N Shankar Prasad vs The State Of Ap
2021 Latest Caselaw 1798 AP

      IN THE HIGH COURT OF ANDHRA PRADESH : AMARAVATI


 HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
                                          &
              HON'BLE MR. JUSTICE C. PRAVEEN KUMAR

                      WRIT APPEAL No.384 of 2020
                     (Taken up through video conferencing)



N. Shankar Prasad,
S/o. N. Surya Narayana Murthy,
Aged about 39 years,
Occ: RSI, DAR, Kakinada,
R/o. P. Agraharam Village, Thondangi Mandal,
Kakinada, East Godavari District.
                                                           .. Appellant
     Versus

The State of Andhra Pradesh,
Rep. by its Principal Secretary,
Home Department,
Secretariat, Velagapudi,
Guntur District and others.
                                                           .. Respondents


Counsel for the appellant             :       Mr. K. B. Ramanna Dora

Counsel for respondents              :        Mr. N. Aswartha Narayana,
                                              GP for Services-I.

Dates of hearing                     :        16.03.2021

Date of pronouncement                :        01.04.2021


                                   JUDGMENT

(Per Arup Kumar Goswami, CJ)

This writ appeal is presented against an order dated 13.10.2020

passed by a learned single Judge of this Court in W.P.No.8991 of 2020

dismissing the said writ petition filed by the appellant herein.

2. Heard Mr. K.B. Ramanna Dora, learned counsel for the appellant-writ

petitioner, and Mr. N. Aswartha Narayana, learned Government Pleader for

Services-I, for the respondents.

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3. At the time of filing of the writ petition, the writ petitioner was

working as Reserved Sub-Inspector (Armed) and was posted at District

Armed Reserve Police, Kakinada. While he was working in Traffic-I Police

Station, Kakinada, he was suspended under Rule 8(1) of Andhra Pradesh

Civil Services (Classification, Control and Appeal) Rules, 1991 (for short,

'the Rules of 1991'), by proceedings R.O.No.544/16 dated 20.12.2016 of

the Deputy Inspector General of Police, Eluru Range, on the ground that

Crime No.244 of 2016 under Sections 120-B, 201, 203, 213, 217, 218 and

221 of IPC and Section 69(A) of the Income Tax Act, 1961, read with

Section 34 of IPC, was registered on the file of Indrapalem Police Station.

Subsequently, by order dated 09.04.2017, the Deputy Inspector General of

Police, Eluru Range, in exercise of powers conferred by Clause (c) of Sub-

Rule (5) of Rule 8 of the Rules of 1991, had revoked the order of

suspension without prejudice to the "Oral Enquiry/Criminal case pending

against him".

4. When the petitioner was denied promotion on the ground of

pendency of criminal case, though he was placed at Serial No.1 in the

seniority list and was eligible for promotion on the basis of seniority, he

approached the Andhra Pradesh Administrative Tribunal, by filing

O.A.No.2073 of 2018. The Tribunal, by order dated 10.10.2018, allowed the

said O.A. and directed the respondent authorities to consider his case for

promotion to the post of Reserve Inspector as per seniority without

reference to the pendency of Crime No.244 of 2016, within a period of

eight weeks from the date of receipt of the order. Challenging the said

order of the Tribunal, the State had approached this Court by filing a writ

petition, which was registered as W.P.No.3315 of 2019. This Court, by

HCJ & CPK,J W.A.No.384 of 2020

order dated 23.01.2020, dismissed the said writ petition, granting eight

weeks' time to implement the order of the Tribunal.

5. It is pleaded that the writ petitioner, by filing W.P.No.8782 of 2019,

had questioned initiation of disciplinary proceedings against him by the

order dated 06.06.2019 of the Deputy Inspector General of Police, Eluru

Range, West Godavari District and that this Court, by order dated

01.10.2019, had disposed of the said writ petition staying the departmental

enquiry initiated against the writ petitioner for a period of one year from

the date of the order and giving liberty to the writ petitioner to approach

the Court again if the trial is not concluded within one year.

6. It is pleaded that the writ petitioner had also filed a petition, being

Crl.P.No.735 of 2020, before this Court to quash the proceedings in

C.C.No.975 of 2019 on the file of V Additional Judicial Magistrate of First

Class, Kakinada, East Godavari District, arising out of the Crime No.244 of

2016 registered against him. This Court, by order dated 10.02.2020 in

I.A.No.1 of 2020 in the said Criminal Petition, had granted stay of all further

proceedings in the said C.C.No.975 of 2019 till the next date of hearing.

7. It is pleaded in the writ petition that despite clear and categorical

directions to the respondents to implement the orders of the Tribunal within

eight weeks, an order dated 05.05.2020 was passed by the Director

General of Police, Andhra Pradesh, holding that the petitioner is not entitled

to be considered for promotion on the ground that departmental enquiry is

pending against him and that the respondents published a list of candidates

promoting them from the category of Reserve Sub-Inspector to the posts of

Reserve Inspectors, by proceedings dated 12.05.2020.

