Andhra Pradesh High Court - Amravati
K.V.Sagar Babu vs The State Of Ap on 8 August, 2019
Author: Cheekati Manavendranath Roy
Bench: Cheekati Manavendranath Roy
THE HONOURABLE SRI JUSTICE CHEEKATI
MANAVENDRANATH ROY
WRIT PETITION No.10997 OF 2019
ORDER:-
Heard the learned counsel for the petitioner and the learned Government Pleader for Services - I appearing for respondent Nos.1 and 2.
2. This Writ Petition is filed under Article 226 of the Constitution of India by the petitioner seeking a writ in the nature of writ of mandamus to declare the action of the respondents in not considering the case of the petitioner for promotion to the post of Joint Commissioner of Endowments as per G.O.Ms.No.66, General Administration (Services.C) Department, dated 30.01.1991, or G.O.Ms.No.257, General Administration (SER.C) Department, dated 10.6.1999, as illegal and arbitrary and consequently, direct the respondents to promote the petitioner to the post of Joint Commissioner of Endowments.
3. Facts of the case lie in a narrow compass and may be stated as follows:
The petitioner was initially appointed as a Typist in the Endowments Department on 05.04.1987. Later, he was promoted as Senior Assistant and further, promoted as Superintendent. Later, he was promoted as Assistant Commissioner and at present, he has been working as Deputy Commissioner on promotion since 22.11.2011. The petitioner is fully eligible for promotion to the next higher post of Joint Commissioner of Endowments. 2
On 01.09.2016, the officials of the Anti Corruption Bureau (A.C.B.), Vijayawada filed a F.I.R. against the petitioner on the ground that the petitioner has acquired assets disproportionate to his known source of income. Searches were made in his house on 01.09.2016 and the petitioner was also remanded to judicial custody on 02.09.2016. He was also placed under suspension under Rule 8(2) of APCS (CCA) Rules, 1991 as he was in judicial custody for more than 48 hours.
The respondents are now conducting D.P.C. to effect promotions to the post of Joint Commissioner as there are three vacancies at present. They have also called for the Annual Confidential Reports of all the eligible employees from the then Head of the Departments. However, the A.C.R. of the petitioner herein was not called for. The respondents have been orally revealing that the case of the petitioner for promotion will be considered only after the disposal of the case filed by the A.C.B. against him.
The petitioner has submitted a representation to consider his case also for promotion in terms of G.O.Ms.No.66, General Administration (Services.C) Department, dated 30.01.1991, and G.O.Ms.No.257, General Administration (SER.C) Department, dated 10.6.1999. However, without passing any orders on the representation and with a view to overlook the petitioner for promotion, the respondents are in a hurry to effect promotions on 08.08.2019. If the case of the petitioner is not considered for promotion, he would be deprived of his right to be promoted even 3 though he is eligible for promotion. Therefore, he sought the aforestated relief in this writ petition.
4. The fact that the petitioner was involved in a case registered by the officials of the A.C.B. on the ground that the petitioner has acquired properties disproportionate to his known source of income and that he was arrested in the said crime and was detained in judicial custody and thereafter, he was suspended for being detained in judicial custody are incontrovertible facts in this case. It is also not in dispute that the said case is still pending.
5. In this context, it is relevant to consider para No.6 of G.O.Ms.No.257, dated 10.6.1999, wherein it is stated that 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 involving moral turpitude, misappropriation, embezzlement and grave dereliction of duty, then the appointing authority should consider whether or not in the public interest it is desirable to consider adhoc promotion to such charged officer. 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 the appointing authority should consider that it would not be against 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.
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6. Therefore, it is evident that whenever a grave charge against an employee is pending which relates to the one involving moral turpitude, misappropriation, embezzlement and grave dereliction of duties, the promotion cannot be effected as a matter of routine. The appointing authority has to decide with reference to the facts of the said case whether it is desirable or not in the public interest to consider the case of the said employee for adhoc promotion or not. Although the case in which the petitioner is involved relates to acquiring assets disproportionate to his known source of income, still the appointing authority has to pass appropriate orders in terms of the aforesaid G.O. and in the light of the direction given in para No.6 of the said G.O. The appointing authority, without passing any order to that effect, cannot ignore the case of the petitioner to be considered for promotion.
7. In a similar situation, this Court has recently, in W.P.No.9754 of 2019, by its order, dated 24.07.2019, directed the respondents therein to consider the case of the employee therein for promotion and pass appropriate orders to that effect in accordance with law. So, the petitioner, who is similarly placed, is also entitled to the similar relief. In the aforesaid order, this Court has considered the earlier order, dated 03.07.2019, of the Division Bench of this Court in a batch of writ petitions in W.P.Nos.2246, 2470 to 2472 and 7892 of 2019.
8. Therefore, the Writ Petition is, accordingly, allowed directing the respondents to consider the case of the petitioner also for promotion and pass appropriate orders in the light of para No.6 of G.O.Ms.No.257, General Administration (SER.C) Department, 5 dated 10.6.1999, within three (3) weeks from the date of receipt of a copy of this order. There shall be no order as to costs.
Miscellaneous petitions pending, if any, in this Writ Petition shall stand closed.
________________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY Date : 8.8.2019 AMD 6 THE HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY WRIT PETITION No.10997 OF 2019 Date : 8.8.2019 AMD