Andhra Pradesh High Court - Amravati
D N V Savitha vs The State Of Andhra Pradesh, on 3 September, 2020
Author: M. Satyanarayana Murthy
Bench: M. Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
WRIT PETITION NO.15207 OF 2020
ORDER:
This writ petition is filed under Article 226 of the Constitution of India to issue Writ of Mandamus declaring the action of the respondents in not considering the candidature of this petitioner for promotion to the post of Assistant Treasury Officer from Sub- Treasury Officer on the ground of pendency of Charge Memo in G2/6019/2016 dated 20.04.2017 under Rule 22 of C.C.C.A Rules, 1991 as illegal, arbitrary, violative of Articles 14 & 21 of the Constitution of India and contrary to the instructions in Government Circular Memos dated 01.07.1998 and 05.09.2000 and consequently to set-aside the same.
It is submitted that, as per Circular memo issued by the Government dated 01.07.1998 and 05.09.2000 disciplinary proceedings are to be concluded within three months in simple cases and six months in complicated cases. Admittedly, the Articles of Charge itself is issued for imposing minor penalty on simple charge. Seniority list of Multizone-2 (Zone-3 & 4) was prepared by the second respondent on 29.11.2018. This petitioner is at S.No.59 and the juniors are at 60 to 67 respectively and the juniors were promoted as Assistant Treasury Officer vide proceedings dated 03.08.2020, while ignoring candidature of this petitioner. Therefore, the inaction of the respondents is illegal, arbitrary and requested to set-aside the same.
During hearing, learned counsel for the petitioner Sri P.V. Ramana would contend that, merely because a Charge Memo was 2 MSM,J W.P.No.15207 of 2020 issued under Rule 22 of The Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules 1991 (henceforth 'C.C.CA Rules'), for imposing minor penalty, promotion cannot be denied to this petitioner and pleaded that no enquiry was initiated against this petitioner, admittedly. Therefore, requested to consider the case of this petitioner for promotion in terms of the judgment of Division Bench of High Court of Andhra Pradesh at Hyderabad in Government of A.P. v. Rajeswara Reddy, Deputy Collector1.
Whereas, learned Government Pleader for Services-I supported the action of the respondents in promoting the juniors at Serial Nos.60 to 67 as Assistant Treasury Officers vide proceedings dated 03.08.2020, in all respects, in view of pendency of enquiry against this petitioner.
Undoubtedly, this petitioner is working as a Sub-Treasury Officer, Gudur, Kurnool District and eligible for promotion as Assistant Treasury Officer, having shown at S.No.59 of the seniority list. But, the reason for non-consideration or denial of promotion to this petitioner is pendency of disciplinary proceedings under Rule 22 of C.C.C.A Rules.
Rule 22 of C.C.C.A Rules deals with procedure for imposing minor penalties. According to it:-
(1) Subject to the provisions of sub-rule (4) of rule 21, no order imposing on a Government Servant any of the penalties specified in clauses (i) to (v) of rule 9 and in rule 10 shall be made except after:-
(a) informing the Government Servant in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, and giving him a reasonable opportunity of making such representation as he may wish to make against the proposal;1
2010 (4) ALT 374 (D.B) 3 MSM,J W.P.No.15207 of 2020
(b) holding an inquiry in the manner laid down in sub-rule (3) to (23) of rule 20, in every case in which the disciplinary authority is of the opinion that such inquiry is necessary;
(c) taking the representation, if any, submitted by the Government servant under clause (a) and the record of inquiry, if any. held under clause (b) into consideration;
(d) recording a finding on each imputation of misconduct or misbehaviour; and
(e) consulting the Commission where such consultation is necessary. (2) Notwithstanding anything contained in clause (b) of sub-rule (1), if in a case it is proposed, after considering representation, if any, made by the Government servant under cIause (a) of that sub-rule, to withhold increments of pay and such withholding of increments is likely to affect adversely the amount of pension payable to the Government Servant or to withhold increments of pay for a period exceeding three years an inquiry shall be held in the manner laid down in sub-rules (3) to (23) of rule 20, before making any order imposing on Government Servant any such penalty.
