Dr.M.Suresh Kumar v. communicated to the writ

Counsel for the Petitioner : SRI J.R.MANOHAR RAO Counsel for the Respondents: ASST. GP FOR SERVICES I The Court made the following: ORDER - HON'BLE MRS. JUSTICE SUREPALLI NANDA P o.2070 oF2 2 ORDER: Heard Sri J.R.Manohar Rao, learned counsel appearing on behalf of the petitioner and the Iearned Assistant Government Pleader for Services-I, appearing on behalf of respondent Nos.1 to 4.

2. The oetitioner filed the writ oetition seekinq the followino relief to issue a writ, order or direction more particularly one in the nature of writ of Mandamus declaring the Memo No.12564/VC-1/2006-20 dated 01.09.2022 issued by the 1't respondent and the consequential proceedings in Rc.No.17B37lVC- Dl2OOl dated 14.08.2023 issued by the 2'd respondent and communicated to the writ petitioner on 16.08.2023 as being illegal, arbitrary and violative of rights guaranteed under Artlcle, 14, 16 and 21 of the Constitution of India and consequently set aside the same directing the respondents herein to pay pension, gratuity and other retirement benefits with interest at the rate of 18o/o per annum to the petltioner and also to pay the other benefits mentioned in para-4 of the writ affidavit and to pass such other order or orders and to pass...." - 2 SN, J 'vP 20708 2023

3. The cas e of the petitioner, in brief, as per the averments nr:rle in the affidavit filed in suppo rt of the present wr!_tj,etition, is as follows: i) The petit oner was initially appointed as a Medi(:al Officer on 15.12.1989 at the PP Unit, Chelpak, Warangal District. On

04.09.2003, tl-e petitioner was placed under suspension. An enquiry was conducted by the Additional D.M. & H.O., who was not the competent authority, and based on the said enquiry, the Government iss;ued G.O.Ms.No.62 dated 09.03.2006, dismissing the petitioner fr om service. ii) The petitioner filed O.A.No.3755 of 2006, and tl'e learned Tribunal passecl an order dated 13.08.2009 by setting aside the dismissal and :he enquiry report, remanded the ma:ter for a fresh enquiry urder Rule 20 of the A.P.C.S. (CC&A) Ru es, 1991, with a directior to complete the said enqui!'y within si)< months. However, the s,lcond enquiry was conducted only in 2013 by the D.M.&H.O., Rarrga Reddy District. The Director of Me:dical and Health did not ;rccept the report and ordered another rr:-enquiry. I t J ) SN. J wP 20708 202i The third enquiry was conducted on 24.03.20L7, and the report was submitted to the 2nd respondent. iii) The petitioner thereafter filed W.P.No.7868 of 2O!7, which was allowed on 18.07.2017 in favour of the petitioner, but the orders were not implemented. Despite directions issued by the Director of Public Health & Family Welfare on 25.06.2019 to regularize the suspension period, no final orders were passed. Aggrieved by the same, the petitioner has approached this Court by filing the present writ petition.

4. PERUSED THE RECORD: (A) The relevant oortion the imouo ned me m o No. 12564/VC-L I 2006-20 da OL.O9.2O22 issued bv the resDondent No.1, is xtracted hereunder: "Attention of the Director of Public Health & Family Welfare, Telangana, Hyderabad is invited to the references cited. In the reference 2nd cited, it was requested to implement the orders dated: LBIOT/2017 of the Hon'ble High Court in W.P.No.7868 of 2OL7 filed by Dr. M. Suresh Kumar.

2. In the reference 3'd cited, Director of Public Health & Family Welfare has submitted proposal for regularization of suspension & dismissal period with efFect from 08/09/2003 to 3t/Ol/2OOB in respect of Dr.M.Suresh Kumar, Medical -1 SN, J wP_20708_2023 Officer, formerly at Primary Health Centre, Poduru, Ranga Reddy Dist -ict (now retired). ize th sus ns ron nd di mi Aft e ' examination of the matter, Go y'ernment 3 hereby re tl reriod with effe cl: from OAIOg l2 03 to 3llO1r2OO8 of Dr,M.S uresh Kumar, -Medical Officer, forrner lv at Primarv F e alth Centre, Poduru, Ranga Redd y, D istrict (now retircd) as "not on dutv" in terms of F.R.- 54(A)(2) r'ead with F.R.-54(5). Th(: ,)irector of Public Health & Familv-We lfare, n H d k h h r l f

