Skip to content


P. Bhupathi Reddy and ors. Vs. Government of Andhra Pradesh Represented by Secy. Panchayat Raj Dept., Hyderabad - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 567 of 1965
Judge
Reported inAIR1968AP307
ActsConstitution of India - Sections 309 - Article 311 and 311(2); States Reorganisation Act, 1956 - Sections 115; Andhra Pradesh Zilla Parishads and Panchayat Samithis Act - Sections 26(2)
AppellantP. Bhupathi Reddy and ors.
RespondentGovernment of Andhra Pradesh Represented by Secy. Panchayat Raj Dept., Hyderabad
Appellant AdvocateS. Ramachandra Rao, Adv.
Respondent Advocate2nd Govt. Pleader
DispositionPetition dismissed
Excerpt:
service - temporary appointments - article 311 (2) of constitution of india and section 115 of states reorganisation act, 1956 - petitioners appointed temporarily - temporary appointments meant no right on posts - posts eliminated in pursuance of government policy - article 311 cannot apply where post itself abolished - held, appointment lapses with abolition of posts. - - 149(3) such a termination is brought about, the rule clearly contravenes art......are treated as temporary appointments to substantive post or substantive appointments to temporary posts or temporary appointments to temporary posts, the appointment lapses with the abolition of the posts, and no question of any infringement of the protection given under article 311 arises mr. ramachandra rao placed reliance on the judgment of the high court of jammu and kashmir in abdul khalik v. state of jammu and kashmir, air 1965 j and k. 15 where relying on certain observations of the supreme court in moti ram deka's case, : (1964)iillj467sc , it was held that the provisions of art. 311 of the constitution applied to the removal of government servants consequent on the abolitions of posts also. the observations of the supreme court on which reliance is placed are as follows:-- 'the.....
Judgment:
ORDER

1. The several petitioners in this Writ petition seek a direction that G. O. Ms. No. 366 dated 27-3-1965 and G. O. Ms. No. 411 dated 1-4-1965 may not be implemented against them. All of them were appointed as temporary Village Level Workers in the Community Project and National Extension Service Blocks of the Government of Hyderabad in 1955. The Government of Andhra Pradesh by G. O. Ms. No. 896 dated 24-7-1957 constituted a distinct class in the Andhra Pradesh General Subordinate Service consisting of the temporary posts of Village Level Workers under the Community Development Programme. Clause 8 of G. O. Ms. No. 896 required that a person appointed to the post of Village Level Worker shall, after the successful completion of the prescribed period of training, be on probation for a total period of one year on duty within a continuous period of two years. In 1965 Collectors under whose authority the petitioners were working declared that they had satisfactorily completed their probation on the various dates mentioned against their names. By G. O. Ms. 575 dated 27-5-1964 the Government accepted the recommendation of a Committee constituted by them in pursuance of the direction of the Government of India that permanent posts should be sanctioned to retain the services of the staff employed in the various cadres in the Community Development Blocks. Meanwhile in 1959 the Andhra Pradesh Panchayat Samithis and Zilla Pari-shads Act had come into force.

In addition to the posts of Village Level Workers and Gram Sevikas under Government service another set of post of Village Level Workers and Gram Sevikas under the Panchayat Samithis and Zilla Parishads had been brought into existence. Since the Community Development Programme in this State had been entrusted to the Panchayat Samathis and Zilla Parishads all the staff working in the blocks previous to the coming into force of the Zilla Parishads and Panchayat Samithis Act were also placed under the control of the Panchayat Samithis and Zilla Parishads and since thev were Government servants they were treated as on 'foreign' service. The Community Development Proiects hay-ing been entrusted to Panchavat Samithis and Zilla Parishads there was no further need for the Government to continue the posts which had been originally created solely for service in the blocks. The Government also thought it was desirable that there should not be two sets of posts under the Panchayat Samithis and Zilla Parishads doine the same type of work. It was therefore decided that these posts should be integrated Consequently the Governor by a notification under Section 309 of the Constitution of India repealed G. O. Ms. No. 896 dated 24-7-1957 and abolished the costs of Village Level Workers and Gram Sevikas under Government service Since the effect of abolition of these posts was to discharge all those holding the posts from Government service a choice was given to them to opt for services as village Level Workers and Gram Sevikas under the Panchayat Samithis and Zilla Parishads. In order to absorb them in that service the Governor in exercise of his powers under Section 26(2) of the Andhra Pradesh Panchayat Samithis and Zilla Parishads Act created an equal number of posts of Village Level Workers and Gram Sevikas under the Panchavat Samithis. The employees were also assured that their previous service under the Government will be taken into consideration for all purposes The Government issued G. O. Ms. Nos. 366 dated 27-3-1965 and 411 dated 1-4-1965 to carry out these objects. The petitioners are aggrieved by these two orders and have filed this application for the issue of a writ not to implement these orders against them.

