1. This Writ Petition is filed seeking Writ of Certiorari calling for the records relating to the impugned order issued by the 4th respondent-Superintending Engineer, I & CADD, Warangal Urban District, vide proceedings dt.16-09-2019 and quash the same by declaring that the said proceedings were issued with a prejudged mind to remove the petitioner from service as illegal and arbitrary and contrary to the procedure contemplated under T.S. Civil Service (Classification Control & Appeal) Rules, 1991 (for brevity ‘the Rules, 1991) and consequently direct the respondents to reinstate the petitioner with all consequential benefits.2. Heard Sri A.Anil Kumar, Writ Petitioner/Party-in-Person and the learned Government Pleader for Services-II appearing for the respondents and in the instant case, Sri N.Praveen Reddy, learned counsel, is appointed as Amicus curiae to assist the Court on behalf of the petitioner.3. It has been contended by the petitioner that initially he was appointed as an Assistant (Library) in District Training Centre, Warangal, pursuant to the Notification and the District Collector is the Chairman of the District Training Centre under the Nodal Agency of Human Resources Department. The petitioner was appointed on consolidated pay initially on 08-11-2000. After certain considerable length of service, the petitioner’s post was re-designated as Steno Typist-cum-Computer Operator on 21-11-2006. While the petitioner was discharging his duties in the District Training Centre, the District Training Centre was not having adequate budget to continue its programmes during 2007. Then the District Collector vide proceedings dt.30-03-2007 has recommended for the petitioner’s absorption as Steno Typist-cum-Computer Operator in the Irrigation Department. Thereafter, the petitioner submitted a representation to the Secretary to the Irrigation Department on 24-05-2007 requesting to absorb him in the Irrigation Department. The 4th respondent vide proceedings dt.21-06-2007 has informed the District Collector that there is a clear vacancy of Typist in the Circle Office, Warangal and sought consent from the District Collector to utilize the services of the petitioner in the vacant Typist post. In response to the 4th respondent’s letter dt.21-06-2007, the District Collector has given his consent vide proceedings dt.27-06-2007 for absorption of the petitioner as a Typist in the Irrigation Department.4. Thereafter, the 4th respondent vide proceedings dt.30-06-2007 has absorbed the petitioner as Typist in the vacant post. In pursuance to the proceedings issued by the 4th respondent, the petitioner is appointed as Typist in the Irrigation Department on 02-07-2007. The Pay and Accounts Officer has raised objection vide proceedings dt.18-08-2007 for paying salaries to the petitioner. The 4th respondent vide orders dt.28-09-2007 has clarified in response to the objection raised by the Pay and Accounts Officer. Then the Pay and Accounts Officer having himself got satisfied with the clarification given by the 4th respondent has started paying salaries to the petitioner. The petitioner has further contended that while he was discharging as Typist in the Irrigation Department, one Sri A.Yadgiri has given a complaint about petitioner’s appointment. The 4th respondent had taken a stand that the appointment of petitioner is done as per the Rules and submitted a report to the 2nd respondent on 16-04-2008 on the said complaint and the probation of the petitioner was also declared vide proceedings dt.13-08-2010 with effect from 01-07-2009. The petitioner has further contended that he was also granted Special Grade Promotion Scale vide proceedings dt.24-08-2013 with effect from 02-07-2013. The petitioner has been discharging his duties to the best satisfaction of his superiors and everyone concerned.5. The petitioner has further contended that while he was working, the respondents have issued a memo dt.18-03-2017 to remove the petitioner from service without conducting any enquiry. The petitioner has filed W.P.No.10229 of 2017 challenging the said memo dt.18-03-2017 and this Court was pleased to suspend the memo vide interlocutory orders dt.24-03-2017. Thereafter, during the pendency of the said Writ Petition, the respondents have issued a charge memo on 16-11-2017 alleging that the petitioner has furnished false information regarding his previous employment and cheated Government and got appointment as Typist in the Irrigation Department. The petitioner has submitted explanation denying the said charge on 28-11-2017. Not satisfied with the explanation submitted by the petitioner, the disciplinary authority has appointed the enquiry officer on 29-12-2017 and the enquiry officer himself acted as a Presenting Officer. No witnesses were examined. However, the enquiry officer concluded the enquiry and submitted an enquiry report on 11-06-2018 holding that the charges are not proved. When