Andhra HC (Pre-Telangana)
V. Suryanarayana vs Govt. Of A.P., Rep., By Its Principal ... on 12 October, 2001
Author: S.B. Sinha
Bench: S.B. Sinha
ORDER S.B. Sinha, C.J.
1. These writ petitions involving common questions of fact and law were heard together and are being disposed of by this common order.
2. These writ petitions are directed against a common judgment and order dated 25-7-2001 passed by the State Administrative Tribunal in O.A. Nos. 8623 of 2000 and 528 and 1847 of 2001 whereby and where under the O. A. Nos. 528 and 1847 of 2001 filed by the petitioner herein were dismissed and O.A. No. 8623 of 2000 filed by the unofficial respondent herein was disposed of.
3. FACTS:
In O.A. No. 8623 of 2000 the unofficial respondent herein had questioned the correctness or otherwise of G.O. Rt. No. 393, Animal Husbandry, Dairy Development and Fisheries (Fish. I) Department, dated 26-12-2000 and the consequential order of the second respondent therein whereby and where under the petitioner herein was transferred and posted as Executive Engineer in Head Office of the Fisheries Department. In O.A. Nos. 528 and 1847 of 2001, the petitioner herein had questioned the correctness or otherwise of G.O. Ms. No. 127, Animal Husbandry, Dairy Development and Fisheries (Fish.I) Department, dated 23-12-1999 whereby and where under the services of the unofficial respondent herein were regularised and G.O. Ms. No. 116, Animal Husbandry & Fishers Department, dated 28-10-1998, was issued whereby and where under the petitioner was repatriated to the Andhra Pradesh Fisheries Corporation for the purpose of applying voluntary retirement scheme.
4. The unofficial respondent herein, who was initially appointed as Draughtsman on 26-12-1962 in the Fisheries Department, was promoted as Assistant Engineer on 1-4-1971 and later as Deputy Executive Engineer on ad hoc basis on 1-12-1987 and his services were regularised. The petitioner herein, who joined as Supervisor on 19-12-1978, was promoted as Deputy Executive Engineer and later as Executive Engineer on 10-7-1992 in the Fisheries Corporation. Consequent to the closure of Engineering Department of Fisheries Corporation, the petitioner was sent to Fisheries Department as Executive Engineer on deputation for a period of three years. By reason of G.O.Ms. No. 153, dated 18-12-1995, the petitioner was sent on deputation to Fisheries Corporation as Executive Engineer. The Government by its order in G.O.Ms. No. 100, dated 31-5-1993 directed the Commissioner of Fisheries and Vice-chairman & Managing Director of Fisheries Corporation to regularise the surplus employees of the Corporation into the services of Fisheries Department. But, the petitioner was not absorbed.
5. The learned Tribunal having regard to the rival pleadings and contentions raised before it, formulated the following questions:
"1. Whether the applicant in O.A. No. 528/2001 and 1847/2001 is having a right to be absorbed in the Department of Fisheries?
2. Whether the said applicant who is presently working on deputation in the Department of Fishers can be repatriated to the Corporation, which is on the verge of closure?
3. Whether the Government have power to amend rules or issue ad hoc rules, governing the post of Deputy Executive Engineer and Executive Engineer in the Fisheries Department and also to relax those rules in favour of the applicant in O.A. No. 8623/2000, who is the unofficial respondent in O.A. Nos. 528/2001 and 1847/2001 and is there any arbitrariness in such relaxation of Rules?"
6. It was held that the employees of the Fisheries Corporation, which is proposed to be closed, could not claim as a matter of right that they should be absorbed in any one of the government jobs. As regards question No.3, it was held:
"Regarding the prayer in O.A.No.8623/2000, that the transfer of the unofficial respondent therein, as Executive Engineer from Kakinada to the head office of the Director of Fisheries at Hyderabad, to be declared, as illegal and arbitrary and that the applicant has to be promoted as Executive Engineer into that vacancy, it is to be noted that the unofficial respondent who is already on deputation with the Department of Fisheries as Executive Engineer at Kakinada was transferred to the post of the same Department at Hyderabad as the Executive Engineer post at Kakinada is proposed to be abolished by 31.12.2000 due to the completion of the project work on hand and to satisfy the spirit of the interim orders of the High Court W.P. No. 30088/98 and W.P.M. Ps., thereon. This Tribunal is not inclined to interfere in the matter of directing the official respondents to promote the applicant who is a Deputy Executive Engineer to the post of Executive Engineer."
7. The petitioner herein had earlier sought for a declaration in Writ Petition No. 30088 of 1998 to the effect that the action of the respondents therein in terminating his services by way of repatriating him to the Fisheries Corporation and forcing him to opt for voluntary retirement scheme without considering the directions of the learned Tribunal in O.A. No. 7632 of 1997 is illegal, arbitrary, unjust, discriminatory and violative of principles of natural justice. A Division Bench of this Court by reason of its order dated 13-3-2001 dismissed the said writ petition observing that the petitioner herein has to approach the learned Tribunal at the first instance for regularisation of his services in the Fisheries Department.
