At, High Court of Andhra Pradesh
By, THE HONOURABLE MR. JUSTICE ALLADI KUPPUSWAMI
For the Petitioner: Manohar, Advocate. For the Respondent: Govt. Pleader, P.A. Chowdary, Advocate.
Alladi Kuppuswami, J.
1. K. Venkataramana Raju, Triune Officer, Ambara Maharajapuram village was dismissed from service on 31-8-1963. Thereafter, the fifth respondent was acting as the Triune officer. He was also removed from service by the Revenue Divisional officer, Chittoor, by an order d/ 18-8-1965. The order was confirmed on appeal by the District Collector on 16-4-1966. A Second appeal was preferred to the Board of Revenue which was also dismissed on 8-10-1966. The fifth respondent preferred a revision petition to the Government which was dismissed on 23-11-1967. As the post fell permanently vacant, the Thasildar, Puttur invited applications for the post. The petitioner and two others applied. Meanwhile the fifth respondent purported to file another revision petition on 9-11-1970 against the order of the Board of Revenue dated 8-10-1966. In view of the pendency of this revision petition the Revenue Divisional Officer by his order dated 9-10-1971 appointed the petitioner temporarily as the Triune officer for a period of two years or till the receipt of orders of the Government on the revision petition filed by the fifth respondent which ever is earlier, subject to the condition that he should pass Headman's test part II and Karnam's test part II within two years from the date of his joining the post failing which he will be discharged from service. The petitioner joined duty in pursuance of this order add passed the prescribed tests. An a
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peal by one of the applicants who had not been selected was dismissed by the District Collector on 22-5-1972.2. In the revision petition filed by the fifth respondent, the Government passed an order, G.O. 496 Revenue (H) Department dated 4-5-1972 stating that the punishment of removal was too severe and it should be reduced to one of the suspension during which the fifth respondent was out of notice. The Government therefore, directed the fifth respondent to be reinstated to duty.3. The petitioner herein has filed this writ petition praying for this issue of a writ of certiorari or any other appropriate writ direction or order quashing the G.O. 496 dated 4-5-1972. The case of the petitioner is that the order of removal of the fifth respondent passed by the Revenue Division officer on 18-1-1965 and confirmed on appeal by the District Collector on 16-4-1966 and in revision by the Government on 23-11-2967 has becomes final and the Government had no jurisdiction to pass the impugned order purporting to revise the previous order which had become final. Rule 75 of the Village Officers Service Rules which confers revisonal power on the Government does not enable the Government to revise the order which had become final long before the rules come into operation.4. A preliminary objection was raised on behalf of the fifth respondent that the petitioners had no locus standi to question the order modifying the order of removal of the fifth respondent. It was contended that order of appointment of the petitioner clearly stated that he was appointed for a period of two years or till the receipt of the order of the Government in the revision petition filed by the fifth respondent which ever is earlier. As the order of the Government was passed on 4-5-1972 and was received five days thereafter, the appointment of the petitioner as Triune officer ceased on such receipt and thereafter he had no locus standi to question the impugned order. I am unable to accept this condition. The order of appointment of the petitioner says that the petitioner is appointed for a period of two years or till the receipt of the orders of the Government on there view petition of the fifth respondent which ever is earlier. This pre-supposes that the or of the Government in the re-vies petition referred therein is an order which the Government had jurisdiction to pass. If the Government had no jurisdiction to pass any such order, as is contended by the petitioner, it cannot stand in the way of the petitioner continuing in service till the expiry of two years which is the period mentioned in that order. The petitioner is therefore interested in questioning the order of the Government as being without jurisdiction. In Sesha Reddy v. Narasimha Reddy, 1972 (1) A.W.R. P. 396, which was approved by a Full Bench of this Court in P. Sriramaiah v. P. Puashathamarao, 1973 (1) A.P.L.J. P. 112 (F.B.) it was held that if the order was void and without jurisdiction even a stranger can question the validity of the order. In this case it is needless to go so far, for it is seen that the petitioner who has been appointed for a period of two years or till the receipt of the order of the Government in the review petition filed by the fifth respondent is certainly