Telangana High Court
Md Sharfuddin Siddique vs Sri Ravi Gupta, I. P. S. on 28 June, 2024
THE HON'BLE SRI JUSTICE PULLA KARTHIK
WRIT PETITION No.5325 of 2024
and
CONTEMPT CASE No.755 of 2024
COMMON ORDER:
W.P.No.5325 of 2024 is filed seeking the following relief:
"...to issue an appropriate Writ, Order or Direction, more particularly one in the nature of Writ of Mandamus by declaring that the Petitioner is entitled to have his claim considered and be promoted as Inspector of Police (Civil) on par with his juniors who were promoted as Inspectors of Police (Civil) in July 2018 without reference to the subsequent criminal case pending vide C.C. No. 17/2023 before the Court of First Additional Special Judge for SPE & ACB cases, Hyderabad, consequent to assigning of notional seniority in the feeder category of Sub-Inspector of Police (Civil) with effect from 20-10-2010 in G.O. Rt. No. 2067 Home (Services-II) Department dated 04-11-2023 with benefits incidental and ancillary thereto, duly declaring the action of the Respondents 1 to 4 in not according notional promotion to the Petitioner as Inspector of Police (Civil) though several of his juniors are promoted as such way back in the year 2018 on the ground that vacancies are presently not available as evident from the speaking order issued by the 3rd Respondent in Rc.
No. 552/Estt-165/MZ-II(WZ)/2023 dated 20-12-20023 and that a criminal case is pending vide CC. No 17/2203 before the Court of First Additional Special Judge for SPE & ACB cases, Hyderabad, as being arbitrary, illegal, unjust, contrary to the provisions of Rule 6 of the T.S. State & Subordinate Service Rules, 1996 and in violation of Articles 14 and 16 of the Constitution of India and set-aside the same accordingly in the interest of justice and to pass..."
2. The brief facts of the case are that the petitioner was initially appointed as a Police Constable in the Armed Reserve on 15.09.1982, and he was subsequently converted to a Police Constable (Civil) during 1985. Thereafter, the petitioner was promoted as a Head Constable vide proceedings dated 22.07.1989. While the petitioner was working as such, he was placed under suspension on 12.06.1999 due to certain allegations, 2 PK,J W.P.No.5325 of 2024 and C.C.No.755 of 2024 and in connection with the same, he was subjected with a penalty of postponement of increment for two years with effect on future increments and pension vide proceedings of respondent No.4 dated 29.09.2010. Subsequently, the said punishment order was set aside in the appeal preferred by the petitioner vide proceedings of respondent No.3 dated 06.05.2011, and the suspension period was treated as on-duty. Further, during the currency of suspension and disciplinary proceedings, juniors to the petitioner were promoted as Sub Inspectors of Police (Civil) vide proceedings dated 20.01.2010. Although the penalty imposed on the petitioner was set aside, the respondents did not consider his claim for promotion as Sub Inspector. As such, he was constrained to file O.A.No.8165 of 2011 before the erstwhile Andhra Pradesh Administrative Tribunal, wherein, the Tribunal directed the respondents therein to send the petitioner for Pre-Promotional Training.
3. Further, the petitioner was promoted as Sub Inspector of Police vide proceedings of respondent No.4 dated 04.05.2013. Thereafter, the petitioner submitted a detailed representation to respondent No.4 on 08.02.2014, inter alia, stating that his juniors were promoted while he was under suspension and facing disciplinary action, and that since the punishment imposed on him had been set aside in his appeal, he is entitled to be granted notional seniority in the cadre of Sub Inspector of 3 PK,J W.P.No.5325 of 2024 and C.C.No.755 of 2024 Police (Civil) by placing his name between the candidates at Sl.Nos.74 and
75. However, respondent No.4 denied the said request vide proceedings dated 17.10.2015, on the ground that the petitioner was promoted subsequently, as he was deputed for Pre-Promotional Training in November 2012 and therefore, he cannot be granted notional seniority on par with his batch mates. Aggrieved by the same, the petitioner preferred an appeal before the Government stating that the Pre-Promotional Training is merely a requirement for further promotion, and despite the fact that the Tribunal directed the respondents to depute him for training in October 2011, they have deputed him for training only in November 2012 resulting in the petitioner receiving a belated promotion in 2013.