8. SUBMISSIONS:
The learned counsel for the petitioner would submit that the petitioner had a legal right to be absorbed in the Fisheries Department. It was contended that the petitioner was sent from Fisheries Corporation to the State on deputation and there is absolutely no reason as to why he should not be permitted to stay there, at least, for a period of six years. The learned counsel would contend that the petitioner is sought to be repatriated only to accommodate the unofficial respondent herein. Relying on a Full Bench decision of this Court in V.S.R. MURTHY v. ENGINEER-IN-CHIEF1, the learned counsel would contend that a similar scheme as contained in G.O.Ms. No. 100, dated 31-5-1993 was directed to be implemented.
9. The learned counsel appearing on behalf of the petitioner placed reliance on the decisions of the Apex Court in M.S. CO-OP. C.G.M. FED. LTD. v. S.P. KHADE2, T. SHANTHARAM v. STATE OF KARNATAKA3, ANDHRA UNIVERSITY v. M. SIVARAM4, A.K. PRADHAN v. STATE OF BIHAR5. The learned counsel for the petitioner would submit that all other persons similarly situated have been absorbed and the petitioner alone has been left out from absorption and he is sought to be repatriated so that he may submit himself to voluntary retirement scheme.
10. The learned counsel, in this connection, has submitted that from a perusal of letter dated 20-7-1999 issued by the Director of Fisheries it would appear that the petitioner could be absorbed in the State service.
11. Our attention has further been drawn to a letter dated 8-1-1997 issued by the Director of Fisheries to the Secretary to Government. The learned counsel for the petitioner would further contend that the petitioner had already filed a representation on 25-6-1996 to the Principal Secretary to Government for his absorption in the Fisheries Department in a clear existing vacancy of Executive Engineer, inter alia, on the ground that he was working in the said Department from 8-12-1985.
12. The learned Additional Advocate General, on the other hand, has drawn our attention to G.O.Ms. No. 100 dated 31-5-1993 and submitted on the basis thereof that the case of the Boat Building Yard cannot be made applicable to the instant case inasmuch as the Boat Building Yard was later on transferred to Fisheries Department. The learned counsel would contend that as the petitioner had been working in the Corporation, the said government order is not applicable in his case. The learned counsel would further contend that there does not exist any vacant post of Executive Engineer in the State service.
13. FINDINGS:
The posts of Executive Engineer, Deputy Executive Engineer and Assistant Executive Engineer in the Fisheries Service are governed by the Ad hoc Rules framed in terms of G.O.Ms. No. 82, dated 19-8-1997. The said ad hoc Rules for the temporary posts of Executive Engineer/Deputy Executive Engineer/Assistant Executive Engineer in Fisheries service have been made by the Governor in exercise of powers conferred by the proviso to Article 309 of the Constitution of India. The petitioner herein had not been appointed pursuant or in furtherance of the said Rules. In relation to Class-II service, the appointment can be made by transfer on tenure for a period of not exceeding three years of officers holding identical ranks in the relevant department of Government viz., Engineering Department, Treasuries and Accounts, Cooperative Department and Bureau of Economics and Statistics Department as the case may be. Admittedly, the petitioner was appointed in the Corporation.
14. The Andhra Pradesh Prohibition of Absorption of Employees of State Government Public Sector Undertakings into Public Service Act, 1997 (Act No. 14 of 1997) was enacted to prohibit absorption of employees of public sector undertakings into public service and for matters connected therewith or incidental thereto. Section 4 of the said Act, which deals with the schemes of rehabilitation, reads:
"Nothing in this Act shall disentitle any such employee to the benefit of any scheme or rehabilitation under the relevant orders issued by the Government from time to time."
15. The petitioner did not apply for absorption in the Fisheries Department at the relevant point of time. Several employees were absorbed in the Fisheries Department prior to enactment of Act 14 of 1997. After passing of the said Act, a decision has been taken by the Government to close down the Corporation as it was running at a huge loss. In service jurisprudence, a deputationist cannot claim any right to be absorbed in the transferee department. He can be sent back to his parent department by the transferee department at any point of time. The general scheme of absorption, being G.O.Ms.No.100 dated 31-5-1993, cannot be said to have any application in the case of the petitioner. As noticed herein before, the Boat Building Yard, Kakinada was a part of the Fisheries Department. The same was transferred to the A.P. Fisheries Corporation. By reason of G.O.Ms. No. 100, dated 31-5-1993, the State Government had taken a policy decision to absorb the surplus employees Boat Building Yard of Fisheries Corporation in the existing vacancies of Fisheries Department/Fisheries Corporation. Paragraphs-3 and 4 of the said G.O., reads thus:
"The Commissioner of Fisheries has also informed that the Fisheries Department is having number of vacancies. About 150 vacancies are in the categories of Attenders, Watchman, Fishermen and clerical staff. He has requested that the surplus employees of Andhra Pradesh Fisheries Corporation in these categories may be absorbed in Government and the left over employees of Boat building Yard redeployed in different units of Andhra Pradesh Fisheries Corporation. Besides this, certain employees of the Andhra Pradesh Fisheries Corporation are on deputation to different public sector organisations. They may be requested to absorb in the vacancies of those organisation.