4. Tela nqa na accordi4gly " (B) Thele.le' r;rnt oortion of the conseouenti,: I imDuqned proceedinqs vide R.C.No.17837 IVC-O/2OO1 dated to the snondenf Nrl 2

14.O8.2023 <cr rad petitaoner b.elq, n, is extracted hereunder: "Th,r immediate attention of District It4edical and Health Offlcer, Vikarabad is invited to references cited lbove and he is informed that the Government vide memo 1sr cited above aft(rr due examination of the proposa for regularization of suspension and dismissal period for the period frorr 08-09-2003 to 31-01-2008 in respect of Dr.M.Surestr Kumar, Retd. Medical Officer. former y a1. PHC Poduru, Rarga Reddy district (now in Vikarabad) has treated the period ,rs "not on duty in terms of F.R-54(A) (2) read with F. R- 54t 5 ). I ( 5 wr zo;os ' Accordingly, the copy of Govt. Memo. first cited has been communicated to DM&HO Ranga Reddy vide this office reference 2 cited for taking further necessary action. He is also informed that the DM & IIO Rangd Reddy has communicated the copy of Govt. memo, first cited along with this office communication issued vide reference 2nd cited to the DM&HO Vikarabad since the last working place of Dr.M.Suresh Kumar was PHC Poduru, which is now comes under the control of Vikarabad district (earlier in Ranga Reddy before bifurcation of districts). However, copies of references 1 to 3 cited above are again sent herewith and the DM & HO Vikarabad is requested to take necessary further action in the matter and communicate the above orders to the incumbent Dr.M.Suresh Kumar, Retired MO. He is also requested to furnish compliance report to this office so as to submit the same to Hon'ble High Court of Telangana at Hyderabad in view of WP No.20708 of 2O23, filed by Dr.M.Suresh Kurmar, Retired CAS, GCH Parigi, Vikarabad district. Kindly treat this as urgent and important." (C) The relevant oaraoraoh Nos.1, 23 and 24 of the order this Court dated 18.O7.2O17 Dassed in W.P.No.7868 of 2OL7 filed bv the petitioner on an earlier occasion <ppk no a dirert r|n trlt F rFsnn de n nts to naVrl rafr r tv h pension and all other benefits to which the oetitioner is entitled to with interest settinq aside the charqe memo 6 SN, J wP 20708 2021 issued ville proceedinqs in R.C.No.17A37 / F-.2.11.C / ?OOL d ed 6.O .2 OO3, is extracted hereunder: ) \ " 1.. This Writ Petition has been filed to s,rt aside charge memo issued vide proceedings in Rc.No.17rl37lE.2.II.C/2OOL dt.06-09-2003 and direct the respondents to pay gratuity, pension and all other beneFits to which t he petitioner is entitled to with interest.

2.t. I have already expressed my vien at,out the enquiry r,rport dt.22-04-20t7 . Till now 14 years ha,re been elapsed since issuance of charge memo, and the responderrts have not explained the delay of 8 years in completin g the enquiry proceedings after the -[ribunal allowed O.A. on 13-08-2009. So this is a fit case where the petitioner should be spared further mental agorry and suffering l)y directing again another enquiry. 2t.. Therefore, the Writ Petition is allowed and the charge rrerno dt.04-09-2003 issued to the petitirner is quashed; respondents are directed to treat the petiti3ner as having rel.ired on attaining the age of superannuation; and release hin pension and all other retirement benefits, which he is entitled to as per law without reference to t-re said charge memo. The respondents shall also pa1, clsts of Rs.5,000/. (Rupees Five Thousand only) to the petitioner." (D) The counter affidavit has been filed on letralf of the respondent ltlo.2 and in oarticular, oaraqraoh Nos.11 and 12 are extrar:ted hereunder: - 7 SN. J wP 20706 2021 l "11. And later on, the request of the petitioner for regularization of suspension period for necessary orders since specific orders were not passed by the Hon'ble High Court for regularization of suspension period i.e. 08-09-2003 to 31-01-2008. After examination of the said proposals, the suspension and dismissal period was treated as "not'on duty in terms of F.R-54 (A) (2) read with F.R-54 (5). The same was forwarded to DM&HO Ranga Reddy with instructions to communicate the petitioner vide this office letter dated 14- 08-2023. However, the Petitioner is falsely alleging non- compliance and is attempting to seek repeated reliefs for the same cause of action, which is barred under law and principle of constructive res judicata.

