*THE HONOURABLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
+I.A.No. 1 of 2023
In/and
W.P. No.25505 OF 2018
% 12-10-2023
#Dr. K. Balu
....petitioner
Vs.
The State of Telangana, rep.by its Principal Secretary,
Health Medical & Family Welfare Department,
Hyderabad and others.
....
Respondents
!Counsel for the petitioner : Sri Santhapur
Satyanarayana Rao.
Counsel for the Respondents : G.P for Services-II
<Gist :
>Head Note:
? Cases referred:
IN THE HIGH COURT FOR THE STATE OF TELANGANA
HYDERABAD
****
+I.A.No. 1 of 2023
In/and
+W.P. No.25505 OF 2018
2
Between:
#Dr. K. Balu
....petitioner
Vs.
The State of Telangana, rep.by its Principal Secretary,
Health Medical & Family Welfare Department,
Hyderabad and others.
....
Respondents
ORDER PRONOUNCED ON: 12.10.2023
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR
RAO
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? :
Yes
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? : Yes
3. Whether His Lordship wishes to
see the fair copy of the Judgment? : Yes
_____________________________________
NAMAVARAPU RAJESHWAR RAO, J
3
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
I.A.No.1 of 2023
in/and
W.P.No.25505 of 2018
ORDER:
This writ petition is filed seeking the following relief:
"...... to issue a writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondents in not considering the case of the petitioner for promotion to the post of Additional Director on the ground of pendency of F.I.R.No.35 of 2014 and Crime No. 10/ACB-KNR/2015, dated l6.05.2017 as illegal, arbitrary and contrary to Articles 14 and 16 of the Constitution of India and consequently direct the respondents to consider the case of the applicant for promotion to the post of Additional Director on regular basis without reference to FIR No.35 of 2014 and Crime No.10/ACB-KNR/2015, dated 16.05.2017 .....".
2. Heard learned counsel appearing for the petitioner.
3. The brief facts of the case are as follows :
The petitioner was appointed as Civil Assistant Surgeon (Medical Officer) on 16.11.1989 at Primary 4 Health Centre, Wankidi, Adilabad District, by the 3rd respondent. Thereafter, he was transferred to the Civil Hospital, Chennur, Adilabad District and worked there up to 1995. Subsequently, he was transferred to Area Hospital, Manchiryal, Adilabad District, and worked there up to 2002. Thereafter, again he was transferred to the Community Health Centre, Bellampally, Adilabad District and worked there up to 2004. In 2004, he got a seat for P.G. Course and joined for M.D.Course at Kakatiya Medical College, Warangal and completed his M.D. course in the year 2007. After completion of his PG course, he joined duty at District Head Quarters Hospital, and he was promoted to the post of Deputy Civil Surgeon in the year 2007 and posted as Deputy DM & HO at ITDA, Eturnagaram, Warangal District and worked there up to 2009 and promoted as Municipal Health Officer, Warangal. He has served various places in Tribal and Rural areas of Adilabad and Warangal District, and he was promoted to Civil Surgeon (General Line) and posted as DM & HO, Karimnagar and reported to duty on 04.09.2013 and worked there up to 17.11.2014. 5 Throughout his entire service, there was no complaint against him. While working as DM & HO, Karimnagar, a trap was laid in his office on 17.11.2014. The ACB authorities have recovered the bribe amount of Rs.60,000/- from the Senior Assistant in the office for doing official favour to the defacto-complainant for cancellation of his deputation. After the trap, the scientific method by using samples of phenolphthalein powder and sodium carbonate powder was conducted, and in the said test, he was not proven. However, he was falsely implicated in the ACB case, and even the ACB authorities did not take his version on the day of the trap. Subsequently, on 17.12.2014, the ACB authorities served a notice to him and the same was received by him and also submitted a detailed explanation to the ACB authorities on 24.12.2014. Not satisfied with the explanation, the petitioner was kept under suspension w.e.f. 17.11.2014 and continued under suspension upto 07.06.2017. Based on the FIR, a criminal case was also registered against the petitioner in Cr.No.35/ACB- KNR/2014 and produced him before the II Additional 6 Special Judge for SPE and ACB Cases at Hyderabad, and he got bail. The said case is pending adjudication before the Court below. Thereafter, his suspension was revoked, and he was reinstated into service and joined duty on 08.06.2017 and posted as Additional DM & HO, ITDA Utnoor, Adilabad District and working, as such, in the said place till date.
