1 APHC010022252020 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3310] THURSDAY ,THE TENTH DAY OF APRIL TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE DR JUSTICE K MANMADHA RAO WRIT PETITION NO: 1372/2020 & 3169 of 2020 WP No. 1372/2020 Between: B Somaiah ...PETITIONER AND The State Of Andhra Pradesh and Others ...RESPONDENT(S) Counsel for the Petitioner: 1. M SRIKANTH Counsel for the Respondent(S): 1. GP FOR SERVICES IV 2. THE ADVOCATE GENERAL 3. GP FOR PANCHAYAT RAJ RURAL DEV (AP) The Court made the following: COMMON ORDER: As the issue involved in both the writ petitions is one and the same, they are being taken up for hearing as well as disposed of by way of this Common Order. 2 2. Since the facts in all the writ petitions are similar and identical, therefore WP No.1372 of 2020 is taken as lead case, and the facts therein hereinafter will be referred to for convenience. 3. Brief facts of the case are that the petitioner herein was appointed as Sericulture Demonstrator. Later, Vide proceedings dated 07.08.1984, the 5th respondent appointed the petitioner by transfer as Farm Foreman-II and thereafter he was promoted to the post of Assistant Inspector of Sericuture by the 5th respondent on 15.03.1991. It is stated that 2nd respondent by his proceedings stated 23.08.2002 appointed the as Panchayat Secretary and posted to Kothapalli Gram Panchayat of Gampalagudem Mandal and by proceedings dated: 27.08.2002, the Assistant Director of Sericulture, Vijayawada, Krishna District relieved him on 27.08.2002 A.N The 5th respondent by his proceedings dated.18.05.2012 issued orders that deemed option to get absorbed in Panchayat Department was given and the petitioner’s name along with three others was no more in the Sericulture Department and his lien in the Sericulture Department was also terminated. It is stated that since 23.08.2002, the petitioner is working as Panchayat Secretary under the jurisdiction of 2nd respondent. However the respondents have not extended the fixation of pay scale of 6 years, 12 years, 18 years and 24 years for which the petitioner is entitled under FR and there are no increments as well as no promotion affected to the petitioner and continuing as Panchayat Secretary only on the ground that his services are not absorbed in Panchayat RajDepartment. Therefore the petitioner filed O.A.No.817 of 3 2019 before the APAT to consider for the absorption and this O.A along with O.A.816/2019 and O.A.840/2019 were disposed of at the stage of admission on 16.05.2019 directing the respondents to absorb them as Panchayat Secretaries from the date of appointment and to pass orders in 10 weeks considering the 2nd respondent report dated 26.03.2014.as the above orders were not implemented, the petitioner has filed WP No.13571/2019 before this Court and the same was disposed of vide order dated 13.09.2019 and directed the respondents to implement the final orders in Ο.Α.817/2019 within a period of 2 months. But the 2nd respondent rejected the claim of the petitioner for absorption from the date of his joining in Panchayat Raj Department by proceedings dated: 26.12.2019. Challenging the same, the present writ petition came to be filed. 4. The pleadings which are cited by the petitioner in the above writ petition, the same are adopted by the petitioner in another writ petition WP No.3169 of 2020. 5. The counter affidavits have been filed by the 2nd respondent in both the writ petitions. For convenience, the counter affidavit in WP No.1372 of 2020 has taken a lead case and the facts stated in the counter are that : While denying all the allegations made in the petition, inter alia, stated that, Sri B. Somalah, Panchayat Secretary, Gudavalli Gram Panchayat has not given option under the provision iii of G.O.Ms.No. 59, PR&RD (MdI.I) Department. dated 27.09.2016, even though a copy of the Government orders was communicated to the applicant herein along with other similar employees for 4 filing options by the District Panchayat Officer, Krishna who is 4th respondent herein to the petitioner vide endorsement Dated. 7.12.2016. As such, the appointment of Sri B. Somalah, petitioner herein on redeployment as inter- departmental deputation in Panchayat Raj Department and his seniority has been continued in his parent department i.e., Sericulture Department under the rules issued vide G.O. Ms. No. 700, PR&RD (MdI.II) Department, dated 27.01.2002 and he was placed in the Category-VI of Panchayat Secretary under the rules issued vide G.O.M.S.No.295 PR & RD (Mdl II) Department, Dated 02.08.2002.It is further stated in the counter that, after separation of Revenue functions from Panchayat Raj Department, Government have re- grouped the existing VII categories of Panchayat Secretaries into 4 grades duly creating clusters combining one or more Gram Panchayats vide G.O.Ms.No.81, PR&RD (MdI.II) Department, dated 20.02.2010. 