S.N.M.S. Babar, vs The State Of A.P.
2022 Latest Caselaw 5406 AP

          THE HON'BLE DR.JUSTICE K. MANMADHA RAO

                  WRIT PETITION No.25445 of 2022

ORDER:

This Writ Petition is filed under Article 226 of the

Constitution of India, seeking the following relief:

".....to issue a Writ, Order or direction more particularly one in the nature of Writ of mandamus declaring the action of the respondents not releasing the increments from the year 2017 to till date to the petitioner as highly illegal, arbitrary, unjust, violative of the provisions of Fundamental Rules and contrary to the orders of this Hon'ble Court and violative of Article 14, 16 and 21 of the Constitution of India and consequently direct the respondents to release the increments from the year 2017 to till date to the petitioner and pass such other orders".

2. Heard Mr. T.S.N.Sudhakar, learned counsel for the

petitioner and learned Government Pleader, Services-IV and Mr. K.

Sridhar Murthy, learned Standing counsel for the respondents.

3. The precise case of the petitioner is that the he was

appointed as Work Inspector in the year 1989. Later he was

promoted as Assistant Engineer in the year 1994. While he was

working as Assistant Engineer, Piduguralla, Municipality

Operation, basing on the allegations, the ACB authorities

registered a case in Crime No. 16/RCT-ACB/GNT/2017 of ACB,

Guntur on 11.01.2017 and the petitioner was kept under

suspension vide proceedings dated 18.01.2017 with effect from

11.01.2017. Subsequently the petitioner was reinstated into

service vide proceedings dated 13.02.2019 during pendency of

criminal case. The respondents not sanctioned and releasing the

increments from the year 2017 to till date, inspite of several

requests, which is highly illegal and arbitrary.

4. During hearing learned counsel for the petitioner would

contend that ACB case was registered against the petitioner on

11.01.2017. The petitioner was initially suspended and later

reinstate into service. However, the Criminal Case which is still

pending before the competent court and is not disposed of as on

date. Due to pendency of this case from 2017 onwards the

increments, which are due to the petitioner has not been paid.

Relying upon orders passed by the Division Bench of this Court in

W.P.Nos. 6617 of 2004, 15504 of 2009, 21972 of 2020 and of the

learned Single Judge in W.P.No.4553 of 2021, learned counsel for

the petitioner argued that the denial of the increments which are

lawfully due to him. He further contended that even in the

contention of the respondents that the only ground on which it is

urged that the increments cannot be paid because of the pendency

of the ACB case. The petitioner relied upon Fundamental Rules -

24, which is vehemently denied by the respondent, but the learned

counsel for the petitioner would contend that in the very first

Division Bench Judgment that he relies upon viz., W.P.No.6617 of

2004 itself his very Rule FR-24 fell for consideration and the

Division Bench held that withholding of increment is in the nature

of a penalty and unless the due procedure and the rules are

followed the same cannot be imposed. He further argued that the

same was followed in the next judgment also which he has relied

upon. Therefore, he urges that an order should be passed in

favour of the petitioner.

5. During hearing learned Government Pleader, Services-IV

for the respondents placed on record the written instructions vide

Lr.No.25445/CS7/2022, dated 18.08.2022, which reads as

follows:

"In this connection, it is to state that the ACB trap case of the petitioner has not been finalized by the Govt/ACB till to date and the suspension period of the petitioner has also not be regularized by the Govt till to date. Accordingly, the increments to the petitioner from the year 2017 onwards could not release to the petitioner and further action will be taken in the matter after finalizing the ACB trap case by the Govt."

Therefore the writ petition is not maintainable and same is

liable to be dismissed.

6. Learned Standing Counsel for the respondents would

contend that according to him FR-24 is applicable and the

respondents have a right to withhold the increments. It is his clear

submission that as the petitioner is accused of a crime by the

ACB, he should not be granted the order. It is his contention that

the suspension has been removed and he is earning a salary. If the

petitioner is convicted, the learned Standing Counsel submits that

the petitioner may also face serious repercussion. Therefore,

requested to dismiss the writ petition.

7. After hearing the submissions and considering the law,

this Court is of the opinion that as rightly pointed out by the

learned counsel for the petitioner FR-24 fell for consideration in

the Division Bench judgment i.e W.P.No.6617 of 2004. The

Division Bench clearly held that order of withholding increment is

an exception rather than the rule and that the increment can only

be withheld on proof of case, unsatisfactory service or bad

conduct. It is also mentioned that such an order should state the

period from which it is withheld and whether the postponement

shall have the effect of withdrawal, postponing the future

increments also. Ultimately, the learned Judges concluded that an

order holding the increment is in the nature of a penalty and can

only be issued if due process is followed. The same is reiterated in

the subsequent judgment of the Bench and also of the learned

Single Judge. This is applicable to the present facts and nothing to

the contrary was pointed out by the respondents.

8. Hence, this Court is of the opinion that the action of the

respondents in withholding the increments of the petitioner is not

correct and contrary to the settled law on the subject. Therefore,

the respondents are directed to release the increments due to the

petitioner.

9. Accordingly, the Writ Petition is allowed. There shall be no

order as to costs.

As a sequel, miscellaneous applications pending, if any, shall

also stand closed.

____________________________ DR. K. MANMADHA RAO, J Dated 18.08.2022.

KK

THE HON'BLE DR.JUSTICE K. MANMADHA RAO

WRIT PETITION No.25445 of 2022

18.08.2022

KK