15023 OF 2005 Dated: 22/11/2010 Between: Government of Andhra Pradesh, rep by its Chief Secretary to Government, Secretariat, Hyderabad and Others … Petitioners And: Radha Syam Goel, IAS, s/o K.L.Gupta, PJ-50, Panjagutta, Hyderabad and Others … Respondents THE HON’BLE SRIJUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE R.KANTHA RAO W.P.NO. 15023 OF 2005 ORDER: (Per Hon’ble Sri Justice G.Raghuram) Respondents 2 to 4 in OA No.1144 of 2002 before the Central Administrative Tribunal, Hyderabad Bench (CAT) have filed this writ petition challenging the CAT order dated 30.03.2005 directing that a cadre posting be given to the applicant (1st respondent herein), falling within the category of 170 posts and 42 posts carrying duties and responsibilities analogous to cadre posts, within a month from the date of receipt of the order. The 1st respondent filed the OA challenging the memo dated 16.08.2002 issued by the State of Andhra Pradesh (the 1st petitioner herein) and for a declaration that the action of the respondents in not giving him a posting pursuant to his transfer from the post of Commissioner of Labour on 20.03.2000, is arbitrary, illegal and violative inter alia of Rule 9 of the Indian Administrative Service (Cadre) Rules 1954; for a consequent direction to the respondents to post him in a cadre post; to direct the respondents to implement the circular memo dated 01.01.1997 issued by the State Government; to direct the respondents to set up a credible mechanism to decide the posting of IAS Officers; and for costs and damages. Summary of the applicant’s case in the OA: 1. The applicant was initially appointed to the service and allotted to the Andhra Pradesh Cadre on recruitment in 1974. He was eventually posted as Commissioner of Labour on 18.12.1997. The State Government in G.O.Rt.No. 1073 GAD, dated 20.03.2000 transferred him from the post of Commissioner of Labour without an alternative posting. The applicant handed over charge of the post of Commissioner of Labour on 21.03.2000. 2. As no salary was being paid, the applicant represented to the Government on 13.05.2000 for payment of salary. The State Government in a U.O.Note dated 28.06.2000 decided to pay salary and allowances w.e.f. 21.03.2000 until he is given posting orders, by drawing his pay against one of the 16 cadre posts of Secretaries to Government borne on the IAS Cadre of Andhra Pradesh. Accordingly he was getting his salary without a posting. 3. On 30.10.2000 and on 03.05.2001 the applicant again represented to the State for a posting. Thereafter he filed OA No. 855/2002 before the CAT. The OA was disposed of on 22.07.2002 directing the State Government to dispose of the applicant’s representation dated 03.05.2007 through a speaking order, within three weeks. 4. By the impugned memo dated 16.08.2002 the State rejected the representation of the applicant for a posting. It would appear that the applicant was posted as State Editor, District Gazetteers during 10.10.2002 to 09.11.2003; thereafter he was on leave till 21.11.2003; during 22.11.2003 and 29.11.2003 the applicant was again given no posting; eventually w.e.f. 20.01.2004 he was posted as Commissioner (Revision of Manuals), allegedly an ex- cadre post [vide para-1 of the order of the CAT}. Hence the O.A. The order of the State dated 16.08.2002 reads as under: The attention of Sri R.S.Goel, IAS, is invited to the directions of the Central Administrative Tribunal, Hyderabad Bench in the reference cited. 2. The Member of Service is informed that he is being paid salary regularly and no inconvenience is caused on account of not giving him a posting. It is the prerogative of the Government to issue a posting to an officer, depending upon the administrative exigencies and in public interest. K.SWAMINATHAN CHIEF SECRETARY TO GOVERNMENT The counter of the State in the OA, to the extent relevant and material avers: 1) That the applicant while working as Commissioner of Labour was transferred without an alternative posting in view of the report received from “an inquiry agency” on account of seizure of Rs.1.46 lakhs bribe amount from the O/o Commissioner of Labour while ordering further enquiry into the circumstances leading to the incident involving the staff of the Commissioner of Labour including the Member of Service. As the matter regarding the integrity of the applicant was under inquiry, the Government considered it appropriate not to issue a posting order. 2) As the ‘inquiry and other issues’ were under examination, in view of the orders in OA No. 885/2002 the State considered it appropriate to allow the applicant to draw pay and allowances without causing any financial inconvenience but without a posting. 