K Siva Rama Krishna vs The State Of Ap
2021 Latest Caselaw 166 AP

   THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                  WRIT PETITION NO.24436 OF 2020
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 the matter of non inclusion of the petitioners name in the list of Sub-Inspector of Police Civil fit to act as Inspector of Police in Guntur range for the panel year 201819 and 2019-2020 as arbitrary illegal and violative of Articles 14 and 16 of the Constitution of India apart from service rules and Government instructions in G.O.No.66 GAD dated 30.01.1991 and G.O.Ms.No.257 GAD dated 10.06.1999 as no disciplinary proceedings have commenced against him till date and consequently direct the respondents to forthwith to consider and promote the petitioner to Inspectors category in the current promotion panel pending according appropriate seniority as per law."

The case of the petitioner in brief is that, the petitioner was

initially recruited as Reserve Sub-Inspector in the year 2004 by

direct recruitment. Subsequently, he was appointed by transfer to

Civil Sub-Inspector in the year 2014 and completed more than the

mandatory four years service as Civil Sub-Inspector of Police by 2018

panel year, as such he became eligible to be considered for

promotion to Inspector's category and to be included in the panel of

officers fit to be promoted to Inspector's category (i.e. "C" List) as on

01.09.2018.

The main grievance of this petitioner is that, the name of this

petitioner was not considered on account of pendency of Crime

No.6/RCT-ACB-GNT/2016 on the file of Special Judge for SPE &

ACB Cases, Vijayawada. Subsequently, no further action has been

taken either by the Government of Andhra Pradesh or the Tribunal

for disciplinary proceedings in the case of this petitioner till date. On MSM,J WP_24436_2020

the other hand, the criminal proceedings were dropped by the

Special Judge for SPE & ACB Cases, Vijayawada on 23.04.2018 and

the property was ordered to be returned to the investigating officer

for further proceedings before Tribunal for Disciplinary Proceedings.

In the meanwhile, the Director General, Anti Corruption

Bureau, Andhra Pradesh referred the matter to Tribunal for

disciplinary proceedings on 07.02.2017 and no action has been

taken till date and no charges have been framed against this

petitioner. But, on account of pendency of this matter before the

Tribunal, without framing charges, the petitioner's candidature was

not considered for promotion to the next higher cadre, which is

contrary to G.O.No.66 GAD (Services-C) dated 30.01.1991 and

G.O.Ms.No.257 GAD (Services-C) dated 10.06.1999 and that, non-

consideration of his candidature for the promotion to the higher

cadre is illegal, arbitrary and requested to issue direction as prayed

for.

During hearing, Sri R.V. Mallikarjuna Rao, learned counsel for

the petitioner reiterated the contentions urged in the writ petition,

while drawing attention of this Court to various proceedings issued

by Special Judge for SPE & ACB Cases, Vijayawada and also various

G.Os issued by the Government and requested to issue a direction as

stated supra.

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.

MSM,J WP_24436_2020

There is no dispute with regard to recruitment and

conversation into Sub-Inspector of Police (Civil) and his eligibility for

being promoted to the next higher cadre, so also registration of crime

and it's closure by proceedings dated 23.04.2018 by Special Judge

for SPE & ACB Cases, Vijayawada in R.C.S.No.12 of 2018 in Crime

No.6/RCT-ACB-GNT/2016 and reference of the matter to Tribunal

for Disciplinary Proceedings and it's pendency even without framing

any charges before Tribunal for Disciplinary Proceedings at

Hyderabad. But, the main grievance of this petitioner before this

Court is that, when no charges have been framed by the Tribunal for

Disciplinary Proceedings as on date, the proceedings are not deemed

to be pending in view of G.O.No.66 GAD (Services-C) dated

30.01.1991 and 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

charges were framed by the Tribunal for Disciplinary Proceedings

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

30.01.1991 is alone applicable.

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.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.No.66 GAD (Services-C)

W.P.No.3315 of 2019 dated 23.01.2020

1990 Crl.L.J 1315

1990 (1) S.L.R.P. 298 MSM,J WP_24436_2020

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.No.66 GAD (Services-C) dated 30.01.1991.

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.

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

consideration 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.No.66 GAD

(Services-C) dated 30.01.1991 as no charges have been framed till

date against this petitioner by the Chairman, Tribunal for

Disciplinary Proceedings. 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.

1991 AIR 2010 MSM,J WP_24436_2020

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.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:19.01.2021

SP