Andhra HC (Pre-Telangana)
D. Janaki Rama Rao And Others vs Govt. Of A.P. And Others on 27 April, 2001
Equivalent citations: 2001(3)ALD505
Author: S.B. Sinha
Bench: Satya Brata Sinha
ORDER
S.B. Sinha, CJ
1. These two writ petitions arise out of an order passed by the Andhra Pradesh Administrative Tribunal in OA Nos.5499 of 1999, dated 5-3-2001 whereby and whereunder the original application filed by the petitioners under Section 19 of the Administrative Tribunals Act, 1985 challenging the action of the respondents in terminating their services was dismissed.
The petitioners herein were originally employed in M/s. Hyderabad Allwyn Auto Limited which is a State Government Company. When this company became sick the Government had formulated a scheme to absorb the surplus staff of the company into the Government Departments and State Public Enterprises. Pursuant to such scheme M/s Hyderabad Allwyn Auto Limited notified on its notice board stating that the employees who are willing to be drafted to the other Government Departments or Public Enterprises may make their applications whereupon 40 persons have submitted their applications. After holding the process of interview and selection the petitioners herein have been appointed on 17-5-1995 in the Andhra Pradesh Special Protection Force. It may be relevant to notice G.O. Ms. No.530, dated 7-7-1994 which reads thus:
The posts sanctioned in para (1) above are subject to the following conditions:
1. The total requirement of staff should not exceed 6 persons including Superintendent of Accounts Office.
2. The staff should come from existing manpower only without any net additionality. Therefore, the staff shall be drawn either from existing staff of Police Department, i.e., the wing or branch which used to look after this work earlier or the surplus staff of any of the Corporation/Government Companies like Hyderabad Allwyn or Public Forge, as there are some Hyderabad Allwyn people whose services can be spared.
2. From the factual conspectus as noticed hereinbefore it would be evident that the names of the petitioners were sponsored by a company upon scrutinising the applications filed by the 40 employees. Thus they had gone through a selection process. The petitioners had also been asked to resign only in terms of the offer made by the respondents herein. The petitioners submitted their resignation on 1-6-1995.
3. However, on or about 22-9-1995 the 1st respondent passed the following order:
The attention of the Inspector-General of Police, Special Protection Force, Hyderabad is invited to the references cited. He is informed that no specific point is there for absorption of any employee into Government service in the reference 1st cited. Further, his proposal in the reference 2nd cited goes against the provisions of the Act 2 of 1994 and any contravention of these provisions is punishable. Therefore, his action in appointing the 10 persons is highly irregular. He is therefore directed to send back those employees of M/s. Hyderabad Allwyn Auto Limited appointed in various categories immediately and send the compliance report immediately to Government both in Finance and Planning (FC.II) Department as well as this Department.
4. The question which inter alia arises for consideration is as to whether in the peculiar facts and circumstances of this case and particularly having regard to the fact that the petitioners had been appointed in terms of a policy adopted by the State as borne out from the G.O. Ms. No.530 Home (Police-F) Department, dated 7-7-1994, the appointment can be said to be illegal and violative of the Andhra Pradesh (Regulation of Appointments to Public Services" and Rationalisation of Staff Pattern and pay Structure) Act, 1994 (Act 2 of 1994). The relevant provisions of the said Act are:
2(ii): 'daily wage employee' means any person who is employed in any public service on the basis of payment of daily wages and includes a person employed on the basis of nominal muster roll or consolidated pay either on full time or part-time or piece rate basis or as a work charged employee and any other similar category of employees by whatever designation called other than those who are selected and appointed in a sanctioned post in accordance with the relevant rules on a regular basis.
(vi) 'Public Service' means, services in any office or establishment of,--
(a) the Government;
(b) a local authority;
(c) a Corporation or Undertaking wholly owned or controlled by the State Government;
(d) a body established under any law made by the Legislature of the State whether incorporated or not, including a University; and
(e) any other body established by the State Government or by a Society registered under any law relating to the registration of societies for the time being in force, and receiving funds from the State Government either fully or partly for its maintenance or any educational institution whether registered or not but receiving aid from the Government.
3(1) No appointment of any person in any public service to any post, in any class, category or grade as a daily wage employee is hereby prohibited.
(2) No temporary appointment shall be made in any public service to any post, in any class, category or grade without the prior permission of the competent authority and without the name of the concerned candidate being sponsored by the Employment Exchange.
4. No recruitment in any public service to any post in any class, category or grade shall be made except,--
(a) from the panel of candidates selected and recommended for appointment by the Public Service Commission/ College Service Commission where the post is within the purview of the said Commission;
(b) from a panel prepared by any Selection Committee constituted for the purpose in accordance with the relevant rules or orders issued in that behalf; and
(c) from the candidates having the requisite qualification and sponsored by the Employment Exchange in other cases where recruitment otherwise than in accordance with clauses (a) and (b) is permissible.
7. No person who is a daily wage employee and no person who is appointed on a temporary basis under Section 3 and is continuing as such at the commencement of this Act shall have or shall be deemed ever to have a right to claim for regularisation of services on any ground whatsoever and the services of such personal shall be liable to be terminated at any time without any notice and without assigning any reasons:
Provided...........