3) The payment of salary and allowances to the applicant without giving him a posting is within the prerogative of the State; is neither a drain on the public exchequer nor in violation of FR 17; while the applicant’s contention that there is no provision either in the All Indian Service Act or the IAS (Pay) Rules for placing a cadre officer under compulsory wait is correct, this practice has been in vogue since long; though the circular memo dated 01.01.1997 of the State Government enjoins issuing of posting orders and to avoid ‘compulsory wait’ since there is a huge burden on the State funds and employees are paid salary without working during the period; the case of the applicant being different and his integrity under investigation there was justification for placing him under compulsory wait. Posting of an officer is within the discretion of the State. 4) As the applicant was facing certain charges besides an enquiry by the ACB, the Screening Committee which considered promotions of his batch-mates, kept the recommendation pertaining to the applicant in a sealed cover as per Government of India guidelines. Once the charges are dropped and the enquiry clears the officer from the vigilance angle, the sealed cover would be opened and the recommendations therein would be acted upon and all benefits that flow therefrom would be allowed to the applicant on par with his batch-mates. Until he is exonerated and the sealed cover is opened, the applicant would continue to draw the pay of the post he was holding as Commissioner of Labour (super time scale of IAS) and cannot equate himself on par with his juniors who are now in the category of Principal Secretary to the Government (above super time scale of IAS). 5) The post of Commissioner of Transport was kept in full additional charge of a departmental officer, is admitted, but this was only a short gap arrangement. In his rejoinder (in the OA) the applicant contended that he was in no way concerned with the raid and recovery of money from the two officers working in the O/o Dy. Commissioner of Labour, Ranga Reddy, and the officers of the Commissioner of Labour and that the ACB filed a final report u/sec. 173 Cr.P.C. and there is no case pending against him Findings of the CAT: (i) Apparently after conclusion of investigation the ACB filed a final report and closed the FIR. Disciplinary proceedings have been concluded but no final decision has yet been taken. (ii) Indisputably there are 170 cadre posts besides 42 posts within the State deputation reserve (SDR). (iii) The Special Counsel for the State Government contended that cadre officers are appointed against cadre posts and ex- cadre posts carrying duties and responsibilities analogous to cadre posts and these appointments should not exceed the number of posts in the SDR. (iv) Since the ACB enquiry is also closed and the departmental enquiry though concluded no final decision has been taken, there is sufficient justification to deny the applicant a cadre post. The present posting given to the applicant is to an ex- cadre post; and (v) Therefore the respondents are directed to give a cadre posting to the applicant falling within the category of 170 posts and 42 posts (SDR), carrying duties and responsibilities analogous to cadre posts, within one month. Earlier, by an order of this Court dated 05-06-2006, this writ petition was dismissed as infructuous on the representation made in the Court. The writ petitioners thereupon filed review W.P.M.P.No. 30081 of 2006 seeking review of the order of this Court dated 05-06-2006 contending that the writ petition had not become infructuous and that the validity of the order of the Central Administrative Tribunal directing that the respondent-applicant in the O.A. must be posted in a cadre post requires to be considered on merits. This application was allowed on 08-11-2006; the order dated 05-06-2006 (dismissing the writ petition as infructuous) was set aside and the writ petition restored to file to be heard on merits. When the writ petition is taken up for hearing on merits, the learned Additional Advocate General Sri A. Satyaprasad and the learned counsel for the respondent/applicant Sri K. Lakshmi Narasimha have stated that the respondent/applicant has since retired from service on attaining the age of superannuation and the cause in the writ petition does not survive for adjudication and the correctness of the principle decided by the Central Administrative Tribunal in its order under appeal can appropriately be considered in an appropriate case. In view of the submission above, the writ petition is dismissed as infructuous. The issue whether a cadre officer must be posted to a cadre post only and cannot be posted to an ex-cadre post, is left open to be decided in an appropriate case. No costs. JUSTICE GODA RAGHURAM JUSTICE R.KANTHA RAO Dated:22-11-2010. Pvks