4. While the matter stood thus, the 3rd respondent intended to fill the vacant posts of Additional Directors from the category of Civil Surgeon (General Line)/Civil Surgeon Specialist under the administrative control of DPH & FW, Telangana State, Hyderabad, for the panel year 2017-18 vide proceedings Rc.No.3556/E1B/2018, dated 05.02.2018 duly enclosing the seniority list and provisional seniority list requesting to furnish the confidential reports for the last five years from 2012-13 to 2016-17 along with 'No charge Certificate', 'no due Certificate' with Service Registers and service particulars in respect of Civil Surgeon (General Line)/ Civil Surgeon Specialist at the earliest on or before 7 17.02.2018, so as to enable the 3rd respondent to submit DPC proposals to the 1st respondent for filling up of the posts of Additional Directors for the panel year 2017-18.
5. Learned counsel appearing for the petitioner submits that the petitioner is eligible for promotion to the post of Additional Director, and he stood at Sl.No.5 with Rank No.9667 in the provisional seniority list issued by the 3rd respondent. Five posts of Additional Directors are vacant to be filled in the panel year 2017-18. The candidate at Sl.No.1 in the provisional seniority list is retired on 30.06.2018 and thereafter, the petitioner would stand at Sl.No.2 and has a fair chance of getting promotion to the post of Additional Director. The petitioner is afraid his candidature may not be considered for promotion to Additional Director as the 3rd respondent has categorically mentioned that the suspension period is to be regulated.
6. Learned counsel appearing for the petitioner further submits that the alleged incident occurred during the year 2014. The petitioner has furnished his detailed 8 explanation, and since three years have passed, the enquiry has not been completed in spite of the specific time fixed by the Government to complete the enquiry within the period of six months. Till today, the enquiry has not been completed.
7. Learned counsel for the petitioner further submitted that as per G.O.Ms.No.257 dated 10.06.1999, the petitioner is eligible for promotion to the post of Additional Director and therefore, the petitioner's case may be considered for promotion as per G.O.Ms.No.257, General Administration (Ser.C) Department, dated 10.06.1999. The relevant portion of G.O.Ms.No.257 dated 10.06.1999 reads as follows :-
"the Ministry of Personnel, Public Grievances and Pensions, Government of India, have issued guidelines in regard to consideration of Government servants against whom disciplinary or court proceedings are pending or whose conduct is under investigation, for promotion to next higher categories. Keeping in view the said guidelines, orders have been issued in the G.O. fifth read above, for consideration of employees for adhoc promotion where the disciplinary case/criminal 9 prosecution against the Govt. employees is not concluded even after the expiry of two years from the date of the meeting of the first Departmental Promotion Committee, in which the employee was considered, in case the employee is not under suspension.
Government also order that with immediate effect the following procedure and guidelines, be followed to consider the employees against whom disciplinary cases or criminal prosecution are pending or whose conduct is under investigation, for appointment by promotion or transfer, to next higher categories.
A. The details of employees in the zone of consideration for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committees or Screening Committees :
i) Officers under suspension;
ii) Officers in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending;
iii) Officers in respect of whom prosecution or criminal charge is pending.
