Andhra Pradesh High Court - Amravati
G H Elhanan vs The State Of Ap on 21 August, 2024
1
GN, J. & KM, J.
Writ Appeal No.668 of 2024
APHC010330632024
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3487]
(Special Original Jurisdiction)
WEDNESDAY ,THE TWENTY FIRST DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE G.NARENDAR
AND
THE HONOURABLE SMT JUSTICE KIRANMAYEE MANDAVA
WRIT APPEAL NO: 668/2024
Between:
G H Elhanan ...APPELLANT
AND
The State Of Ap and Others ...RESPONDENT(S)
Counsel for the Appellant:
1. P V RAMANA
Counsel for the Respondent(S):
1. GP FOR SERVICES II
The Court made the following:
JUDGMENT:
(per Hon'ble Sri Justice G.Narendar)
Heard the learned Counsel for the Appellant and the learned
Government Pleader for Services-II appearing for Respondents 1 to 3
and the learned Senior Standing Counsel for the 4th respondent.
2. We have perused the order of the learned Single Judge.
3. The parties herein are referred to in this Appeal by their
nomenclature before the learned Single Judge for the sake of
convenience.
GN, J. & KM, J.
4. This intra-Court Appeal is directed against the order, dated
03.04.2024, passed by the learned Single Judge whereby the learned
Single Judge was pleased to reject the following prayer:
"It is therefore prayed that this Hon'ble Court in the interest
of justice be pleased to issue a writ, order or direction more
particularly in the nature of WRIT OF MANDAMUS declaring the
action of the respondents in not considering my case for
promotion to the post of Assistant Secretary on the ground of
pendency of departmental proceedings in RC.No.44-2011 dated
13.12.2012 and C.C. No.17/2012 on the file of the Court of
Hon‟ble Special Judge for SPE and ACB Cases, Vijayawada is
arbitrary, illegal and contrary to G.O.Ms.No.257 GAD (Ser.C)
dated 10.06.1999 issued by the Government of Andhra Pradesh
and Rule 192(2) of Andhra Pradesh (Agricultural Produce and
Live Stock) Rules, 1969 and in violation of Articles 14, 16 and 21
of Constitution of India and to issue a consequential direction to
the 2nd respondent to consider the case of the petitioner to the
post of Assistant Secretary on par with the juniors who are
promoted notionally with all consequential benefits including
seniority and to pass such other order or orders which are
deemed fit and proper in the circumstances of the case."
5. On a reading of the above, it is apparent that the petitioner is
attempting to canvass a case that pendency of the departmental
proceedings is no bar for promotion and in this regard he would place
reliance on the ruling of the Hon'ble Apex Court rendered in the case of
State of Punjab v. Chaman Lal Goyal1.
(1995) 2 SCC 570
GN, J. & KM, J.
6. The learned Single Judge, after considering all these aspects and
all the grounds of challenge and taking note of the facts involved in the
instant case, has been pleased to reject the writ petition.
7. The facts which are not in dispute are that, the complainant had
lodged a complaint with the Anti Corruption Bureau ("A.C.B.") alleging
demand of bribe/illegal gratification by the petitioner for performing an
official work. On the basis of the complaint, the A.C.B. laid a trap and the
petitioner was caught red handed while receiving the bribe. The same
resulted in the arrest of the petitioner and it is not in dispute that the
criminal case registered against the petitioner is pending trial even as on
today. Reasons for the delay are not set out by the petitioner. That
apart, a departmental enquiry was also ordered, which was instituted,
charges were framed and a charge memo was issued to the petitioner. It
is alleged that this memo has been replied to. The above facts are not in
dispute.
8. In the meanwhile, it is the case of the petitioner that his juniors
have been granted promotion and in that view of the matter, the
petitioner is also entitled to be considered for promotion with
retrospective effect and from the date his junior was promoted. There
cannot be two opinions that when all circumstances remain even when
GN, J. & KM, J.
any employee who is superseded or in other words where his junior is
granted career progression, then the employee so superseded or
overlooked would be entitled for consideration of his case from the date
when his junior was granted the benefit of promotion. In the case on
hand, the petitioner is staring at not only a departmental enquiry, but also
a criminal case which came to be registered on a complaint by a third
party and which complaint ended in successful laying of a trap and arrest
of the petitioner.
9. The learned Counsel for the petitioner would attempt to place
reliance on the ruling of the Hon'ble Apex Court rendered in the case of
Chaman Lal Goyal1. The reliance, in our considered opinion, is of no
avail to the petitioner as the facts involved therein and the facts involved
in the instant case are totally at variance. That was a case where
charges came to be framed after a long delay i.e., 5½ years after the
occurrence of the incident. Be that as it may, in the case at hand, the
petitioner was subjected to a trap and he was arrested while receiving
the illegal gratification, which would constitute a major misconduct and it
could not be out of place if we were to state that the petitioner could also
be visited with the major penalty in the form of punishment of dismissal or
removal from service.
GN, J. & KM, J.
10. It is the contention of the petitioner that the delay cannot be
attributed to the petitioner and that the delay of nearly thirteen years has
to be accounted for by the respondents.
11. The perusal of the writ petition papers would not reveal any such
material which would corroborate the allegations set forth by the
petitioner. It is not the case of the petitioner that the prosecution or the
departmental enquiry is actuated by motives and is a mala fide exercise
of power. It is also forthcoming that no attempts have been made by the
petitioner to even seek a direction from this Court to the trial Court for
early closure of the trial or for early completion of the departmental
enquiry.
12. In that view of the matter, the well-reasoned order of the learned
Single Judge does not warrant any interference. In our opinion the
pendency of the departmental enquiry and the criminal prosecution
cannot be wished away.
13. In the event, the petitioner comes out clean both in the criminal
prosecution and in the departmental enquiry, it is open for the petitioner
to make a representation on similar lines and if such a representation is
made, it shall be considered and disposed of within thirty days from the
date of receipt of such representation.
GN, J. & KM, J.
14. Accordingly, the Writ Appeal being devoid of merits and is
dismissed. No costs.
Consequently, miscellaneous petitions, pending if any, shall stand
closed.
____________________
JUSTICE G.NARENDAR
______________________________
JUSTICE KIRANMAYEE MANDAVA
Date:21.08.2024.
cs/anr
