IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

****

WRIT PETITION No.10660 of 2020

Between:

K.V.Jagadishwar Rao, S/o (late) K.Rama

Murthy, Aged about 59 years, Presently

working as Deputy Commissioner of State Tax

(LTU) & (int), O/o JC(ST), Vizianagaram, R/o

H.No.124, Street No.300, M.S.N.Colony,

Vizianagaram, Andhra Pradesh.

… Petitioner.

AND

1. The State of Andhra Pradesh, represented by

its Special Chief Secretary, Revenue

Department (Vigilance-II) Department,

Secretariat Buildings, Amaravathi, Guntur

District, Andhra Pradesh.

2. The Commissioner of Commercial Taxes

(Presently the Chief Commissioner of State

Tax), State of Andhra Pradesh, Amaravathi,

Guntur District, Andhra Pradesh.

3. The Department Promotion Committee,

Government of Andhra Pradesh, Rep. by its

Chairman-cum-the Special Chief Secretary

(E.F.S & T) Department, Government of A.P.

Secretariat Buildings, Amaravathi, Guntur

District, Andhra Pradesh.

… Respondents.

DATE OF ORDER PRONOUNCED : 20.08.2020

SUBMITTED FOR APPROVAL :

THE HON’BLE SMT. JUSTICE LALITHA KANNEGANTI

1. Whether Reporters of Local Newspapers

may be allowed to see the order? : Yes/No

2. Whether the copy of order may be

marked to Law Reporters/Journals? : Yes/No

3. Whether His Lordship wish to

see the fair copy of the order? : Yes/No

___________________________

LALITHA KANNEGANTI, J

2

* THE HON’BLE SMT. JUSTICE LALITHA KANNEGANTI

+ WRIT PETITION No.10660 of 2020

% 20.08.2020

WRIT PETITION No.10660 of 2020:

K.V.Jagadishwar Rao, S/o (late) K.Rama

Murthy, Aged about 59 years, Presently

working as Deputy Commissioner of State Tax

(LTU) & (int), O/o JC(ST), Vizianagaram, R/o

H.No.124, Street No.300, M.S.N.Colony,

Vizianagaram, Andhra Pradesh.

… Petitioner.

AND

1. The State of Andhra Pradesh, represented by

its Special Chief Secretary, Revenue

Department (Vigilance-II) Department,

Secretariat Buildings, Amaravathi, Guntur

District, Andhra Pradesh.

2. The Commissioner of Commercial Taxes

(Presently the Chief Commissioner of State

Tax), State of Andhra Pradesh, Amaravathi,

Guntur District, Andhra Pradesh.

3. The Department Promotion Committee,

Government of Andhra Pradesh, Rep. by its

Chairman-cum-the Special Chief Secretary

(E.F.S & T) Department, Government of A.P.

Secretariat Buildings, Amaravathi, Guntur

District, Andhra Pradesh.

… Respondents.

! Counsel for Petitioner : Sri R.N.Hemendranath Reddy

^ Counsel for Respondents : Govt. Pleader for Services-I

< Gist:

> Head Note:

? Cases referred:

1) (2013) 6 SCC 530

2) (2006) 3 SCC 674

3) 1952 All. E.R. 567

This Court made the following:

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THE HON’BLE SMT. JUSTICE LALITHA KANNEGANTI

WRIT PETITION No.10660 of 2020

ORDER:

The writ petition is filed under Article 226 of the Constitution

of India questioning the action of 1

st respondent in issuing Memo

No.REV03-17030/1/2020/D SEC-CCT (Revenue Commercial

Tax-1) Department dated 27.05.2020 rejecting / denying the

petitioner’s promotion to the post of Joint Commissioner of State

Tax.

2. Heard Sri R.N.Hemendranath Reddy, learned counsel for the

petitioner and the learned Government Pleader for Services-I

appearing on behalf of the respondents.

3. It is the specific case of the petitioner that initially the

petitioner has filed W.P.No.8268 of 2020 before this Court

questioning the action of 1

st respondent in issuing G.O.Ms.No.113

Revenue (CT.1) Department dated 20.04.2020 by deferring the

petitioner’s promotion to the Post of Joint Commissioner of State

Tax. The contention of the petitioner in that writ petition was that

the petitioner was working as Deputy Commissioner of State Tax

(LTU) & (int), O/o JC (ST), Vizianagaram. The petitioner earlier

worked in Hyderabad and after bifurcation, he was allotted to the

State of Andhra Pradesh and he is due for retirement on

30.06.2020. A disciplinary enquiry was initiated against the

petitioner and 3 others vide G.O.Ms.No.466 dated 02.11.2016 and

G.O.Rt.No.1074 dated 02.11.2016 on the ground of granting

irregular refunds in the case of M/s Gayathri Projects Limited,

Basheerbagh, Hyderabad during the year 2005-06 to 2009-10

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resulting loss to the Government. The 1

st respondent being the

disciplinary authority in exercise of powers conferred under Sub

Rule (1) & (2) of Rule 24 of A.P. Civil Services (Classification,

Control and Appeal) Rules, 1991 has directed initiation of

disciplinary action against the petitioner and others and directed

the Special Chief Secretary to the Government, Revenue

Department to function as disciplinary authority.

