Andhra Pradesh High Court - Amravati

V Satyanarayana vs The State Of Andhra Pradesh on 13 October, 2023

         HONOURABLE SMT. JUSTICE V.SUJATHA

               WRIT PETITION No.2086 of 2023

ORDER:

The present Writ Petition came to be filed under Article 226

of the Constitution of India seeking the following relief:-

".... to issue a Writ, Order or direction more in the nature of Mandamus declaring the action of the respondents in not considering the case of the petitioner for promotion to the post of Deputy Range Officer (non selection and non gazette) on the ground of pendency of Articles of Charges issued in Rc.No.813/2015-N6 dt.15.7.2015 and affecting promotions to juniors on 30.6.2021 and 20.10.2022 in spite of findings submitted by the Enquiry Officer dt.27.11.2019 not proving the charges as illegal, arbitrary and violates Article 14, 16 and 21 of Constitution of India and contrary to the law laid down by the Supreme Court in "Chaman Lal Goel Vs. State of Punjab case reported in 1995 (2) SCC 570 and in the case of Rajeswara Reddy Case Vs. State of A.P. reported in 2010 (4) ALT 374 (DB) and consequently declare that the petitioner is entitled for promotion from the date on which his juniors were promoted with all consequential attendant benefits in the interests of justice ....."

The brief facts of the case are that, the petitioner was

initially appointed as direct recruitee Forest Section Officer in the

year 2008 and posted at Tokaraj Section and also the in-charge

of Sileru Section. Based upon the report of Vigilance dated

14.11.2012, after 3 years Charge Memo was issued on 15.7.2015

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vide Rc.No.813/2015-N6. The charge is that while he was

working as Section Officer at Tokaraj Section from 1.10.2009 to

18.7.2011 and while he was in-charge of Sileru Section, he had

shown negligence in discharging official duty in booking offence

cases OR 199/2009, Seizure of Maruti Car bearing No.AP 31 AC

731 carrying 17 rosewood pieces resulted in theft of Maruti Car.

The incident pertains to 2009-2010. He submitted reply on

7.10.2015 denying the said charge. Thereafter, the Divisional

Forest Officer, Narsipatnam, was appointed as Enquiry Officer on

30.3.2016. On 06.06.2016, 22.7.2016, 30.5.2018 and

30.10.2019 enquiry was conducted. The Enquiry Officer

submitted findings on 27.11.2019 that the charge framed against

the petitioner was not proved. In spite of the same, as on today,

the petitioner has not received any proceedings dropping the

charge.

On 9.9.2020 Seniority List of Forest Section Officers was

prepared by the Conservator of Forests, Visakhapatnam Section

which is the channel for promotions of Deputy Range Officers.

The name of the petitioner stands at S.No.22 in the seniority list.

One P.Ravi Babu, who was junior to the petitioner, stands at

S.No.23 was promoted as Deputy Range Officer on 30.6.2021.

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Smt. Devi Rajeswari, who stands at S.No.24, P.Bhaskar Rao at

S.No.25 and K.Krishna Rao at S.No.26 were promoted as Deputy

Range Officers on 13.2.2022. On 26.10.2022, I.Ramu who stands

at S.No.27 and Ch.Simhachala Patel at S.No.28 were promoted as

Deputy Range Officers.

It is further contended by the learned counsel for the

petitioner that the Government issued instructions in Circular

Memo No.24637/35676/Ser.C./98-I G.A.(Ser.C) dept dt.1.7.1998

and Memo No.24637/Serv.C/2000-2 GA (Ser.C) Dept dt.5.9.2000

to complete disciplinary proceedings within 3 months in simple

cases, and 6 months in complicated cases. A Division Bench of

the High Court rendered judgment in "Rajeswara Reddy

Vs.State of A.P.1" where the disciplinary proceedings were not

completed within 1 ½ year was declared that Government

employee is entitled for promotion to higher category without

reference to Articles of Charges.

Once the Articles of Charges are not proved, the question of

denying the case of the petitioner for promotion to the post of

Deputy Range Officer which is non selection and non gazette on

the ground of not finalizing the departmental proceedings does

2010 (4) ALT 374 (DB)

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not arise. The Apex Court in the case of "Chaman Lal Goel Vs.

State of Punjab2" declared that when the disciplinary

proceedings are not completed for a period of 5 years directed for

promotion without reference to the Articles of Charges. Therefore,

the action of the respondents in deferring the case of the

petitioner for promotion in spite of not proving the charges while

affecting promotions to the higher categories from June 2021 is

illegal and arbitrary. Hence, the writ petition.

