APHC010389502024 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3506] TUESDAY, THE FIRST DAY OF APRIL TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN WRIT PETITION NO: 21079/2024 Between: A.V. Rama Prasad ...PETITIONER AND The State of Andhra Pradesh and Others ...RESPONDENT(S) Counsel for the Petitioner: 1. M S R CHANDRA MURTHY Counsel for the Respondent(S): 1. GP FOR SERVICES I The Court made the following: ORDER: The present writ petition is filed seeking the following relief: “to issue an appropriate writ, order or direction, more particularly, one in the nature of writ of certiorari, call for the records from the 1st respondent and 2nd respondent with respect to the impugned Government Memo No.REV01/245/2023-SER- 1, dated 30/07/2024 and quash the same and consequently, direct the respondents to regularize and treat the said period from 15/11/2022 to 31/03/2023 (137 days) as in service and pass….” 2 CGR, J. W.P.No.21079 of 2024 2. Petitioner was appointed as Deputy Tahsildar in the year 1990. Later, promoted as Deputy Collector in the year 2003 and subsequently, as Special Grade Deputy Collector in the year 2011. Petitioner suffered with brain haemorrhage, therefore, he applied for leave on 22.05.2021, after recovery reported back on 25.08.2022. 3rd respondent by G.O. Rt. No.2415 General Administration (SC.B) Department, dated 14.11.2022, issued posting orders to petitioner by placing him at the disposal of Revenue (Disaster Management) Department, as DPM, Disaster Management, NTR District. Petitioner tried to report in terms of the aforesaid posting order, however, on coming to know that no such post existed in NTR District, he represented 2nd respondent to issue necessary modified posting orders. Once again, 3rd respondent issued fresh positing orders vide G.O.Rt.No.133 General Administration (SC.B) Department, dated 20.01.2023, by which, petitioner’s services were withdrawn as DPM, Disaster Management, NTR District and placed at disposal of YAT & C Department as Chief Executive Officer, STEP. Surprisingly, even the said post also did not exist, therefore, petitioner once again requested 2nd respondent to issue yet another modified posting orders. Finally, 3rd respondent issued G.O.Rt.No.565 General Administration (SC.B) Department, dated 23.03.2023, by which petitioner’s services as Chief Executive Officer, STEP, came to be withdrawn and posted as Special Collector, Land Acquisition, Srisailam 3 CGR, J. W.P.No.21079 of 2024 Project, Srisailam, Nandyal District. As there is no such post at Nandyal District, by G.O.Rt.No.590 General Administration (SC.B) Department, dated 28.03.2023, errata came to be issued specifying the place of posting as headquarters at Kurnool. Petitioner, accordingly, reported and joined there on 31.03.2023. Petitioner submitted representation, dated 12.04.2023, to 1st respondent requesting to regularize the compulsory waiting period from 25.08.2022 to 31.03.2023 i.e., 219 days as duty period as earlier postings issued were in non-existing posts and he had to keep waiting. 1st respondent by G.O.Rt.No.777 Revenue (Services-I) Department, dated 25.08.2023, partly accepted the request of the petitioner by allowing 82 days from 25.08.2022 to 14.11.2022 as compulsory waiting period and in respect of the remaining days, he was requested to apply eligible leave. Petitioner submitted another representation, dated 16.09.2023 to 1st respondent by explaining the reasons for requesting to treat entire 219 days as waiting period, which was merely for the reason that he was posted in non-existing posts, thereby requested to reconsider the remaining period to be regularized as duty period. As there was no decision forthcoming, the increments for the years 2022, 2023 and 2024 were kept pending for want of regularisation of compulsory waiting period. In the meanwhile, petitioner attained superannuation on 30.06.2024. Petitioner, later made another representation, dated 06.05.2024 to 1st respondent in similar lines. In 4 CGR, J. W.P.No.21079 of 2024 response, 1st respondent issued impugned Memo.No.REV01/245/2023- SER-I, dated 30.07.2024, by which the earlier decision of disallowing the balance period of 137 days as compulsory waiting period has been reiterated. Aggrieved by the same, petitioner filed the present writ petition. 3. 2nd respondent filed counter-affidavit inter alia stating that the request of petitioner to treat compulsory waiting period for 219 days from 25.08.2022 to 31.03.2023 came to be considered by orders in G.O.Rt. No.777, dated 25.08.2023, by which, 82 days was accepted as compulsory waiting period and the date on which he reported in pursuance to posting orders issued vide G.O.Rt.No.2145, dated 14.11.2022, onwards petitioner was requested to apply for eligible leave, and the said period of 137 days, he was not entitled for compulsory wait as petitioner has not reported to Government when there is no post as alleged by the petitioner to accommodate. 4. Heard Sri M.S.R. Chandra Murthy, learned counsel for the petitioner and learned Assistant Government Pleader for Services-I appearing for the respondents. 