Andhra Pradesh High Court - Amravati
B.Maddileti, vs The District Collector Sw on 20 January, 2022
Author: Ninala Jayasurya
Bench: Ninala Jayasurya
HONOURABLE SRI JUSTICE NINALA JAYASURYA
WRIT PETITION No. 20965 of 2021
ORDER:-
The Writ Petition is filed seeking a Writ of Certiorari to call for the records relating to and in connection with impugned proceedings dated 19.06.2021 of the 1st respondent, to set aside the same as illegal, unjust, arbitrary etc., and for a consequential direction to the respondents to drop the disciplinary case against the petitioner with all service and monetary benefits including promotion.
2. Heard Mr.Poodattu Amarender, learned counsel for the petitioner and learned Government Pleader for Services-II appearing for the respondents.
3. The brief averments in the Writ Petition are as follows:
The petitioner was initially appointed as Hostel Welfare Officer, Grade-II on 28.03.2006 and posted at Government S.C.Boys Hostel, Chagalamarri, Kurnool District. Subsequently, he was promoted to the post of Hostel Welfare Officer, Grade-I on 22.02.2014. He is fully eligible and qualified for the post of Assistant Social Welfare Officer (ASWO). While, the petitioner was working as Hostel Welfare Officer, Grade-I in Government S.C.Boys Hostel, Gargeyapuram, on 06.08.2018, Vigilance and Enforcement Department Officials made a surprise check on which the date, the petitioner was on leave. Thereafter, a 2 NJS,J W.P.No.20965 of 2021 Charge Memo dated 20.08.2019 was issued to the petitioner framing two minor charges (i) that he is not maintaining Head Quarters (ii) Wrongly marking boarders' attendance, excessively. The petitioner submitted his explanation on 17.09.2019 denying the charges and thereafter an Enquiry Officer was appointed, who submitted his report on 20.12.2019.
Thereafter, the 1st respondent passed orders dated 02.07.2020 imposing punishment of "Censure". Prior to imposition of punishment, as the respondents were proceeding with promotions to the post of Assistant Social Welfare Officers, petitioner filed W.P.No.19033 of 2019 seeking consideration of his case for promotion as per G.O.Ms.No.257 dated 10.06.1999. In the said Writ Petition, interim orders were granted on 27.11.2019 directing the respondents to examine the case of the petitioner in terms of G.O.Ms.No.257 and take appropriate action, in accordance with Law. The respondents without considering the case of the petitioner for promotion issued speaking orders to the effect that the petitioner's case will be considered for promotion after finalization of the disciplinary proceedings. Subsequently, the above said punishment of 'Censure' vide proceedings dated 02.07.2020 was imposed. Against the said orders, the petitioner on 13.07.2020, filed an appeal before the 2nd respondent. Aggrieved by the same punishment order, the petitioner filed W.P.No.13193 of 2020 wherein this Court granted interim orders on 04.08.2020 directing the respondents to dispose of the petitioner's 3 NJS,J W.P.No.20965 of 2021 representation, within a period of three weeks. In the appeal filed by the petitioner, the 2nd respondent/appellate authority, vide orders dated 24.09.2020 while cancelling the orders of "Censure" held that a report will be submitted to the A.P.Vigilance Commission through Government for taking further course of action in the matter, after receipt of the professional view/ remarks of the District Collector, Kurnool, on the findings of the Enquiry Report and further representation of the Charged Officer. Subsequently, the order dated 19.06.2021 impugned in the Writ Petition was passed by the 1st respondent imposing a punishment of 'Censure' against the petitioner.
4. Learned counsel for the petitioner submits that the punishment of 'Censure' originally passed on 02.07.2020 was in force and would have ended by 02.07.2021. However, the 1st respondent imposed punishment of 'Censure' by orders dated 19.06.2021 on the same issue and thereby the petitioner is seriously prejudiced. He submits that the earlier order of 'Censure' was cancelled on the premise that the matter was not routed through the Government. Now, a fresh order has been passed vide impugned proceedings dated 19.06.2021 virtually extending the period of currency of the punishment by one year, though it would have ended by 02.07.2021. While stating that the currency of censure would be for a period of one year, which bars a Government servant for promotion, for one year, in view of G.O.Ms.No.342 dated 04.08.1997, he contends that 4 NJS,J W.P.No.20965 of 2021 the said orders are only Executive instructions and have no statutory force. He submits that there is no prohibition for considering the case of petitioner as per the Statutory Rules in vogue, but the petitioner is denied promotion while his juniors are marching ahead. He further submits that as held by a Division Bench of the erstwhile High Court of Andhra Pradesh at Hyderabad in A. Vema Reddy v. Controller General of Defence Accounts1, the punishment of 'Censure' cannot have the effect of automatically postponing the employee's promotion. Making the above said submissions, he urges for allowing the Writ Petition as prayed for.
5. Per contra, the learned Government Pleader for Services- II opposed the arguments advanced by the learned counsel for the petitioner contending on the basis of averments made in the counter-affidavit that in the light of Government Orders in G.O.Ms.No.342 dated 04.08.1997 'Censure' is a minor penalty and every 'Censure' awarded to a Government employee debars him/her for promotion/appointment by transfer for one year, to both selection and non selection posts and therefore, the punishment would be in currency till 19.06.2022 i.e., one year from the 19.06.2021. The learned Government Pleader would further contend that the judgment relied on by the learned counsel for the petitioner is not applicable to the facts of the case, more particularly, for the reason that the Hon'ble Division 1 2001 (5) ALD 131 5 NJS,J W.P.No.20965 of 2021 Bench had no occasion to consider the Government Orders in G.O.Ms.No.342 dated 04.08.1997. The learned Government Pleader while supporting the impugned order seeks dismissal of the Writ Petition.
6. This Court has gone through the materials on record, while considering the above submissions made by the respective counsel. Though the contentions advanced by the learned counsel for the petitioner deserves appreciation, as mentioned in the affidavit filed in support of the Writ Petition and evident from the documents filed along with the material papers, the petitioner against the order dated 19.06.2021 impugned in the Writ Petition filed an appeal on 21.06.2021 before the 2nd respondent under Rule 34 of A.P.C.S.(CCA) Rules, 1991. According to the petitioner, no orders have been passed on the said appeal and thus it would be clear that the petitioner filed the present Writ Petition while the appeal is pending before the 2nd respondent. In view of the said position, this Court is not inclined to examine the case of the petitioner on merits as the petitioner had already availed the remedy of appeal and cannot pursue the appeal and the Writ Petition in respect of the same cause, simultaneously. The Writ Petition is liable to be dismissed on this ground.
7. However, this Court deems it appropriate to dispose of the Writ Petition, with a direction to the 2nd respondent to pass appropriate orders on the appeal filed by the petitioner, within 6 NJS,J W.P.No.20965 of 2021 a period of four (4)weeks from the date of receipt of a copy of this order, after giving an opportunity of hearing to the petitioner. The petitioner is at liberty to place the relevant material including the judgments on which he seeks to place reliance before the appellate authority.
8. Accordingly, the Writ Petition is disposed of with the above directions. No costs.
Miscellaneous Petitions, if any, pending in this Writ Petition shall stand closed.
__________________ NINALA JAYASURYA, J .01.2022.
BLV 7 NJS,J W.P.No.20965 of 2021 HON'BLE SRI JUSTICE NINALA JAYASURYA W.P.No.20965 of 2021 Dated .01.2022 BLV