the Enquiry Officer has submitted his report on 11-06-2018, the disciplinary authority has issued an office memo on 26-09-2018 directing the enquiry officer to re-submit the enquiry report once again. In pursuance to the memo dt.26-09-2018, the enquiry officer has strangely changed the enquiry report and re-submitted the same on 05-10-2018 holding that the charges are proved. The enquiry report was furnished to the petitioner on 12-10-2018 and the petitioner raised his objections to the enquiry officer’s report on 24-10-2018. Thereafter, the respondents have issued show-cause-notice on 27-06-2019 as to why a major punishment of removal should not be imposed on the petitioner.6. Challenging the said show-cause-notice, the petitioner filed W.P.No.13612 of 2019 before this Court and this Court was pleased to dispose of the said Writ Petition on 04-07-2019 setting aside the show-cause-notice of removal from service and liberty was granted to the employer to proceed from the stage of furnishing enquiry officer’s report and conclude the enquiry proceedings within two months. Then an opportunity was given to the petitioner for submission of his objections to the enquiry officer’s report. On 16-08-2019 and the petitioner submitted his objections to the enquiry officer’s report on 22-08-2019. Then the final show-cause-notice was issued on 29-08-2019. The petitioner has submitted an explanation to the said show-cause-notice on 12-09-2019. But the 4th respondent has passed the removal orders vide proceedings dt.16-09-2019. Challenging the said removal orders, the present Writ Petition is filed.7. The petitioner has contended that the orders of removal are contrary to the Rules, 1991. The petitioner has further contended that the punishment of removal is shockingly disproportionate to the charges levelled against the petitioner. The first charge levelled against the petitioner is that he has furnished false information regarding his previous employment and cheated the Government and got appointment as Typist in the Irrigation Department; the second charge is that as per Act 2 of 1994, no recruitment in any Pubic Service in any post in any class, category or grade shall be made except from the panel of candidates selected and recommended for appointment by the PSC and it has been alleged that the petitioner is not a regular employee in any department earlier and he has done on monthly remuneration basis only and he has mislead the Department in getting regularly appointed; and the last charge is that the petitioner failed to maintain absolute integrity and discipline and he has behaved in a manner which is unbecoming of such employee having produced the fake information regarding his previous employment and got appointment as Typist in the Irrigation Department.8. The petitioner has further contended that he has not mis-represented. It is the District Collector who has recommended his case for absorption in the Irrigation Department vide proceedings dt.30-03-2007 as the District Training Centre was not having enough budget to continue its programmes and only after the District Collector making recommendation, the petitioner has submitted representation to the Irrigation Department on 24-05-2007 and the 4th respondent has sought the consent of the District Collector vide proceedings dt.21-06-2007 and the District Collector gave his consent on 27-06-2007 and only thereafter, the petitioner was appointed as a Typist in the Irrigation Department on 30-06-2007. The petitioner is no way responsible in making of a false claim about his previous employment nor he gainfully re-employed as a Typist in the Irrigation Department. The entire charge itself is not maintainable and the enquiry officer has rightly submitted his report on 11-06-2018 holding that the charges are not proved. The disciplinary authority vide memo dt.26-09-2018 has returned the enquiry officer’s report to the enquiry officer and directed him to submit another enquiry report and acting at the behest of disciplinary authority, the enquiry officer has changed the report and submitted a fresh enquiry report on 05-10-2018 holding that the charges are proved, which is contrary to the Rules, 1991.9. The petitioner has further contended that the objections raised by the petitioner were not at all considered by the disciplinary authority and the disciplinary authority has mechanically imposed punishment of removal which is contrary to the law and principles of natural justice. The petitioner has further contended that he was discriminated even while imposing punishment since when one Smt. Samantha, Junior Assistant, had obtained employment based on fake degrees, the very same disciplinary authorities conducted enquiry and imposed minor punishment of stoppage of one increment without cumulative effect. But in the instant case, the petitioner never submitted fake documents or fake degrees and the petitioner