Andhra Pradesh High Court - Amravati
Kesineni Vijaya Kumar vs The State Of Andhra Pradesh, on 28 June, 2021
IN THE HIGH COURT OF ANDHRA PRADESH : AMARAVATI
HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
&
HON'BLE MR. JUSTICE NINALA JAYASURYA
WRIT APPEAL No.198 of 2020
(Taken up through video conferencing)
Kesineni Vijaya Kumar S/o Mallikarjuna Rao,
Age 58 years, Occ: Superintendent in Sri Durga
Malleswara Swamyvari Devasthanam, Indrakeeladri,
Vijayawada, R/o. D.No.48-18-4H, Flat No.202,
Mahalakshminilayam, Near Ayurveda Hospital,
Ramachandranagar, Vijayawada, Krishna District.
.. Appellant.
Versus
The State of Andhra Pradesh, Rep. by Principal Secretary,
Endowments (Revenue) Endowments Department,
Secretariat Buildings, Velagapudi, Amaravati,
Guntur District, and others.
.. Respondents.
Counsel for the appellant : Mr. Atchutananda Dondeti
Counsel for respondent Nos.1 & 2 : Ms. P. Rajani,
GP for Endowments
Counsel for respondent Nos.3 & 4 : Mr. K. Madhava Reddy,
Standing Counsel
Dates of hearing : 23.06.2021 & 25.06.2021
Date of pronouncement : 28.06.2021
JUDGMENT
(per Arup Kumar Goswami, CJ)
Heard Mr. Atchutananda Dondeti, learned counsel for the
appellant/writ petitioner. Also heard Ms. P. Rajani, learned Government
Pleader for Endowments appearing for respondent Nos.1 and 2, and
Mr. K. Madhava Reddy, learned standing counsel appearing for
respondent Nos.3 and 4.
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2. This writ appeal is preferred against the judgment and order dated
19.02.2020 passed by the learned single Judge in W.P.No.5853 of 2019.
The appellant herein is the petitioner in the said writ petition.
3. The appellant/writ petitioner is an employee of Sri Durga
Malleswara Swamy Vari Devasthanam, Indrakeeladri, Vijayawada, third
respondent herein, and is functioning as Superintendent in the said
Devasthanam. It appears that prior to his transfer to the third respondent-
Devasthanam, he was working in Sri Varaha Lakshmi Narasimha Swamy
Vari Devasthanam, Simhachalam, fourth respondent herein. For the
alleged misconduct committed by him while working in the fourth
respondent-Devasthanam, namely, colluding with the land-grabbers for
bribe and cooperating for illegal constructions in the land belonging to the
fourth respondent-Devasthanam, disciplinary proceedings were initiated
against him and charge memo dated 21.11.2017 was issued framing four
charges. On conclusion of disciplinary proceedings, by an order dated
06.03.2018 of the Executive Officer of the third respondent-Devasthanam,
the appellant/writ petitioner was inflicted with punishment of stoppage of
one increment without cumulative effect. Another employee was also
inflicted with similar punishment by the said order.
4. Challenging the said order dated 06.03.2018, the appellant/writ
petitioner filed the writ petition and he also sought for a direction to the
respondents to consider his case for promotion as an Assistant Executive
Officer. He claimed that his position in the seniority list was at Sl.No.5.
5. By the order under challenge, the learned single Judge had
observed that the Enquiry Officer could not decide whether the bribe was
taken or not. The learned single Judge further observed that the
authorities did not furnish the report of the Enquiry Officer to the
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appellant/writ petitioner to invite response from him and that no reasons
were assigned as to why the punishment had to be imposed. Accordingly,
the learned single Judge set aside the order of punishment and directed
the third respondent to serve the enquiry report along with all documents
and to invite his comments and thereafter, to dispose of the proceedings
by a reasoned order.
6. Mr. Atchutananda Dondeti, learned counsel for the appellant/writ
petitioner, submits that by the time the writ petition was disposed of, the
period of punishment of stoppage of one increment was already over. It is
contended by him that stoppage of one increment without cumulative
effect is a minor penalty and as the appellant/writ petitioner had suffered
the punishment, there cannot be any reason for the authorities to not
consider his case for promotion. Learned counsel submits that the learned
single Judge did not advert to the aspect regarding the promotion of the
appellant/writ petitioner and, as such, the impugned order is vitiated. He
placed reliance on a judgment of a learned single Judge of this Court in
A.P. Naidu v. General Manager, South Central Railway, reported in
(1983) ILLJ 151 AP, and a judgment of the Hon‟ble Supreme Court in
State of Mysore v. Syed Mahmood, reported in 1968 AIR 1113.
Accordingly, he submits that a direction may be issued to the respondents
to consider the case of the appellant/writ petitioner for promotion.
7. Ms. P. Rajani, learned Government Pleader for Endowments
appearing for respondent Nos.1 and 2, and Mr. K. Madhava Reddy,
learned standing counsel appearing for respondent Nos.3 and 4, submit
that there is no illegality in the order of the learned single Judge and,
therefore, no interference is called for with regard to the said order. It is
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further submitted that as departmental proceedings are pending against
the appellant/writ petitioner, his case cannot be considered for promotion.