1 Panchayat Secretary Grade-I in the scale 7770-18575 Merging the post Panchayat Secretary Categories I,II and III 2 Panchayat Secretary Grade-II in the eh Scale 5200-11755 Panchayat Secretary category IV 3 Panchayat Secretary Grade-III in the scale of 4825-10845 Panchayat Secretary Category V and VI (other than those who are in the Record Assistant Scale and below) 4 Panchayat Secretary Grade-IV int eh scale of 4260-9520 Panchayat Secretary Category VI with Record Assistant Scale and below and Panchayat Secretary category VI It is further stated in the counter that, in view of the orders of this Court dated 13.09.2019 in WP No. 13571/2019, the Commissioner, PR&RD, the 2nd respondent herein has issued detailed speaking orders rejecting the request to absorption of the petitioner in Panchayat Raj department vide Progs. No.PRR02-12021(42)/3/2018-B-COMMR PRRD/630949, dt.26-12-2019. It is 5 further stated in the counter affidavit that, the contention of the petitioner that Commissioner of Sericulture issued proceedings Dated 18.05.2012 to the effect that he was deemed opted to get absorbed in Panchayat Raj Department is not correct as the Commissioner Sericulture has no authority to say that the petitioner deemed opted to get absorbed in Panchayat Raj Department and as such it is not binding on the respondent. As such the petitioner is not entitled for absorption in the department from the date of his joining as Panchayat Secretary and it is not in accordance to the existing rules and will affect the seniority of the existing employees adversely. Further, this respondent has not availed any opportunity provided by both his parent department and Panchayat Raj Department. Therefore, the orders issued vide Progs. No.PRR02-12021(42)/3/2018-B-COMMR PRRD/630949, dated 26.12.2019 of the Commissioner of Panchayat Raj and Rural Development, Andhra Pradesh is in accordance with the rules and in order. In view of the above circumstances, it is prayed to dismiss the writ petition. 6. Heard Sri M. Srikanth, learned counsel for the petitioner and learned Assistant Government Pleader for Panchayat Raj and learned Government Pleader for Services-IV appearing for the respondents. 7. On hearing, learned counsel appearing for the petitioners while reiterating the contents made in the petitions, argued that, though the petitioner has been continuously working from the 2002 as Panchayat Secretary, the period of service from 2002 is not being counted. The fixation of Pay Sales for 6 years, 12 years, 18 years and 24 years for which the 6 petitioner is entitled to as per rules, have also not been released to him. Further, the increments due are also not being released to him on the ground that the petitioner has not been absorbed inthe Panchayat Raj Department is not correct. He further submits that, as the respondents in not absorbing the petitioner in Panchayat Department, earlier the petitioner has filed OA No.817/2019 before the A P Administrative Tribunal and the same was allowed directing the respondents to consider the case of the petitioner and when the said order has not been implemented the petitioner has filed WP no.13388 of 2019 before this Court and the same was also disposed of while directing the respondents to implement the orders of the learned Tribunal passed in O.A. As the order of this Hon’ble Court has not been implemented, the petitioner preferred CC No.1165/2019 before this Court and the same is pending consideration. 8. Learned counsel for the petitionerS further argued that, the respondents have not considered the rules issued in G.O.Ms.No.295 dated 2.8.2002 which has been given retrospective effect from 12.12.2001. Further, reliance on G.O.Ms.No.700, which is merely an administrative instruction, is also untenable. It cannot prevail over the rules issued under Article 309 and the statutory provisions of A.P. Panchayat Raj Act. He further relied on GOMs No.84 dated 24.2.2010 wherein Rule 14 states that all appointments made in accordance with the repealed rules prior to coming into force of the said rules are saved. In view of the same, the petitioners’ promotion has been saved by 7 the present rules also and they are entitled to count the service from their initial appointment. 