4. Further, since promotions were effected keeping the petitioner's appeal pending, the petitioner approached this Court and filed W.P.No.27044 of 2018, and the same was disposed of vide order dated 06.01.2023, directing the respondents to consider the representation of the petitioner dated 22.09.2015 for further promotion to the post of Inspector of Police (Civil). In pursuance of the same, the Government has issued orders vide G.O.Rt.No.2067, Home (Services-II) Department, dated 04.11.2023, assigning notional seniority to the petitioner in the feeder category of Sub Inspector of Police w.e.f., 20.01.2010, on par with respondent No.5. Counter orders were issued by respondent No.4 on 4 PK,J W.P.No.5325 of 2024 and C.C.No.755 of 2024 24.11.2023. Thereafter, the petitioner submitted a representation to respondent No.3 on 24.11.2023 requesting to accord notional promotion in the cadre of Inspector of Police on par with his junior i.e., respondent No.5. Consequently, respondent No.3 vide proceedings in Rc.No.552/Estt- 165/MZ-II (WZ)/2023 dated 20.12.2023, has informed the petitioner that his case would be considered for promotion as and when vacancies arise. Aggrieved by the same, the petitioner filed the present writ petition.
5. Heard Sri V. Ravichandran, learned counsel appearing for the petitioner and learned Special Government Pleader for Home (Services), appearing on behalf of the respondents.
6. Learned counsel for the petitioner submits that it is well-settled law that once the order of penalty is set aside in the appeal of the petitioner, and the period of suspension is treated as on-duty, the petitioner is lawfully entitled to be promoted as a Sub Inspector of Police (Civil) and further as Inspector of Police on notional basis, on par with his juniors. While considering the same, respondent No.1 has issued G.O.Rt.No.2067 dated 04.11.2023, assigning notional seniority to the petitioner in the rank of Sub Inspector of Police (Civil) w.e.f., 20.01.2010, on par with his junior one Mr. K. Bhaskar Rao. While doing so, respondent No.1 failed to extend the same benefit to the petitioner in the cadre of Inspector of Police. It is 5 PK,J W.P.No.5325 of 2024 and C.C.No.755 of 2024 further submitted that prior to granting notional seniority to the petitioner in the cadre of Sub Inspector of Police, a case in Crime No.10/RCO- RRR/2019 was filed against the petitioner and another, for allegedly demanding bribe to register a case, and a charge sheet was later filed on 23.10.2022, which was taken on the file of the I Additional Special Judge for SPE and ACB Cases at Hyderabad, as C.C.No.17 of 2023. Learned counsel contends that the subsequent case is being brought against the petitioner solely for denying him the notional promotion in 2018.
