The State of A.P., Rep. by its Principal Secretary, Revenue (CT) department v. S.T. Rafiuddin

Order

* THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI & THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN +WRIT PETITION NO:28617 /2010 % 08.01.2025 # The State of A.P. Rep.by Its PrI.secretary & 2 Others And: $ S.T.Rafiuddin ....Petitioners ....Respondent. ICounsel for the Petitioners : GP for Services II '^Counsel for the respondents : G.L.Narasimha Rao <Gist: >Head Note; ? Cases referred:

#1. AIR 1990 SC 997 2. W.P.Nos.30771 of 2024 and batch, dated 17.12.2024 ')

HIGH COURT OF ANDHRA PRADESH * * * * WRIT PETITION NO:28617 /2010 DATE OF JUDGMENT PRONOUNCED: 08.01.2025 SUBMITTED FOR APPROVAL: THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI & THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN

#1. Whether Reporters of Local newspapers Yes/No may be allowed to see the Judgments?

#2. Whether the copies of judgment may be v^es/No marked to Law Reporters/Journals

#3. Whether Your Lordships wish to see the L^^s/No fair copy of the Judgment? APHC010095172010 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3509] WEDNESDAY ,THE EIGHTH DAY OF JANUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN WRIT PETITION NO: 28617/2010 Between: The State Of Ap., Rep.by Its Prl.secretary & 2 Oths and Others ...PETITIONER(S) S T Rafiuddin Junior Assistant Anoth and Others ...RESPONDENT(S) AND Counsel for the Petltioner(S):

1.GP FOR SERVICES II Counsel for the Respondent(S):

1.GLNARASIMHA RAO The Court made the following order: THE HONOURABLE SRI JUSTICE RAVI AaTH TILHARI & THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN WRIT PETITION No:28617 OF 2010 JUDGMENT (per CHALLA GUNARANJAN. J): This writ petition one in the nature of Writ of Certiorari is filed under Article 226 of the Constitution of India seeking to records relating t orders A.P. Administrative Tribunal passed in O.A. No. 1240 of 2007, dated 26.03.2009 and quash the same as being perverse, in excess of jurisdiction and contrary law and for a consequential direction.

#2. The brief facts of the case in a nutshell are that: (a) The 1®* respondent, while working as Junior Assistant in the office of the Commercial Tax Officer, Akividu, alleging that he indulged in grave irregularities of misappropriation of Government Revenue, was placed under suspension, besides issuing memo dated 05.07.2004 proposing articles of charges. The Deputy Commissioner of Commercial Tax, Eluru Division, East Godavari District - i.e., the 2"*^ petitioner, who initiated the above proceedings in'his, charge memo has alleged that the 1®‘ respondent collected 2 f> an amount of ?7,900/- towards professional tax and sales tax unauthorizedly from different dealers and misappropriated the same rather than depositing the said amounts with the treasury or the Deputy Commercial Tax Officer-1, Akividu, and thereby, misused his official position and misappropriated the amounts so collected, which was in violation of A.P. Civil Services (Conduct) Rules, 1964. (b) The Commercial Tax Officer -1, Tanuku, so appointed by the 2^^ petitioner, updn conducting enquiry into the above charges submitted report dated 17.11.2004 holding that the above said charges were proved against the, 1®^ respondent. In pursuance to the same, the 2'^'^ petitioner after issuing a proper show-cause notice, enclosing the enquiry report and considering the objections of 1®* respondent thereon, by proceedings Ref. No.B2/2019/2003 dated 01.07.2006, imposed major penalty of dismissal from service. (c) Aggrieved by the same, the 1®* respondent has preferred appeal before the 3^^^ petitioner - Appellate Authority, who by f proceedings CCT’s Ref.No.V4/281/2005,

17.02.2007, dismissed the same and confirmed the order of dismissal. ■v. 3 (d) Aggrieved by the aforesaid proceedings dated 01.07.2006 issued by the 2"^ petitioner imposing major penalty of dismissal from service and as confirmed by the 3'^^ petitioner by order dated