8. We have heard the learned counsel for the parties and perused the
materials on record.
9. At the outset, it will be relevant to extract the order dated
23.06.2021, which reads as under:
"Heard Mr. Atchuthananda Dondeti, learned counsel for
the appellant.
Also heard Ms. P. Rajani, learned Government Pleader
for Endowments appearing for respondent Nos.1 and 2 and
Mr. K. Madhava Reddy, learned standing counsel appearing for
respondent Nos.3 and 4.
In the forenoon, after hearing the arguments advanced
by the learned counsel for the parties, this Court reserved the
matter for orders. However, in the afternoon session,
Mr. Atchuthananda Dondeti, in the absence of the counsel for
the other side, has again sought to make submissions in the
matter.
Therefore, we deem it appropriate to list this case again
for motion hearing on 25.06.2021."
10. It is in view of the aforesaid development as noticed in the order
dated 23.06.2021, it was directed to post the case on 25.06.2021.
11. It will be appropriate to take note of the order dated 25.06.2021,
which reads as under:
"Heard Mr. Atchutananda Dondeti, learned counsel for
the appellant.
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Also heard Ms. P.Rajani, learned Government Pleader for
Endowments appearing for respondent Nos.1 and 2 and Mr.
K.Madhava Reddy, learned standing counsel appearing for
respondent Nos.3 and 4.
Perused the order dated 23.06.2021.
On 23.06.2021, in the forenoon, during the course of
arguments, Mr.Atchuthananda Dondeti had submitted that he
would have no objection if the order of penalty remains.
However, in the afternoon session, in the absence of the
counsel for otherside, he had submitted that it would not be
proper for him to concede to the order of the penalty imposed
and, therefore, the Court may not proceed on that basis.
It is in that context the matter was directed to be listed
today.
Today also, in the presence of Ms. P.Rajani and Mr.
K.Madhava Reddy, Mr.Atchuthananda Dondeti submits that the
order of penalty imposed earlier is not acceptable to him.
With the above clarification given by Mr. Atchuthananda
Dondeti, order is reserved.
The case shall be posted for delivery of orders on
28.06.2021."
12. On a query of the Court, it is stated by the learned counsel for the
respondents that imposition of stoppage of one increment without
cumulative effect is a minor punishment.
13. What is noticeable in this case is though the learned single Judge
had set aside the order of punishment, the fact remains that the
appellant/writ petitioner had already suffered punishment of stoppage of
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one increment. While setting aside the order dated 06.03.2018, there was
no corresponding direction by the learned single Judge that the
appellant/writ petitioner should be granted increment which was not
granted to him in view of the order of imposition of punishment, though
direction for completion of the enquiry proceedings from the stage of
furnishing enquiry report was given.
14. So far as the aspect of promotion of the appellant/writ petitioner is
considered, it is not indicated in the pleadings as to how the promotion to
the post of Assistant Executive Officer is to be effected. It is also not clear
as to whether there is any vacant post of Assistant Executive officer.
Though the learned single Judge directed completion of the proceedings
within a period of four weeks from the date of receipt of the order dated
19.02.2020, the counter-affidavit filed by the third respondent-
Devasthanam on 16.04.2021 goes to show that the proceedings are not
completed till date. Even during the course of hearing, it has not been
submitted that the proceedings have come to an end.
15. Since the appellant/writ petitioner had already suffered punishment
of stoppage of one increment without cumulative effect, in the attending
facts and circumstances, we hold that pendency of the present disciplinary
proceedings shall not be a bar for consideration of the case of the
appellant/writ petitioner, if he is otherwise eligible, for promotion to the
post of Assistant Executive Officer, along with other eligible candidates,
and for effecting his promotion in accordance with law.
16. In A.P. Naidu (supra), the learned single Judge of this Court had
taken a view that withholding of promotion on the ground of pendency of
departmental enquiry would amount to violation of Article 16 of the
Constitution. It is not necessary for us to dilate on this aspect for the
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purpose of this case. Suffice it is to say that it is well settled that
withholding of promotion during the pendency of departmental enquiry by
following sealed cover procedure is well recognized.
17. The other case relied on by Mr. Dondeti Atchutananda in Syed
Mahmood (supra) is in the context of „next below rule‟ and is, therefore,
not applicable in the factual matrix presented in this case.
18. Accordingly, the writ appeal stands disposed of with the above
observations. No costs. Pending miscellaneous applications, if any, shall
stand closed.
ARUP KUMAR GOSWAMI, CJ NINALA JAYASURYA, J
IBL
8 HCJ&NJS,J
W.A.No198 of 2020
HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
&
HON'BLE MR. JUSTICE NINALA JAYASURYA
WRIT APPEAL No. 198 of 2020
(per Arup Kumar Goswami, CJ)
Dt: 28.06.2021
IBL