had only submitted representation on 24-05-2007 for his absorption in the Irrigation Department only after the District Collector recommended his case on 30-03-2007 and the respondents have acted on the representation submitted by the petitioner and passed orders for which the petitioner cannot be blamed or made as scapegoat. Since the Rules permitted the respondents to absorb the petitioner as Typist in the Irrigation Department, they have absorbed the petitioner as Typist. The respondents always have a power to reject the case of the petitioner. But having acted upon the representation submitted by the petitioner way back in 2007 and that too after acting on the recommendations of the District Collector, the respondents cannot turn now and contend that the petitioner has mis-represented about his previous employment and gainfully employed as a Typist in the Irrigation Department. Therefore, the action of the disciplinary authority in imposing major penalty of removal is contrary to law and shockingly disproportionate to the charges levelled against the petitioner. He has further contended that since the punishment of removal is shockingly disproportionate to the charges levelled against the petitioner, the orders of removal dt.16-09-2019 are liable to be set aside.10. Learned Government Pleader for Services-II appearing for the respondents has contended that the respondents have conducted a detailed enquiry and imposed a punishment only after the enquiry officer has submitted a report holding that the charges are proved. The disciplinary authority as well as the enquiry officer have given ample opportunity to the petitioner to present his case and after following the due process of law and after extending principles of natural justice, the respondents have rightly imposed punishment of removal. The petitioner was guilty of suppressing the fact that he was not a regular Government employee and he was only working as an Assistant (Librarian) in the District Training Centre on consolidated pay and he has mis-represented in his representation that he is regular Government employee and got employee as a Typist in the Irrigation Department which is contrary to the Rules and after conducting detailed enquiry only, the respondents have imposed a punishment of removal. Therefore, there are no merits in the Writ Petition and the same is liable to be dismissed.11. This having considered the rival submissions is of the view that the charges levelled against the petitioner read as follows:-“CHARGE-I As per Rule 3 category 4 of AP Ministerial Service Rules 1998 (Telangana Adoption Orders), Method of appointment of typist is by direct Recruitment (or) by Conversion of Junior Assistants/Typist/Junior Steno/Telephone Operator (or) by appointment by transfer of Record Assistants and other equivalent categories in APGSS (or) by appointment by transfer of members of the AP Last Grade Services. But, Sri A.Anil Kumar has furnished false information regarding his previous employment and cheated the department and got appointed as Typist in Irrigation Department. Thus he has violated the above rule position.CHARGE-II As per Act 2 of 1994, 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 PSC 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 requisite qualification and sponsored by the Employment Exchange(d) Compassionate Appointments in favour of a dependent of the person who dies in harness or who retires from services on medical grounds.(e) Appointments made in favour of a dependent of any person killed in extremist violence or in police firing who is not accused of an offence.Sri A.Anil Kumar does not belong to any of the above category and also he is not a regular employee in any department earlier and he has worked on monthly remuneration basis only. But furnished false information regarding his previous employment and cheated the department and got appointed as Typist in Irrigation Department, which is highly irregular.CHARGE-III As per Rule- 3(1) of APCS (Conduct) Rules, 1964 (Telangana Adaptation Orders 2016) according to which “every Government employee should be devoted to his duty and maintain absolute integrity and discipline” and as per Rule 3(ii), of APCS (Conduct) Rules, 1964, (Telangana Adaptation Orders 2016), no Government employee shall behave in a manner which is unbecoming of such employee or derogatory to the prestige of Government.”