Andhra Pradesh High Court - Amravati

Y.Naga Rani, vs Govt. Of Andhra Pradesh, on 8 May, 2023

 THE HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

                WRIT PETITION No.21702 OF 2021
 ORDER:

1. The present writ petition is filed to declare the action of the

respondents in depriving the claim of the petitioner to the post of

Office Superintendent, though she is fully eligible and qualified,

contrary to G.O.Ms.No.66 General Administration (Services-C)

Department dated 30.01.1991, as illegal, arbitrary, without

jurisdiction and violative of Articles 14,16 and 21 of the

Constitution of India.

2. The factual matrix leading to the filing of the writ petition is

as follows:

3. One Y.V. Rangaiah, HC-550 who is the father of the accused

died on 08.08.1995 while in service. The petitioner was appointed

temporarily as Junior Assistant in A.P.S.P, 2nd Battalion, Kurnool

on compassionate grounds on 31.01.1996. the petitioner was asked

to complete her Intermediate Course within a period of three years

from the date of her appointment. The petitioner submitted a

representation requesting the concerned authorities to grant her

three more years time for completion of Intermediate Course and

the same was accepted by the Government.

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4. On 06.04.2001, the petitioner submitted a representation

along with her B.A. Degree Certificates requesting the concerned

authorities to regularize her service. The Commandant, 2nd

Battalion, A.P.S.P, Kurnool sent the certificates of the petitioner to

Dr.B.R. Ambedkar Open University, Hyderabad for verification of

its genuineness. After due verification, the authorities of the

University submitted a report stating that the said certificates are

fake certificates. In the light of the report of the University, the

Commandant initially suspended the petitioner from service on

12.06.2001. Later, her suspension was revoked vide proceedings

dated 02.01.2002. In continuation of the same, a Memorandum of

charge No.D2/MPR-49/2002 dated 09.07.2002 had been served to

her. In reply to the Memorandum of charge, she submitted her

written explanation in which she pleaded that she was cheated by

Sri S. Venkataramana, Record Assistant, who allegedly collected

huge amount from her promising to secure the required

educational qualification certificate from the University. She

appeared for the examinations for three years and later received the

degree provisional certificate by herself, which was found to be

fake. Therefore, the Commandant had imposed punishment of

'Postponement of Increment' for a period of one year without

cumulative effect and specified the suspension period as 'Not On

Duty'.

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5. Apart from the Departmental Action, the Commandant

lodged a complaint before the Sub-Inspector of Police, Kurnool IV-

Town Police Station and the same was registered as Crime No.171

of 2003 under Sections 420 and 417 I.P.C, for adopting illegal

methods by producing fake educational certificates pending her

probation. Thereafter, the Commandant issued orders dated

12.02.2004 regularizing her probation in the cadre of Junior

Assistant.

6. The petitioner was put on defence before the Criminal Court

in C.C.No.101 of 2007, wherein the Spl.Judicial Magistrate of First

Class, Kurnool on 08.09.2008 found the petitioner is guilty and

convicted to undergo Simple Imprisonment for a period of three

months and to pay fine of Rs.2,500/- with default sentence.

7. Aggrieved by the orders of the Trial Court in C.C.No.101 of

2007 dated 08.09.2008, the petitioner preferred Criminal Appeal

No.124 of 2008 before the Principal Sessions Judge, Kurnool. The

criminal appeal was allowed on 08.04.2009, setting aside the

conviction and sentence dated 08.09.2008 imposed against the

petitioner. However, remanded the matter to the Trial Court with a

direction to frame an appropriate charge against the petitioner and

give a reasonable opportunity to the petitioner to put-forth her

defence in respect of the new charge.

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8. Aggrieved by the judgment in Criminal Appeal No.124 of

2008 dated 08.04.2009, the petitioner preferred Crl.R.C.No.1095 of

2009 before this Court. Vide order in Crl.M.P.1500 of 2009 in

Crl.R.C.No.1095 of 2009 dated 07.07.2009, this Court granted stay

of all further proceedings in C.C.No.101 of 2007 on the file of

Spl.JFCM, Kurnool.

9. The petitioner submits that, her probation was also

declared as Senior Assistant on 17.01.2015 vide proceedings dated

11.02.2015 and a seniority list was prepared by the 2nd

Respondent. In the said seniority list, the petitioner is included at

Sl.No.17. It is her claim that, in the usual course, she ought to

have been considered for next promotion, but the respondents have

peculiarly interpreted only with a view to deprive her claim for

promotion as Office superintendent, as she was denied promotion

and her juniors are given preference over her. The petitioner

submits that the post of Office-Superintendent is a non-selection

post and as of now, there is no charge memo/charge sheet pending

against her and only disciplinary proceedings are initiated against

her by imposing postponement of increment, as such she cannot be

denied the right of promotion and requested to grant relief as

stated in the writ petition.