4. It is stated that though G.O.Ms.No.466 and G.O.Rt.No.1074

are dated 02.11.2016, the same are served on the petitioner on

29.03.2018 i.e. after more than 17 months. Questioning the same,

he filed O.A.No.756 of 2018 on the file of A.P. Administrative

Tribunal at Hyderabad and the same was dismissed at the

admission stage on 23.04.2018 on the ground that it was

premature one. Questioning the said order, the petitioner

approached this Court by filing W.P.No.16392 of 2018, wherein an

interim order was passed suspending the G.O.Ms.No.466 and

G.O.Rt.No.1074 dated 02.11.2016 and even till today, the said

interim order is in force and the writ petition is pending

consideration.

5. The petitioner has urged several grounds on initiation of

disciplinary proceedings and relied upon the judgment of the

Hon’ble Apex Court. It is also stated that some of the officers of

Commercial Tax Department in identical set of facts have

challenged the initiation of disciplinary proceedings in

W.P.No.18842 of 2017 and batch, wherein the Court has stayed all

further proceedings initiated therein and they are still in force. It

is stated that the disciplinary proceedings are mechanically issued

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without considering the unblemished service record and without

there being any basis, subjecting the petitioner to severe

humiliation and mental agony. Initiation of disciplinary

proceedings itself is bad and without jurisdiction. It is stated by

the petitioner that when the disciplinary proceedings are

suspended by an interim order, the petitioner’s case should have

been considered positively instead of deferring same, in view of his

retirement on 30.06.2020. An interim prayer was sought by the

petitioner to direct the respondents to grant/give promotion to the

petitioner to the post of Joint Commissioner of State Tax pending

disposal of the writ petition.

6. A Coordinate Bench of this Court by order dated 28.04.2020

in W.P.No.8268 of 2020 passed the following order:

“This Court finds that there is a case made out on behalf of

the petitioner. Therefore, without interdicting the whole

procedure, this Court is of the opinion that the interest of

justice would be served if one post of the Joint Commissioner

of Sales Tax is kept pending for a period of two weeks from

today to enable the learned Government Pleader to get

appropriate instructions and also to file affidavit of the

respondents. Hence, list the matter after one week for

hearing”.

Later, when the matter came up on 13.05.2020, another

learned Judge of this Court has passed the following order:

“Notice before admission.

Heard both the counsel.

Learned counsel for the petitioner submits that as per

the orders granted by this Court in the earlier writ petition

No.16392 of 2018, as per the seniority, the case of the

petitioner was considered for promotion and included in the

list of promotions and deferred only on the ground of

disciplinary proceedings, which were pending against him.

6

Even the Government Pleader has submitted that they

have filed counter and vacate stay petition in writ petition

No.16392 of 2018 and seriously pursuing the matter for

disposal.

In view of the submissions made by the petitioner and

the urgency explained, and in view of the stay granted by the

Hon’ble Court in W.P.No.16392 of 2018, without going into

the merits of the case, there shall be interim direction to the

respondents to consider the case of the petitioner and effect

the promotion to the post of Joint Commissioner of Sales Tax

expeditiously, within a period of two weeks from today.

Post after Summer Vacation, 2020.”

7. The respondents have issued the impugned Memo

No.REV03-17030/1/2020/D SEC-CCT (Revenue Commercial

Tax-1) Department dated 27.05.2020 rejecting / denying the

petitioner’s promotion to the post of Joint Commissioner of State

Tax. It was mentioned in the said memo that:

“Government has considered the direction of the Hon’ble High

Court and duly examined the matter in compliance with orders

dated 13.05.2020 passed by the Hon’ble High Court on merits.

Keeping in view of the facts in issue and duly applying principles

of natural justice as also after considering the opinion of the

Convener Department i.e. GAD as well after due examination of

the position explained in the preceding paras, the case of Sri

K.V.Jagadiswara Rao has been considered on merits. Further

Government has examined the seriousness of the offence, duly

considering action taken in similar cases, in light of General

Administration Department advice and after due examination

arrive at the following consideration:

(i) That the petitioner is involved in the serious offence which

resulted in unlawful gain to a tune of Rs.7.29 crores to the

dealer;

(ii) That in the light of the GAD advice matter needs to be

considered, considering the grave misconduct done in

public interest.