9. Learned counsel has drawn attention of this Court to the orders of the AP Administrative Tribunal passed in O.A.No.621/2004 dated 17.06.2008 wherein the erstwhile AP Administrative Tribunal has held that appointment of a Panchayat Secretary of Category VI is an appointment by transfer and is not deputation. The said findings of the erstwhile AP Administrative Tribunal have become final as the matter has not been carried in Appeal. He further submits that the present order in G.O.Ms.No.59 dated 27.09.2006 is contrary to the said judicial finding of the AP Administrative Tribunal. 10. To support his contentions, learned counsel for the petitioners has relied upon a decision of Hon'ble Supreme Court reported in Union of India Vs. Kuldeep Singh Permer1wherein it has been specifically held that service rendered in the parent department prior to the absorption on deputation cannot be ignored while fixing seniority in the deputation post. The Supreme Court has further held that any rule, regulation or instruction, depriving an employee of the said benefit rendered in the parent department would be violative of Article 14 and 16 of the Constitution of India. 11. Learned counsel for the petitioners while relying upon the above decision, submits that, in view of the above law laid down by the Hon’ble Supreme Court, in the present case, the petitioners herein are not only entitled 12003 (9) SCC 472 8 to seniority in the Panchayat Raj Department and they are also entitled for counting of their earlier service rendered in The Sericulture Department from the initial date of their appointment and also entitled for re-fixation as prayed for in the Writ Petitions.Therefore, learned counsel requests this Court to issue a direction to the respondents to consider the case of the petitioners by allowing the writ petitions. 12. 12. Per contra, learned Assistant Government Pleader appearing for the respondents while denying the contents made by the petitioners, argued that, the petitioner in WP No.1372 of 2020 was taken on inter departmental deputation vide proceedings Dt. 23.08.2002 in terms of G.O.Ms. No.700, PR&RD (MdI.II) Department, dt.27-01-2002 and that the orders of the Commissioner Sericulture stating that the lien of applicant in sericulture Department got terminated is not valid. He further submits that basing on orders in OA No. 8761/2011, Dt. 02.04.2012, Commissioner of sericulture has requested all the sericulture employees working in Panchayat Raj Department as Panchayat Secretaries for their option. But the petitioner has not given option and his contention that he is not party in OA No. 8761/2011 is not correct. He further submits that the Proposal Dt. 26.03.2014 of the 2nd respondent is based on the request of the Sericulture employees and other department employees working on Deputation and subsequently further information was submitted on 08.03.2016 requesting to consider absorption with prospective effect. He further argued that the Government have considered the report Dt. 26.03.2014 and subsequent report Dt. 08.03.2016 9 and issued orders considering absorption with prospective effect, as was considered in respect of Panchayat Secretaries appointed on medical invalidation and open market, if the services are considered with prospective effect, the interest of existing departmental employees will not be affected. 13. Learned Assistant Government Pleader further submits that the petitioner was appointed on inter Departmental Deputation in terms of G.O.Ms.No.700, PR&RD (MdI.II) Department, dated 27-01-2002 and hence G.O.Ms.No.59, PR&RD(MDL.I) Department, dated 27-09-2016 is applicable to him. The orders issued vide proceedings dated 26.12.2019 of the Commissioner of Panchayat Raj and Rural Development, is in accordance with the rules and that there is no error in the order. Therefore prayed to dismiss the writ petition. 14. The main grievance of the petitioners in both the writ petitions is that to declare the proceedings dated 26.12.2019 issued by the 2ndrespondent rejecting the absorption of the petitioners from the date of their appointment as panchayat Secretaries. 