7. He further submits that it is well-settle law that subsequent disciplinary or criminal proceedings do not preclude promotion on an earlier date, and in the case of the petitioner, the charge sheet is dated 23.10.2022, while his juniors were promoted on 07.07.2018 i.e., during panel year 2017-18. Thus, pendency of a subsequent criminal case cannot be shown as a reason for denying promotion to the petitioner. Rule 6 of the Telangana State and Subordinate Services Rules, 1996, mandates that the eligibility has to be taken into consideration as on 1st September of the panel year. As a result, the respondents cannot state that the case of the petitioner for grant of notional promotion would be considered as and when vacancies arise. Once the juniors are promoted, the petitioner is legally entitled to be promoted as Inspector of Police (Civil). Further, the reason assigned in the proceedings dated 20.10.2023 has resulted in an 6 PK,J W.P.No.5325 of 2024 and C.C.No.755 of 2024 abnormal situation in which the petitioner, as a senior, is being forced to serve as a Sub Inspector of Police (Civil) although his juniors are working as Inspectors of Police. Thus, the proceedings issued by respondent No.3 dated 20.12.2023 are vitiated. It is further submitted that the right to be considered for promotion is a fundamental right guaranteed by Article 16 of the Constitution of India, and that such a right cannot be violated with impunity or diminished by an arbitrary action or inaction. Therefore, the action of the respondents in not according notional promotion to the petitioner in the cadre of Inspector of Police (Civil) though some of his juniors were promoted way back in the year 2017, solely on the ground of pendency of criminal proceedings initiated subsequently in the year 2019, is arbitrary, illegal, unjust, and contrary to provisions of Rule 6 of the Telangana State and Subordinate Service Rules. Hence, learned counsel prays this Court to allow the present writ petition by directing the respondents to grant notional promotion to the petitioner in the cadre of Inspector of Police (Civil) on par with his juniors. In support of his contentions, learned counsel relied on the decisions of the Hon'ble Apex Court in Bank of India v. Degala Suryanarayana 1 and Delhi Jal Board v. Mahinder Singh 2.
1 (1999) 5 SCC 762 2 (2000) 7 SCC 210 7 PK,J W.P.No.5325 of 2024 and C.C.No.755 of 2024
8. Per contra, learned Special Government Pleader for Home (Services) submits that the request of the petitioner to assign notional promotion on par with his junior Mr. K. Bhaskar Rao w.e.f., 20.01.2010, was already considered by the Government vide Memo No.7198/Ser.II/A1/2023, Home (Ser.II) Department, dated 25.07.2023, and notional promotion was accorded to the petitioner on par with his junior vide G.O.Rt.No.2067, Home (Services-II) Department, dated 04.11.2023, thus, he is eligible for promotion to the post of Inspector of Police on par with his juniors. However, as on the date of issuance of the order of notional promotion, there were no vacancies available in the existing cadre of Inspectors of Police in Multi Zone-II. Hence, keeping in view the orders of this Court dated 06.01.2023 in W.P.No.27044 of 2018, the present impugned order is passed informing the petitioner that his case for promotion will be considered as and when vacancy arises.
9. He further submits that one vacancy for Inspector of Police arose as a result of the promotion of an Inspector of Police (Civil) to Deputy Superintendent of Police (Civil). As such, respondent No.3 sent a letter to respondent No.2 vide Rc.No.552/Estt-165/MZ-II/2023-24 dated 18.01.2024, requesting further instructions in the matter. Furthermore, respondent No.2 was directed to provide the recommendation roll, service book and personal file of the petitioner in order to assess his case for 8 PK,J W.P.No.5325 of 2024 and C.C.No.755 of 2024 promotion to the post of Inspector of Police. Accordingly, the records were called for from the Commissioner of Police, Rachakonda, vide letter in Rc.No.552/Estt-165/MZ-II/2023-24 dated 02.02.2024, and remarks were requested from respondent No.4. Thereafter, the recommendation roll, service book and personal file of the petitioner were sent to respondent No.2 so as to consider the case of the petitioner for promotion. However, since the ACB case was pending against the petitioner, his case for promotion was considered and rejected. Further, according to Order No.74-2 of the Telangana Police Manual, the petitioner is not entitled for promotion. It is further submitted that though the petitioner's junior got promotion to the post of Inspector of Police in the panel year 2017-18, the petitioner is not eligible for promotion under that panel year for the reason that he was not assigned notional seniority on par with his juniors by that date. Further, his case for promotion as Inspector of Police had to be evaluated in the panel year 2023-24, during which period, an ACB case is pending against him. Therefore, his case for promotion cannot be considered. Furthermore, no provision in the rules allows for promotion in a previous panel year. Therefore, learned Special Government Pleader prays this Court to dismiss the present writ petition. In support of his submissions, learned Special Government Pleader relied on a decision of a 9 PK,J W.P.No.5325 of 2024 and C.C.No.755 of 2024 Division Bench of this Court in N. Srinivasulu v. State of Telangana and others 3.