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8. In the said order dated 05.05.2020, at paragraphs 13, 14 and 15, it

is recorded as follows:

"13. It is very clear that where charge memo was

issued in departmental proceedings or charge sheet filed and

criminal case is pending against employees, the promotion of

individual can be deferred.

14. Further as per the APPM Order 74-2, before being

considered for promotion to higher ranks, he should not be

facing any departmental enquiry for grave charges or involved in

any investigation/enquiry or trial into a criminal case against him

or a regular enquiry or investigation by the Anti-Corruption

Bureau or Tribunal for Disciplinary Proceedings.

15. Keeping in view of the above judgments of Hon'ble

High Court and APAT and the representation of the applicant

vide reference 10th cited, the case of Sri N. Shankar Prasad, RSI

(AR) has been examined as per existing rules, he is not entitled

for consideration of his name for promotion to the rank of RI

(AR), in view of pendency of departmental enquiry which was

got stayed by himself, which is deemed to be pending against

him for all practicable purpose, and also pendency of criminal

case C.C.No.975/2019 on the file of 5th Additional Judicial First

Class Magistrate, Kakinada."

9. Questioning the said order dated 05.05.2020, the petitioner filed

W.P.No.8991 of 2020, which was dismissed on 13.10.2020 by the order

under appeal.

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10. A perusal of the order under appeal goes to show that the learned

single Judge held that though stay was granted till the proceedings in the

criminal case are totally quashed, the criminal case pending against the writ

petitioner is deemed to be pending. Similarly, the departmental

proceedings, which were initiated against the writ petitioner, though

stayed, shall have to be deemed to be pending against him. The learned

single Judge further observed that pendency of criminal case or pendency

of departmental proceedings is not a ground to deny promotion to the writ

petitioner in terms of G.O.Ms.No.257, General Administration (SER.C)

Department, dated 10.06.1999, wherein guidelines were prescribed for

consideration of employees during pendency of departmental proceedings

and criminal cases. Learned single Judge observed that the Rules of 1991

and Circulars issued by the Government from time to time are general in

nature and at best, G.O.Ms.No.257 dated 10.06.1999 permits consideration

for promotion of an employee in spite of pendency of criminal case or

disciplinary proceedings, and that the service rule governing the services of

the petitioner is Andhra Pradesh Police Administrative Manual (for short

"Police Manual"), and in terms of Standing Order No.74.2 of the Police

Manual, he is not fit to be considered for promotion because of pendency of

criminal case and disciplinary proceedings. Learned single Judge also held

that it is settled law that special law prevails over general law and that the

case of the writ petitioner can be considered in terms of the directions

issued by the Division Bench of this Court in W.P.No.3315 of 2019, only if

he is found fit to be promoted as per the service rules governing his

services. It was also observed that Rules of 1991 can be applied only when

the writ petitioner is found fit for promotion and when he is not fit to be

considered for promotion, G.O.Ms.No.257 dated 10.06.1999 or

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G.O.Ms.No.66, GAD (Services. C) Department, dated 30.01.1991, and the

judgments referred will have no application.

11. Observing as such, the learned single Judge held that the special

rules will prevail over the general rules and in view of the special rules, i.e.,

Standing Order No.74.2 of the Police Manual, the writ petitioner is unfit for

consideration for promotion in view of pendency of criminal

case/disciplinary case. Taking that view, the writ petition was dismissed.

12. Learned counsel for the appellant-writ petitioner submits that the

learned single Judge was not correct in holding that the Police Manual is a

special law governing the services of the members of the police force, such

as, the writ petitioner. It is also submitted that in view of the specific order

dated 23.01.2020 of the Division Bench in W.P.No.3315 of 2019, non-

consideration of the case of the writ petitioner on the ground that Standing

Order No. 74.2 of the Police Manual puts an embargo is not sustainable and

the learned single Judge failed to notice that while passing the order dated

05.05.2020, the authorities over-reached the aforesaid order dated

23.01.2020 passed by the Division Bench.

13. Learned Government Pleader for Services, on the other hand,

supported the order under appeal and contends that no case is made out

for interference in this appeal.

14. We have considered the submissions of the learned counsel for the

parties and have perused the materials on record.

15. The Andhra Pradesh Administrative Tribunal, by order dated

10.10.2018 in O.A.No.2073 of 2018, directed the Director General of Police,

Andhra Pradesh, and the Deputy Inspector General of Police, Eluru Range,

to consider the case of the writ petitioner for promotion to the post of

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Reserve Inspector as per his seniority, without reference to the pendency of

Crime No.244 of 2016, in terms of G.O.Ms.No.66 and any other instructions

governing the situation and pass appropriate orders within a period of eight

weeks from the date of receipt of a copy of the order, and the Division

Bench of this Court, while dismissing the writ petition filed by the State,

affirmed the said order.