5. Learned counsel for the petitioner contended that the period from 15.11.2022 to 31.03.2023 i.e. 137 days which by impugned 5 CGR, J. W.P.No.21079 of 2024 proceedings, the 1st respondent refused to consider as compulsory waiting period, was legitimately to be considered to be on duty in as much as it was the 3rd respondent who issued multiple posting orders to non-existing posts thereby for no fault of petitioner, he be denied continuation of service. The respondents are not justified to refuse to accept the aforesaid period as compulsory waiting period as fault clearly lies with them. He further contended that merely because the respondents have knowingly or unknowingly posted petitioner to non- existing posts, the period which is consumed for correcting the course of action, cannot be thrusted upon him by forcing him to go on leave, which would result in petitioner losing two increments besides diminution of his pensionary benefits. 6. Learned Assistant Government Pleader for Services-I, while opposing aforesaid submissions, contends that petitioner is not entitled to consider entire period from 25.08.2022 to 31.03.2023 i.e. 219 days as compulsory waiting period in as much as petitioner did not report to the Government when there was no post available as alleged, therefore, prays to dismiss the writ petition. 7. Perused the record and considered the rival submissions. 8. Petitioner after resuming back to service from medical and sick leave, was initially issued posting orders by G.O.Rt.No.2415, dated 6 CGR, J. W.P.No.21079 of 2024 14.11.2022 along with other Special Grade Deputy Collectors and Deputy Collectors by which he was posted as DPM, Disaster Management, NTR District. The second modified transfer order issued in G.O.Rt.No.133, dated 20.01.2023, dealing with transfers and postings of Deputy Collectors while withdrawing petitioner services from the post of DPM, Disaster Management, NTR District, posted him as Chief Executive Officer, STEP. Immediately, thereafter, by yet another order, vide G.O.Rt.No.565, dated 23.03.2023, which dealt with transfers and postings of various Deputy Collectors, petitioner has been posted as Special Collector, Land Acquisition, Srisailam Project, Nandyal District and followed by errata vide G.O.Rt.No.590, dated 28.03.2023. These successive posting orders clearly demonstrate that the respondents knowingly or unknowingly have posted petitioner to various posts which petitioner asserts to be non-existing. Respondents in the counter-affidavit have not specifically denied the factum that the initial posting as DPM, Disaster Management, NTR District and subsequent posting as CEO, STEP, were non-existing and ultimately, he came to be posted as Special Collector, Land Acquisition, Srisailam Project. In the interregnum, due to administrative exigencies it all had taken notable time of nearly 137 days in petitioner being placed at appropriate post. This confusion of placing petitioner at non-existing post clearly cannot be attributable to petitioner and for no fault of him, be penalized. 7 CGR, J. W.P.No.21079 of 2024 Petitioner went on submitting requests to issue orders of posting at suitable places, however, the same did not happen and only after considerable time of about 137 days, finally, he was posted in regular post. There is no justifiable reason for respondents to treat the period of waiting as on duty. When respondents have treated the period from date of reporting i.e. 25.08.2022 till the date of issuance of first posting order i.e., dated 14.11.2022 as compulsory waiting period under F.R. 9(6)(b), there is no valid reason forthcoming to continue the same for balance period, thereafter, till 28.03.2023 the date on which valid posting orders came to be issued followed by petitioner reporting on 31.03.2023. 9. The Hon’ble Apex Court in State of Bihar v. Kripa Nand Singh1, while considering the principle of “no work, yet pay” and the exceptional nature of said principle to “no work, no pay”, held as follows: ““No work, no pay”, is the rule and “no work, yet pay”, is the exception. Compulsory waiting period is one such exception. But to qualify for the exception, an employee has to establish that he had made earnest endeavours and yet that he was not able to join duty for no fault on his part. He must also show his earnestness to join duty. Voluntary waiting period is not covered by the exception.” 10. As per F.R. 9(6)(b)(13), period of waiting for orders of posting is to be treated as duty. Said clause reads thus: “13. When a Government servant on return from leave has compulsorily to wait for orders of posting, such periods of 1 (2014) 14 SCC 375 8 CGR, J. W.P.No.21079 of 2024 waiting should be treated as duty. During such periods, he will be entitled to pay according to Rule 20.” 11. F.R.20 reads thus: “F.R. 20. In respect of any period treated as duty under Rule 9(6)(b), a Government servant may be granted such pay as the Government may consider equitable but in no case exceeding the pay which the government servant would have drawn had he been on duty other than duty, under Rule 9(6)(b).” 12. Therefore, from the above, it is clear that petitioner is entitled to pay as per F.R. 20. As held supra, since petitioner is no way responsible for the confusion of being posted to non-existing post, this Court does not find any justification in rejecting petitioner’s aforesaid request. 13. Accordingly, the writ petition is allowed by quashing the Memo.No.REV01/245/2023-SER-I, dated 30.07.2024, issued by the 1st respondent. Respondents are further directed to regularize and treat the period from 15.11.2022 to 31.03.2023 (137 days) as on duty period. No order as to costs. As a sequel, miscellaneous petitions pending consideration, if any, in this case shall stand closed. _____________________________ JUSTICE CHALLA GUNARANJAN Date:01.04.2025. cs