Telangana High Court
Nirmala Moluguri vs The District Educational Officer Fac ... on 20 December, 2023
Author: P.Madhavi Devi
Bench: P.Madhavi Devi
THE HON'BLE SMT. JUSTICE P.MADHAVI DEVI
W.P.Nos. 14662 and 14675 of 2021
COMMON ORDER:
In both of these writ petitions, the petitioners are seeking a writ of mandamus declaring the impugned order dated 26.05.2021 issued by the 1st respondent rejecting the claims of the petitioners for promotion to the post of Assistant Food Controller/Senior Scientific Officer and also as Chief Public Analyst respectively, mechanically and contrary to the Judgment of this Court in W.P.No.3278 of 2021 and 3279 of 2021 on the ground that a criminal case is pending against the petitioner, as illegal and arbitrary and consequently to declare that the petitioners are entitled for promotion without reference to the pendency of the criminal case against them.
2. Brief facts leading to the filing of the present writ petitions are that the petitioner in W.P.No.14662 of 2021 was working as Gazzetted Food Inspector, Adilabad, while ACB registered a case of disproportionate assets vide FIR No.03/ACB-ADB/2017, dated 19.08.2017 on the file of I Additional Special Judge for SPE and ACB Cases, Karimnagar. The case of the petitioner is that he has been unnecessarily implicated in the disproportionate assets case, for which he has been placed under suspension on 01.09.2017 and 2 W.P.Nos.14662 & 14675 of 2021 later reinstated into duty on 04.12.2019. It is submitted that after registering of the criminal case, there was no further progress in the investigation and at the time of filing of writ petition, no charge sheet was filed as there was no sanction for prosecuting the petitioner in the said ACB case. The learned counsel for the petitioner submits that the respondents have communicated a provisional seniority list on 22.10.2020, wherein the petitioner's name is shown at Serial No.1, but his case was not considered for the consequent promotion on the ground that ACB case is pending against him.
3. It is submitted that the petitioner has made a representation to the respondents to consider his case in terms of G.O.Ms.No.66 GAD, dated 30.01.1991 and also in terms of G.O.Ms.No.257 GA(Ser), dated 10.06.1999 for promotion to higher post even though disciplinary proceedings were pending against them. It is submitted that the respondents did not consider his case and therefore the petitioner had approached this Court by filing W.P.No.3278 of 2021 and by order dated 19.03.2021, this Court directed the respondents to consider his case strictly in terms of G.O.Ms.No.66, dated 30.01.1991 and G.O.Ms.No.257, dated 10.06.1999. It is submitted that the 1st respondent has however, rejected the case of the petitioner by orders dated 26.05.2021 and the grievance of the 3 W.P.Nos.14662 & 14675 of 2021 petitioner is that the said order is passed mechanically without any application of mind.
4. Similarly, as regards the petitioner in W.P.No.14675 of 2021, he was working as Public Analyst/Chief Public Analyst, at the time when ACB conducted a surprise check at the office of the State Food Laboratory, Nacharam on 15.07.2017 and a case was booked against the petitioner. It is submitted that even in the ACB surprise check, no cash was recovered from the petitioner nor was the phenolphthalein test proved positive as there was no demand or acceptance of any bribe. It is submitted that the petitioner was unnecessarily implicated in the above case and he was arrested and kept in judicial custody and thereafter, he was placed under suspension vide proceedings dated 20.07.2017 and was subsequently reinstated into service on 13.12.2019.
5. It is submitted that after the reinstatement, there is no further progress in the investigation and no charge sheet is filed and there was no sanction from the Government for prosecuting the petitioner in ACB case. It is submitted that though the petitioner was eligible for further promotion and his name was included in the seniority list and the persons who are juniors to the petitioner, have been promoted as Senior Scientific Officer on the ground of pendency of criminal case in ACB Court against the petitioner. The petitioner 4 W.P.Nos.14662 & 14675 of 2021 had therefore, made representation to the respondents to consider his case for promotion in terms of G.O.Ms.66, dated 30.01.1991 and the same was not considered and that the petitioner filed W.P.No.3279 of 2021 and vide orders dated 19.01.2021, the writ petition was disposed of directing the respondents to consider his case for promotion strictly in terms of G.O.Ms.No.66, dated 30.01.1991 and G.O.Ms.No.257, dated 10.06.1999.
6. It is submitted that thereafter, the 1st respondent has passed the impugned proceedings dated 26.05.2021 rejecting the claim of the petitioners herein for promotion mechanically without any application of mind. Therefore, the present writ petitions are filed by the respective petitioners.