12. The Petitioner's prayer to treat his entire suspension period as on duty is legally untenable, especially in light of proven misconduct and adverse findings by multiple Inquiry OFficers. The charge memo issued on 04.09.2003, and the show-cause notices were issued following due process. and there is no illegality in the procedure adopted and reqularization of suspension oeriod is treated as'not on dutv in terms of FR-54 (A) (2'l r/w F.R-54(5) vide Govt. Memo. No. 12564,/VC- l / 2(J06-20, dated o1.09.2022." DISCUSSION AND CONCLUSION:-

5. Learned counsel appearing on behalf oF the petitioner submits that the impugned proceedings dated 01.09.2022 issued by respondent No.1 and the consequential proceedings dated 8 ) '.1 SN. J wP 20708 2023

14.08.2023 issued by respondent No.2, communicated to the petitioner on 16.08.2023, are illegal, arbitrary, and :ontrary to the judgment of this Court dated 18.07.2017 passed n W.P. No. 7868 of 2017, whereunder the writ petition filed by th,3 petitioner had been allor,rred and the respondents were specifically directed to treat the petitioner as having retired on attaining the age of superannuation and further respondents had been Cirected to release the petitioner's pension and all other retirem<:nt benefits to which the petitioner was entitled under law without reference to the said irnpugned charge memo dated 06.09.21123, which had become I'inal and in view of the fact that the disciplinary proceedings alainst the petitioner have been dropped vide order of this Court dated LB.O7.2O|7 in W.P. No.7B6B of 2017, the respondents cannot pass the impugned order dated DL.09.2022 and the consequential order dated 14.08.2023, wlrereby the suspension or dismissal period from 08.09.2003 to .11.01.2008 had been regularized as "not on duty" in terms of Fundamental Rule 54-A(2) r'ead with Fundamental Rule 54(5).

6. Learned counsel appearing on behalf of lhe petitioner brings to the lotice of this Court that the costs impoied by this ( 9 i SN, J wP 20708 2021 Court vide order dated LB.O7.2Ol7 passed in W.P. No. 7868 of 2017 have not been paid till date.

7. Learned Assistant Government Pleader, placing reliance on the averments made in the counter aFfidavit filed on behalf of the respondents, in particular, paragraph Nos. 11 and 12 (referred to and extracted above), contends that the petitioner's request for regularization oF the suspension period cannot be considered since no specific orders have been passed by this Court for regularization of the suspension period from 08.09.2003 to

31.01.2008 and therefore, there is no illegality in the procedure adopted or in the orders passed by the respondents dated

01.09.2022 and the consequential orders dated 14.08.2023 and communicating the same to the petitioner.

8. 54(A)(2)and 54(5) of the Fundamental Rules are extracted hereunder: Fundamental Rule 54 (A)(2) (i): where the dismissal, removal or compulsory retirement of a Government servant is set aside by the Court solely on the ground of noncompliance with the requirements of Clause (1) or Clause (2) cf Article 311 of the Constitution, and where he is not exonerated on merits, the Government servant shall, subject to the provisions of sub-rule (7) of Rule 54, be paid such amount (not being the whole) of the .l l0 SN. J wP_20708 202.1 pay and allowances to which he would have been entitled had he not been dismissed. removed or compulsorily retired, or suspenrled prior to such dismissal, remcval or compuls,rrv retirement, as the case mav be. as the competert authority may determine, after giving notice to the Gover-n!-nent servant of the quantum proposed and after considering the representation. if any, submitted by him, in that conr ection within such period (which in no case shall exceed sixty days from the date on which the no1:ice has been senred) as may be specified in the notice: (ii) The period int3rvening between the date of dismissal, renroval or compulso -y retirement including the period of suspension preceding such dismissal, removal or compulsory -eti-ement, as the car;e may be, and the date of judgment of the Court shall be regularized in accordance with the pr,tvlsions contained in sub-rule (5) of Rule 54. Ftrndamental Rule 54(5): In cases other than those fall ng under sub-rules (2) and (3) the cov€.rnment servant slrall, subject to the provisions of sub-rules (8) and (9) be paid such amount (not being the whole) of r:he pay and allow;lnces to which he would have been entitled had he not been suspended, as the competent authority may determine, after giving notice to the Government servant of the qua rtum proposed and after considering the representiltion, if any, submitted by him in that connection within such period (which in no case shall exceed sixty days from the (late on which the notice has been served) as may be specrfie,d in the notice." ( II ) SN, J wP 20708 2023

9. This Court opines that the impugned order dated Ol-09.2022 issued by respondent No.1 indicates that it has been passed in terms of Fundamental Rule 54-A(2) read with 54(5). A bare perusal of the said provisions (referred to and extracted above) reveals that it does not apply to the facts of the present case, and in Fact, the said provisions pertain to cases of dismissal, removal, or compulsory retirement of a Government servant where such orders have been set aside by the Court.

