K. Ratnagireswara Rao vs APSEB and Others

Lingaraja Rath, J.—The relief claimed in this case is for issue of a direction to respondents 1 to 3 to absorb the petitioner in the Andhra Pradesh State Electricity Board (for briefly - Board) Engineering Service and setting aside the decision of APSEB communicated to the petitioner on 4-8-1992 to repatriate him to irrigation and Command Area Development Department.

The undisputed facts are that the petitioner entered the services of the Electricity Department in 1964 as a Supervisor (Civil) and was posted in Sileru Project where he continued till 1977 when he was transferred to Vijayawada Thermal Power Station. The post was re-designated in 1979 as Additional Assistant Engineer (Civil). While continuing as such, the petitioner had applied to Andhra Pradesh Service Commission for appointment as a Supervisor in the P.W.D. Department. He was selected for the appointment and thereafter was treated as on deputation to the Electricity Department from the Irrigation and Command Area Development Department. The Board was formed in the year 1967or 1968. All the employees of the Electricity Department as also of different projects were transferred to the newly formed Board and the petitioner also continued in the Board. He was involved in a case of theft and was placed under suspension on 20-1-1987 by the Engineer-in-Chief (Administration Wing), Irrigation and Command Area Development Department and also faced criminal prosecution. As the criminal proceedings ended in acquittal, he was reinstated in service pending finalisation of the disciplinary proceedings by proceedings issued by the Engineer-in-Chief and was directed to approach the Engineer-in-Chief for his reposting orders. The Engineer-in-Chief passed orders on 1-2-1992, consequent upon his reinstatement, posting him back to A.P.S.E.B. on deputation basis and instructed him to obtain reposting orders with a request to the Secretary, A.P.S.E.B., to accommodate him if possible or to surrender him otherwise. The Engineer-in-Chief was intimated by Board''s letter dated 24-3-1992 that in their earlier letter on 17-1-1990, wherein the enquiry report was forwarded against the petitioner, the decision to repatriate him to his parent department had also been communicated, and that the Board had already examined and decided to repatriate the petitioner to the parent department as his services were no more required. On 2-8-1992, the Board communicated that he had already been repatriated to the Irrigation Department and that the quarter under his occupation should be vacated immediately. On 4-8-1992, the Board passed orders directing the petitioner to vacate the quarters and fixed penal rent. It is this communication which is impugned in the present case. A further order was also communicated to him on 28-8-1992 to vacate the quarters.

Arguing the case on behalf of the petitioner, it is the submission of Mr. Ch. V. Suryanarayana Murthy, that the petitioner has not served in the Irrigation Department for a single day in his service span and that he having been an original incumbent of the Electricity Department he has to be treated of his having absorbed as an Officer of that department for which reason the purported repatriation of him to the Irrigation Department is illegal and misconceived. The petitioner was never relieved from the Electricity Department in pursuance of the selection made by the A.P.P.S.C., in 1965 nor was ever appointed in the P.W.D. Department. As such, the petitioner cannot be treated as an employee of the P.W.D., in the Irrigation Department and repatriated there.

In the counter-affidavit filed by the respondents 1 and 3, averments have been made that the petitioner had been working since 1964 on other duty/ deputation basis. His lien and seniority continued in P.W.D. in his parent department, the Irrigation and Command Area Development Department under the Engineer-in-Chief, He has throughout drawn the deputation allowance. When the proceedings were drawn up against him, the matter was reported to his parent department and after enquiry the report was also submitted to that department for further action. He was suspended by his parent department and also was reinstated by the same department. Even on his reinstatement in service he was asked by the parent department to approach the Board for posting order, but the Board had made it clear to the Engineer-in- Chief that the petitioner had been repartiated on 17-1-1990 itself and as such there was no question of issuing posting orders to him.

Refuting the submissions it is also urged by the learned Counsel for the petitioner that the order of repatriation has neither been filed nor has ever been communicated to the petitioner, a fact which has been stated in the para 4 of the writ petition affidavit. It is also conceded by the counsel appearing for the respondents 1 and 3 that though the averments in the para 4 of the writ petition affidavit has been replied, yet the fact of non-communication of the order of repatriation has not been denied. It is also otherwise admitted by him that the order of repatriation has not been communicated to the petitioner though he submits that there is no necessity in law to communicate the order and it is enough if the order is communicated to the parent department asking them to take back the petitioner.

So far as the question urged on behalf of the petitioner that he had never been on deputation or had never been appointed in the P.W.D. Department is concerned, the submission has been emphatically resisted. Apart from the question that the submission involves factual determination of things which happened way back in 1965, the fact remains that the petitioner has been throughout treated as on deputation in the Board and he has even drawn the deputation allowance throughout. His order of suspension it self was passed by the Engineer-in-Chief of the P.W.D. Department as also his order of reinstatement. At no point of time the petitioner has chosen to challenge his status as a deputationist and hence since all concerned have proceeded on the footing that the petitioner is on deputation, a complete estoppel operates against him to claim for being treated as otherwise.