Respondent No.4 filed counter contending that, though the

findings were submitted by the Inquiry Officer to the Government

of Andhra Pradesh, Environment, Forests, Science & Technology

(For. IV) Department through the Chief Conservator of Forests,

Visakhapatnam and Prl. Chief Conservator of Forests & Head of

Forest Force, A.P., Guntur during the year 2019-2020; no orders

were received on the Articles of Charges pending against the

petitioner either as on the date of preparation of seniority list for

the category of Forest Section Officer i.e., 01.01.2020,

01.01.2021 & 01.01.2022 or as on the date of preparation of

panel information for the category of Forest Section Officer i.e.,

01.09.2020, 01.09.2021 and 01.09.2022 for promotion to the

1995 (2) SCC 570

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category of Deputy Range Officer. Hence, as per the procedures

laid down in A.P. State and Subordinate Service Rules, 1996, the

seniority lists and panel information are prepared and

promotions were taken up from the category of Forest Section

Officers to the category of Deputy Range Officers with the eligible

candidates duly following the provisions contained in

G.O.Ms.no.88, EFS&T (For.IV) Dept., dt.19.07.2000 and

G.O.Ms.no.84, EFS&T (Sec.V) Dept., dt.31.07.2018.

It is further contended that the disciplinary proceedings

were initiated in connection with the Vigilance and Enforcement

report No.97 against the petitioner. The Government of Andhra

Pradesh of Environment, Forests, Science & Technology (Sec. IV)

Department have issued orders in Govt.Memo.No.996/Sec.IV/A1

/2021, dt.08.08.2022 directing the Head of Departments to refer

all disciplinary cases having vigilance angle, if any to the

Government invariably for taking the advice of Vigilance

Commission at appropriate stages, as per the scheme of Vigilance

Commission and not to finalize the disciplinary cases without

getting Vigilance Clearance from the Government.

The Government of Andhra Pradesh, EFS&T (For.IV)

Department in Govt. Memo.No.8912/Sec.IV/A1/2012, dated

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24.11.2022 have not accepted the findings submitted by the then

DFO, Narsipatnam (Enquiry Officer) in Rc.No.813/2015-N6,

dated 17.12.2019 against the petitioner and instructed to take

necessary action as per A.P. Civil Services (Classification, Control

& Appeal) Rules, 1991 for further inquiry immediately.

Accordingly, the Principal Chief Conservator of Forests & HoFF,

A.P., Guntur has issued instructions in

Ref.no.14465/2014/A&DC-2 (i), dated 13.12.2022 to conduct

further inquiry in the disciplinary case of the petitioner and to

submit the findings for onward submission to the Government.

Accordingly, an enquiry notice was issued to the petitioner in

DFO, Chintapalli Rc.No.813/2015/N6, dated 01.02.2023 to

attend for inquiry on 10.02.2023. Soon after completion of

enquiry, the findings will be submitted to the Government

through the higher authorities. The case of the petitioner will be

considered for promotion to the category of Deputy Range Officer

subject to the outcome of disciplinary proceedings in connection

with the Vigilance and Enforcement Report No.97 pending

against the petitioner and requested to dismiss the writ petition.

Learned counsel for the petitioner would submit that

charge memo was issued to the petitioner on 15.07.2015 and

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that on 30.03.2016, the Divisional Forest Officer, Narsipatnam

was appointed as Enquiry Officer. But, till today, the petitioner

has not received any proceedings. As per Circular Memo

No.24637/35676/Ser.C./98-I G.A.(Ser.C) dept dt.1.7.1998 and

Memo No.24637/Serv.C/2000-2 GA (Ser.C) Dept dated 5.9.2000.

the time limit to complete disciplinary proceedings is 3 months in

simple cases, and 6 months in complicated cases, but in the

present case, even though the charge memo was issued on

15.07.2015, the enquiry was not completed. He further

contended that the action of the respondents in deferring the

case of the petitioner for promotion is illegal and arbitrary.

Learned Government Pleader for Services - I would submit

as the charge framed against the petitioner is grave in nature,

the Government of Andhra Pradesh, EFS&T (For.IV) Department

vide Govt. Memo.No.8912/Sec.IV/A1/2012, dated 24.11.2022

has not accepted the findings submitted by the then DFO,

Narsipatnam (Enquiry Officer) in Rc.No.813/2015-N6, dated

17.12.2019 against the petitioner and instructed to take

necessary action as per A.P. Civil Services (Classification, Control

& Appeal) Rules, 1991 for further inquiry immediately.