17.02.2007, the 1®* respondent preferred O.A. No. 1240 of 2007 before the A.P. Administrative Tribunal. (e) In the above said O.A., the 1®' respondent has mainly contended that the charge memo dated 05.07.2004 and the consequential proceedings of dismissal from service issued by the Deputy Commissioner of Commercial Taxes, Eluru, was without jurisdiction and he is incompetent to exercise such power. It was the specific pleaded case that in view of G.O.Ms.No.581, Revenue (SPE) Department, dated 24.05.1976 issued in pursuance to Presidential Order, more particularly Paragraph 11 thereof r/w Annexure-I, the appointing authority to the post of Lower Division Clerks being the Deputy Commissioner, the territorial jurisdiction over the revenue district of East Godavari and West Godavari District being conferred on Deputy Commissioner of Commercial Taxes, Kakinada, he alone could have exercised the power and jurisdiction but not the Deputy Commissioner of Commercial Taxes, Eluru i.e., the petitioner herein. In support of the above submission, the 1®* respondent relied on the judgment rendered by 4 the Hon’ble Apex* Court in S.Prakasha Rao and another v. Commissioner of Commercial Taxes and others^, besides the Tribunal’s order in O.A. No.4205 of 1998. (f) Opposing the aforesaid contention, the petitioners herein have, in their counter, contended that the Deputy Commissioner of Commercial Taxes, Eluru, the District Head (West Godavari District) of Commercial Taxes Department, being the appointing authority Junior Assistant respondent/applicant was working, by virtue of Rule 9 of A.R (Civil Services (Classification, Control and Appeal) Rules, 1991 , was I competent impose penalties rightly, 2'"'^ petitioner initiated disciplinary proceedings by issuing charge memo dated 05.07.2004 and imposed a major penalty of dismissal from service. (g) The aforesaid contention of 2'^'^ petitioner has been negative by the Tribunal and held that in view of local cadre organization of Commercial Tax Department under the Presidential Order issued in G.O.Ms.No.581, dated 24.05.1976, in particular Paragraph No. 11 r/w Annexure - I of the same that jurisdiction vested with AIR 1990 SC 997 5 i Deputy Commissioner of Commercial Taxes, Kakinada, but not the Deputy Commissioner of Commercial Taxes, Eluru and accordingly allowed the O.A.

#3. Heard learned Government Pleader for Services - II for the petitioners.

#4. (a) The learned Government Pleader assailing the order of the Tribunal contended that the reasons given for allowing the O.A. are completely perverse and that the Tribunal has exceeded I the jurisdiction in granting the relief favouring the respondent. He further contends that as the 1®* respondent was appointed as Junior Assistant by the 2"^^ petitioner by proceedings dated

16.12.1994 and as he being the appointing authority is equally competent to initiate disciplinary action acting as disciplinary authority in terms of Rule 14(2)(i) of Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (herein after, for short ‘the Rules, 1991’). (b) That apart he further contends that the Tribunal had not considered subsequent G.O. issued by the Government vide G.O.Ms.No.701, Revenue (SS) Department, dated 28.04.1981, which provided reorganization restructuring 6 Commercial Tax Department and creation of new divisions of Commercial Taxel, by which the new Division of Commercial Taxes at Eluru was carved out and therefore, the Deputy Commissioner of Commercial Taxes, Eluru, being the Division Head was very much competent to initiate disciplinary proceedings against the 1®* respondent. (c) Lastly he also contends that the very initiation of O.A. before the Tribunal was bad for non-joinder of necessary party inasmuch as the State of Andhra Pradesh was not made party to the proceedings, therefore, the Tribunal ought to have dismissed the O.A. on the aforesaid ground.

#6. Perused the record. The core issue that falls for consideration before this Court is as to whether the 2^^ petitioner was competent enough and well within his jurisdiction in initiating disciplinary proceedings qua 1®* respondent by issuing the charge memo dated 05.07.2004 and consequential proceedings Ref.No.B2/2019/2003,

01.07.2006 imposing the major penalty of dismissal from service.

