V.Venkateswara Rao, vs The State Of Andhra Pradesh
2021 Latest Caselaw 398 AP

     HONOURABALE SRI M. SATYANARAYANA MURTHY

                   Writ Petition No.1287 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 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

direct 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 conducted on 04.12.2015 as per

G.O.Ms.No.66, dated 30.01.1991."

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

10.01.2020, ACB, Rajamahendravaram Range conducted

surprise check proceedings dated 04.12.2015. In these

proceedings, it was reported that there was no irregularities

found against the petitioner. In the surprise check, no excess

cash was found in possession of the petitioner.

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

proceedings dated 04.12.2015 in which his name was shown at

S.No.6. 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 2 MSM, J

W.P.No.1287 of 2021

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. In view of the order, 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 (A.B.), Rajahmundry on 04.12.2015,

while the petitioner herein was working as Assistant Registrar of

Chits in District Registrar's Office, Kakinada and has filed this

writ petition before the Hon'ble High Court of A.P., Amaravati by

praying the Hon'ble Court to declare the action of the

respondents in deferring the case of the individual for promotion

to the post of Sub-Registrar Grade-1 for the panel year of 2020-

2021 by Proceedings No.REV08-011048/1/2020-ESST-IGRS-II,

dated 07.01.2021 of the Commissioner and Inspector General, 3 MSM, J

W.P.No.1287 of 2021

Registration and Stamps, Vijayawada as it is violation of

G.O.Ms.No.66 GAD (Services.C) dated 30.01.1991. The Deputy

Inspector General (R&S), Kakinada is the immediate controlling

officer of the petitioner. However Deputy Inspector General

(R&S), Eluru is nodal officer and appointing authority of the

Sub-Registrar Grade-1 and Sub-Registrar Grade-II. Hence, the

Deputy Inspector General (R&S), Kakinada is not competent.

Promotion as Sub-Registrar Grade-I is not recommended to the

above individual 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 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.

6. Whereas the learned Government Pleader for Services-I

totally 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

2013 (4) SCC 161 4 MSM, J

W.P.No.1287 of 2021

surprise check and till completion of the proceedings based on

the ACB report, he cannot be promoted and requested to

dismiss the writ petition.

7. Undoubtedly, a surprise check was conducted on

04.12.2015. But as per the copy of the report placed on record

nothing was found in possession of the petitioner and there is

nothing 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, relying on 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

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:-

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                                                                W.P.No.1287 of 2021

"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.

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                                                                    W.P.No.1287 of 2021

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:

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.

8. 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.

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                                                  W.P.No.1287 of 2021

9. 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: 28-01-2021

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                                         W.P.No.1287 of 2021


     HONOURABALE SRI M. SATYANARAYANA MURTHY




             Writ Petition No.1287 of 2021
                   Date: 28.01.2021

IS