Andhra Pradesh High Court - Amravati
B,Gopi Kumar, vs The State Of Andhra Pradesh, on 27 September, 2024
APHC010415842024
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3331]
(Special Original Jurisdiction)
FRIDAY, THE TWENTY SEVENTH DAY OF SEPTEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
WRIT PETITION NO: 21608/2024
Between:
B.Gopi Kumar ...PETITIONER
AND
The State Of Andhra Pradesh and Others ...RESPONDENT(S)
Counsel for the Petitioner:
1. P V RAMANA
Counsel for the Respondent(S):
1. GP FOR SERVICES I
The Court made the following:
ORDER
Heard Sri P.V.Ramana, learned counsel for petitioner, and Sri
S.Raju, learned Assistant Government Pleader for Services for
respondents.
2. Petitioner, Forest Section Officer, Mothigudem Section, filed the
above writ petition seeking to declare the action of respondents in not
considering the petitioner's case for promotion to the post of Deputy
Range Officer, which is a non-Gazette and non-selection post on the
ground of pending articles of charge issued by 2 nd respondent vide
Ref.No.EFS02-19024/53/2020/Vig-1(i), dated 28.06.2021, as illegal
and arbitrary.
3. Learned counsel for the petitioner would submit that a charge
memo (Ex.P2) was issued to the petitioner, for which he submitted an
explanation on 05.07.2021 (Ex.P3). However, so far the inquiry officer
was not appointed. He would also submit that Service Registers in the
cadre of Forest Section Officers are called for to effect promotions vide
Rc.No.1575/2024-M2, dated 17.09.2024 (Ex.P6), wherein the name of
the petitioner is shown at serial No.9.
4. Learned Assistant Government Pleader for Services would
submit that the case of the petitioner for promotion will be considered
in terms of Rule 5(b)(i) of the Andhra Pradesh State and Subordinate
Service Rules, 1996.
5. The Division Bench of this Court in W.A.No.550 of 2022 dated
06.09.2022 observed thus:
7. In the Division Bench judgment in State of Andhra Pradesh
rep., by its Secretary, Home Department vs. Motupalli Narasimha
Raju (W.P.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
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, GA (Ser.C)
department, dated 25.05.1976 nor 5 HCJ & DVSSS, J W.A.NO.550 OF
2022 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 ..."
6. In the case at hand, the charge memo is of the year 2021,
however, the disciplinary inquiry has not been completed so far. The
Government issued G.O.Ms.No.91 dated 12.09.2022 fixing timelines to
complete the inquiries in three months and six months in case of
simple and complicated. Despite the said G.O., the inquiry in the case
has not been completed. For the latches on the part of the
respondents, the petitioner shall not be penalized.
7. Given the facts and circumstances of the case, without going
into merits of the matter, the Writ Petition is disposed of with the
consent of both the counsel at admission stage, directing the
respondents to consider the case of the petitioner for promotion, if he
is in the zone of consideration, in terms of Rule 5(b) of the Andhra
Pradesh State and Subordinate Service Rules, 1996, without
reference to the articles of charge dated 28.06.2021. No costs.
As a sequel, pending miscellaneous petitions, if any, shall stand
closed.
___________________________
JUSTICE SUBBA REDDY SATTI
PVD