interested in questioning the validity of the order of the Government, for the period during which he should be in office will depend upon the validity or otherwise of that order.5. From the facts above stated it 1st seen that the orders of removal passed earlier including the order of the Board of Revenue on Second appeal were passed before the coming into force of the Village Service Rules. It therefore, follows according to the decision of the Full Bench in Sriramaiah v. P. Purushothama Rao, 1973(I) A.P.L.J. 112 F.B., that rule 75 of the Rules has no application to such orders and in exercise of that power the Government is not entitled to revise the order of the Board of Revenue which had become final by 22-5-1969.6. Sri P.A. Chowdary, the learned counsel for the fifth respondent however, argued that the revision petition filed in 1970 by the petitioner against the order of the Board of Revenue was not a revision petition made under the Rules. The order of the Government dated 4-5-1972 was also not one under the rules. The order was passed under the power which is inherent in the Government under Article 162 of the Constitution to pass any executive order. He submitted that the Government is entitled to appoint and remove its servants at any time and it is entitled to revise any order passed by its subordinate prior to the coming into force of the new rules, even apart froth rule 75 of the new Rules. He therefore, contended that the decision of the Full Bench does not stand in the way of the impugned order being valid.7. It may be noted that in the counter affidavit filed on behalf of the Government it was stated that in view of the judgment of the High Court of Andhra Pradesh in W.P. 5753/70 dated 4-9-1971 wherein it was held that retrospective operation of a statute or rule can be express or implied and that any appointment made before the issue of Ordinance 1 of 1969 and after the Constitution would come within the purview the Andhra Pradesh (Andhra Area) Village Offices Service Rules, 1969 it was considered that orders could be issued as in the impugned G.O. This clearly shows that at the time when the order was passed the Government was under the impression that it could exercise its powers of revision under rule 75 of the Village Officers Service Rules, even though the order sought to be revised was passed before coming into force of the rules and it was in exercise of that power under rule 75 that order was passed. Hence it appears that though no revision of law was cited in the impugned G.O. it was made in purported exercise of its revisional powers under rule 75 of the Village Office Service Rules. If so, in view of the decision of the Full Bench in P. Sriramaiah v. P. Purushotama Rao, 1973 (I) A.P.L.J. 112 F.B. such an order is without jurisdiction as the Government has no jurisdiction under rule 75 of the Village Officers, Service Rules to revise the order passed before coming into force of the rules.8. In order to consider this submission it is necessary to see under what circumstance the Government passed the impugned order. The orders passed by the Revenue Divisional Officer removing the fifth respondent from service in 1965 was under Board Standing Order 156 (2). An appeal to the Collector was preferred under order 156 (4) (d) and a Second Appeal to the of Board of Revenue was also preferred under the same provision. Under the Board Standing Orders there was no further right of revision to the Government. Any how, the petitioner seems to have filed a revision petition to the Government in 1967 and that was dismissed on 23-11-1967. The Government having dismissed the revision petition on 23-11-1967 the present order passed on 4-5-1972 can only be in the nature of an order reviewing its prior order. The question for consideration is whether the Government has legal authority to make an order.9. The previous order passed in revision petition was purported to have been made by the Government in a quasi judicial capacity. The Board Standing orders do not confer any power of revision to the Government much less, a power of review. In P.N. Thakobshi v. Pradyumansinghji, A.I.R. 1970 S.C. 1273, it has been held that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. In another decision in Laxman v. State of Bombay, A.I.R. 1974 S.C. 436 it was observed that when an authority exercises its revisional powers it necessarily acts in a judicial or quasi-judicial capacity and in the absence of any express provision empowering it to review the order, the subsequent order made by the Government reviewing its earlier order is ultravires and beyond its jurisdication.10. Sri Chowdary contended that the impugned order may be treated as another order revising the order of the Board of Revenue dated 8-10-65. He contended that the Government as the ultimate appointing authority is entitled to revise the order passed by the subordinate authorities under the executive powers vested in under