#7. It is an admitted fact that alleging certain grave irregularities of misappropriation of Government Revenue, the 1®* respondent 7 4 who was a Junior Assistant in the office of Commercial Tax, Akividu, was placed under suspension, followed by issuance of a charge memo dated

05.07.2004 2"*^ petitioner. Subsequently, calling a report CTO-I, 2^ petitioner proceeded with show-cause notice and concluded the disciplinary proceedings by imposing the major punishment of dismissal from service. The said order dated 01.07.2006 issued I by the 2'^^ petitioner was confirmed by the appellate authority i.e. the 3'''^ petitioner by order dated 17.02.2007.

#8. While referring to Rule 14(2)(i) of the Rules, 1991, the learned Government Pleader contended that the 2'^'^ petitioner being the appointing authority is empowered to impose major penalties as specified in Rule 9 sub-clauses (ii), (v) to (x) of the Rules, 1991.

#9. It is apposite to extract Rule 14(2)(i) of the Rules, 1991, which reads as under: t “14.(2) (i) The authority which may impose on a member of a Subordinate Service, the penalties specified in clauses (ii), (v) to (x) of rule 9 shall be the appointing authority or any authority to which it is subordinate.”

#10. Article 371D of the Constitution of India was inserted by Constitution 32"^^ Amendment Act, 1973 w.e.f. 01.07.1974 and 8 dealt with special provisions with regard to composite State of Andhra Pradesh. In exercise of said power conferred, under Article 371D, Presidential relation Public Employment (Organization Local Cadres Regulation Direct Recruitment) was made which commonly known as Andhra t Pradesh Public Employment (Organization of Local Cadres and Regulation of Direct Recruitment) Order, 1975 (herein after, referred as ‘Presidential Order’) and the same has come into force on 18.10.1975.

#11. For better appreciation of the facts of the case, it is also apposite to extract Article 371D of the Constitution of India, which is relevant for the present purpose reads as under: “371D. Special provisions with respect to the State of Andhra Pradesh. (1) The President may by order made with respect to the State of Andhra Pradesh provide, having regard to the requirements of the State a whole, for equitable opportunities and facilities for the people belonging to different State, matter of public employment and in the matter of education, and different provisions may be made for various parts of the State. I (2) An order made under clause (1) may, in particular,- i 9 (a) require the State Government to organise any class or classes of posts in a civil service of, or any class or classes of civil posts under, the State into different local cadres for different parts of the State and allot in accordance with such principles and procedure as may be specified in the order the persons holding such posts to the local cadres organised: (b) specify any part or parts of the State which shall be regarded as the local area- * (i) for direct recruitment to posts in any local cadre (whether organised in pursuance of an order under this article or constituted otherwise) under the State Government;, (ii) for direct recruitment to posts in any cadre under any local authority within the State; and (iii) for the purposes of admission to any University within the State or to any other educational institution which is subject to the control of the State Government; i (c) specify the extent to which, the manner in which and the conditions subject to which, preference qr reservation shall be given or made- (i) in the matter of direct recruitment to posts in any such cadre referred to in sub-clause (b) as may be specified in this behalf in the order; 10 a (ii) in the matter of admission to any such University or other educational institution referred to in sub-clause (b) as may be specified in this behalf in the order, to or in favour of candidates who have resided or studied for any period specified in the order in the local area in respect of such cadre, University or other educational institution, as the case may be. (10) The provisions of this article and of any order made by the President thereunder shall have effect notwithstanding anything in any other provision of this Constitution or in any other law for the time being in force.”