2. The main contention of Mr. S. Ramachandra Rao for the petitioners is that the Government has no iurisdiction to convert Government service into non-Government service and that by the abolition of the posts under Government service the petitioners have in effect been removed from service and that the constitutional protection given to them under Art. 311 has been infringed. He also submits that as all the petitioners were recruited originally by the Hyderabad Government their conditions of service cannot be altered except with the concurrence of the Government of India under the States Reorganisation Act.

3. There are two answers to the contentions of Mr. Ramachandra Rao. In the first place, the petitioners were only appointed temporarily and even when by G. O. Ms. No. 896 dated 24-7-1957 a distinct class was created in the Andhra Pradesh General Subordinate Service, it was express-ly stated in the very G. O. that this class was to consist of temporary posts of Village Level Workers. The persons appointed to these posts, therefore, have no right to the posts; nor does the completion of probation confer any right on them. Secondly, Art. 311 cannot apply to a case where the posts themselves an abolished. This has been made clear by the judgment of the Supreme Court in Parshotam Lal Dhingra v. Union of India, : (1958)ILLJ544SC . S. R. Das, C. J., observed:

'The position may, therefore, be sum-marised as follows: In the absence of any special contract the substantive appointment to a permanent post gives the servant so appointed a right to hold the post until, under the rules, attains the age of superannuation or is compulsorily retired after having put in the pre-scribed number of year's service or the post is abolished and his service cannot be terminated except by way of punishment for misconduct, negligence, inefficiency or any other disqualification found against him on porper enquiry after due notice to him. An appointment to a temporary post for a certain specified period also gives the servant so appointed a right to hold the post for the entire period of his tenure and his tenure cannot be put an end to during that period unless he is, by way of punishment, dismissed or removed from the service. Except in these two cases the appointment to a post, permanent or temporary, on probation or on an officiating basis or a substantive appointment to a temporary post gives to the servant so appointed no right to the post and his service may be terminated unless his service had ripened into what is, in the service rules, called a quasi permanent service'.

Therefore, whether the appointments of the petitioners are treated as temporary appointments to substantive post or substantive appointments to temporary posts or temporary appointments to temporary posts, the appointment lapses with the abolition of the posts, and no question of any infringement of the protection given under Article 311 arises Mr. Ramachandra Rao placed reliance on the judgment of the High Court of Jammu and Kashmir in Abdul Khalik v. State of Jammu and Kashmir, AIR 1965 J and K. 15 where relying on certain observations of the Supreme Court in Moti Ram Deka's case, : (1964)IILLJ467SC , it was held that the provisions of Art. 311 of the Constitution applied to the removal of Government servants consequent on the abolitions of posts also. The observations of the Supreme Court on which reliance is placed are as follows:--

'The question which arises for our decision in the present appeals is: if the service of a permanent civil servant is terminated otherwise than by operation of the rule of superannuation, or the rule of compulsory retirement does such termination amount to removal under Art. 311(2) or not? It is on this aspect of the question that the controversy between the parties arises before us. .... .A person who substantively holds a permanent post has a right to continue in service, subject, of course, to the rule of superannuation and lae rule as to compulsory retirement. If, for any other reason, that right is invalid and he is asked to leave his service, and termination of his service must inevitably mean the defeat of his right to continue in service and as such, it is in the nature of a penalty and amounts to removal. In other words, termination of the services of a permanent servant otherwise than on the ground of superannuation or compulsorv retirement, must, per se amount to his removal, and so, if by R. 148(3) or R. 149(3) such a termination is brought about, the Rule clearly contravenes Art. 311(2) and must be held to be invalid.'

In Moti Ram Deka's case, : (1964)IILLJ467SC , their Lordships of the Supreme Court were concerned with the question whether termination of services of a permanent Railway servant under Rules 148(3) or 149(3) by giving the prescribed notice amount to his removal from service under Art. 311(2) of the Constitution. They held that it did and consequently struck down the rules as invalid. The question whether abolition of posts would amount to termination of service within the meaning of Art. 311(2) did not fall for the consideration of the Supreme Court in Moti Ram Deka's ca.se, : (1964)IILLJ467SC . The conclusion of Das C. J. in Parshotam Lal Dhingra's case. : (1958)ILLJ544SC cannot, therefore, be brushed aside. I am, therefore, not prepared to agree with the reasoning of the High Court of Jammu and Kashmir.

4. I am, however, not to be understood as saying that termination of service as a result of abolition of post can never attract Art. 311(2). It is not imposible to conceive of a case where a post is abolished to victimise and punish an individual servant and where, in order to evade the protection afforded to the servant under Art. 311 (2), resort is had to the device of abolishing the post. It may be that Art. 311(2) is attracted to such cases but we are not concerned with them here. I shall confine myself to saving that where, as in the present case, posts are abolished in pursuance of general Governmental policy there can be no question of any violation of the protection by Art. 311(2).

5. The other point raised by the petitioners that the protection given to them under the States Reorganisation Act is violated is without any substance as no question of altering their conditions of service is involved in this case. The Writ Petition is therefore dismissed with costs Advocate's fee Rs. 150/-.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //