Andhra Pradesh High Court - Amravati
State Of Ap vs N.Shankar Prasad on 23 January, 2020
Author: R Raghunandan Rao
Bench: R Raghunandan Rao
THE HON'BLE SRI JUSTICE A.V.SESHA SAI
AND
THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO
WRIT PETITION No.3315 of 2019
ORDER:(per Hon'ble Sri Justice A.V.Sesha Sai) This Writ Petition, filed under Article 226 of the Constitution of India, challenges the order, dated 10.10.2018, passed by the Andhra Pradesh Administrative Tribunal, Hyderabad (hereinafter referred to as 'Tribunal'), in O.A.No.2073 of 2018.
2. Respondents in the said Original Application are the petitioners in the present Writ Petition. Respondent herein is a Reserve Sub-Inspector. The issue involved in the present Writ Petition is promotion to the category of Reserve Inspector.
3. On the complaint made by the Inspector of Police, Kakinada Rural Circle, a crime in F.I.R.No.244 of 2016 was registered against the respondent herein and certain others for the alleged offences under Sections 120 (B), 201, 203, 213, 217, 218 and 221 r/w 34 IPC and Section 60 (A) of the Income Tax Act, 1961. The said crime was registered on 17.12.2016. Admittedly, police filed charge sheet in the said case on 10.08.2018. When the authorities declined to consider his case for promotion to the category of Reserve Inspector, in the DPC held on 26.05.2017 and 28.08.2017, respondent herein filed O.A.No.2073 of 2018 before the Tribunal, assailing the said action. The Tribunal, by way of an order, dated 10.10.2018, 2 AVSS.J & RRR,J W.P.No.3315 of 2019 disposed of the said Original Application with a direction to the respondent Nos.2 and 3 therein, who are the petitioner Nos.2 and 3 herein, to consider the case of the applicant for promotion to the post of Reserve Inspector as per seniority without reference to the pendency of Cr.No.244 of 2016, in terms of G.O.Ms.No.66 GAD (Services.C) Department, dated 30.01.1991, any other instructions governing the situation and pass appropriate orders within a period of eight weeks from the date of receipt of the said order. Assailing the validity and legal sustainability of the said order, passed by the Tribunal, the present Writ Petition came to be filed by the authorities on 11.03.2019.
4. This Court, on 13.03.2019, while ordering Notice Before Admission, granted interim suspension of the orders passed by the Tribunal. Now, seeking to vacate the said order, an application, vide I.A.No.02 of 2019, is filed. With the consent of the learned Government Pleader and the learned counsel for the vacate petitioner/applicant and since the pleadings are complete, we deem it appropriate to dispose of this case finally.
5. It is contended by the learned Government Pleader for Services-I, Sri N.Aswartha Narayana, that the order of the Tribunal, directing consideration of the case of the respondent- applicant, is highly erroneous and contrary to law and the instructions of the State Government issued from time to time. In elaboration, it is further contended by the learned Government Pleader that the respondent herein is not entitled 3 AVSS.J & RRR,J W.P.No.3315 of 2019 for promotion to the category of Reserve Inspector, having regard to the instructions of the State Government, issued vide G.O.Ms.No.66 GAD (Services.C) Department, dated 30.01.1991, and G.O.Ms.No.257 GAD Services Department, dated 10.06.1999. It is also the submission of the learned Government Pleader that, since the crime was already registered, as long back as on 17.12.2016, the respondent authorities are justified in not considering the case of the applicant-respondent herein for promotion through the DPC proceedings held on 26.05.2017 and 28.08.2017.
6. On the contrary, it is contended vehemently by the learned counsel for the applicant-respondent, Smt.J.Sumathi, that there is absolutely no error nor there exists any infirmity in the order passed by the Tribunal and, in the absence of the same, the impugned order is not amenable for any judicial review under Article 226 of the Constitution of India. It is also the submission of the learned counsel that the instructions of the State Government, issued vide G.O.Ms.No.66 GAD (Services.C) Department, dated 30.01.1991 and G.O.Ms.No.257 GAD Services Department, dated 10.06.1999, are helpful to the applicant and the said Governmental Orders do not prohibit the consideration of the case of the applicant for promotion.
7. In the above background, now the issue that emerges for consideration of this Court is:
"Whether the action of the authorities, in not considering the case of the 4 AVSS.J & RRR,J W.P.No.3315 of 2019 applicant/respondent herein, is in accordance with law and whether the order passed by the Tribunal warrants any interference of this Court, under Article 226 of the Constitution of India?
8. There is absolutely no controversy with regard to the reality that, though the crime was registered against the respondent herein along with certain others, on 17.12.2016, for the alleged offences, referred to supra, the police filed charge sheet on 10.08.2018 only.
9. In order to adjudicate the issue in the present Writ Petition, it may be appropriate to refer to the orders of the State Government issued vide G.O.Ms.No.66 GAD (Services.C) Department, dated 30.01.1991 and G.O.Ms.No.257 GAD Services Department, dated 10.06.1999.