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10. On behalf of the respondents, the 2nd Respondent filed

counter affidavit, denying material allegations. In Page No.4, it is

specifically averred that, all the further proceedings in the case

have been stayed by the Hon'ble High Court, but not exonerated

her completely from the charges so far. Therefore, the contention of

the petitioner that no charge memo/charge sheet is pending

against her till date is 'Not Correct', as criminal case is pending

against her.

11. The 2nd Respondent also submitted in Paras 10 to 13 of the

counter affidavit that, the petitioner has only obtained stay of

further proceedings in C.C.No.101 of 2007 on the file of Spl.JFCM,

Kurnool, pursuant to the judgment in Crl.A.No.124 of 2009 dated

08.04.2009 on the file of the Principal Sessions Judge, Kurnool and

if the proceedings were not stayed by this Court, the Trial Court

would have framed appropriate charges against the petitioner. The

2nd Respondent also submitted that, when criminal case is pending

against the petitioner, she cannot seek any further promotion and

requested to dismiss the writ petition.

12. Sri C. Srinivasa Baba, learned counsel for the petitioner

reiterated the facts urged in the writ petition and would submit

that, the petitioner is not being promoted to the post of Office

Superintendent, though she possessed requisite qualifications and 6 NV,J W.P.No.21702 of 2021

eligibility. When no charges are pending against her, the right of

the petitioner to be promoted cannot be deprived in any manner.

13. Learned counsel had strongly placed reliance and drawn

attention of this Court to G.O.Ms.No.66 General Administration

(Services-C) Department dated 30.01.1991 wherein, in Point No.5

of the said G.O, the State Government directed that

promotion/appointment by transfer to a higher post in respect of

officers who are facing departmental proceedings or a criminal case

or whose conduct is under investigation shall be deferred only

when charges of misconduct are framed by the competent authority

and served on the concerned delinquent officer, or a charge sheet

has been filed against him in the criminal court. On the basis of

the aforesaid G.O, learned counsel for the petitioner requested to

allow the writ petition.

14. Learned counsel for the petitioner submits that, in view of

stay of all further proceedings granted by this Court in

Crl.R.C.No.1095 of 2009 dated 07.07.2009, the conviction/

sentence as well as criminal proceedings were stayed and not in

force in view of G.O.Ms.No.66 dated 30.01.1991, the case of the

petitioner should be considered for further promotion from Senior

Assistant to Office Superintendent, for which the petitioner is

entitled in all respects.

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15. He further submits that, there are no charges pending

against the petitioner in view of departmental proceedings i.e.

'Postponement of Increment' for a period of one year without

cumulative effect was awarded, which is a minor punishment. He

further submits that, once the disciplinary proceedings have ended

in minor punishment and after completion of punishment period,

the petitioner is entitled for next promotion.

16. In the present case, the departmental punishment imposed

against the petitioner is 'Postponement of Increment' for a period of

one year without cumulative effect, which was completed by 2003

itself and due to that, the case of the petitioner was considered and

promoted as 'Senior Assistant' on 18.01.2014 and probation was

also declared on 11.02.2015. He further submits that, in view of

the settled principles of service law, since the charges are not

pending against the petitioner either in departmental proceedings

or in criminal proceedings, the petitioner is eligible and entitled for

further promotion as ' Office Superintendent' and the writ petition

is liable to be allowed.

17. Per contra, learned Government Pleader for Services-I would

contend that, the conduct of the petitioner in producing false

certificates is reprehensible. Learned counsel contends that, only

the proceedings of the Trial Court have been stayed, but the

petitioner is not exonerated from the charges completely. Moreover, 8 NV,J W.P.No.21702 of 2021

the Commandant regularized the probation of the petitioner in the

cadre of Junior Assistant and subsequently she was promoted to

the cadre of Senior Assistant, subject to the out of the result in

Crl.M.P.1500 of 2009 in Crl.R.C.No.1095 of 2009 dated

07.07.2009. Learned counsel finally contends that, once conviction

is ordered by the Trial Court which is subsequently set-aside by the

Appellate Court directing to frame appropriate charges, it cannot be

deemed that no charges are pending against the petitioner. Even

though the Hon'ble High Court stayed the proceedings of the Trial

Court, it is implied that the charges or criminal proceedings are

still pending against the petitioner.

