A Appala Swamy Dora vs The Commissioner Of Police
2024 Latest Caselaw 8849 AP

Andhra Pradesh High Court - Amravati

A Appala Swamy Dora vs The Commissioner Of Police on 24 September, 2024

APHC010410652024
                     IN THE HIGH COURT OF ANDHRA PRADESH
                                   AT AMARAVATI                     [3331]
                            (Special Original Jurisdiction)

          TUESDAY ,THE TWENTY FOURTH DAY OF SEPTEMBER
                TWO THOUSAND AND TWENTY FOUR

                                       PRESENT

          THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

                        WRIT PETITION NO: 20989/2024

Between:

A Appala Swamy Dora                                         ...PETITIONER

                                        AND

The Commissioner Of Police and Others                  ...RESPONDENT(S)

Counsel for the Petitioner:

1. G SEENA KUMAR

Counsel for the Respondent(S):

1. GP FOR SERVICES I

2.

The Court made the following:

Rule Nisi. Call for records.

Post the matter after four (04) weeks.

________________________ SUBBA REDDY SATTI, J I.A.No.1 of 2024:-

Heard Sri G.Seena Kumar, learned counsel for the petitioner and Sri S.Raju, learned Assistant Government Pleader for Services appearing for the respondents.

The above writ petition is filed to declare the action of respondent authorities in withholding promotion of the petitioner to the post of ASI, non- selection post on the ground of pendency of criminal case in C.C.No.46 of 2017 on the file of Learned Special Judge for SPE & ACB Cases, Visakhapatnam, as illegal and arbitrary and contrary to Rule 5(b)(i) of the Andhra Pradesh State and Sub-ordinate Service Rules, 1996 (hereinafter referred to as „the Rules‟).

Learned counsel for the petitioner would submit that the petitioner was appointed as Police Constable on 01.02.1984. Based upon the report submitted by the Sub-Inspector of Police regarding the petitioner‟s absence, Articles of Charge vide Memo C.No.28/PR/2011, dated 19.09.2011 was issued. Inquiry officer submitted report on 30.04.2013. Respondent No.1 issued decent note vide C.No.28/PR/2011, dated 05.06.2013 and imposed punishment. The appeal filed by the petitioner was rejected on 19.09.2013. The petitioner filed W.P.No.6864 of 2022, assailing the action of respondent authorities in not promoting the petitioner as Head Constable notionally with effect from 24.06.2012, without reference to the charge memo dated 19.09.2011. The said writ petition was allowed and thus, the petitioner was promoted retrospectively with effect on part with one Sri R.Venkat Rao who is junior. Sri Venkat Rao, junior to the petitioner was promoted as ASI on 31.12.2018. The petitioner filed C.C.No.4362 of 2023. In the said C.C., respondent No.1 filed counter asserting about the petitioner‟s arrest on 23.02.2016 in ACB Trap Case in Cr.No.04/RCT-HC VSP/2016. The same was numbered as C.C.No.46 of 2017 on the file of the Learned Special Judge for SPE & ACB Cases, Visakhapatnam and the same is pending. Juniors to the petitioner are promoted to the cadre of ASI non-selection post, however, petitioner‟s case was not considered.

Learned counsel for the petitioner placed reliance upon the order of Division Bench in W.A.No.550 of 2022. In the said order, the Division Bench observed as follows:

"7. In the Division Bench judgment in State of Andhra Pradesh rep., by its Secretary, Home Department vs. Motupalli Narasimha Raju, Writ Petition No.3099 of 2017, dated 27.08.2021, a Coordinate Bench has held that the post of Head Constable is a non-selection post for the purposes of promotion and therefore, in view of Rule 5(b)(i) of the Andhra Pradesh State and Subordinate Service Rules, 1996, the promotion can be deferred only upon imposition of penalty and not otherwise. It has also been held that the additional embargo, if any created under a G.O., which is not issued in exercise of powers under Article 309 of the Constitution of India, would not override Rule 5(b)(i) of the Rules, which clearly states that promotion to a non-selection post may be denied only if the incumbent is subjected to a penalty and not otherwise. Thus, neither G.O.Ms.No.424, General Administration (Services.C) Department, dated 25.05.1976 nor G.O.Ms.No.66, General Administration (Services.C) Department, dated 30.01.1991 would come in the way of the writ petitioner to claim relief of promotion as has been held by the learned single Judge..."

Given the facts and circumstances of the case and in view of order of the Division Bench, this Court deems it appropriate to direct the respondents to consider the case of the petitioner for promotion to the post of ASI in terms of Rule 5(b) of the Rules, without reference to the pendency of criminal case.

________________________ SUBBA REDDY SATTI, J TVN