P. Ramasree Vs. Superintending Engineer, R and B Circle, Guntur and Another - Court Judgment

Excerpt:
service - absorption - petitioner belonged to scheduled castes retrenched from his job due to reorganization of department - petition filed against retrenchment - according to government order as person belonged to scheduled castes or scheduled tribes if affected due reorganization of department must be compensated - compensation given by creating post for him - petitioner being scheduled castes directed to be absorbed. - all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default. - it is really a matter or great regret that the state which is a model employer failed or neglected to implement its own policy decision and bring the said government order to the notice of the learned tribunal.orders.b. sinha cj.1. the petitioner was appointed on 28-5-1993 as tracer. a retrenchment notice was served on her on 30-6-1999 on the ground of want of vacancy but she was not relieved. the said notice of retrenchment was cancelled and she was directed to be retained in n.h. division, guntur. she was sought to be retrenched again on 29-11-1994 by the superintending engineer, r & b circle, guntur having regard to the judgment of the administrative tribunal in the case of sri k. baladas stating: 'in view of the judgment delivered by the hon'ble a.p. administrative tribunal in the reference cited, sri k. baladas, tracer who is continued under supernumerary in electrical division, guntur is transferred and posted to (r & b) n.h. division, guntur in place of smt p. ramasree, tracer. smt p. rama sree, tracer of (r & b) n.h. division, who is the junior-most in the circle is now retrenched as there is no vacancy to continue both candidates and in view of the judgment cited above and is surrendered to collector and district magistrate, guntur for absorption in other departments in the district.' 2. the petitioner filed an application before the tribunal marked as oa no.7094 of 1994. on 13-2-1996 the petitioner was issued with an offer of appointment again as tracer wherein reference was made to the proceedings dated 29-11-1994 whereby and whereunder she had been retrenched. by reason of the said order dated 13-2-1996 she was posted as tracer in r & b electrical division, guntur. she was again retrenchedon 26-2-1997. another original application was filed by her which was marked as oa 1084 of 1997. both the applications were taken up for hearing together by the learned tribunal. 3. the only question which arose for consideration before the learned tribunal was as to whether having regard to g.o. ms. no.686, dated 3-8-1997 and g.o. ms. no.36, dated 25-1-1990 an order of retrenchment could have been passed against the petitioner who is a member of scheduled caste as in terms of the aforementioned government orders protection had been issued to the scheduled caste and scheduled tribe candidates from being retrenched. the question as to whether such a government order could be issued or not came up for consideration before the apex court in government of a. p. v. bala musalaiah, 1995 scc (l&s;) 275. the apex court held that such government order is not maintainable. however, it was directed: '10. we, therefore, hold that the go as framed is not sustainable. it would, however, be open to state government to recast the go in the light of what has been stated by us, if deemed necessary by it. as, however, the go has been in operation for about three decades by now, we do not propose to upset the retrenchments which have already taken place pursuant to what has been provided in the go. the go would, therefore, become non-operative from today.'4. it now appears that the state of andhra pradesh has issued g.o. ms. no.121 social welfare (l1) department, dated 31-10-1996 pursuant to or in furtherance of the aforementioned observations made by the supreme court, the relevant portion whereof reads thus: '3. in the light of the directions of the supreme court, it has become necessary to formulate a revised procedure tosafeguard the interests of sc/st employees in the matter of retrenchment. the matter has been examined in consultation with general administration (ser.) finance and law departments.5. government accordingly direct that, whenever retrenchment takes places due to reorganisation of the departments/ or reduction of posts or other administrative measures, the normal procedure prescribed in service rules should be followed. however, if any sc/st persons are affected by the retrenchment, they should be accommodated by creating supernumerary posts in that organisation which have to be adjusted against future vacancies. 6. all the departments of secretariat/ heads of departments should follow the revised procedure indicated in para 4 above in respect of the retrenchment of sc/st employees. the finance department will create necessary supernumerary posts as proposed to by the heads of departments/ departments of secretariat as the principle of this revised procedure has been accepted by them.' 7. although the said government order was not brought to the notice of the learned tribunal, the genuineness of the said government order has not been disputed. although the aforementioned government order has not been produced before the learned tribunal, in our opinion, the same would not stand in the way of this court in directing the respondents herein to follow the same. it is not in dispute that pursuant to the interim orders passed by the tribunal the petitioner herein has been continuing in service. the state in the aforementioned g.o. ms. no.121, dated 31-10-1996 directed that supernumerary posts in that organisation should be created which are to be adjusted against future vacancies. thus, without going into the rival contentions raised by the parties beforethe learned tribunal, in our opinion, having regard to the aforementioned policy decision adopted by the state, this writ petition should be disposed of directing the respondents to give effect to the said policy decision by creating supernumerary post for the petitioner and adjusting her therein. it is really a matter or great regret that the state which is a model employer failed or neglected to implement its own policy decision and bring the said government order to the notice of the learned tribunal. the state as a benevolent litigant was under an obligation to produce all records before the tribunal. its action in withholding the said government order before the learned tribunal should be deprecated. 8. for the reasons aforementioned, the writ petition is allowed. the impugned order of the tribunal is set aside and the petitioner herein is directed to be absorbed in a supernumerary post which must be created as the petitioner has been continuing in service and shall be allowed to continue in service in terms of the aforementioned government order. in the facts and circumstances of the case the respondents should also bear the costs of the petitioner which is quantified at rs.2,000/- (rupees two thousands only).

