T. Tirumala Rao vs State Of Andhra Pradesh
2021 Latest Caselaw 1028 AP

  THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                    WRIT PETITION No.3990 OF 2021

ORDER:-



        This   writ   petition     is   filed    under   Article   226     of   the

Constitution of India seeking the following relief:


           "to issue an appropriate Writ of Mandamus or any other Writ order
   or direction declaring the action of the Respondents in not considering

Petitioner's case for promotion to the post of Senior Assistant on the ground of pendency of surprise check proceedings in S.C.No. 02/SCACB/VZM/2018, dated 06.06.2018 while promoting his juniors vide Proceedings No.E1/295/2018-2, dated 29.06.2018 of the 3rd Respondent and thereby denying the promotion though the Petitioner is not under currency of any disciplinary or criminal proceedings as being arbitrary, illegal, contrary to the orders issued in G.O.Ms.No.66, dated 30.01.1991 and Judgments rendered in this regard including the Orders passed by this Hon'ble Court in W.P.No.3315 of 2019, dated 23.01.2020 and W.P.No.24436 of 2020, dated 19.09.2021 and in violation of Articles 14 and 16 of the Constitution of India and further be pleased to hold that the Petitioner is entitled to have his case considered and be promoted as Senior Assistant on the basis of placement assigned to him in the seniority list on par with his juniors and benefits incidental thereto without reference to the pendency of surprise check proceedings in S.C.No.02/SCACB/VZM/2018, dated 06.06.2018 on the analogy of Orders passed in similar cases and in the interest of justice and to pass......"

2. The case of the petitioner in brief is that, he is working as

Junior Assistant in the Registration & Stamps Department in

Vizianagaram District and his probation was declared in the said

category. The petitioner is fully eligible, qualified and within zone

of consideration for promotion to the post of Senior Assistant and

as he is not under currency of any disciplinary or criminal

proceedings. He stated that several of his juniors are promoted

vide proceedings dated 29.06.2018 and he has denied promotion

without any legal or valid justification. It is submitted that the 2 MSM,J

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Anti Corruption Bureau (ACB) has caused surprise check on

06.06.2018 on the Office of the Joint Sub-Registrar Nellimarla,

Vizianagarm District. A careful perusal of the contents of the

mediators report would disclose that nothing incriminating was

found against this petitioner. The allegation is only against the

then Sub-Registrar. The Government vide Memo

No.17021/36/2018-VIG-II(1)-3 dated 22.03.2019 has placed Sri

Tedlapu Venkata Kota Satyanarayana Lakshmana Rao, Sub

Registrar as his defence before the Tribunal for Disciplinary

Proceedings. To the knowledge of this petitioner, no such

proceeding is issued against him. Even assuming for sake of

arguments but without conceding that such a Memo has been

issued as on date no charges are pending against this petitioner.

3. The main grievance of this petitioner is that the surprise

check was conducted on 06.06.2018 neither disciplinary

proceedings nor criminal proceedings are pending against him as

on date. The respondents have earlier promoted his juniors and

now steps are being taken to effect promotions to the Senior

Assistant Category. In the absence of Charge memo or charge

sheet promotion cannot be denied to an employee. Having regard

to non-consideration of his claim for promotion, the petitioner has

submitted a detailed representation dated 21.07.2020 inter alia

stating that he is not facing any disciplinary or criminal

proceedings; that several of his juniors were promoted as Senior

Assistants, and that, his case may be considered for promotion in

accordance with the orders contained in G.O.Ms.No.66, dated

30.01.1991. He further submitted that the action of the

respondents in not considering his case for promotion to the post 3 MSM,J

WP No.3990 of 2021

of Senior Assistant on the ground of pendency of surprise check

proceedings in S.C.No.02/SC-ACB/VZM/2018, dated 06.06.2018

while promoting his juniors vide proceedings No.E1/295/2018-2,

dated 29.06.2018 of the 3rd respondent, and thereby, denying

promotion though this petitioner is not facing any disciplinary or

criminal proceedings, as being arbitrary, illegal and contrary to the

orders issued in G.O.Ms.No.66, dated 30.01.1991.

