Andhra HC (Pre-Telangana)
Mohd Liyaqath Ali vs The Registrar, Administration, High ... on 14 June, 2013
Bench: G. Rohini, P. Naveen Rao
THE HON'BLE Ms. JUSTICE G. ROHINI and THE HON'BLE MR. JUSTICE P. NAVEEN RAO WRIT PETITION NO. 11476 OF 2013 dated:14-06-2013 Mohd Liyaqath Ali....Appellant The Registrar, Administration, High Court of A.P, Hyd & ors.... Respondents Counsel for the Appellant : Sri Ashok Reddy Kanathala Counsel for the respondent No.1 & 2 :Sri Y Rama Rao Counsel for the Respondent No.3 : Sri G.Vidyasagar <Gist : >Head Note: ?Cases referred: 1. AIR 1991 SC 2010 (1) 2. 1991 Supp (2) SCC 199 WRIT PETITION NO. 11476 OF 2013 ORDER:
(Per Sri Justice P.Naveen Rao) Aggrieved by the decision of the Principal District Judge, Warangal (second respondent herein) reverting the petitioner from the post of Administrative Officer to the post of Superintendent, this writ petition is instituted.
2. The facts giving rise to institution of this writ petition are as under.
3. The disciplinary action initiated vide charge memo dated 26.06.2006, against the third respondent herein resulted in punishment of withholding of promotion for four years vide proceedings dated 30.01.2009. Aggrieved by the same, the third respondent preferred appeal to High Court on administrative side. During the pendency of the said appeal, a vacancy arose in the cadre of Administrative Officer on account of retirement of an incumbent with effect from 31.12.2011.
4. Having proposed to fill up the said vacancy by promotion from the cadre of superintendents, the second respondent identified four persons for consideration for promotion, including the writ petitioner and the third respondent. Interviews were conducted on 22.12.2011 and the performance of all the four persons was found to be satisfactory. However, the candidature of the third respondent, though he was senior to the petitioner, was ignored on the ground that he suffered the penalty of withholding of promotion for a period of four years by proceedings dated 30.01.2009. Accordingly, the second respondent selected the petitioner as suitable for promotion to the post of Administrative Officer, and the consequential order was passed on 28.12.2011 promoting the petitioner as Administrative Officer. By proceedings dated 08.02.2012 issued by the High Court on the administrative side, the petitioner was posted as the Administrative Officer, Family Court-cum-VI Additional District and Sessions Court, Khammam and he joined the promoted post on 17.02.2012.
5. In the meanwhile the High Court on the administrative side passed orders on 04.02.2012, allowing the appeal preferred by the third respondent by setting aside the punishment imposed against him by the second respondent in his order dated 30.01.2009. Therefore, the third respondent represented to the High Court on administrative side seeking promotion to the post of Administrative Officer from the date of promotion of his junior. It may be mentioned that though a second disciplinary proceeding was initiated against the third respondent on 03.07.2011 on a different delinquency vide D.E.No.1/2011, the same was dropped by proceedings dated 04.09.2012 exonerating him of the charges. In the circumstances, the petitioner's request for promotion was considered and the High Court on the administrative side passed an order dated 09.10.2012 promoting the third respondent to the post of Administrative Officer from the date when his junior was promoted and directing the second respondent to take appropriate action by putting the writ petitioner on notice. Consequently, second respondent issued show cause notice on 16.10.2012 calling for objections from the petitioner as to why he should not be reverted, in view of the setting aside punishment imposed against the second respondent and further orders of High Court on the administrative side to grant promotion to third respondent.
6. Aggrieved by the same, the petitioner herein filed W.P.No.35568 of 2012 challenging the orders of High Court on administrative side dated 09.10.2012. Though initially interim suspension of the order dated 09.10.2012 was granted by this Court, ultimately by order dated 23.01.2013 the W.P. was disposed of holding that the writ petition is premature. However, the second respondent was directed to consider the explanation of petitioner and to pass orders in accordance with law. Consequent to the disposal of the writ petition, the second respondent offered personal hearing to the petitioner and third respondent on 8.3.2012. On consideration of the matter, second respondent passed orders No.DC-WGL/AW-E/Dis No. 2781 dated 9.4.2013 reverting the petitioner as Office Superintendent. Aggrieved by his reversion, petitioner instituted this writ petition.