10. This Court has taken note of the rival submissions made by the learned counsel appearing for the respective parties.
11. A perusal of the record discloses that while the petitioner was working as a Head Constable (Civil), a punishment of Postponement of Annual Increments for a period of two years with effect on further increments and pension was inflicted upon him vide proceedings of respondent No.4 dated 29.09.2010, besides suspending him from duty. Admittedly, the said punishment was, thereafter, set aside in the petitioner's appeal vide order dated 06.05.2011 in R.O.No.115/2011 passed by respondent No.3, and the period of suspension was treated as on-duty. Further, during the currency of suspension, many of the juniors were promotion as Sub Inspectors of Police (Civil) vide proceedings dated 20.01.2010. Further, in pursuance of the orders of this Court in W.P.No.27044 of 2018 dated 06.01.2023, the petitioner submitted a representation to respondent No.3 requesting to promote him as Inspector of Police on par with his junior Mr. K. Bhaskar Rao, and the same was rejected vide impugned order dated 20.12.2023 stating that his case for 3 2021 SCC OnLine TS 3528 10 PK,J W.P.No.5325 of 2024 and C.C.No.755 of 2024 promotion as Inspector of Police (Civil) will be considered as and when vacancy arises.
12. Now, the respondents have taken a new plea in their counter affidavit that the case of the petitioner for promotion to the post of Inspector of Police (Civil) was recommended, considered but rejected vide proceedings in Rc.No.552/Estt-165/MZ-II/2023-24 dated 07.03.2024, on the ground of pendency of an ACB case. Admittedly, an ACB case was registered against the petitioner vide FIR No.10/RCO-RRR/2019 and a charge sheet was also filed therein vide C.C.No.17 of 2023 which is pending on the file of the learned I Additional Special Judge for Trial of SPE and ACB Cases, Hyderabad. Here, it is pertinent to note that registration of the ACB case is subsequent to the respondents assigning notional seniority to the petitioner in the rank of Sub Inspector of Police on par with his immediate junior Mr. K. Bhaskar Rao w.e.f., 20.12.2010 vide G.O.Rt.No.2067 dated 04.11.2023. According to the learned counsel for the petitioner, the petitioner is also entitled for notional promotion on par with him junior Mr. K. Bhaskar Rao in the panel year 2017-18.
13. Admittedly, the ACB case registered against the petitioner is of the year 2019 and the charge sheet has been filed subsequently in the year 11 PK,J W.P.No.5325 of 2024 and C.C.No.755 of 2024 2022. It is pertinent to refer to the decisions of the Hon'ble Apex Court in Degala Suryanarayana (supra), wherein, it is held as follows:
"14. However, the matter as to promotion stands on a different footing and the judgments of the High Court have to be sustained. The sealed cover procedure is now a well-established concept in service jurisprudence. The procedure is adopted when an employee is due for promotion, increment etc. but disciplinary/criminal proceedings are pending against him and hence the findings as to his entitlement to the service benefit of promotion, increment etc. are kept in a sealed cover to be opened after the proceedings in question are over (see Union of India v. K.V. Janakiraman SCC at pp. 114-115 : AIR at p. 2013). As on 1- 1-1986 the only proceedings pending against the respondent were the criminal proceedings which ended in acquittal of the respondent wiping out with retrospective effect the adverse consequences, if any, flowing from the pendency thereof. The departmental enquiry proceedings were initiated with the delivery of the charge-sheet on 3-12-1991. In the year 1986-87 when the respondent became due for promotion and when the Promotion Committee held its proceedings, there were no departmental enquiry proceedings pending against the respondent. The sealed cover procedure could not have been resorted to nor could the promotion in the year 1986-87 be withheld for the DE proceedings initiated at the fag end of the year 1991. The High Court was therefore right in directing the promotion to be given effect to to which the respondent was found entitled as on 1-1-1986. In the facts and circumstances, the order of punishment made in the year 1995 cannot deprive the respondent of the benefit of the promotion earned on 1-1-1986."