(3) The record of the proceedings in such cases shall include:-
(i) a copy of the intimation to the Government Servant of the proposal to take action against him;
(ii) a copy of the statement of imputations of misconduct or misbehaviour delivered to him;
(iii) his representation, if any;
(iv) the evidence produced during the inquiry, if any;
(v) the advice of the Commission, if any;
(vi) the findings on each imputation of misconduct or misbehaviour;
and
(vii) the orders on the case together with the reasons therefor.
Thus, what the rule require for imposing a minor punishment is the giving of an opportunity to show cause against the proposed action. It is enough if the charges are communicated to the employee and he is called upon to show cause against the proposed punishment. There is neither any need to conduct an inquiry nor to give any personal hearing. The punishment which is proposed in
4 MSM,J W.P.No.15207 of 2020 the show-cause notice or a lesser punishment can be imposed but not a higher punishment.
In the present facts of the case, notice under Rule 22 of C.C.C.A Rules was served on this petitioner indicating imputations proposing to impose minor penalty, dispensing with the procedure under Rule 20 of the Rules. Accordingly, the petitioner submitted her explanation to the charges for imposing minor penalty long back on 26.05.2017. But, till date, no order has been passed imposing any minor penalty for charges. Therefore, keeping the departmental proceedings and issuing charges under Rule 22 of C.C.C.A Rules for a long period is a serious illegality and contrary to the Government Circular Memos dated 01.07.1998 and 05.09.2000 where the Government directed all the departments to conclude departmental proceedings within three months where a minor penalty is required to be imposed and if the charges are complicated, the departmental proceedings shall be completed within six months. Instead of following the directions issued in the Circular Memos referred above, the respondents kept the enquiry pending for long time without imposing any punishment and denied promotion to this petitioner as Assistant Treasury Officer.
In similar circumstances, this Court in the judgment of Division Bench of High Court of Andhra Pradesh at Hyderabad in Government of A.P. v. Rajeswara Reddy, Deputy Collector (referred supra), held that disciplinary proceedings initiated against an employee of Government be completed within three months in simple cases and six months in complicated cases as per policy decision taken by the Government in G.O.Ms.No.679, General Administration (Services-C) Department, dated 01.11.2008.
5 MSM,J W.P.No.15207 of 2020 Similarly, the Apex Court in State of Punjab and others v. Chaman Lal Goyal2, observed that the departmental enquiry should be decided by the balancing process i.e. weighing the factors for and against and taking decision on the totality of circumstances and held that, the charges and appointment of the enquiry officer should not have been quashed but the delinquent officer, in his turn should have been considered for promotion and, if found fit, grant promotion, subject to the result of the departmental enquiry. Further, the departmental enquiry directed to be concluded within eight months, failing which the same would be deemed to be dropped.
In A. Jalender Reddy, s/o Sathi v. The State of Telangana3, wherein, the learned single Judge of High Court of Telangana held that, "normally, pendency or contemplated initiation of disciplinary proceedings against a candidate must be considered to have absolutely no impact upon his right to be considered. If the departmental enquiry had reached the stage of framing of charges after a prima facie case has been made out, the normal procedure followed as mentioned by the Tribunal was 'sealed cover' procedure but if the disciplinary proceedings had not reached that stage of framing of the charge after prima facie case is established the consideration for the promotion to a higher or selection grade cannot be withheld merely on the ground of pendency of such disciplinary proceedings." The same principle was reiterated in Meer Mubhashir Ali vs. The State of Telangana4. 2 (1995) 2 Supreme Court Cases 570 3 2017 (4) ALT 225 4 2018 (4) ALT 413 6 MSM,J W.P.No.15207 of 2020 Therefore, by following the principles laid down in the judgments coupled with Government Order referred above, pendency of proceedings for imposing minor penalty, denial of promotion on the ground of proposed imposition of minor penalty under Rule 22 of C.C.C.A Rules is a grave illegality and violation of Article 19 of the Constitution of India. Therefore, by applying the principles laid down in the above judgments, the respondents are directed to consider the candidature of the petitioner for promotion as Assistant Treasury Officer with all consequential benefits from the date of her promotion, as her juniors were already promoted.
In the result, writ petition is allowed, directing the respondents to consider the candidature of the petitioner for promotion as Assistant Treasury Officer with all consequential benefits from the date of her promotion.
Consequently, miscellaneous applications pending if any, shall stand dismissed.
_____________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date: 03.09.2020 sp