Andhra Pradesh High Court - Amravati

Sri.V.Devanand, vs The Honble High Court Of A.P. on 22 November, 2024

Author: R Raghunandan Rao

Bench: R Raghunandan Rao

APHC010123782021

                   IN THE HIGH COURT OF ANDHRA PRADESH
                                 AT AMARAVATI                     [3488]
                          (Special Original Jurisdiction)

         FRIDAY,THE TWENTY SECOND DAY OF NOVEMBER
               TWO THOUSAND AND TWENTY FOUR

                               PRESENT

      THE HONOURABLE SRI JUSTICE R RAGHUNANDAN RAO

             THE HONOURABLE SRI JUSTICE HARINATH.N

                      WRIT PETITION NO: 7180/2021

Between:

Sri V.Devanand.                                          ...PETITIONER

                                  AND

The Honble High Court of A P and Others             ...RESPONDENT(S)

Counsel for the Petitioner:

1. G V SHIVAJI

Counsel for the Respondent(S):

1. DEVALARAJU ANIL KUMAR

2. A JAYANTHI

The Court made the following Order:

(per Hon'ble Sri Justice R. Raghunandan Rao)

The petitioner was working as an Attender in the judicial

department and was called for an interview for selection to the post of

Field Assistant in Chittoor District, vide proceedings, dated 03.03.2021.

The petitioner was shown at Sl.No.6 of the 44 candidates who were

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called for such interview. The petitioner had attended the interview.

However, the name of the petitioner was not included in the list of 13

successful candidates who were promoted as Field Assistants, by way of

proceedings of the 2nd respondent-Principal District Judge, dated

09.03.2021, bearing Dis.No.1665/Estt./A1/2021. The petitioner also states

that three of his juniors found place in the said list.

2. The petitioner being aggrieved by denial of promotion had

made a representation dated 14.03.2021 to the 1st respondent.

Subsequently, the petitioner approached this Court, by way of the present

writ petition with the complaint that the representation of the petitioner

had not been considered by the 1st respondent. The primary contention of

the petitioner, at the time of the filing of the writ petition, was that he could

not have been denied promotion in as much as his juniors in service, who

had put in less period of service, had been promoted while he had been

denied promotion despite having appeared in the interview.

3. The 2nd respondent filed a counter affidavit. In this counter

affidavit it was stated that on 06.10.2020, the Junior Civil Judge,

Satyaveedu, where the petitioner was working as process server, had

issued a memo dated 06.10.2020, calling for an explanation as to why he

was not serving summons and notices entrusted to him in various suits

and execution petitions. The petitioner sought time, on 08.10.2020, to

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give his explanation. As no explanation was subsequently submitted by

the petitioner, the Junior Civil Judge, Satyaveedu had sent a report dated

14.12.2020, which was received by the 2nd respondent on 17.12.2020.

Upon being requested to give the details of the suits and notices which

were not being served by the petitioner, the Junior Civil Judge had, by

communication, dated 18.01.2021, furnished details of 25 cases in which

the process had been abnormally delayed.

4. The 2nd respondent, after receipt of this information, called

for the record of service of notices. Upon such report being submitted, the

2nd respondent, after considering the report, had issued articles of charge,

in Form-I, on 03.03.2021 to the petitioner. There were 17 articles of

charge set out in this form. The said articles of charge along with the

annexures and forms were communicated, on 04.03.2021, to the Junior

Civil Judge, Satyaveedu with a direction to serve these articles of charge

on the petitioner.

5. While these articles of charge were being framed, the Junior

Civil Judge, Satyaveedu, sent another communication, dated 01.02.2021,

forwarding the written complaint of the advocates, of the Satyaveedu Bar

Association, raising severe allegations of corruption against the petitioner

and the explanation given by the petitioner, dated 30.01.2021. The 2nd

respondent upon receipt of these communications had directed the Junior

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Civil Judge, Satyaveedu, by proceedings dated 03.02.2021 to record the

statements of the signatories of the complaint given by the advocates of

Satyaveedu Bar Association. There are various other communications

and correspondence set out by the 2nd respondent in his counter affidavit.

It would suffice, at this point to record that various acts on indiscipline of

the petitioner etc., were reported to the 2nd respondent.

6. The 2nd respondent further states that the petitioner had

appeared for the interview for promotion to the post of Field Assistant, on

06.03.2021 but did not appear in the interview for promotion to the post of

Junior Assistant. The Principal District Judge, keeping in view the fact that

action had already been initiated against the petitioner on 04.03.2021 and

after noticing the other complaints raised against the petitioner had

determined that the petitioner was ineligible for promotion on account of

the pending departmental enquiry on account of the confidential reports

received by him about the petitioner.

7. All the aforesaid statements relate to events prior to

06.03.2021. The 2nd respondent further states that the petitioner after

attended the interview on 06.03.2021, had absconded from 08.03.2021

without obtaining any prior permission of the Presiding Officer or after

applying for leave. A report to this effect had been submitted by the

Additional Junior Civil Judge, Srikalahasthi who was holding additional

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charge of post of Junior Civil Judge, Satyaveedu. In the aforesaid report,

it was also stated that the petitioner had informed one of the staff

members, telephonically, on 08.03.2021 that he would not be attending

office as he was unwell and would be applying for leave. As the petitioner

was not attending court, the notices were sought to be served on the

petitioner by a Junior Assistant. However, the petitioner refused to receive

the charge memos along with articles of charge on the ground that he

was applying for medical leave. Further attempts to serve the papers on

the petitioner were futile as the petitioner was not available for receiving

the documents.

