Sadhanala Sekhar Babu, vs The State Of Andhra Pradesh
2021 Latest Caselaw 374 AP

     HONOURABALE SRI M. SATYANARAYANA MURTHY

                   Writ Petition No.1288 of 2021
ORDER:

The writ petition is filed under Article 226 of the

Constitution of India seeking the following relief:

"to issue a Writ or Order more in the nature of Mandamus in declaring the action of the respondents in deferring the case of the petitioner for promotion to the post Sub Registrar Grade I for the panel year of 2020 2021 by proceedings No. REV0811048/1/2020ESSTIGRSII dated 07 01 2021 of the 2nd respondent in so far as the petitioner as illegal, arbitrary, unjust and violative of G.O.Ms.No.66 GAD (Services.C), dated 30.01.1991 against the law laid down by the Honorable Supreme Court Of India and accordingly set aside the 2nd respondent proceedings No.REV0811048/1/2020ESSTGRSII dated 07 01 2021 in so far as the petitioner with a consequential direction to the respondents to consider the case of the petitioner for promotion to the post of Sub Registrar Grade-I without reference to the Surprise ACB Check Proceedings in 01/SCRJY/2020, dated 10-01-2020 as per G.O.Ms.No.66 (Services.C), dated 30.01.1991 and the Honorable Supreme Court Of India Judgements as well the judgments of this Honorable High Court of A.P."

2. The petitioner is working as Sub-Registrar Grade-II. On

10.01.2020, ACB, Rajamahendravaram Range conducted

surprise check proceedings dated 10.01.2020 followed by Radio

Message dated 11.01.2020. In these proceedings, it was

reported that there was no irregularities found against the

petitioner. In the surprise check, the declared amount of

Rs.500/- in the personal cash declaration in the register has

tallied and no excess cash was found.

3. On account of surprise ACB check proceedings, the case

of the petitioner was deferred for promotion to the post of Sub-

Registrar     Grade-I        for    the    panel       year    of   2020-2021       by
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proceedings dated 07.01.2021 in which his name was shown at

S.No.23. Therefore, the action of the respondents is illegal,

arbitrary, unjust and violative of the law laid down by the

Supreme Court and G.O.Ms.No.66 GAD (Services.C)

Department, dated 30.01.1991. This Court in W.P.No.3315 of

2019, dated 23.01.2020, also taking into consideration

G.O.Ms.No.66, dated 30.01.1991, directed the respondents to

promote the petitioner as no charge sheet was filed on the date

of DPC and recently, in W.P.No.22966 of 2020 dated

14.12.2020, taking into consideration G.O.Ms.No.66, dated

30.01.1991, directed the respondents to promote the petitioner

as Sub-Registrar Grade-II without reference to the surprise ACB

check communicated vide Radio Message dated 11.01.2020.

Therefore, the petitioner requested to issue similar direction to

the respondents herein to promote him to the next higher cadre,

applying G.O.Ms.No.66, dated 30.01.1991, as no disciplinary

proceedings or criminal proceedings are pending against him.

4. Learned Government Pleader for Services-II placed on

record written instructions dated 23.01.2021 reiterated about

the ACB surprise check, while contending that as per the

material on record, the ACB authorities have conducted surprise

check on Registrar Office (O.B.), Kakinada on 10.01.2020, while

the petitioner herein was working as Sub-Registrar Grade-II at

the said office. The DSP, ACB, Rajahmundry through Radio

message on 11.01.2020, while reporting the matter to the D.G, 3 MSM, J

W.P.No.1288 of 2021

ACB, Hyderabad, and also to the office of the respondent

authorities, has reported that an amount of Rs.1,29,790/- was

seized from seven document writers, one Junior Assistant, one

Senior Assistant, one Sharoff, which supposedly to be given to

the Joint Sub-Registrar and his staff as illegal gratification. It

was also reported by the DSP, that the petitioner was present

during the surprise check along with other staff. It is further

brought to the notice of the court that the said individual was

deputed to the office of the District Registrar, A.B.,

Rajamahendravaram vide proceedings No.E1/20/2020, dated

28.01.2020 of the Deputy Inspector General (R & S), Kakinada.

The Deputy Inspector General (R & S), Kakinada, is the

immediate controlling officer of the petitioner and therefore, in

view of the pendency of the action on the ACB report, the case of

the petitioner was not considered and the same cannot be

considered and requested to dismiss the writ petition.

5. During the hearing, Sri K.R. Srinivas, learned counsel for

the petitioner, reiterated the contentions, while drawing

attention of this Court to the judgment of the Division Bench of

this Court in W.P.No.3315 of 2019 dated 23.01.2020, and the

judgment of the Supreme Court in the Union of India v. Anil

Kumar Sarkar1 rendered in Civil Appeal No.2537 of 2013. On

the strength of the same, learned counsel for the petitioner

requested to issue a direction as claimed in this writ petition.