#12. A reading of the above G.O. would indicate that the Government of Andhra Pradesh keeping in view the provisions of Presidential Order, has formulated a scheme for reorganization of local cadres in the Commercial Tax Department. As per which, in terms of Para 11, the lower Division Clerks, Lower Division Commercial Tax Inspector, Lower Division Stenos, and Typists brought jurisdiction of concerned Deputy Commissioners of Commercial Taxes as appointing authority, and \ \ such Deputy Commissioner as mentioned in Annexure-I will exercise territorial jurisdiction on the personnel working therein. In Annexure-I which specified the jurisdiction of respective Deputy Commissioners Division, the territorial spread of East Godavari 11 and West Godavari Districts were vested with the Deputy Commissionerate at Kakinada Division, and in fact, there is no division of Deputy Commissionerate, Eluru, as such, in the entire annexure - I. If one goes by the aforesaid G.O. on the jurisdictions I of Deputy Commissioners as per the Divisions specified therein, the 1®‘respondent who was working as Junior Assistant atAkividu, West Godavari District, would clearly fall within the jurisdiction of Deputy Commissioner at Kakinada. The aforesaid G.O. issued following the Presidential Order has been in force as on day without any changes. Though Rule 14(2)(i) of the Rules, 1991 prescribes that the appointing authority shall have powers to initiate major penalties in terms of Rule 9 sub clauses (ii) and (v) to (x), in view G.O.Ms.No.581, Revenue (SPE) Department,

24.05.1976, which has been issued following the Presidential Order confirming jurisdiction on the Deputy Commissioner of Commercial Taxes, Kakinada, the orders issued under Presidential Order shall prevail over the Rule 14(2)(i). The jurisdictions, those have been carved out in pursuance to G.O.Ms.No.581, dated

24.05.1976, vesting powers respective Deputy Commissionerates Division wise cannot be altered or interdicted in any manner unless there is consent of President of India. The G.O. \ 12 was issued in accordance with Presidential Order which in turn was made under Article 371D of the Constitution of India. Though the G.O. being an executive order, however, the same having been issued in terms of Presidential Order under Article 371D of the Constitution of India, the same would prevail over Rule 14(2)(i) of the Rules, 1991, in view of clause (10) of Article 371(D) of Constitution of India.

#13. It is also apposite to extract Para 3(1) of the Andhra Pradesh Public Employment (Orgnisation of Local Cadres and Regulation of Direct Recruitment) Order, 1975 (Presidential Order), which reads as under: “3. Organibation Local Cadres:- (1) The State Government shall, within a period of eighteen months from the commencement of this Order, organise classes of posts in the civil services of, and classes of civil posts under, the State into different local cadres for different parts of the State to the extent, and in the manner, hereinafter provided. "Provided that, notwithstanding the expiration of the said period, the President may by order, require the State Government, Whenever he considers it expedient so to do, to organise any classes of posts in the civil services of, and classes of civil posts under, the State into different local cadres for different parts of the State". / 13

#14. As per Para 3(1) of the said order, the State Government within a period of 18 months was required to organize the classes of posts in the Civil Services and classes of Civil Posts under the State into different local cadres for different parts of the State, which exercise came to be done and necessary scheme has been formulated inter for organization of local cadres in the commercial tax department and necessary orders were issued to that effect vide G.O.Ms.No.581, dated 24.05.1976.

#15. It is apt to refer to the judgment of the Hon’ble High Court for the State of Telangana in Dr.S.Satyanarayana and others v. The State of Telangana and another^, which has considered the applicability of Article 371D in relation to the admissions made for Post Graduate Courses in State of Telangana, considering the scope of the Presidential Order namely the Andhra Pradesh Educational Institutions (Regulation of Admissions) Order, 1974, quay Telangana Medical Colleges (Admission into Post Graduate Medical Courses) Rules, 2021, made by the State, held as follows; ^ W.P. Nos.30771 of 2024 and batch, dated 17.12.2024. ( 14 “From perusal Article 371D(10) Constitution of India, it is evident that the same contains a non - obstante clause and therefore, the provisions of Article 371D of the Constitution and of any order made by President shall have effect over any other provision of the Constitution or any other law.”