Accordingly, the Principal Chief Conservator of Forests & HoFF,

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A.P., Guntur has issued instructions in

Ref.no.14465/2014/A&DC-2 (i), dated 13.12.2022 to conduct

further inquiry in the disciplinary case of the petitioner and to

submit the findings for onward submission to the Government.

Accordingly, an enquiry notice was issued to the petitioner in

DFO, Chintapalli Rc.No.813/2015/N6, dated 01.02.2023 to

attend for inquiry on 10.02.2023 and the case of the petitioner

will be considered for promotion to the category of Deputy Range

Officer subject to the outcome of disciplinary proceedings in

connection with the Vigilance and Enforcement Report No.97

pending against the petitioner and requested to dismiss the writ

petition.

It is an admitted fact that basing upon the report of the

Vigilance dated 14.11.2012, a charge memo was issued on

15.07.2015 i.e. after three years from the date of Vigilance report.

On 30.03.2016, an Enquiry officer was appointed, who has

submitted his report on 21.11.2019 stating that the charge

framed against the petitioner was not proved, but till today the

petitioner has not received any proceeding dropping the charge.

As per the averments made in the counter, the Government of

Andhra Pradesh, EFS&T (For.IV) Department vide Govt.

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Memo.No.8912/Sec.IV/A1/2012, dated 24.11.2022 has not

accepted the findings submitted by the then DFO, Narsipatnam

(Enquiry Officer) in Rc.No.813/2015-N6, dated 17.12.2019

against the petitioner. The Principal Chief Conservator of Forests

& HoFF, A.P., Guntur has issued instructions in

Ref.no.14465/2014/A&DC-2 (i), dated 13.12.2022 to conduct

further inquiry in the disciplinary case of the petitioner. Later, a

notice dated 01.02.2023 was issued to the petitioner to attend for

inquiry on 10.02.2023.

Therefore, it is clear that once enquiry officer was

appointed on 30.03.2016, and he submitted his report, but vide

proceedings Memo.No.8912/Sec.IV/A1/2012, dated 24.11.2022

has not accepted the findings submitted by the then Enquiry

officer and instructed to conduct further inquiry as per A.P. Civil

Services (Classification, Control and Appeal) Rules, 1991. Now,

under the guise of pending enquiry, the case of the petitioner has

not been considered for promotion to the category of Deputy

Range Officer.

The Government issued instructions in Circular Memo

No.24637/35676/Ser.C./98-I G.A.(Ser.C) dept dt.1.7.1998 and

Memo No.24637/Serv.C/2000-2 GA (Ser.C) Dept dt.5.9.2000 to

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complete disciplinary proceedings within 3 months in simple

cases, and 6 months in complicated cases. But, in the present

case, based upon the report of Vigilance dated 14.11.2012, a

charge memo was issued on 15.07.2015. Due to obvious reasons,

the enquiry was not completed for the last 8 years.

In "Rajeswara Reddy Vs.State of A.P." (referred supra)

where the disciplinary proceedings were not completed

within 1 ½ year, the Division Bench of this Court held that the

Government employee is entitled for promotion to higher category

without reference to Articles of Charges.

In "Chaman Lal Goel Vs. State of Punjab" (referred

supra) declared that where the disciplinary proceedings are not

completed for a period of 5 years directed for promotion without

reference to the Articles of Charges.

In "New Bank of India Vs. N.P.Sehgal and another3" the

Apex Court held as follows:

"In considering the submissions of the respective parties, we have to bear in mind that it is accepted before us that in law the mere fact that disciplinary proceedings are contemplated or under consideration against an employee does not constitute a good ground for not considering the employee concerned for promotion if he is in the zone of consideration nor

1991 SCR (1) 473

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would it constitute a good ground for denying the promotion if the employee is considered otherwise fit for promotion."

From the law laid down by the Hon'ble Apex Court in the

judgments referred supra, it can be understood that the

pendency of departmental enquiry is no bar for promotion of the

Government employee, and that the punishment can be imposed

even in the promoted post.

Further, in the present case, for the delay caused by the

concerned authorities in not completing the enquiry, the benefit

of promotion cannot be denied to the petitioner. Moreover, as per

Circular Memo No.24637/35676/Ser.C./98-I G.A.(Ser.C) dept

dt.1.7.1998 and Memo No.24637/Serv.C/2000-2 GA (Ser.C) Dept

dt.5.9.2000 the time limit to complete disciplinary proceedings

is 3 months in simple cases, and 6 months in complicated cases.