7. In both the writ petitions, the common ground is that even though no charge sheet has been filed against the petitioners and no disciplinary proceedings were initiated against the petitioners, their promotions have been deferred only on the ground that ACB cases are pending against them. The petitioners are therefore seeking directions from this Court to the respondents to consider their case for promotion in terms of G.O.Ms.No.66, dated 30.01.1991 and G.O.Ms.No.257, dated 10.06.1999. 5
W.P.Nos.14662 & 14675 of 2021
8. Learned counsel for the petitioners placed reliance upon the judgment of Hon'ble Supreme Court in the case of Union of India and Others Vs. Anil Kumar Sarkar1, wherein it is held that disciplinary proceedings commence only when a charge sheet is issued and departmental proceedings are normally said to be initiated only when a charge memo is issued. He also placed reliance upon the judgment of the Hon'ble High Court of Patna in the case of Anju Kumar Vs. State of Bihar2, wherein it is held that when no charge memo was issued in the disciplinary proceedings nor charge sheet was issued in the criminal proceedings and they were pending for consideration, then the petitioner is entitled to ACP and MACP as and when it was due.
9. Learned counsel for the petitioner is seeking direction from this Court to consider the case of the petitioners for promotion without reference to ACB cases pending against them.
10. Learned counsel for the respondents placed reliance upon the averments made in the counter affidavit and submitted that the case of the petitioners were considered in terms of G.O.Ms.No.66 as well as G.O.Ms.No.257 and were deferred after due consideration of their cases. As regards judgments relied upon by the learned 1 (2013) 4 SCC161 2 Civil Writ Jurisdiction Case No.7931 of 2021 6 W.P.Nos.14662 & 14675 of 2021 counsel for the petitioners, he submits that those judgments are distinguishable on facts. He also places reliance upon the judgment of this Court in the case of A.Jalender Reddy Vs. State of Telangana and the State of Andhra Pradesh3 in W.P.Nos.43182 of 2016 and batch, wherein, after considering the issue extensively and also the impact of G.O.Ms.Nos.66 & 257, this Court has held that the policy of the Government is clear and unambiguous, that the Government does not intend to grant promotion even on adhoc basis if the allegations levelled against the employee/officer are grave and that such officer/employee is facing enquiry/trial/investigation and that the allegations levelled deal with moral turpitude, misappropriation, embezzlement and grave dereliction of duties. He also referred to the Judgment of this Court in W.P.No.19217 of 2018, dated 18.06.2018 wherein similar observations have been made and therefore, he prayed for dismissal of the writ petitions.
11. Learned counsel for the respondents further submitted that in the case of the petitioner in W.P.No.14675 of 2021, the Government has granted permission for prosecuting the ACB Case.
12. Having regard to the rival contentions and material on record, it is noticed that in both the cases, the ACB cases are pending 3 2017 SCC Online Hyderabad 621 7 W.P.Nos.14662 & 14675 of 2021 against the petitioners and they were suspended and subsequently reinstated into service, but when their cases were to be considered for promotion, they were deferred on the ground of pendency of ACB cases against them.
13. In the case of E.Bapuji i.e., petitioner in W.P.No.14662 of 2021, an ACB case was registered on 19.08.2017 and till the date of the decision of the High Court, admittedly the Government had not granted permission for prosecution and therefore, in such cases, the G.O.Ms.Nos.66 and 257 would apply and the respondents are required to consider his case for promotion. In the case of the petitioner, i.e., N.Ravindra in W.P.No.14675 of 2021, the respondents have stated that the prosecution permission was given by the Government. However, the stage of trial in the criminal case is not known.
14. In view of the above facts and also that all the relevant facts are not available before this Court, this Court deems it fit and proper to direct the respondents to reconsider the case of the petitioners in both the writ petitions for promotion in terms of G.O.Ms.Nos.66 and 257 as and when promotion is next due to the petitioners. However, the promotion so granted shall be subject to the final outcome of the criminal proceedings against the petitioners if the trial is concluded against the petitioners. 8
W.P.Nos.14662 & 14675 of 2021
15. The writ petitions are accordingly disposed of. There shall be no order as to costs.
Miscellaneous applications, if any pending, shall also stand closed.
_____________________________ JUSTICE P.MADHAVI DEVI Date: 29.10.2022 bak 9 W.P.Nos.14662 & 14675 of 2021 THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI WRIT PETITION Nos. 14662 & 14675 of 2021 Date: 29.10.2022 bak