Act. 162 of the Constitution. He submitted that the mere fact that such power of appointment and removal was delegated to a subordinate authority, like the Revenue Divisional officer under the Board Standing Orders, does not deprive the Government of the power. By delegation the Government has not denuded itself of the power of appointment and removal. In support of his contention.he relied upon Gordon, Dadds & Co. v. Morris, 1945 (2) A.E.R. 616, and Godavari S. Parulekar v. State of Maharashtra, A.I.R. 1966 S.C. 1404. In Gordon, Dadds & Co. v. Morris, 1945 (2) A.E.R. 616, the question for consideration was whether delegation by a competent authority of its powers under Regulation-51 of the Defence (General) Regulations divides that authority of the powers under the Regulation. In that case, the minister who have delegated the power stated in the order that the requisition of the premises was subject to the right of the Ministry to direct at any time the premises to be handed over to the person otherwise entitled to possession. In the circumstances it was held that the Ministry had expressly retained the authority to requisition or not and hence the delegations made in those circumstances and subject to such condition did not amount to denudation of any power of the Minister. I do not consider this as an authority for the proposition that in every case where a power is delegated, the delegating authority still rains its powers. Sri Chowdary also relied upon the decision in Godauari Parulekar v. State of Maharashtra(supra). In that case the State Government delegated its power conferred upon it under rule 30 of the Defence of India Rules to pass orders of detention to all District Magistrates. It was contended that having delegated the power, the Government itself could not pass an order of detention. Referring to the observations of Hath v. Clarke, (1955)2 M.L.J. 49 = Q.B.D. 391, the Supreme Court held the delegation does not imply a parting with power by the person who grants the delegation, and therefore, by issuing the notification in that case the State Government has not denuded itself of the power to act under rule 30. The position here is entirely different. Though the Government is the ultimate authority in which the executive power is vested, the power of appointment and removal of the village officers was conferred upon the Revenue Divisional Officer by the Board Standing Orders. Against any order passed by him, a right of appeal was conferred to the Collector and another right of second appeal to the Board of Revenue. It is clear from the provisions of these rules that the Government intended that these bodies alone should be responsible for appointment and removal of the Village Officers. Having conferred these powers including the power of appeal and second appeal to the Collector and the Board of Revenue, it is not open to the Government to say that apart from these rules, it has overall power to revise any order passed by those authorities.11. In Collector of Anantapur A.P. v. Tavvinent Gangappa, A.I.R. 1958 A.P. 140, this court had to consider the power of the Government to revise the orders passed by the Subordinate authority under Darkhast Rules. It was held that the rules did not expressly provisory powers on the Government and there is no residuary power in the Government for revising the decision under the Darkhast Rules on account of its being the last owner. They quoted with approval, the observations of the Full Bench in Nagarathnammal v. Ibrahim Saheb, A.I.R. 1955 Mad. 305, to the effect that the Government or the Board of Revenue are pound to dispose of the matters that come up before them in accordance with the rules. See also Satyanarayana v. Bapayya, A.I.R. 1963 A.P. 148. Even assuming that the Government which delegated the power of appointment and removal retains its power in spite of such delegation, such power can be exercised only so long as the delegate has not exercised that power. In this case, the delegate namely, the Revenue Divisional Officer exercised the power of removal and removed the fifth respondent from office and that order was affirmed on appeal and on second appeal under the Board Standing Orders. It is not therefore open to the Government to exercise its powers after the power has been exercised by the delegate. If it had retained any power under the rule, it could have exercised the power of revision. But no such power or revision was retained under the Board Standing Orders. Hence, even assuming that the impugned order was not made under rule 75 of the Village Officers Service Rules, the order cannot be sustained.12. Hence whether the order is considered as one passed under rule 75 of the Village Officers Service Rules or passed independently of that rule, it follows that the order is without jurisdiction.13. The Writ petition is allowed with costs. Advocate's fee Rs. 100/Writ petition allowed with costs.
"1973 (2) ALT 228,"