Provided further that nothing in this section shall apply to the workmen governed by Chapter V-B of the Industrial Disputes Act, 1947.
5. In the instant case, the said order was passed by the 3rd respondent herein who is the appointing authority. Rules 8 and 9 of the A.P. Ministerial Service Rules, 1998 read thus:
13. Unit of Appointment:-- Departmental Unit-recruitment, discharge and re-appointment :--For purposes if direct recruitment, promotion, appointment by transfer, seniority, discharge and re-appointment and appointment as full member to a service and such other matters as may be specified by the State Government, a Departmental unit shall mean:
(a) each Office of a Head of the Department or the Directorate as the case may be:
Provided that in the case of Irrigation, Roads and Buildings and Panchayat Raj Engineering Departments, all the Offices of Chief/Engineers including the Offices of Engineer-in-Chiefs in each Department shall constitute one unit:
Provided further that the Offices of the Commissioner of Land Revenue, Commissioner of Settlements, Survey and Land Records, Commissioner of Land Reforms and Urban Land Ceilings, shall constitute a single unit;
Provided also that the Office of the Director of Anti-corruption Bureau and the Offices Subordinate to it in the State shall be treated as a single unit for all purposes.
(b) each office of a State Level Office/ State Level Institution notified under Andhra Pradesh Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order, 1975 or a combination of such State Level Offices/Institutions into which several such Offices/Institutions are grouped by an order of the Head of the Department or the Directorate, issued with the prior approval of the Government:
................
6. The 3rd respondent did not apply his own mind as to whether a case has been made out for termination of the services of the petitioners. He acted pursuant to the direction of the Principal Secretary who had no statutory role to perform. In Barium Chemicals v. Company Law Board, , the Court recorded that an action under direction could be mala fide. In Commissioner of Police v. Gordhandas Bhanji, , the Apex Court struck down an order which has passed at the instance of the appellate authority. In Roncarelli v. Duplesis, (1959) 16 DLR (2d) 689, where the Prime Minister of Canada gave instructions to the licensing authority to cancel a liquor licence as the licensee was supporting Jehovah's witnesses, an unpopular section of the community, the Court not only quashed the order of cancellation but even awarded damages for wrongful cancellation of the licence. It is now well settled in view of several decisions of the Apex Court as also various High Courts that when a discretionary power is vested by law in a designated official it is he alone who should exercise the power according to his own judgment and discretion and none else howsoever high in the hierarchy may be can usurp that power or direct the official to exercise the power in a particular manner. Reference in this connection may also be made to Chandrika Jha v. State of Bihar, .
7. In Purtabpur Co. v. Cane Commr. Bihar, , the Apex Court observed:
The executive officers entrusted with statutory discretions may in some cases be obliged to take into account considerations of public policy and in some context the policy of a Minister or the Government as a whole when it is a relevant factor in weighing the policy but this will not absolve them from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for them to be given binding instructions by a superior.
8. In the instant case the appointment was not a back door one. It was done pursuant to an earlier decision adopted by the State. By reason of such appointment which was in consonance with the aforementioned policy decision the petitioners derived a vested right to continue in service.
9. The appointments of the petitioners herein otherwise being not invalid are saved in terms of Section 4(b) of Act 2 of 1994. A Selection Committee although might not have been constituted for that purpose but a Selection Committee of the Company, having regard to the nature of duties and experience of the petitioners recommended their names which had been accepted by the 3rd respondent.
10. In a case of this nature the Governor having issued a policy decision in terms of Article 162 of the Constitution by necessary implication must be held to have relaxed the condition in terms of Rule 31 of the A.P. State and Subordinate Service Rules.
11. A policy decision adopted by the State in exercise of its power under Article 162 of the Constitution can be mendified or withdrawn but unless the said course is taken recourse to, the State must act in terms of the extant law.
12. In K.P. Perumal v. A&N Administration, 2000 (1) CHN 866, it was observed:
"The Lieutenant Governor is merely a person delegated with functions of an Administrator in terms of Article 239 of the Constitution of India. He had not been conferred any power to make any law which is exclusively within the domain of the President. However, he can issue executive instructions in such fields and in respect of the matter which is not covered by any legislation. An executive instruction issued or a policy decision taken in favour of a trespasser would be subject to fulfilment of the conditions imposed thereby. Undoubtedly, the same can be modified, amended or rescinded. A policy decision taken may even be withdrawn.
13. Furthermore, in any event, it was not a case where the State as a model employer and having regard to its duty to act fairly in terms of Article 14 of the Constitution should remove the petitioners from service having regard to the fact that they had been asked to resign from their services. It must also be taken note of that even after the termination of their services, when they had intended to go back to their parent organisation, they were not allowed to do so.
14. For the reasons aforementioned, we are of the opinion that the Tribunal erred in dismissing the original application filed by the petitioners herein. The writ petitions are allowed and the impugned order dated 22-9-1995 in set aside. No costs.