10. While referring to the judgments of the Honourable Apex Court in STATE OF MADHYA PRADESH v. BANI SINGH1 and C.O.ARMUGAM AND OTHERS v. STATE OF TAMIL NADU AND OTHERS2, the State Government issued G.O.Ms.No.257 GAD Services Department, dated 10.06.1999, and G.O.Ms.No.66 GAD (Services.C) Department, dated 30.01.1991, and paragraph No.5 of the said Government Order, dated 30.01.1991, which is germane and relevant for the purpose of the present case, reads as under:
"Government, however, hereby direct the promotion/appointment by transfer to a higher 1 1990 Crl.L.J.1315 2 1990 (1) S.L.R.P.298 5 AVSS.J & RRR,J W.P.No.3315 of 2019 post in respect of officers who are facing disciplinary proceedings or a criminal case or whose conduct is under investigation and whose case falls under the ground referred to in para.2
(iii) of the G.O. first read above, shall be deferred, only when charges of misconduct are framed by the competent authority and served on the concerned delinquent officer, or a charge sheet has been filed against him in criminal Court, as the case may be".
11. The next relevant Governmental Order is G.O.Ms.No.257 GAD Services Department, dated 10.06.1999. Paragraph Nos.5 and 6 of the said Governmental Order read as under:
5. Government also order that with immediate effect the following procedure and guidelines, be followed to consider the employees against whom disciplinary cases or criminal prosecution are pending or whose conduct is under investigation, for appointment by promotion or transfer, to next higher categories.
A. The details of employees in the zone of consideration for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committees or Screening Committees:-
(i) Officers under suspension;
(ii) Officers in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending;
(iii) Officers in respect of whom prosecution for a criminal charge is pending.
B. Officers who are facing enquiry, trial or investigation can be categorized into the following groups based on the nature of the allegations of charges pending against them or about to be instituted namely:-
(i) an officer with a clean record, the nature of charges or allegations against whom relate to minor lapses having no bearing on his integrity or efficiency, which even if held proved, would not stand in the way of his being promoted;
6 AVSS.J & RRR,J W.P.No.3315 of 2019
(ii) an officer whose record is such that he would not be promoted, irrespective of the allegations or charges under enquiry, trial or investigation; and
(iii) an officer whose record is such that he would have been promoted had he not been facing enquiry, trial or investigation, in respect of charges which, if held proved, would be sufficient to supersede him.
C. The suitability of the officers for inclusion in the panel should be considered on an overall assessment based on the record which should include namely:-
(i) Adverse remarks recorded in the Annual Confidential reports, the penalties awarded and the bad reputation of the officer as vouchsafed by the Head of the Department and the Secretary to Government of the Department concerned;
The above cases should be considered as falling under category (ii) of item (B) above.
(ii) The officers who do not have any adverse entry in the Annual Confidential Report, and who have no penalties awarded against them in the entire duration of the post and not merely in the past five years and whose reputation is vouchsafed by the Head of the Department and Secretary to Government of the Department concerned should be considered as falling under category (iii) of item (B) above.
The officers categorized as under item (iii) of G.O.Ms.No.424, GA (Ser.C) Dept., dated 25-05-76 as mentioned above only should be considered for adhoc promotion after completion of two years from the date of the Departmental Promotion committee or Screening committee Meeting in which their cases were considered for the first time.
6. The appointing authority should consider and decide that it would not be against public interest to allow adhoc promotion to the officer concerned and this shall be decided with reference to the charge under enquiry. If the charge is one of moral turpitude, misappropriation, embezzlement and grave dereliction of duty then the appointing authority should consider as not in the public interest to consider adhoc promotion to such charged officer. But, however, if the charge is not a grave one but is a minor one, not involving moral turpitude, embezzlement and grave dereliction of duty then only in such cases he appointing authority should consider that it would not be against 7 AVSS.J & RRR,J W.P.No.3315 of 2019 public interest to allow adhoc promotion because till then his record is clean with reference to ACRs, past punishment and reputation in the department as vouchsafed by the Head of the Department and Secretary to Government. The appointing authorities should strive to finalize the disciplinary cases pursuing them vigorously so that within two years the proceedings are concluded and final orders issued".
12. A conjoint reading of the said Governmental Orders, in unequivocal terms, demonstrates that promotion of an individual can be deferred by the departmental authorities only in the cases where charge memos are issued in a disciplinary departmental proceedings or charge sheet is filed in a criminal case.
13. A perusal of the said Governmental Orders shows that there is no such contingency stipulated in the said Governmental Orders which prohibit the consideration of the cases of the employees for promotion.
14. Coming to the orders passed by the Tribunal, it is to be noted that the Tribunal had taken into consideration the orders of the State Government issued vide G.O.Ms.No.66 GAD (Services.C) Department, dated 30.01.1991, and directed the authorities to consider the case of the applicant for promotion. It is not the case of the petitioners herein that, as on the date of consideration of the case of the applicant, a charge sheet was filed. Therefore, this Court has absolutely no scintilla of hesitation to hold that the authorities are not justified in 8 AVSS.J & RRR,J W.P.No.3315 of 2019 declining to consider the case of the applicant for promotion to the post of Reserve Inspector.
15. It is also a settled and well established principle of law that, in the absence of any jurisdictional error or patent perversity, a writ in the nature of certiorari cannot be issued under Article 226 of the Constitution of India. This court does not find any such contingency in the case on hand.
16. For the aforesaid reasons, Writ Petition is dismissed, confirming the order, dated 10.10.2018, passed by the Tribunal in O.A.No.2073 of 2018, and interim order, granted by this Court in this Writ Petition, stands vacated and the petitioners are granted eight weeks' time to implement the orders of the Tribunal. There shall be no order as to costs.
17. As a sequel thereto, miscellaneous petitions, pending if any, shall stand closed.
__________________ A.V.SESHA SAI,J ___________________________ R.RAGHUNANDAN RAO, J 23rd January, 2020.
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