B. Officers who are facing enquiry, trial, or investigation can be categorised into the following groups based on the nature of the allegations of charges pending against them or about to be instituted, namely:
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(i) an officer with a clean record, the nature of charges or allegations against whom relate to minor lapses having no bearing on his integrity or efficiency, which even if held proved, would not stand in the way of his being promoted;
(ii) an officer whose record is such that he would not be promoted, irrespective of the allegations or charges under enquiry, trial or investigation; and
(iii) an officer whose record is such that he would have been promoted had he not been facing enquiry, trial or investigation, in respect of charges which, if held proved, would be sufficient to supersede him."
8. Learned counsel appearing for the petitioner further submitted that the petitioner is entitled to promotion as per the order of the Division Bench of this Court in W.P.No.18774 of 2014 dated 10.07.2014, wherein this Court held as follows :-
"In view of the above decision, it is clear that to deny the promotion at the relevant point of time, the charge memo has to be issued or charge-sheet has to be filed against the delinquent officer in the competitive criminal Court. In this case, no charge sheet is filed before the criminal court and no charge memo was issued by the disciplinary authority. Hence, the case of the petitioner has to be 11 considered in accordance with the rules without referring to the crime registered against him in Cr.No.6/RCA-EWG/2011 for the offence under Section 13(2) read with 13(1)(e) of the Act."
9. But, in the present case, after lapse of several years, charge-sheet was not filed against the petitioner.
10. The contention of the petitioner is that the incident occurred on 17.11.2014 and charge-sheet was not filed against him and without filing the charge-sheet, his promotion cannot be stopped. Further, according to the above order of the Division Bench of this Court and as per G.O.Ms.No.257, dated 10.06.1999, the petitioner is eligible for promotion.
11. Learned counsel for the petitioner further submitted that during the pendency of the present writ petition, the juniors of the petitioner were promoted vide G.O.Rt.No.441, Health, Medical & Family Welfare (B1) Department, dated 29.08.2019. Therefore, the petitioner filed I.A.No.1 of 2023 seeking a direction to the respondents to consider his case for promotion to the post of Additional Director of Medical & Health Services on par 12 with his juniors, whose cases were considered vide G.O.Rt.No.441, dated 29.08.2019 by following the judgment of the Division Bench of this Court in W.P.No.18774 of 2014, dated 10.07.2014, without referring to the pendency of FIR and criminal case registered against the petitioner.
12. Learned Government Pleader for Services-II appearing for the respondents filed counter stating that the 1st respondent has considered the names of the following persons for promotion to the post of Additional Directors of Medical and Health Services/Regional Directors of Medical and health Services :
"1.Dr.K.Usha Rani, CS (GL) Dr.K.Balu, CS (GL) (promotion should be deferred until termination of the disciplinary proceedings).
2. Dr.K.Ravinder Naik, CSS
3. Dr.Ameerya (Amar), CSS 13 Dr.Mothillal Naik CSS (promotion should be deferred until termination of the disciplinary proceedings )
4. Dr.Amar Singh Naik, CSS
5. Dr.P.N.Shoba Devi, CSS"
13. Aggrieved by the said order, the petitioner has filed the present writ petition. This Court in I.A.No.1 of 2018, dated 17.12.2018 passed the following interim order :
"Pending further orders, respondents shall consider petitioner's case for promotion to the post of Additional Director strictly in accordance with G.O.Ms.No.257 General Administration (Ser.C), Department, dated 10.06.1999 as and when promotion to the said post are taken up."
14. Pursuant to it, the 1st respondent has issued proceedings dated 20.06.2019 to the petitioner stating that the DPC Committee has considered his name on 21.07.2018 but deferred his case for promotion for the panel year 2017-18, in view of pendency of the disciplinary proceedings.
14
15. In their counter, it is also stated as follows :
'The petitioner has been informed that as per G.O.Ms.No.257, GA (Ser.C), Department, dated 10.06.1999 at para -B (iii), an officer whose record is such that he would have been promoted had he not been facing enquiry, trial or investigation in respect of charges which, if held proved, would be sufficient to supersede him. He is also informed that the officers categorised as under item (iii) of G.O.Ms.No.424, GA (Ser.C) Department, dated 25.05.1976 as mentioned above only should be considered for ad hoc promotion after completion of two years from the date of DPC or screening Committee meeting in which their cases were considered for the first time."