7. Heard the learned counsel on record.
8. It is the contention of the learned counsel for petitioner that the post of Administrative Officer being a selection post, promotion is to be granted based on the assessment of merit and ability and seniority is relevant only when merit and ability is same. It is contended that the petitioner was selected in preference to third respondent based on his merit and therefore, there is no justification to review the promotion granted to him merely because subsequently, third respondent is exonerated in both disciplinary proceedings.
9. Opposing the writ petition, learned counsel appearing for third respondent submits that earlier he was ignored for promotion while promoting his juniors on the ground that he was visited with punishment of withholding of promotion in one disciplinary proceeding and another disciplinary proceeding was pending. As a consequence to exoneration in both the disciplinary proceedings, it is necessary to review promotions granted earlier to his juniors and thus the petitioner has to be reverted and he is entitled to be promoted.
10. The learned counsel representing respondents 1 and 2 supported the decisions taken by them resulting in reversion of petitioner as Office Superintendent.
11. As per the directions of this Court, relevant records relating to promotion to the post of Administrative Officer in Warangal district are produced by the learned standing counsel for Andhra Pradesh High Court.
12. Records placed before this Court discloses that third respondent is senior most Office Superintendent when promotion to the post of Administrative Officer was made on 28.12.2012. He was superseded and his junior was promoted on account of punishment imposed on him in one disciplinary proceeding and another disciplinary proceeding was pending.
13. The question for consideration, thus, is consequent to setting aside the punishment, whether third respondent is entitled for consideration for promotion as Administrative Officer retrospectively on the date when his juniors were promoted, by reviewing the promotions earlier granted?
14. Post of Administrative Officer is governed by A.P. Judicial Ministerial Service Rules, 2003. Rule 5 deals with constitution of service. This post is organised as Category I of the service. Note (2) appended to Rule 5 stipulates that post of Administrative Officer is a selection post intended to be filled up by promotion from among the Superintendents on assessing the merit and ability, seniority being considered only where merit and ability are approximately equal.
15. High Court, on administrative side, issued circular RC No.2536/98-C.I(1) dated 23.3.1999 prescribing procedure to effect promotions to selection posts and non selection posts. Para I deals with selection posts. Circular mandates preparation of a panel of eligible candidates as per seniority, to call them for interview in the ratio of 1:3 and select the suitable candidates. The procedure for selection for the posts meant to be filled up by promotion which are classified as selection posts, was reviewed by the High Court on administrative side and further orders are issued in Circular Roc No.609/2005- C.1 dated 19.10.2006 wherein High Court, on administrative side, directed the Unit Heads not to conduct written test and/or oral interview if the rules do not contemplate and confine assessment of the merit based on the annual confidential reports. A.P. Judicial Ministerial Service Rules do not prescribe written test and interview as method of assessment of suitability for promotion. Thus assessment of merit and suitability of Office Superintendents for promotion as Administrative Officer has to be based on entries in Annual Confidential Reports.
16. Since the post of Administrative Officer is a selection post, selection has to be made from out of the eligible Superintendents by assessing the performance based on their annual confidential reports. Such an assessment can be made by a duly constituted Departmental Promotion Committee/or by competent authority.
17. It is evident from the record placed before this Court that third respondent was superceded on the ground that he was visited with punishment in one disciplinary matter and another disciplinary proceeding was pending. After the orders of the High Court on administrative side dated 9.10.2012, and before reverting the petitioner, no relative assessment is made to assess the merit and ability of the petitioner and third respondent and only based on the seniority, promotion granted to petitioner is sought to be nullified with an intention to grant promotion to the third respondent.
18. On the principle of entitlement for consideration for promotion as a consequence to exoneration in disciplinary proceedings, the Hon'ble Supreme Court in the case of UNION OF INDIA Vs. K.V.JANKIRAMAN1 holds as under:
7. The Full Bench of the Tribunal, while considering the earlier Memorandum dated January 30, 1982 has, among other things, held that the portion of paragraph 2 of the memorandum which says "but no arrears are allowed in respect of the period prior to the date of the actual promotion" is violative of Articles 14 and 16 of the Constitution because withholding of salary of the promotional post for the period during which the promotion has been withheld while giving other benefits, is discriminatory when compared with other employees who are not at the verge of promotion when the disciplinary proceedings were initiated against them.
The Tribunal has, therefore, directed that on exoneration, full salary should be paid to such employee which he would have received on promotion if he had not been subjected to disciplinary proceedings.
We are afraid that the Tribunal's reference to paragraph 2 of the Memorandum is incorrect. Paragraph 2 only recites the state of affairs as existed on January 30, 1982 and the portion of the Memorandum which deals with the relevant point is the last sentence of the first sub-paragraph after clause (iii) of paragraph 3 of the Memorandum which is reproduced above. That sentence reads as follows:
"But no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion."