14. Further, in Mahinder Singh (supra), the Hon'ble Apex held as follows:
"5. The right to be considered by the Departmental Promotion Committee is a fundamental right guaranteed under Article 16 of the Constitution of India, provided a person is eligible and is in the zone of consideration. The sealed cover procedure permits the question of his promotion to be kept in abeyance till the result of any pending disciplinary inquiry. But the findings of the disciplinary inquiry exonerating the officer would have to be given 12 PK,J W.P.No.5325 of 2024 and C.C.No.755 of 2024 effect to as they obviously relate back to the date on which the charges are framed. If the disciplinary inquiry ended in his favour, it is as if the officer had not been subjected to any disciplinary inquiry. The sealed cover procedure was envisaged under the rules to give benefit of any assessment made by the Departmental Promotion Committee in favour of such an officer, if he had been found fit for promotion and if he was later exonerated in the disciplinary inquiry which was pending at the time when DPC met. The mere fact that by the time the disciplinary proceedings in the first inquiry ended in his favour and by the time the sealed cover was opened to give effect to it, another departmental enquiry was started by the Department, would not, in our view, come in the way of giving him the benefit of the assessment by the first Departmental Promotion Committee in his favour in the anterior selection. There is, therefore, no question of referring the matter to a larger Bench."
15. In view of the above, as held by the Hon'ble Apex Court, it is illegal to withhold promotion based on departmental or criminal proceedings initiated after the date on which the candidate was being considered for promotion. In the case on hand, the petitioner was considered for promotion under the panel year 2017-18, and admittedly, a criminal case was registered against him subsequently in the year 2019. Therefore, this Court is of the view that while the respondents assigned the notional promotion to the petitioner in the cadre of Sub Inspector on par with his junior Mr. K. Bhaskar Rao w.e.f., 10.01.2010, they ought to have extended the same benefit to the petitioner in the cadre of Inspector of Police by assigning notional promotion w.e.f., 07.07.2018 itself under the panel year 2017-18, for the sole reason that the criminal case was registered subsequently in the year 2019. Moreover, it is relevant to mention that the 13 PK,J W.P.No.5325 of 2024 and C.C.No.755 of 2024 petitioner is due to retire from service on 30.06.2024 on his attaining the age of superannuation.
16. In view of the abovemade discussion, this Court deems it fit and proper to direct the respondents to accord notional promotion to the petitioner in the cadre of Inspector of Police under the panel year 2017-18 and on par with his juniors who were promoted vide proceedings in Rc.No.1088/E1.122/HR/2017-18 dated 07.07.2018 with all consequential benefits, without reference to the pendency of the criminal case in C.C.No.17 of 2023 on the file of the learned I Additional Special Judge for Trial of SPE and ACB Cases, Hyderabad, and also without reference to the earlier rejection order vide proceedings in Rc.No.552/Estt-165/MZ- II/2023-24 dated 07.03.2024.
17. With the above direction, the Writ Petition is allowed. Miscellaneous applications, if any, pending in this writ petition, shall stand closed. No costs.
18. Coming to C.C.No.735 of 2024, the same is filed by the petitioner seeking to initiate appropriate contempt proceedings against the respondents for deliberate and intentional violation of the interim orders passed by this Court in W.P.No.5325 of 2024 dated 18.03.2024. 14
PK,J W.P.No.5325 of 2024 and C.C.No.755 of 2024
19. In view of passing of final orders in the main writ petition, i.e., W.P.No.5325 of 2024, no further orders are necessary to be passed in the instant contempt case.
20. Accordingly, the Contempt Case is closed. No costs.
___________________________ PULLA KARTHIK, J Date: 28.06.2024.
GSP