Therefore, after due consideration of the case of Sri

K.V.Jagadiswara Rao after due examination on merits is considered in

compliance with the orders of Hon’ble High Court and his request for

7

effecting promotion to the post of Joint Commissioner of State Tax is

considered not feasible.”

8. The said memo dated 27.05.2020 is impugned in the present

writ petition.

9. Learned counsel for the petitioner would submit that despite

the order passed by this Court giving positive direction to promote

the petitioner, the respondents have issued the impugned memo in

blatant violation of the orders of this Court in W.P.No.8268 of

2020, which clearly shows the audacity of the respondents.

Learned counsel would submit that he is taking steps to file a

contempt case before this Court. But as the petitioner cannot aske

for the relief sought in this writ petition in the contempt case, he is

constrained to file this writ petition. The date of filing of the writ

petition is 31.05.2020, but as there is every likelihood of

respondents issuing the proceedings at any moment, the petitioner

has invoked the jurisdiction of this Court under Article 226 of the

Constitution of India. It is submitted that respondent have taken

considerable time to effect the promotion till the petitioner is

retired from service.

10. Learned Government Pleader appearing on behalf of the

respondents filed a detailed counter running into 45 paragraphs

explaining the action taken by them against the petitioner and

series of events that have taken place from the day the petitioner

was suspended and it was stated by the learned government

pleader that the case of the other persons who were suspended

was also not considered in view of the pending proceedings.

Though all of them are in the zone of consideration, their names

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were included in the panels but promotions were deferred till

finalisation of the charge memos. In the same manner, petitioner’s

case is also differed.

11. Learned Government Pleader further submits that the order

passed by this court in W.P No 8268 of 2020 dated 13.05.2020

was considered by the Government and duly examined the matter

in strict compliance of the same. Keeping in view the facts and

issues, and duly applying the principles of natural justice, after

considering the opinion of the convenor department has come to

the conclusion that as the petitioner was involved in the serious

offence which resulted in loss to the government to a tune of

Rs.7,29,00,000/- and considering the advice of the GID felt that

affecting the promotion to the post of Joint Commissioner of State

Tax not feasible and accordingly issued the impugned memo dated

27.05.2020.

12. The order impugned in the writ petition is passed by the

respondents either they have not understood the order in its true

perspective or they wanted to sit in appeal over the orders passed

by this Court. The learned Judge while passing the order has

categorically observed that taking into consideration the orders

passed in W.P.No.1639 of 2018 a direction is given to the

respondents to consider the case of the petitioner and effect the

promotion to the post of Joint Commissioner of State tax

expeditiously within a period of two weeks from the date of the

order. The direction issued by the learned judge on the face of it is

a positive order directing the respondents to effect the promotion.

If the learned Judge passed the order directing the respondents to

9

consider the case of the petitioner and pass orders, then it can be

understood that the respondents have complied with the order of

the Court. But in the case on hand a positive direction was given to

the respondent not only to consider but also to effect the

promotion. The words ‘consider’ was scrutinized by the Hon’ble

Supreme Court in Chairman Life Insurance Corporation of India

& Ors v. A Masilamani

1 and held thus:

“19. The word "consider" is of great significance. The dictionary

meaning of the same is, "to think over", "to regard as", or "deem to be".

Hence, there is a clear connotation to the effect that there must be active

application of mind. In other words, the term "consider" postulates

consideration of all relevant aspects of a matter. Thus, formation of

opinion by the statutory authority should reflect intense application of

mind with reference to the material available on record. The order of the

authority itself should reveal such application of mind. The appellate

authority cannot simply adopt the language employed by the disciplinary

authority and proceed to affirm its order.”

13. In fact before the Hon’ble Supreme Court in APSRTC Vs.

G.Srinivas Reddy

2, the word “Consider” fell for consideration and

the Hon’ble Supreme Court observed thus:

13. We may, in this context, examine the significance and meaning of a

direction given by the court to "consider" a case. When a court directs an

authority to consider:, it requires the authority to apply its mind to the

facts and circumstances of the case and then take a decision thereon in

accordance with law. There is a reason for a large number of writ

petitions filed in High Courts being disposed of with a direction to

"consider" the claim/case/representation of the petitioner/s in the writ

petitions.

13.1) Where an order or action of the State or an authority is found to be

illegal, or in contravention of prescribed procedure, or in breach of the

rules of natural justice, or arbitrary/unreasonable/irrational, or

prompted by mala fides or extraneous consideration, or the result of

abuse of power, such action is open to judicial review. When the High

Court finds that the order or action requires interference and exercises

the power of judicial review, thereby resulting in the action/order of the

State or authority being quashed, the High Court will not proceed to

substitute its own decision in the matter, as that will amount to

1

(2013) 6 SCC 530

2

(2006) 3 SCC 674

10

exercising appellate power, but require the authority to consider : and

decide the matter again. The power of judicial review under Article 226

concentrates and lays emphasis on the decision making process, rather

than the decision itself.