This sentence is preceded by the observation that when the employee is completely exonerated on the conclusion of the disciplinary/court proceedings, that is, when no statutory penalty, including that of censure, is imposed, he is to be given a notional promotion from the date he would have been promoted as determined by the Departmental Promotion Committee. This direction in the Memorandum has also to be read along with the other direction which follows in the next sub-paragraph and which states that if it is found as a result of the proceedings that some blame attaches to the officer then the penalty of censure at least, should be imposed. This direction is in supersession of the earlier instructions which provided that in a case where departmental disciplinary proceedings have been held, "warning" should not be issued as a result of such proceedings.
There is no doubt that when an employee is completely exonerated and is not visited with the penalty even of censure indicating thereby that he was not blameworthy in the least, he should not be deprived of any benefits including the salary of the promotional post.
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We are, therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/ criminal proceedings.
19. Following the above judgment, Hon'ble Supreme Court in the case of C.O.ARUMUGAM AND OTHERS Vs. STATE OF TAMILNADU AND OTHERS2 pleased to hold as under:
"5. As to the merits of the matter, it is necessary to state that every civil servants has a right to have his case considered for promotion according to his turn and it is a guarantee flowing from Articles 14 and 16 (1) of the Constitution. The consideration of promotion could be postponed only on reasonable grounds. To avoid arbitrariness, it would be better to follow certain uniform principles. The promotion of persons against whom charge has been framed in the disciplinary proceedings or charge sheet has been filed in criminal case may be deferred till the proceedings are concluded. They must, however, be considered for promotion if they are exonerated or acquitted from the charges. If found suitable, they shall then be given the promotion with retrospective effect from the date on which their juniors were promoted.
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9.. Thiru G.P. Purushothaman, respondent 5, appears to be an exception to the preceding norm. It is said that there was then charge sheet filed against him in the pending enquiry when the panel was prepared. His exclusion for promotion could not therefore be inappropriate. We may, however, observe that if he is exonerated in the pending enquiry, he be considered for promotion from the date on which his junior was promoted and if found suitable he be given promotion with all consequential benefits,......"
20. In view of the principle of law laid down by the Hon'ble Supreme Court, as a consequence to setting aside the punishment imposed against third respondent and withdrawal of the second disciplinary proceedings, third respondent is entitled for consideration for promotion afresh retrospectively from the date when his junior was promoted.
21. Thus, consequent to setting aside the order of punishment and dropping of disciplinary proceedings, it is necessary to under take review of promotions granted earlier. Competent Authority has to review the earlier promotion made and has to assess the merit and ability of the individuals in the zone of consideration as on 31.12.2011 when vacancy arose in the cadre of Administrative Officer.
22. Since it is selection post, exoneration in disciplinary proceedings does not automatically result in granting promotion merely because third respondent is senior to persons promoted. He has only a right for consideration for promotion when his junior was promoted. Fresh consideration is necessary in view of setting aside of punishment in one disciplinary proceeding and dropping of another disciplinary proceeding. It is necessary to assess the merit and ability afresh. Thus, it is necessary for reconsideration of the issue of promotion to the post of Administrative Officer by holding review of promotion made strictly in accordance with Circular dated 19.10.2006 referred to above and considering the merit and ability of candidates in the zone of consideration without regard to the disciplinary proceedings initiated against third respondent, as if there were no such proceedings pending against him.
23. For the aforesaid reasons, without interfering with the impugned order dated 09.04.2013 the writ petition is disposed of with a direction to the second respondent to review the selections made to the post of Administrative Officer in Warangal District Unit consequent to the vacancy arose with effect from 31.12.2011 and pass appropriate orders afresh after assessing the merit and suitability of all the Superintendents in the zone of consideration as on 31.12.2011 including the petitioner and the third respondent based on their Annual Confidential reports. Such exercise shall be completed as expeditiously as possible, preferably within a period of four weeks from the date of receipt of this order. In the meanwhile, status quo obtaining as on today shall be maintained.
24. It is made clear that this Court has not expressed any opinion on relative merit and ability of the petitioner and third respondent and it is for second respondent to make such assessment. No costs.
25. Sequel to the disposal of the writ petition, the Miscellaneous Petition in WPMP.No. 14218 of 2013 stands closed.
__________ G.ROHINI,J ____________ P.NAVEEN RAO,J DATE: 14-06-2013