18. Learned Government Pleader would submit that, the

contention of the petitioner that in view of stay of all further

proceedings, no charges are pending against the petitioner is not

tenable and it is only misconception of law. He further submits that

the orders of this Hon'ble Court where stay of all further

proceedings was granted in C.C.No.101 of 2007 dated 08.09.2008

on the file of Spl.Judicial Magistrate of First Class, Kurnool as well

as Crl.A.No.124 of 2004 on the file of the Principal Sessions Judge,

Kurnool, which is meant that it is only stay of all further

proceedings and cannot be understood that the charges or charge-

sheet which were already filed are not in force. Therefore, in view of

G.O.Ms.No.66 dated 30.01.1991, once charge sheet is filed in 9 NV,J W.P.No.21702 of 2021

criminal case against any delinquent, till the completion or

conclusion of such criminal proceedings, the authorities can defer

the promotion and the promotion cannot be enforced against the

respondent contrary to G.O.Ms.No.66 dated 30.01.1991.

19. Heard Sri C. Srinivasa Baba, learned counsel for the

petitioner and learned Government Pleader for Services-I.

20. It is an admitted fact that the petitioner is involved in

criminal case i.e. C.C.No.101 of 2007 in which the prosecution filed

charge sheet. After framing charges and conducting Trial, the Trial

Court found the petitioner guilty for the offences punishable under

Sections 417 and 465 I.P.C and convicted for the offence under

Section 248(2) Cr.P.C and sentenced to undergo Simple

Imprisonment for a period of three months and fine of Rs.2,500/-

with default sentence.

21. It is also a fact that the petitioner challenged the judgment

and conviction by way of Crl.A.No.124 of 2008 before the Principal

Sessions Judge, Kurnool, wherein the Appeal was allowed, setting-

aside the conviction and sentence imposed by the Trial Court. But,

in view of the factual circumstances, the matter was remanded to

the Trial Court for framing appropriate charges and for conducting

fresh trial, against which the petitioner preferred Crl.R.C.No.1095

of 2009 before this Hon'ble Court and this Court vide order in 10 NV,J W.P.No.21702 of 2021

Crl.RC MP No.1500 of 2009 dated 07.07.2009 granted interim

order staying all further proceedings in C.C.No.101 of 2007. The

interim order reads as follows:

"There shall be interim stay of all further proceedings in C.C.No.101 of 2007 on the file of the Judicial Magistrate of First Class (Prohibition & Excise), Kurnool, in pursuance of the Judgment dated 08.04.2009 in Crl.A.No.124 of 2008 on the file of the Principal Sessions Judge, Kurnool."

22. Having perused the order passed by this Hon'ble Court as

mentioned above, it is only staying of all further proceedings in

C.C.No.101 of 2007 pursuant to the judgment dated 08.04.2009 in

Crl.A.No.124 of 2008. It cannot be said that, no conviction or

charges are pending against the petitioner unless the criminal

proceedings in C.CNo.101 of 2007 are either quashed or

suspended.

23. In C.O. Armugam and others vs. State of Tamil Nadu1,

the Hon'ble Supreme Court observed as follows:

"it is necessary to state that every civil servant has a right to have his case considered for promotion according to his turn and it is a guarantee flowing from Article 14 and 16(1) of the Constitution. The consideration of promotion could be postponed only on reasonable grounds. To avoid arbitrariness, it would be better to follow certain uniform principle. The promotion of persons against whom charge has been framed in the disciplinary proceedings or charge-sheet has been filed in criminal case may be deferred till

1990 (1) SLRP 298 11 NV,J W.P.No.21702 of 2021

the proceedings are concluded. They must, however, be considered for promotion if they are exonerated or acquitted from the charges. If found suitable, they shall then be given the promotion with retrospective effect from the date on which their juniors were promoted.

24. In G.O.Ms.No.66 General Administration (Services-C)

Department dated 30.01.1991, Paragraph No. 5 reads as follows:

"5. Government therefore, thereby direct that promotion/ appointment by transfer to a higher post in respect of officers who are facing disciplinary proceedings or a criminal case or whose conduct is under investigation and whose case falls under the ground referred to in para 2(iii) of the G.O first read above, shall be deferred, only when charges of misconduct are framed by the competent authority and served on the concerned delinquent officer, or a charge sheet has been filed against him in criminal court, as the case may be."

25. In view of the observation of the Hon'ble Supreme Court in

C.O. Armugam and others vs. State of Tamil Nadu (referred

supra) and in the light of the instruction issued in Paragraph No.5

of G.O.Ms.No.66 General Administration (Services-C) Department

dated 30.01.1991, a promotion of member of service to higher post

can be deferred if any departmental enquiry or criminal case is

instituted against him/her and a charge has been framed or a

charge-sheet has been filed against him/her.

26. By applying the anology of Hon'ble Supreme Court in

C.O. Armugam and others vs. State of Tamil Nadu (referred

supra) and instruction issued in Paragraph No.5 of G.O.Ms.No.66 12 NV,J W.P.No.21702 of 2021

General Administration (Services-C) Department dated 30.01.1991