10. This Court oDines that the Dleas out forth bv the resDondents in the counter affidavit are untenable and the submissi ns n ut-forth n la cin reliance o nt h .r c, rna hrr f ha learned counsel apoearinq on behalf of the resoondents are liable to be reiected in view of the undisouted fact as borne on record that, vide its order dated 18-O7.LOL7 in W.P. No. 7868 of 2O17, this Court had quashed the chalqe memo dated O4.O9.2003 issu ed to the oetitioner and had soecificallv directed the resoondents to treat the on attaininq the aoe of petitioner as havinq retir U rt had further directed the suDerannuation. Thi s Co respo[dents to release the Detitioner's pension and other irement b n h ent tled under I \ t2 c SN, J wP 20708 202-l without teference to the sai nemo dated O4.O9.2O(13. and to oav costs of Rs.S,OrlO/- to the petitioner- dulv takino into consideration that the oetit ioner had been Dut to enous aoonv trv the acti ons of the res Do n cle n Hence, this Court ooi nel; that oetitioner s entitled Jor qrant of relief in the oresellt writ petitaon since the satd order. d ted 18.O 7.2O L7 Dassed in W.P.No,r,t8 6j3 0f O17 had a ined its fi alitv.

11. Takin q into consi deration : (a ) '[he aforesaid fa cts and circumstances of the case, (b) 'l'he submissions made by the learrred counsel appearing on behalf of the petitioner and the learned Assistant Government Pleader for Services-I, appearing on behalf of respondents. (c) The contents of the impugne:d memo No.12564/VC-L/2006-20 dated 01.O9.2O22 issrred by the respondent l{o.1 (referred to and extracted abo\fe) (d) The contents of the conseguential impugned proceedings vide R.C.No.1783Z IVC-D/2OO:t dated l3 SN, J wP_20708 2021 )

14.08.2023 issued by the respondent No.2 (referred to and extracted above), e) The averments made in the counter a.ffidavit filed on behalf of the respondents, in particular, paragraph Nos.11 and 12 (referred to and extracted above) f) The order of this Court dated LA.O7.2OL7 passed in W.P.No.7868 of 2OL7 in favour of the petitioner with certain specific directions to the respondents, duly quashing charge Memo, dated O4.09.2O23 issued to the petitioner and the said order having attained its finality. The writ petition is allowed. The impuqned order dated O1.O9.2O22 passed bv resDondent No.l and the consequential proceedinqs dated L4.O8.2O23 issued by resDondent No.2 are hereby set aside. The respondents are directed to release all the retirement benefits due to h ton r includin en s 10n a retirement benefits, alonq with interest at the rate of 18o/o per annum, in accordance to law, within a period of four (4) weeks from the date of receipt of a coov of this order, { I I

1.1 s\. J wP 20708 202.',1 - Director of Public Health and Familv Welfarr:, 'l'elanqana, ) Hvderabacl, riated 25.06.2019 vide Rc.No.1.7837lVC- D/20O1 to q!'ficers concerned to dulv comgly with the specific directions issued bv this Court, dated 18.O7.2O17 oassed in_WJ,.No.7868 of 2O17. However. 1;here shall be no order as :c costs. The miscellaneous applications, pending if any, shall stand closed \ To, ,TRUE COPY// SD/-A. SRINIVASA REDDY ASSIS'TANT REGISTRAR 1 Ir CTION OFFICER The Principa Secretary, Health, Medical and Family Welfa-e Department, Sate of Telangana, Telangana Secretariat, Hyderabad-500 022. The Director of Public Health and Family Welfare, , Goverrment of Telangana, [iultaz Bazar, Koti, Hyderabad. One CC to SRI J.R.MANOHAR RAO, Advocate. [OPUC] Two CCs to ,3P FOR SERVICES l, High Court for the Stato of Telangana Two CD Copies 2 3 4 5 BSK cI BS 1 HIGH COUR-T DATED:31 lD-,t 12025 ) CC TODAY I L:t .*{t .$ l-r x + ,a ORDER WP.No.2070tl ot 2023 ALLOWING 'THE WRIT PETITION WITHOUT C()STS g ,9 ,,C