13.2) The High Courts also direct authorities to consider : , in a different

category of cases. Where an authority vested with the power to decide a

matter, fails to do so in spite of a request, the person aggrieved

approaches the High Court, which in exercise of power of judicial review,

directs the authority to consider : and decide the matter. In such cases,

while exercising the power of judicial review, the High Court directs

consideration : without examining the facts or the legal question(s)

involved and without recording any findings on the issues. The High

Court may also direct the authority to consider : afresh, where the

authority had decided a matter without considering the relevant facts

and circumstances, or by taking extraneous or irrelevant matters into

consideration. In such cases also, High Court may not examine the

validity or tenability of the claim on merits, but require the authority to

do so.

13.3) Where the High Court finds the decision-making process erroneous

and records its findings as to the manner in which the decision should

be made, and then directs the authority to consider : the matter, the

authority will have to consider and decide the matter in the light of its

findings or observations of the court. But where the High Court without

recording any findings, or without expressing any view, merely directs

the authority to consider : the matter, the authority will have to consider

the matter in accordance with law, with reference to the facts and

circumstances of the case, its power not being circumscribed by any

observations or findings of the court.

14. In the aforesaid judgment, the Hon’ble Apex Court has dealt

with the word ‘consider’ in such an intrinsic manner that there

should be intense application of mind. But in this case the Court

has not only asked them to consider but to effect the promotion

where no discretion is left to the authorities.

15. In Hadkinson Vs. Hadkinson

3, the Court of appeal held:

“It is the plain and unqualified obligation of every person against,

or in respect of whom, an order is made by a court of competent

jurisdiction, to obey it unless and until that order is discharged. The

uncompromising nature of this obligation is shown by the fact that it

extends even to cases where the person affected by an order believes it to

be irregular or even void.

3

1952 All. E.R. 567

11

"A party who knows of an order, whether null and void, regular or

irregular, cannot be permitted to disobey it.... It would be most

dangerous to hold that the suitors, or their solicitors, could themselves

judge whether an order was null and void - whether it was regular or

irregular. That they should come to the court and not take upon

themselves to determine such a question: that the course of a party

knowing of an order which was null and irregular and who might be

affected by it was plain. He should apply to the court that it might be

discharged. As long as it existed it must not be disobeyed.

Such being the nature of this obligation, two consequences will,

in general, follow from its breach. The first is that anyone who disobeys

an order of the court (and I am not now considering disobedience of

orders relating merely to matters of procedure) is in contempt and may

be punished by committal or attachment or otherwise. The second is that

no application to the court by such a person will be entertained until he

has purged himself of his contempt

16. Unfortunately the respondents have interpreted the order in

the manner convenient to them. The administration of justice will

solely depend upon the execution of the orders of the Court. This is

a clear violation of orders of this Court. When an order is passed

by the Court, the respondents are duty bound to implement. If the

respondents are not in a position to implement the orders of the

court they ought to have filed a vacate petition and brought the

facts to the notice of the Court. But instead of doing so, they have

interpreted the order in their own way and rejected the case of the

petitioner, which is uncalled for and in clear violation of the orders

of the Court. In fact, a serious view has to be taken with the

conduct of the respondents and it is a fit case for initiating suo-

moto contempt proceedings. However, as the petitioner is taking

steps to initiate contempt proceedings, this Court is not dealing

with the same. By the time the interim order dated 13.05.2020 is

passed by the Court, the respondents have already filed the

counter with the very same averments that are filed in this case. It

is very unfortunate that the respondents having passed an order in

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clear violation of the order passed by this Court, still come up with

a counter before this Court stating that they have complied with

the order.

17. This Court is of the considered opinion that the respondents

failed to understand and implement the orders passed by this

Court dated 13.05.2020. Hence, the writ petition is allowed and

the Memo No. REV03-17030/1/2020/D SEC-CCT (Revenue

Commercial Tax-1) Department dated 27.05.2020 is set aside. The

respondents are directed to implement the orders passed by this

Court in W.P.No.8268 of 2020 dated 13.05.2020 within one week

from the date of receipt of a copy of this order. No costs.

As a sequel, all the pending miscellaneous applications are

closed.

___________________________

LALITHA KANNEGANTI, J

20

th August, 2020

Note: LR copy to be marked

B/O

PVD

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THE HON’BLE SMT. JUSTICE LALITHA KANNEGANTI

WRIT PETITION No.10660 of 2020

20

th August, 2020

PVD