8. The 2nd respondent has also filed detailed various acts of

indiscipline of the petitioner to contend that the petitioner was not entitled

for any promotion.

9. The petitioner has filed a reply affidavit to the said counter

affidavit of the 2nd respondent. The petitioner contends that the charge

memos dated 03.03.2021 and 04.03.2021 were served on the petitioner

only on 27.03.2021 and were antedated to show the dates of 03.03.2021

and 04.03.2021 solely to deny promotion to the petitioner. The petitioner

contends that he was working and on duty on 07.03.2021. The petitioner

also states, in the reply affidavit, that the proceedings initiated under the

charge memo had resulted in imposition of punishment of loss of one

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increment, with cumulative effect against which an appeal had been filed

and the same is pending. The petitioner denied various statements made

by the 2nd respondent in his counter affidavit. The petitioner contends that

the petitioner could not have been denied promotion on the ground of the

charge memo said to have been issued on 04.03.2021 and that the same

was not served on him till 27.03.2021.

10. Sri G. Sivaji, learned counsel for the petitioner would contend

that the petitioner could not have been denied promotion on the ground of

pending disciplinary proceedings in as much as the said proceedings can

only be treated as pending from the date on which the charge memos

were served on the petitioner and in any event these charge memos were

antedated to suit the interest of the respondent and to cover up the

lacuna that no disciplinary proceedings were pending against the

petitioner by the date of interview or publication of the list of successful

candidates.

11. The petitioner has also filed an additional reply affidavit in

which it was stated that the endorsement, on the charge memo, dated

03.03.2021, would show that the charge memo was received by the

Junior Civil Judge, Satyaveedu only on 06.03.2021 and consequently no

charge memo could have been served on the petitioner before the

interview on 06.03.2021. The petitioner also contends that

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G.O.Ms.No.104 dated 16.02.1990 relied upon by the respondents to

contend that the petitioner could be denied promotion on account of

pending disciplinary proceedings would not stand scrutiny as

G.O.Ms.No.257, dated 10.06.1999 had laid down comprehensive

guidelines to the contrary. The petitioner would also contend that a

Division Bench of this Court following an earlier Judgment of the Hon'ble

Supreme Court had held that pendency of a departmental enquiry is no

bar for promotion of a government employee in as much as punishment

can be imposed even in the promoted post and that the Andhra Pradesh

State and Subordinate Rules, 1996 which are applicable to the petitioner

do not provide for any such denial of promotion.

12. The government has been issuing various Government

Orders setting down guidelines as to when promotions can be denied on

the ground of pending disciplinary proceedings. The government in

G.O.Ms.No.424, dated 25.05.1976, had issued instructions for

consideration of claim for promotions, by officers who are facing enquiry

in any departmental proceeding are before the criminal Court. The

guidelines therein provided that the promotion of officers facing enquiry

should be delayed till the said enquiry is completed. The methodology in

which the promotions were to be given with retrospective effect if such

officers were exonerated was also set out. Thereafter, G.O.Ms.No.104,

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dated 16.02.1990 came to be issued. Further guidelines in relation to the

same issue were set down. These guidelines also provided for delaying

the promotion of the officer until he was exonerated. The petitioner is

relying on G.O.Ms.No.257, dated 10.06.1999, In this G.O, government

had issued certain guidelines about how promotions to employees

against whom disciplinary cases or criminal prosecution is pending, is to

be done. In this G.O, the officers were categorized into various categories

and different standards to be applied in relation to the officers depending

upon the category into which they are put into.

13. It appears various organizations of employees had

approached the government with the complaint that promotions of

government employees were being delayed inadvertently as the enquiries

initiated against said employees were not being completed in a

reasonable frame of time. Keeping this grievance in mind, the

government again issued G.O.Ms.No.529, dated 19.08.2008, stipulating

that ad-hoc promotions could be considered, pending finalization of

penalty.

14. A conjoint reading of all these government orders would

clarify that the promotion of an officer can be kept in abeyance, when

such an officer is facing a departmental enquiry or criminal case.

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15. The petitioner, in this regard, contends that such a course of

action can be taken only when disciplinary proceedings had been initiated

before the case of the officer for promotion came to be considered. The

petitioner contends that the disciplinary proceedings against him can be

said to have been initiated only from 27.03.2021 when the notice was

served upon him. This contention cannot be accepted as disciplinary

action had been initiated on 04.03.2021 itself and the case of the

petitioner, for promotion came up only on 06.03.2021.

16. The 2nd contention raised by the petitioner is that the

guidelines set out in the above G.Os would apply to selection posts and

not to non selection posts. He would contend that Rule-5 (b) of the

Andhra Pradesh State and Subordinate Service Rules, 1996 states that

promotion to non selection posts shall be made only on the basis of

seniority cum fitness and such promotions cannot be withheld except as a

as a penalty. The petitioner contends that since the post of Field Assistant

is a non selection post, the promotion of the petitioner could not have

been withheld even on the ground of pending disciplinary proceeding.

17. Rule 5 of the Andhra Pradesh State and Subordinate Service

Rules, 1996 reads as follows:

5. SELECTION POSTS:- (a) All first appointments to a State Service and all promotions / appointment by transfer in that service shall be

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made on grounds of merit and ability, seniority being considered only where merit and ability are approximately equal, by the appointing authority as specified in the sub-rule (a) of rule 7 from the panel of candidates. Such panel shall be prepared as laid down in rule 6 by the appointing authority or any other authority empowered in this behalf.

(b) Non-Selection posts:- No non-gazetted post should be treated as selection post. Promotion and appointment by transfer to higher posts other than those mentioned in sub-rule (a) shall be made in accordance with seniority-cum-fitness, unless: