*THE HONOURABLE SRI JUSTICE P.NAVEEN RAO
+W.P. No.1439 of 2021
% 1.2.2021
#Y Rajasekhar S/o Y Rama Rao Aged 48 years
Occ Inspector of Police
R/o Flat No S4 Anusha Apartments
Yellareddyguda Yousufguda Hyderabad
....petitioner
Vs.
$ The State of Telangana and 2 others
Rep by its Principal Secretary Home Department
Secretariat Hyderabad
.... Respondents
!Counsel for the petitioner : Sri B. Mayur Reddy
Counsel for the Respondents: G.P. for Home
<Gist :
>Head Note:
? Cases referred:
(1995) 2 SCC 570
(2004) 9 SCC 286
2017 (4) ALD 538
2 PNRJ
WP 1439/2021
IN THE HIGH COURT FOR THE STATE OF TELANGANA
********
WRIT PETITION NO. 1439 of 2021
Between :
Y Rajasekhar S/o Y Rama Rao Aged 48 years
Occ Inspector of Police
R/o Flat No S4 Anusha Apartments
Yellareddyguda Yousufguda Hyderabad ....
Petitioner
And
The State of Telangana and 2 others
Rep by its Principal Secretary Home Department Secretariat Hyderabad .... Respondents
JUDGMENT PRONOUNCED ON : 1.2.2021
THE HON'BLE SRI JUSTICE P.NAVEEN RAO
1. Whether Reporters of Local Newspapers may : YES Be allowed to see the Judgments ? :
2. Whether the copies of judgment may be marked : YES
To Law Reporters/Journals :
3. Whether Their Ladyship/Lordship wish to : NO
See fair Copy of the Judgment ? :
3 PNRJ
WP 1439/2021
THE HON'BLE SRI JUSTICE P NAVEEN RAO
WRIT PETITION NO. 1439 OF 2021
ORAL ORDER:
Heard learned counsel for petitioner and learned Assistant
Government Pleader for Home.
2. Petitioner is working as Inspector of Police and aspiring for
promotion as Deputy Superintendent of Police. Having come to know
that exercise is being undertaken by the respondents to effect
promotions to the post of Deputy Superintendent of Police and
apprehending that he is not likely to be considered for promotion on
account of pending criminal case against him, this writ petition is
instituted praying to direct the respondents to consider petitioner for
promotion as Deputy Superintendent of Police in accordance with his
seniority in the cadre of Inspector of Police and in accordance with G O
Ms No. 257 General Administration (Services C) Department dated
10.6.1999 and without reference to CC No. 16 of 2015 pending in the
Court of the Additional Special Judge for SPE and ACB cases at
Hyderabad. Petitioner also seeks direction to consider representation
submitted by him on 19.1.2021 requesting to consider him for promotion
on same lines as prayed in this writ petition.
3. Facts as narrated by the petitioner in the affidavit filed in
support of the writ petition disclose that while he was working in
Nampally police station, he was entrusted with the responsibility to
conduct investigation in Crime No. 256 of 2013 wherein persons by 4 PNRJ WP 1439/2021
name Sadiq Hussain and Shahbaz Hussain @ Gullu Bhai were shown as
accused. Petitioner contends that he conducted investigation, arrested
the accused and produced them in the Court for judicial remand and
prepared the charge sheet in the case. While so, person by name Sadiq
Hussain father of Shahbaz Hussain @ Gullu Bhai stated to have visited
the police station and requested the petitioner to ensure release of his
son and offered money. Upon refusal by the petitioner, said Sadiq
Hussain placed Rs. 20,000/- in the bag of the petitioner without his
knowledge. Crime No. 34/ACB-CR-1/2013 was registered on 24.1.2013
under Section 7 of the Prevention of Corruption Act, 1988 in the ACB
City Range, Hyderabad police station showing the petitioner as accused.
On completion of investigation charge sheet was filed. The petitioner is
facing trial in CC No. 16 of 2015 in the Court of the Additional Special
Judge for SPE and ACB cases at Hyderabad.
4. According to averments made in the affidavit filed in support
of the writ petition, no disciplinary action was initiated against the
petitioner. However, after the incident, petitioner was placed under
suspension but later reinstated into service.
5. Learned counsel for petitioner vehemently contends that
what is alleged against the petitioner is false, made vindictively by the
father of accused only to ensure that petitioner would not investigate
seriously into the allegations leveled against his son and as petitioner
was not obliging to let of son of the complainant.
5 PNRJ
WP 1439/2021
6. He further submits that for no fault of him, there is no
progress in the criminal case, therefore, petitioner cannot be further
harassed and humiliated by denying him promotion as per his eligibility
and suitability. Learned counsel for petitioner placed reliance on the
orders passed by this Court in writ petitions filed by employees claiming
promotion without reference to pending disciplinary proceedings.
7. Learned Assistant Government Pleader for Home asserts that
since petitioner is facing trial in a criminal case on grave allegation of
demand and acceptance of illegal gratification to do official favour, he is
not entitled for granting promotion and pending criminal case cannot be
ignored while assessing suitability of petitioner for promotion.