#16. The other submission of learned Government Pleader that G.O.Ms.No.701, dated 28.04.1981, has conferred power on the 2^^ petitioner initiate disciplinary proceedings against 1®* respondent, inasmuch the Government vide the said G.O., has reorganized by creating certain additional posts and divisions, as per which the office of Commercial Taxes at Akividu was within the administrative control of the 2"^^ petitioner. A close scrutiny of said G.O. though degis with reorganization and restructuring Commercial Tax Department, the same was issued in the context of creating new Divisions, Circles, Unit Offices, and various other posts for the administrative convenience. As per the said G.O., a total of 29 Commercial Tax officers were assigned with various functions. By no stretch of imagination, the said G.O. could be Veated as one which confers specific jurisdiction on the respective Deputy Commissionerate Divisions in amendment to jurisdictions, those were carved out in terms of Annexure - I r/w 15 Para 11 of G.O.Ms.No.581, dated 24.05.1976, Presidential Order. There is not even a reference to either G.O.Ms.No.581 Presidential Order, therefore, the mere reorganization restructuring the Commercial Taxes Department for the sake of administrative con\/enience will not in any manner confer jurisdiction on the petitioner to exercise disciplinary powers upon the subordinate staff who otherwise were to be falling within the jurisdiction of the Deputy Commissioner of Commercial Taxes at Kakinada. The Tribunal has rightly by referring to the aforesaid G.O.Ms.No.581, dated 24.05.1976, which was formulated in terms of Presidential Order concluded that the 2^^ petitioner was incompetent and did not have jurisdiction in initiating the disciplinary proceedings and imposing major penalty of dismissal from service. Further, the aforesaid view of the Tribunal was also supported by referring to the Apex Court judgment rendered in S.Prakasha Rao’s case (supra 1), which was later followed by the Tribunal in O.A. No.4205/1998, which reiterated that the Units, Zones created by the Government under G.O.Ms.No.581

24.05.1976, demarcates the specific jurisdiction of concerned competent authorities in that division and any further sub-division or alteration of Divisions for the purpose of 16 administrative convenience would be in violation of the Presidential Order unless such subdivision or change in the divisions was with the consent of President of India. Even in the present case, though the learned Government Pleader tried to justify the action of the 2"^ petitioner in assuming the jurisdiction over the 1®* respondentwith reference to G.O.Ms.No.701, dated 28.04.1981, as held above, the said G.O. being merely issued' for the sake of administrative convenience, without any approval or consent of the President of India, the same ipso facto would not denude the jurisdiction of Deputy Commercial Tax Officer at Kakinada and confer the same on 2^^ petitioner.

#17. In so far as the last submission that the O.A. is bad for non-joinder of necessary and proper party i.e., State of Andhra Pradesh, the petitioners have not raised such contention before the Tribunal and having not pleaded so either in the counter or during the arguments before the Tribunal, they are precluded from raising such contention in the present writ petition. The O.A. was filed aggrieved by the orders of dismissal passed by the 2"^^ petitioner and as confirmed by the 3^^ petitioner, who is none other than the Deputy Commissioner of Commercial Taxes being the appellate Sl-, 17 authority. Therefore, the issue was well exposed and contested their behalf before the Tribunal.

#18. In view of the above findings and conclusions drawn, we do not find any infirmity in the order passed by the Tribunal, which rightly has set aside the orders passed by the 2^^ petitioner confirmed by the 3'''^ petitioner to be without jurisdiction.

#19. Accordingly, this writ petition is dismissed. No costs. As a sequel, miscellaneous petitions pending consideration if any in this case shall stand closed. //TRUE COPY// Sd/-K.SRlNIVASA RAJU ASSISTANT REGISTRAR SECTION OFFICER One fair copy to the Hon’ble SRI JUSTICE RAVI NATH TILHARI (For His Lordships Kind Perusal) One fair copy to the Hon’ble SRI JUSTICE CHALLA GUNARANJAN (For His Lordships Kind Perusal) To,

#1. One CC to Sri. G L Narasimha Rao Advocate [OPUC]

#2. Two CCs to GP for Services II, High Court Of Andhra Pradesh. [OUT]

#3. 9 LR Copies

#4. The Under Secretary, Union of India, Ministry of Law, Justice and Company Affairs, New Delhi.

#5. The Secretary, A.P Advocates’ Association Library, High Court Buildings, Amaravathi.

#6. Three CD Copies GSC HIGH COURT DATED:08/01/2025 A ORDER WP.No.28617 of 2010 DISMISSING OF THE WP WITHOUT COSTS of ANDH^^ 2 9 JAN 2C2o o ^ Current Section o> ^