Judgment:
ORDER

S.B. Sinha CJ.

1. The petitioner was appointed on 28-5-1993 as tracer. A retrenchment notice was served on her on 30-6-1999 on the ground of want of vacancy but she was not relieved. The said notice of retrenchment was cancelled and she was directed to be retained in N.H. Division, Guntur. She was sought to be retrenched again on 29-11-1994 by the Superintending Engineer, R & B Circle, Guntur having regard to the judgment of the Administrative Tribunal in the case of Sri K. Baladas stating:

'In view of the judgment delivered by the Hon'ble A.P. Administrative Tribunal in the reference cited, Sri K. Baladas, Tracer who is continued under supernumerary in Electrical Division, Guntur is transferred and posted to (R & B) N.H. Division, Guntur in place of Smt P. Ramasree, Tracer.

Smt P. Rama Sree, Tracer of (R & B) N.H. Division, who is the junior-most in the circle is now retrenched as there is no vacancy to continue both candidates and in view of the judgment cited above and is surrendered to Collector and District Magistrate, Guntur for absorption in other departments in the district.'

2. The petitioner filed an application before the Tribunal marked as OA No.7094 of 1994. On 13-2-1996 the petitioner was issued with an offer of appointment again as tracer wherein reference was made to the proceedings dated 29-11-1994 whereby and whereunder she had been retrenched. By reason of the said order dated 13-2-1996 she was posted as tracer in R & B Electrical Division, Guntur. She was again retrenchedon 26-2-1997. Another Original Application was filed by her which was marked as OA 1084 of 1997. Both the applications were taken up for hearing together by the learned Tribunal.

3. The only question which arose for consideration before the learned Tribunal was as to whether having regard to G.O. Ms. No.686, dated 3-8-1997 and G.O. Ms. No.36, dated 25-1-1990 an order of retrenchment could have been passed against the petitioner who is a member of Scheduled Caste as in terms of the aforementioned Government Orders protection had been issued to the Scheduled Caste and Scheduled Tribe candidates from being retrenched. The question as to whether such a Government Order could be issued or not came up for consideration before the Apex Court in Government of A. P. v. Bala Musalaiah, 1995 SCC (L&S;) 275. The Apex Court held that such Government Order is not maintainable. However, it was directed:

'10. We, therefore, hold that the GO as framed is not sustainable. It would, however, be open to State Government to recast the GO in the light of what has been stated by us, if deemed necessary by it. As, however, the GO has been in operation for about three decades by now, we do not propose to upset the retrenchments which have already taken place pursuant to what has been provided in the GO. The GO would, therefore, become non-operative from today.'

4. It now appears that the State of Andhra Pradesh has issued G.O. Ms. No.121 Social Welfare (L1) Department, dated 31-10-1996 pursuant to or in furtherance of the aforementioned observations made by the Supreme Court, the relevant portion whereof reads thus:

'3. In the light of the directions of the Supreme Court, it has become necessary to formulate a revised procedure tosafeguard the interests of SC/ST employees in the matter of retrenchment. The matter has been examined in consultation with General Administration (Ser.) Finance and Law Departments.

5. Government accordingly direct that, whenever retrenchment takes places due to reorganisation of the departments/ or reduction of posts or other administrative measures, the normal procedure prescribed in service rules should be followed. However, if any SC/ST persons are affected by the retrenchment, they should be accommodated by creating supernumerary posts in that organisation which have to be adjusted against future vacancies.

6. All the Departments of Secretariat/ Heads of Departments should follow the revised procedure indicated in para 4 above in respect of the retrenchment of SC/ST employees. The Finance Department will create necessary supernumerary posts as proposed to by the Heads of Departments/ Departments of Secretariat as the principle of this revised procedure has been accepted by them.'

7. Although the said Government Order was not brought to the notice of the learned Tribunal, the genuineness of the said Government Order has not been disputed. Although the aforementioned Government Order has not been produced before the learned Tribunal, in our opinion, the same would not stand in the way of this Court in directing the respondents herein to follow the same. It is not in dispute that pursuant to the interim orders passed by the Tribunal the petitioner herein has been continuing in service. The State in the aforementioned G.O. Ms. No.121, dated 31-10-1996 directed that supernumerary posts in that organisation should be created which are to be adjusted against future vacancies. Thus, without going into the rival contentions raised by the parties beforethe learned Tribunal, in our opinion, having regard to the aforementioned policy decision adopted by the State, this writ petition should be disposed of directing the respondents to give effect to the said policy decision by creating supernumerary post for the petitioner and adjusting her therein. It is really a matter or great regret that the State which is a model employer failed or neglected to implement its own policy decision and bring the said Government Order to the notice of the learned Tribunal. The State as a benevolent litigant was under an obligation to produce all records before the Tribunal. Its action in withholding the said Government Order before the learned Tribunal should be deprecated.

8. For the reasons aforementioned, the writ petition is allowed. The impugned order of the Tribunal is set aside and the petitioner herein is directed to be absorbed in a supernumerary post which must be created as the petitioner has been continuing in service and shall be allowed to continue in service in terms of the aforementioned Government Order. In the facts and circumstances of the case the respondents should also bear the costs of the petitioner which is quantified at Rs.2,000/- (Rupees two thousands only).