14. On a perusal of the material on record, it is observed that, when the Petitioners were appointed as Panchayat Secretaries in the year 2002 the posts of Panchayat Secretary were governed by the A.P. Panchayat Raj Subordinate Service Rules issued in G.O.Ms.No.295 dated 2.8.2002. As per the said rules, the persons denotified as surplus can be appointed by transfer as Panchayat Secretary, it appears that the appointment of the petitioners as 10 per the rules. It is also observed that the petitioners have been continuously working from the date of their appointments as Panchayat Secretaries. 15. As stated by the learned Assistant Government for the respondents that as per G.O.Ms.No.59, Panchayat Raj & Rural Development Department dated 27.09.2016, the Government has restricted the benefit of absorption from the date of issuance of G.O. i.e., 2016. 16. It is not in dispute that the transfer and appointment as Panchayat Secretary was on administrative grounds. In the case of Petitioners, they have been appointed regularly in Panchayat Raj Department in accordance with the rules and they have not been appointed on deputation. It is to be noted that deputation under law would require consent from all parties i.e., borrowing department, parent department as well as the employee. The order of appointment of the Petitioners reveal that it is not appointment on deputation but appointment by transfer in accordance with rules. 17. It is the contention of the petitioners that the Respondents cannot rely on G.O.Ms.No.700 which is merely an administrative instruction and cannot over-ride the statutory rule issued in G.O.Ms.No. 295 dated 2.8.2002. 18. This Court further observed that, after separation of Revenue functions from Panchayat Raj Department, Government have re-grouped the existing VII categories of Panchayat Secretaries into 4 grades duly creating clusters combining one or more Gram Panchayats vide G.O.Ms.No.81, PR&RD (MdI.II) Department, dt.20-02-2010. 11 19. As seen from the G.O.Ms.No.295 Panchayat Raj and Rural Development (MDL.II) Department dated 02.08.2002, wherein at Sl.No.(6) Category, reads as udner: (6) Category - VI By Transfer from the surplus manpower pool provided Finance Department. Surplus identified by Collectors as per G.O.Ms.No.24 Finance (SMPC) Department, dated 9.1.2002 and Memo No.3887-B/362/SMPC/2001, dated 28.2.2002 and re-deployment from other Govt. prescribed. 20. It is to be noted that, as seen from the orders of the Tribunal passed in O.A No.621 of 2004, , wherein it is observed that, as per proceedings dated 16.7.2002 of the District Collector, Nalgonda, the applicant therein who was working as Last Grade Service in District Tribal Welfare Office was appointed as Panchayat Secretary and posted to Ogode Gram Panchayat, Nakrekal Mandal in accordance with Andhra Pradesh Panchayat Raj (Panchayat Secretary) Subordinate Service Rules. As per these rules, a Panchayat Secretary of Category VI can be appointed by transfer from Surplus Man Power Pool provided by Finance Department, surplus identified by Collectors as per GO.Ms.No.24, Finance Department, dated 9.1.2002 and redeployment from other Government departments. So, it is an appointment by transfer. It is not a deputation. 21. Therefore, when a person is appointed to a service in accordance with service rules framed under Article 309 of the Constitution of India, for repatriating him to the parent department, there must be provision in the 12 Special Rules or in the General Rules. If it is a simple deputation, borrowing department can surrender the deputationist to the lending department or the lending department can recall the services of a deputationist. 22. In view of the foregoing discussion, this Court is inclined to allow the present writ petitions while setting aside the impugned orders in both the writ petitions. 23. Accordingly, the Writ Petitions are allowed. The impugned orders in both the writ petitions are hereby set aside. Further, the respondents are directed to regularize/absorb the petitioners as Panchayat Secretaries in Panchayat Raj Department from the date of their initial appointmentsas Panchayat Secretaries i.e., 23.8.2002 and 23.06.2002 respectively with all consequential service and monetary benefits like fixation of pay in the Revised Pay Scales, SSP- I and II pay Scales i.e., 6 years, 12 years, 18 years and 24 years, seniority and other benefits shall be paid to the petitioners within a period of four (04) months from the date of receipt of a copy of this order. 24. There shall be no order as to costs 25. As a sequel, all the pending miscellaneous applications shall stand closed. _________________________ DR. K. MANMADHA RAO, J. Date : -04-2025 Gvl 13 HON’BLE DR. JUSTICE K. MANMADHA RAO WRIT PETITON No.1372 & 3169 of 2020 Date :10.04.2025 Gvl