16. It is further stated in the counter that the petitioner was informed that his request for considering his case for promotion to the post of Additional Director is not feasible as per the guidelines issued in G.O.Ms.No.257 dated 10.06.1999 since two years period from the date of DPC is not completed. Accordingly his request was rejected vide speaking orders dated 15 20.06.2019. Aggrieved by the same, the petitioner has filed C.C.No.1092 of 2019. This Court has closed the Contempt Case, which reads as under :
"The counsel for petitioner states that the order whose contempt is alleged in this contempt case has since been complied with.
Therefore, the contempt case is closed."
17. It is further stated that after the issuance of speaking orders vide Memo No.1106/B1/2019 dated 20.06.2019 only one DPC has been conducted for the panel year 2020-2021 and at present, there are no vacancies of Additional Directors. After examining the written statement of defence of the charged officer Dr.K.Balu, Additional Director (Leprosy), Office of the Director of Public Health and Family Welfare, Hyderabad was appointed as an Inquiring Authority vide G.O.Rt.No.226, dated 22.04.2022. The enquiry report is awaited. The petitioner is not eligible for promotion as per Rule 6 of TS SSS Rules since the merit list seniority is the criteria for promotion. As per the Government instruction 16 issued in G.O.Ms.No.257, dated 10.06.1999, his case is already rejected. Therefore, there are no merits in the writ petition and the same is liable to be dismissed.
18. This Court, having considered the above submissions made by learned counsel for the petitioner and as per the counter affidavit filed by the respondents, is of the view that this Court granted interim direction on 17.12.2018, and the respondent authorities did not consider the same. Aggrieved by the said action of the respondents, the petitioner has filed a Contempt Case and the said Contempt Case was closed, after recording the submission made by the learned counsel for the petitioner. Once the Contempt Case was closed in compliance with the interim order, the question of rejection of the petitioner's case does not arise. Even otherwise also, the rejection was not because of his ineligibility and only because of non-availability of vacancies of Additional Directors. It means, if there are vacancies, the petitioner must have been promoted to the post of Additional Director. So, the question of 17 ineligibility of the petitioner does not arise in the present case.
19. Once there is a specific condition to complete the enquiry within a specified time, due to the delay of the Government, the petitioner cannot be made to suffer for getting promotion and his case was rejected on the ground of non-availability of vacancies, but not due to the ineligibility of the petitioner. Further, in W.P.No.18774 of 2014 dated 10.07.2014, this Court in the similar circumstances has specifically directed the respondents therein to consider the case of the petitioner therein without referring to the criminal case registered against the petitioner therein. Further, learned counsel for the petitioner submitted that the juniors of the petitioner were promoted to the post of Additional Director vide G.O.Rt.No.441, dated 29.08.2019.
20. Therefore, the respondents are directed to consider the case of the petitioner for promotion to the post of Additional Director in terms of G.O.Ms.No.257, 18 dated 10.06.1999, on par with his juniors, whose cases were considered vide G.O.Rt.No.441, dated 29.08.2019, by following the judgment of the Division Bench of this Court in W.P.No.18774 of 2014, dated 10.07.2014, without referring to the pendency of FIR No.35 of 2014 and Cr.No.10/ACB-KNR-2015, dated 16.05.2017 registered against the petitioner.
21. Accordingly, I.A.No.1 of 2023 and the writ petition are disposed of. No order as to costs.
As a sequel, the miscellaneous petitions pending, if any, shall stand closed.
_____________________________________ NAMAVARAPU RAJESHWAR RAO, J Date:12-10-2023 Note:
L.R.copy to be marked (B/o) Prv