Whereas the learned Government Pleader for Services-I totally

2013 (4) SCC 161 4 MSM, J

W.P.No.1288 of 2021

relied on the written instructions placed on record to contend

that no final action was taken based on the report of ACB. Since

the petitioner was also present at the time of surprise check and

till completion of the proceedings based on the ACB report, he

cannot be promoted and requested to dismiss the writ petition.

Undoubtedly, a surprise check was conducted on

10.01.2020. But as per the copy of the report placed on record

nothing was found in possession of the petitioner and the

personal cash was also with the register maintaining in the

office. Finding some amount of Rs.1,29,790/- with the

document writers, one Junior Assistant, one Senior Assistant

and one Sharoff is not a ground to attribute any misconduct to

the petitioner at this stage. However, in view of G.O.Ms.No.66,

dated 30.01.1991, when no departmental or criminal

proceedings are pending against the employee, he can be

considered for next promotion. Though the petitioner relied on

the judgment of the Division Bench of this Court in

W.P.No.3315 of 2019, it is only where this court relying on the

judgment of the Division Bench of this court in State of

Madhya Pradesh v. Bani Singh (1990 CRLJ 1315) and C.O.

Armugam and others v. State of Tamil Nadu and others

(1990 (1) S.L.R.P.298), applied G.O.Ms.No.257 GAD Services

Department, dated 10.06.1999, but the petitioner is not

claiming the benefit of G.O.Ms.No.257, dated 10.06.1999, since

G.O.Ms.No.257 is applicable only in case a disciplinary

proceedings or criminal proceedings initiated and pending if not 5 MSM, J

W.P.No.1288 of 2021

disposed of more than two years. But, the petitioner herein is

entitled to the benefit of G.O.Ms.No.66, dated 30.01.1991 as

observed in para-14 of the judgment. The Apex Court in the

Union of India v. Anil Kumar Sarkar (stated supra) held as

follows:

"It is not in dispute that an identical issue was considered by this Court in Union of India and Others vs. K.V.Jankiraman and Others, (1991) 4 SCC

109. The common questions involved in all those matters were: (1) What is the date from which it can be said that disciplinary/criminal proceedings are pending against an employee? (2) What is the course to be adopted when the employee is held guilty in such proceedings if the guilt merits punishment other than that of dismissal? and (3) To what benefits an employee who is completely or partially exonerated is entitled to and from which date?. Among the three questions, we are concerned about question No.1. As per the rules applicable, the "sealed cover procedure" is adopted when an employee is due for promotion, increment etc. but disciplinary/criminal proceedings are pending against him at the relevant time and hence, the findings of his entitlement to the benefit are kept in a sealed cover to be opened after the proceedings in question are over. Inasmuch as we are concerned about the first question, the dictum laid down by this Court relating to the said issue is as follows:- "16. On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant- authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge- memo/charge- sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy.

In para 17, this Court further held:

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17. ... The conclusion No. 1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant time pending at the stage when charge-memo/charge-sheet has already been issued to the employee...." After finding so, in the light of the fact that no charge sheet was served on the respondent-employee when the DPC met to consider his promotion, yet the sealed cover procedure was adopted. In such circumstances, this Court held that "the Tribunal has rightly directed the authorities to open the sealed cover and if the respondent was found fit for promotion by the DPC, to give him the promotion from the date of his immediate junior Shri M. Raja Rao was promoted pursuant to the order dated April 30, 1986. The Tribunal has also directed the authorities to grant to the respondent all the consequential benefits.....We see no reason to interfere with this order. The appeal, therefore, stands dismissed." The principles laid down with reference to similar office memorandum are applicable to the case on hand and the contrary argument raised by the appellant-Union of India is liable to be rejected.

However, Sri N. Aswathnarayana, learned Government

Pleader for Services-I contended that promotion is not a matter

of right and he is entitled for consideration for promotion. There

is no dispute with regard to the contention of the Government

Pleader for Services-I and this court is not inclined to issue a

direction to promote the petitioner. But, this court can issue a

direction to consider the case of the petitioner for promotion to

the next higher cadre subject to satisfying the requirement

notwithstanding the surprise check report submitted by ACB, in

accordance with G.O.Ms.No.66, dated 30.01.1991.

With the above direction, the writ petition is disposed of.

There shall be no order as to costs.

As a sequel thereto, miscellaneous petitions, if any,

pending shall stand closed.

___________________________________ M. SATYANARAYANA MURTHY, J Date: 27-01-2021

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