. But, Sri A.Anil Kumar, has produced fake information regarding his previous employment and got appointed as typist.”12. In pursuant to these charges, the petitioner has submitted his representation on 24-05-2007. In the said representation, the petitioner has not suppressed about the fact that he was initially employed as an Assistant (Librarian). In pursuance to the interview in the District Training Centre, Warangal, he got appointment vide proceedings dt.08-11-2000. He has rendered seven years of service as Assistant in the District Training Centre and he has specifically pleaded that there was no budget even to maintain its programmes including Training Programmes and he has requested to depute or convert his services as Steno Typist-cum-Computer Operator in the Irrigation Department and regularize the same. The District Collector has recommended the case of the petitioner for absorption in the Irrigation Department vide proceedings dt.30-03-2007 and acting on the said recommendations made by the District Collector, the 4th respondent has sought consent of the District Collector vide letter dt.21-06-2007 and the District Collector has given his consent on 27-06-2007 and only thereafter, the petitioner was appointed as a Typist in the Irrigation Department vide proceedings dt.30-06-2007. The charge leveled against the petitioner itself is not properly framed and the enquiry officer has already submitted his report on 11-06-2018 with no specific remarks as against the charges and the disciplinary authority has returned the enquiry officer’s report to the enquiry officer to resubmit his enquiry report vide memo dt.26-09-2018 with specific remarks for each of the charge and the enquiry officer has once again resubmitted the enquiry report on 05-10-2018 holding that the charges are proved which itself shows that the respondents had some kind of prejudice against the petitioner and the punishment of removal is shockingly disproportionate to the charges levelled against the petitioner.13. The Supreme Court in its judgment reported in Ranjit Thakur v. Union of India and others (1987) 4 S.C.C. 611), held as under:“25. Judicial review generally speaking, is not directed against a decision, but is directed against the “decision-making process”. The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court-martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court-martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review. In Council of Civil Service Unions v. Minister for the Civil Service [(1984) 3 WLR 1174 (HL) : (1984) 3 All ER 935, 950] Lord Diplock said:“Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call ‘illegality’, the second ‘irrationality’ and the third ‘procedural impropriety’. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of ‘proportionality’ which is recognised in the administrative law of several of our fellow members of the European Economic Community;. . .”14. The Supreme Court, in another case reported in Bhagat Ram v. State of Himachal Pradesh and others (1983) 2 S.C.C. 442), held as follows:“15. The question is once we quash the order, is it open to us to give any direction which would not permit a fresh enquiry to be held? After all what is the purpose of holding a fresh enquiry? Obviously, it must be to impose some penalty. It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution. Having been influenced by all these relevant considerations, we are of the opinion that no useful purpose would be served by a fresh enquiry. What option is open to us in exercise of our jurisdiction under Article 136 to make an appropriate order. We believe that justice and fair play demand that we make an order of minor penalty here and now without being unduly technical apart jurisdiction, we are fortified in this view by the decision of this Court in Hindustan Steels Ltd., Rourkela v.A.K. Roy [(1969) 3 SCC 513 : AIR 1970 SC 1401 : (1970) 3 SCR 343 : (1970) 1 LLJ 228] where this Court after quashing the order of reinstatement proceeded to examine whether the party should be left to pursue further remedy. Other alternative was to remand the matter that being a case of an industrial dispute to the Tribunal. It is possible that on such a remand, this Court further observed, that the Tribunal may pass an appropriate order but that would mean prolonging the dispute which would hardly be fair to or conducive to the interest of the parties. This Court in such circumstances proceeded to make an appropriate order by awarding compensation. We may adopt the same approach. Keeping in view the nature of misconduct, gravity of charge and no consequential loss, a penalty of withholding his increments with future effect will meet the ends of justice. Accordingly, two increments with future effect of the appellant be withheld and he must be paid 50 percent of the arrears from the date of termination till the date of reinstatement.”15. The Supreme Court in another judgment reported in Union of India and another v. G.Ganayutham (1997) 7 S.C.C.463), held thus:“31. The current position of proportionality in administrative law in England and India can be summarised as follows:(1) To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The court would also consider whether the decision was absurd or perverse. The court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the court substitute its decision to that of the administrator. This is the Wednesbury [(1948) 1 KB 223 : (1947) 2 All ER 680] test.