16. Standing Order No.74 of the Police Manual deals with "Requirements

of Fitness". Standing Order No.74 finds place under the heading

"Promotions", which begins with Standing Order No.73 against which it is

written as "General".

Standing Order No.74.1 reads as follows:

"The Police Officer should not be under currency of any

punishment, major or minor. The currency of censure is one

year. For postponement of increments without effect on future

increments the currency of punishment would be the actual

period for which the postponement is ordered. In cases of

postponement with effect on future increments or reduction in

time scale, the currency would be double for period for which

the increment is postponed or reduced. He should not have

suffered one major punishment or three or more minor

punishments during the last 2 years."

Standing Order No.74.2 reads as follows:

"He should not be facing any departmental enquiry for

grave charges or involved in any investigation/enquiry or trial into

a criminal case against him or a regular enquiry or investigation

HCJ & CPK,J W.A.No.384 of 2020

by the Anti-Corruption Bureau or Tribunal for Disciplinary

Proceedings."

Standing Order No.74.3 reads as follows:

"The officer should not be under suspension at the time of

consideration for promotion."

17. From a perusal of the above, it would appear that a person suffering

from any of the disabilities as indicated in Standing Order Nos.74.1, 74.2

and 74.3 would be considered unfit for the purpose of promotion.

18. The foreword dated 16.07.2016 of the Andhra Pradesh Police Manual

indicates that the same is a main reference book as well as a valuable guide

for all Police officers for their day-to-day work and that it is a compilation of

all new Acts, recent legislations, amendments, procedures, guidelines and

circulars, which are required for proper justice delivery, for prevention,

detection and investigation of crime, maintenance of public order, etc. By

G.O.Ms.No.19 dated 14.02.2017, the Revised Andhra Pradesh Police Manual

submitted by the Director General of Police, Andhra Pradesh, Hyderabad, in

four Volumes, was approved subject to the following conditions:

"i. The Manual does not supersede any statutory rules,

Service Rules, regulations and other orders issued by the

Government from time to time and if there is any contradictions

or conflict, the latter will prevail.

ii. The Manual does not vest Police officers with any powers

of arrest, detention, investigation of crime etc. not specifically

conferred by the Criminal Procedure Code, Indian Penal Code or

other central or State laws on the subject for the time being in

force.

HCJ & CPK,J W.A.No.384 of 2020

iii. The Manual envisages only guidelines, procedures in

accordance with the provisions of laws, Acts and Rules for all

Police officers.

iv. No financial or other claim liability will be accepted on the

authority of the Manual.

v. No posts of any category in Andhra Pradesh Police Service

and Andhra Pradesh Police Sub-Ordinate Service will be

sanctioned/created on the strength of this manual. The Director

General of Police will submit detailed proposals for the purpose, if

any required separately for approval of Government."

19. Clause (i) of the aforesaid G.O. itself demonstrates that the Police

Manual does not supersede any statutory rules, service rules, regulations

and other orders issued by the Government from time to time and if there

is any contradiction or conflict, the latter will prevail. Therefore, the finding

of the learned single Judge that the Police Manual is a special law and, as

such, the same will prevail over general law, in our considered view, is not

correct.

20. The learned single Judge had himself observed that pendency of

criminal case or the departmental proceedings is not a ground to deny

promotion to the writ petitioner in terms of G.O.Ms.No.257, General

Administration (SER.C) Department, dated 10.06.1999. The learned single

Judge dismissed the Writ Petition only on the ground that in terms of

Standing Order No.74.2 of the Police Manual, which is a special law

governing the service of the petitioner, lays down that because of criminal

cases and disciplinary proceedings, he is not fit to be considered for

HCJ & CPK,J W.A.No.384 of 2020

promotion, as special law overrides general law. We have already held that

the Andhra Pradesh Police Manual is not a special law.

21. Though the writ petitioner, in the instant case, has prayed for a

direction to promote him, it is an established proposition of law that while

every employee has a right to have his case considered for promotion,

which is a guarantee flowing from Articles 14 and 16 of the Constitution of

India, an employee has no right to seek promotion as a matter of right.

22. In view of the above discussion, the order dated 05.05.2020 passed

by the Director General of Police, Andhra Pradesh, as well as the order

dated 13.10.2020 passed by the learned single Judge dismissing

W.P.No.8991 of 2020 are set aside. The writ petitioner, in terms of the

order of the Tribunal dated 10.10.2018 in O.A.No.2073 of 2018 as well the

order of the Division Bench of this Court dated 23.01.2020 in W.P.No.3315

of 2019, is entitled for consideration for promotion. The respondent

authorities are directed to consider the case of the writ petitioner for

promotion in the light of the observations as indicated hereinabove, within

a period of six weeks from today.

23. The Writ Appeal is allowed to the extent indicated above. No costs.

Pending miscellaneous applications, if any, shall stand closed.

ARUP KUMAR GOSWAMI, CJ                             C. PRAVEEN KUMAR, J

                                                                        IBL/MRR