After careful consideration of the proposal, the Government agree to absorb the surplus staff of Boat Building Yard and Andhra Pradesh Fisheries Corporation in the existing vacancies of the Fisheries Department/Andhra Pradesh Fisheries Corporation on the terms and conditions as stated in Government Lr. No. 318/PE.I/90-1, Genl. Admn. (PE.I) Department, dt. 25.5.1991."
16. Only because some decision has been taken by the State in relation to one wing of the Corporation, which was earlier a wing of the Fisheries Department, the same in our opinion, cannot per se be held to be applicable in the case of the petitioner. The petitioner, in our opinion, has no legal right whatsoever as regard the claim of absorption. Such a right cannot be claimed by the petitioner only because some recommendations have been made by the Director of Fisheries Department vide his letter dated 20-7-1999 in terms of G.O.Ms.No.100 dated 31-5-1993. A bare perusal of the aforementioned G.O. would clearly go to show that the vacancies existed only in the categories of Attenders, Watchmen, Fishermen and clerical staff. By reason of the said G.O., the workmen of those categories were recommended to be absorbed and not others.
17. It was, therefore, not correct on the part of the Director of Fisheries to recommend the absorption of the petitioner as the said G.O., was not clearly applicable. No Executive Engineer, which post the petitioner holds, could be directed to be absorbed pursuant or in furtherance of the said G.O. In the letter dated 8-1-1997, the order of the Tribunal in O.A.No. 7170/96 has been referred to. In the said O.A., by reason of an order dated 5-12-1996, the Tribunal without applying its mind on the merit of the matter by a short order directed the respondents to consider the case of the applicant. Such direction was made, purported to be in terms of the recommendations made by the Director of Fisheries on 6-7-1996. The said order, therefore, could not form the basis by the Director in the aforementioned letter.
18. As indicated hereinbefore, even in terms of the ad hoc Rules, the Executive Engineer cannot be appointed by way of absorption from the Corporation, which is a separate legal entity.
19. We may now consider the decisions cited by the learned counsel appearing on behalf of the petitioner.
20. In S.P. KHADE (2 supra), the Apex Court was dealing with a matter of absorption under the Industrial Disputes Act, 1947. In that case, a permanent employee of Cooperative Marketing Federation had been working in the Cotton Department of the Federation. Cotton Agency was transferred from Market Federation to a new organisation. In that situation, a question arose whether a new agency can refuse to absorb the permanent employees of Federation without any reason. In that case, there had been directions by the Central Tribunal in terms of the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. One of the said directions was to the following effect:
"The Cotton Growers' Federation Ltd. will finally absorb the above categories of staff after scrutiny as on 1st January, 1985.Those out of the above staff who are not acceptable to the new Federation for some reason or the other, and so have to be retrenched, will be retrenched by the Maharashtra State Co-operative Marketing Federation Ltd. and the cost thereof would be debited to cotton scheme account."
21. In view of the aforementioned specific direction, the Apex Court held that the appellant before it was not at liberty not to absorb or accept the respondents in its concern. Such absorption could not, according to the Apex Court, be refused without any reason whatsoever. On fact also, it was found that no such reason exists.
22. In T. SHANTHARAM (3 supra), the Apex Court was considering a case of seniority. The said decision was rendered in the peculiar facts of the case as the concerned employee was working for a period of thirty-two years. The deputation was on a mistaken notion. The Apex Court held that although he had been deputed to higher post in the Food and Civil Supplies Department mistakenly, but he has discharged his duties and higher responsibilities to the satisfaction of all concerned, at that distance of time it will be unjust to send him back to hold the post in the parent department, which he was entitled to hold and the Tribunal was not right to interfere with the action of the department in its absorption of the appellant as per its own earlier order. No such order has been made by the State in favour of the petitioner herein.
23. In M. SIVARAM (4 supra), a scheme was prepared pursuant to the direction of the Court. Such a scheme was directed to be issued, inter alia, on the ground that Institute of Coastal and Offshore Research was a part of Andhra University and although the said department was sought to be wound up, the posts cannot be abolished. Pursuant to the said judgment, a scheme came into operation, which was found to be fair and equitable and in view of that scheme, the order of the Division Bench, which modified the terms of the scheme, had been set aside. The said decision is, therefore, not applicable in this case.
24. In A.K. PRADHAN (5 supra), the Apex Court was considering the matter relating to taking over of a school under a statute. It was held that the Teachers of the Non-Government Secondary Schools, which have been taken over by the State, could not automatically be taken over by Government. The said decision runs counter to the submission of the learned counsel for the petitioner.
25. For the reasons aforementioned, we do not find any merit in these writ petitions, which are accordingly dismissed. But in the facts and circumstances of this case, there will be no order as to costs.