(2) The court would not interfere with the administrator's decision unless it was illegal or suffered from procedural impropriety or was irrational — in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English administrative law in future is not ruled out. These are the CCSU [1985 AC 374 : (1984) 3 All ER 935] principles.(3)(a) As per Bugdaycay [R. v. Ministry of Defence, ex p Smith, (1996) 1 All ER 257] , Brind [(1991) 1 AC 696 : (1991) 1 All ER 720] and Smith [Cunliffe v. Commonwealth, [(1994) 68 Aust LJ 791] (at 827, 839) (also 799, 810, 821), Australian Capital Tel. Co. v. Commonwealth, 1992 CL p. 106 (at 157) (Aus), R. v. Oake, 1987 Law Reports of Commonwealth 477 (at 500) (Can), R. v. Big M Drug Mart Ltd., (1985) 1 SCR 295 (Can)] as long as the Convention is not incorporated into English law, the English courts merely exercise a secondary judgment to find out if the decision-maker could have, on the material before him, arrived at the primary judgment in the manner he has done.(3)(b) If the Convention is incorporated in England making available the principle of proportionality, then the English courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon.(4)(a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the courts/tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority.(4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the courts in our country will apply the principle of “proportionality” and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It will be then necessary to decide whether the courts will have a primary role only if the freedoms under Articles 19, 21 etc. are involved and not for Article 14.”16. Further, in respect of initiation of action after more than ten years after the appointment of the petitioner is also again contrary to the law laid down by the Hon’ble Supreme Court in a case reported in Secretary, State of Karnataka and others v. Umadevi (3) and others (2006) 4 S.C.C. 1), wherein it was held thus:“53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071] , R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need no
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t be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.”17. Admittedly, the petitioner was continued in service as Typist for more than ten years that too in a sanctioned post of Typist in the Irrigation Department. Having continued the petitioner for ten long years, the respondents ought not to have initiated any disciplinary action. More so, when there is no mis-representation or false claim made by the petitioner in respect of his employment as a Typist, the entire disciplinary action initiated by the respondents itself is a mala fide exercise. In the entire allegations levelled against the petitioner that he made false claim of previous employment and gainfully absorbed in Irrigation Department, this Court is of the considered view that the petitioner is no way responsible in making of such a false claim about his previous employment nor he gainfully re-employed as a Typist in the Irrigation Department. It is the District Collector who has recommended the case of the petitioner for absorption in the Irrigation Department vide proceedings dt.30-03-2007 and the 4th respondent vide letter dt.21-06-2007 has sought consent of the District Collector before making appointment and the District Collector vide proceedings dt.27-06-2007 has given his consent for absorption of the petitioner as typist. If the District Collector and the 4th respondent have acted contrary to law, appropriate action ought to have been initiated against them but not against the petitioner. Therefore, the disciplinary proceedings initiated against the petitioner are liable to be set aside and the order of removal is also liable to be set aside as the punishment of removal is shockingly disproportionate to the conscious of the Court and the petitioner is being made as scapegoat for the lapses committed by the District Collector and the 4th respondent.18. Normally, the Courts would not interfere with the punishment and the Courts would be remanding the matter to the disciplinary authority to impose any other punishment other than dismissal/removal. But in the instant case, this Court is of the considered view that the initiation of disciplinary proceedings itself is contrary to the Rules, 1991 when the petitioner has not made any false claim or gainfully employed as a Typist. Therefore, this Court is of the considered view that the removal order is liable to be set aside and the same is accordingly set aside.19. Accordingly, the Writ Petition is allowed. The impugned order dt.16-09-2019 issued by the 4th respondent is quashed and the respondents are directed to reinstate the petitioner into service with all consequential benefits. No costs.20. Miscellaneous petitions, if any, pending in this writ petition, shall stand closed.