4. During hearing, Sri V. Ravichandran, learned counsel for

the petitioner reiterated the contentions urged in the writ petition,

while drawing attention of this Court to various G.Os issued by the

Government and requested to issue a direction as stated supra.

5. Learned Government Pleader for Services-I supported the

action of the respondents, as failure to frame charges was due to

defunct of the Tribunal for Disciplinary Proceedings, but not due to

inaction of the respondents and requested to pass appropriate

orders.

6. The main grievance of this petitioner before this Court is

that, when no disciplinary or criminal proceedings are pending

against this petitioner as on date, the proceedings are not deemed

to be pending in view of G.O.Ms.No.257 GAD (Services-C) dated

10.06.1999, has no application, as it is applicable only when the

charges are framed and disciplinary proceedings or criminal

proceedings are pending for more than two years, subject to other

conditions contained in Para 5-C of the G.O. But, in the present

case, no disciplinary or criminal proceedings are pending

undisputedly and thereby, G.O.Ms.No.66 GAD (Services-C) dated

30.01.1991 is alone applicable.

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7. In State of Andhra Pradesh v. N. Shankar Prasad1,

reference was made to State of Madhya Pradesh v. Bani Singh2

and C.O.Armugam and others v. State of Tamil Nadu3 wherein,

Division Bench of this Court considered the scope of G.O.Ms.No.66

GAD (Services-C) dated 30.01.1991 and G.O.Ms.No.257 GAD

(Services-C) dated 10.06.1999 and concluded that G.O.Ms.No.66

GAD (Services-C), dated 30.01.1991 alone is applicable and

directed the authorities to consider the case of the applicant for

promotion to the next higher cadre. If, the principle laid down in

the above judgment is applied to the present facts of the case, the

petitioner is eligible for being considered for promotion to the next

higher category in terms of G.O.Ms.No.66 GAD (Services-C), dated

30.01.1991.

8. Learned Government Pleader for Services-I contended

that, the petitioner has no vested right to claim promotion, but he

is entitled to request to consider his case and placed reliance on

judgment of Supreme Court in Union of India v. K.V.

Janakiraman4.

9. No doubt, the law declared by the Supreme Court in the

above judgment is clear on this aspect and the right of the

Government servant to claim promotion is not vested right. At best,

he is entitled to request the authorities to consider his candidature

for promotion to the next higher cadre. There is no dispute with

regard to the law declared by the Court. However, the question of

consideration for promotion is based on G.O.Ms.No.66 GAD

(Services-C), dated 30.01.1991 as no disciplinary proceedings have

W.P.No.3315 of 2019 dated 23.01.2020

1990 Crl.L.J 1315

1990 (1) S.L.R.P. 298

1991 AIR 2010 5 MSM,J

WP No.3990 of 2021

been initiated and pending till date against this petitioner. Hence,

this Court cannot issue a direction to promote this petitioner to the

higher cadre, but can issue a direction to the respondents to

consider the candidature of this petitioner for being promoted to

the next higher cadre, subject to fulfilment of eligibility criteria.

10. In the result, writ petition is allowed, directing the

respondents to consider the candidature of this petitioner for being

promoted to the next higher cadre, in terms of G.O.Ms.No.66 GAD

(Services-C), dated 30.01.1991, subject to fulfilment of eligibility

criteria.

Consequently miscellaneous petitions pending, if any, shall

also stand closed.

_________________________________________ JUSTICE M.SATYANARAYANA MURTHY

Date : 22-02-2021 Gvl 6 MSM,J

WP No.3990 of 2021

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

WRIT PETITION No.3990 OF 2021

Date : 22.02.2021

Gvl