A question has been urged by the learned Counsel for the petitioner that the order of repatriation has never been communicated to him, as a matter of fact this Court also passed orders on 3-12-1992 in the writ petition directing the respondents 1 to3tocommunicate the order to the petitioner and also permitted the petitioner to approach them. Learned Counsel for the petitioner submits that he had approached the Board, but that he was refused the copy of the order. Such facts have not been stated in the affidavit and hence his submissions cannot be accepted. But the fact remains that the learned Counsel for the respondents 1 and 3 also accepts that the Board has not communicated the order to the petitioner though he contends that the decision of the board to repatriate the petitioner had been communicated to the Irrigation Department on 17-1-1990 and thereafter was reiterated again in the communication made on 24-3-1992 and that so far as the petitioner is concerned, the fact has been brought to his notice on 2-8-1992 and 4-8-1992. The deputation of a Government servant in Andhra Pradesh to any other Department on foreign service terms is regulated by Andhra Pradesh Fundamental Rules 109 to 127. F.R. 125 is in the following words:-

"A Government servant reverts from foreign service to Government service on the date on which he takes charge of his post in Government service:

Provided that if he takes leave on the conclusion of foreign service before rejoining his post, his reversion shall take effect from such date as the Government on whose establishment he is borne may decide."

The date of the reversion from foreign service of a Government servant hence is fixed as the date on which he takes charge of his post in the Government. Such a specific date has been fixed as the service of a Government servant cannot remain in inchoate state. Since admittedly a Government servant on deputation holds a post with his foreign employer, he is to be relieved from the post to enable him to join his post in the parent department. Hence he must be given a relieving order and told that he is being sent back to his parent department which is in effect the repatriation order. After the relieving and repartriation order is given to him, he has to join his parent department availing joining time, if any, as admissible to him. Even otherwise in Bachhittar Singh Vs. The State of Punjab, it was held that an order passed in respect of a Government servant remains provisionsal until it is communicated to him. It was hence incumbent upon the respondents 1 and 3 to communicate the petitioner of his repartriation. As the fact stands, the petitioner continued on suspension from 20-1-1987 till his reinstatement on 17-1-1992 and in the very order he was directed to approach the Engineer-in-Chief of Irrigation and Command Area Development Department for reposting orders. The orders without being issued to him forthwith was passed on 1-2-1992 posting him back to APSEB, with a request to them to accommodate him or if not possible, to surrender him. But on 24-3-1992, the Board refused to take him back. As a result, after his reinstatement the petitioner was not issued with a posting order either by the State Government or by APSEB. Normally if the petitioner was suspended, his suspension would be effective only against the post which he was holding at the time of suspension and if the suspension is revoked, he will be entitled to join back his post. Admittedly the petitioner was continuing under employment of the Board at the time of suspension. Merely because an order of suspension is passed by the parent departmental authority, there is no automatic repatriation of the employee to the department. If the Board has passed orders of repatriation on 17-1-1990, copy of which order has also not been filed by the Board, then it should have communicated the order to the petitioner to terminate his status as a deputationist and thereafter the services of the petitioner was the responsibility of the Government. But as it is neither the Government nor the Board had followed the correct procedure, for which the services of the petitioner has remained in a confused state and it is rightly pointed out by Sri Ch. V. Suryanarayana Murthy that prior to 2-8-1992, the petitioner had no knowledge of his repatriation, but that unless the order is served upon him and he is relieved from the AFSEB, his service would suffer from irregularisation.

In view of the facts of the case, it would be logical and reasonable to hold that on reinstatement in service and his posting being made by the Engineer-in- Chief on 1-2-1992 to the Board, the petitioner must be deemed to have been continued in the Board''s service. The Board having never passed any order of repatriation and relief of the petitioner, and no such order has ever been served upon him, he as of right was to join back to the post from which he was suspended and such right of his was also preserved by the order of the Engineer-in-Chief on 1-2-1992. The petitioner must hence be taken to have been continuing in services of the Board until a proper repatriation and relief order is served upon him and he is sent back to the Engineer-in-Chief, (Administration Wing), Irrigation and Command Area Development Department. The petitioner hence is entitled to declaration of such relief, but no direction can be issued to absorb him or regularise his services in the Board as he has throughout continued on deputation.

In the result, the petition is allowed with costs declaring the petitioner to be continuing in the Board as on deputation and to have been reinstated in the Board in pursuance of the order passed of the Engineer-in-Chief on 1-2-1992 and as being entitled to all his pay and other emoluments from the Board, but that the Board may at any time repatriate him to his parent department in accordance with law as discussed. Hearing fee Rs. 500/-.