8. There is no mention in the averments made in the affidavit
filed in support of the writ petition as to whether petitioner was earlier
considered for promotion and was over looked. In the present writ
petition, there is no challenge to the criminal proceedings even on the
ground of inordinate delay in concluding the trial and therefore, Court
is not going into the aspect whether there is inordinate delay in
conducting trial and such delay is not attributable to the petitioner, to
carve out exception and follow the view taken by the Hon'ble Supreme
Court in State of Punjab and others Vs.Chaman Lal Goyel1.
9. Therefore, the only issue requires consideration is pending
criminal case, whether petitioner can be considered for promotion
without reference to criminal proceedings.
1
(1995) 2 SCC 570
6 PNRJ
WP 1439/2021
10. Telangana State and Subordinate Service Rules 1996 (for
convenience referred to as 'General Rules') deal with general conditions of
service of all Government employees. Rule 5 deals with procedure for
promotion to selection posts and non-selection posts. According to this
Rule, non-gazetted posts are not treated as selection posts. According to
sub-rule (a) of Rule 5, all first appointments to a State service and all
promotions/appointments by transfer in that service should be made on
grounds of merit and ability, seniority being considered only where merit
and ability are approximately equal, from the panel of eligible candidates
determined. In case of non-section post, sub-rule (b) contemplates that
promotion should be made in accordance with assessment of fitness of
persons based on seniority position in the immediate lower cadre.
11. Rule 6 deals with method of preparation of panels. The
salient features of this provision are, panel of approved candidates as
envisaged in Rule 5 (a) should be prepared by appointing
authority/authority empowered, in consultation with, the Departmental
Promotion Committee if such posts are outside the purview of the
Telangana State Public Service Commission and the Screening
Committee, in respect of the posts within the purview of Telangana State
Public Service Commission. The appointment should be made from the
panels so drawn. Where no consultation is required from the Public
Service Commission, panel should be prepared ordinarily during the
month of September every year on the basis of estimate of vacancies.
The 1st September of the year shall be reckoned as qualifying date to
determine the eligibility and such panel would lapse on 31st December of 7 PNRJ WP 1439/2021
the succeeding year or when the next panel is prepared, whichever is
earlier. The zone of consideration is confined to 1:3. For computation of
vacancies, 1st September of the year to the 31st August of the succeeding
year should be reckoned as the period.
12. According to Rule 6(i) for non selection posts, competent
authority should prepare list of eligible employees every year i.e., from 1st
September of the year to the 31st August of the succeeding year, after
considering the record sheet and qualifications prescribed.
13. It is appropriate to notice that Rules 5 and 6 of the
Telangana State and Subordinate Service Rules, 1996 do not deal with
the issue of consideration for promotion when disciplinary proceedings
or criminal proceedings are pending. However, these Rules give
sufficient indication when they contemplate assessment of suitability/
fitness the conduct of employee is an important attribute to be looked
into before granting promotion.
14. An employee is entitled to seek advancement in service.
Stagnation in a particular post is anti-thesis to the very concept of
organizing the service. Every employee has right for consideration for
promotion. However, such consideration is subject to seniority, eligibility
and availability of vacancy in the higher cadre. If a person fulfils the
above criteria, granting promotion depends on assessment of suitability.
Once he is found suitable, his promotion cannot be ignored. However,
while assessing the suitability, it is permissible for the employer to take
note of pending disciplinary action/criminal prosecution and side line 8 PNRJ WP 1439/2021
him when there is a cloud on his conduct. More particularly, criminal
prosecution directly attributable to the work of employee is more relevant
as compared to involvement of an employee in criminal proceedings
unconnected to the employment. In the case on hand, crime was
registered against the petitioner on the charge of demand and acceptance
of illegal gratification to do official favour and petitioner is facing trial
before the Special Court. Thus, the conduct of the petitioner as
Inspector of Police is under cloud.
15. One of the important parameters in public employment is
conduct, character and ability to discharge duties and responsibilities by
the employee to the satisfaction of the employer to grant advancement in
service. Therefore, the employer assesses the suitability of the person
before granting promotion and employer can seek to weed out /keep
aside an employee facing disciplinary action/ criminal proceedings till
conclusion of such proceedings. It must be made clear at this stage that
every employee has right for consideration, including an employee facing
disciplinary action/ criminal proceedings but such consideration need
not result in granting promotion, if the policy of the Government is
against granting promotion to an employee facing disciplinary
proceedings/ criminal proceedings.
16. The administrative instructions /orders notified vide
G.O.Ms.Nos.424 General Administration (Services. C) Department, dated
25.05.1976 and G.O.Ms.No.257 General Administration (Ser.C)
Department, dated 10.06.1999 fill the vacuum created in the Rules and
supplement the intendment of the Rules. They reflect the policy of the 9 PNRJ WP 1439/2021
Government on consideration for promotion when disciplinary
proceedings / criminal proceedings are pending.
17. At this stage, it is expedient to consider the policy of the
State Government on consideration for promotion of such Officers. In
the combined State, prior to bifurcation, the Government formulated
promotion policy on consideration of employees/officers facing the
disciplinary proceedings and criminal proceedings and the same is in
force in this State. This State has not adopted sealed cover procedure.
After consideration of the case by the DPC or by the appointing
authority, if the employee is found suitable/fit for promotion, the result
of consideration is declared but his actual promotion is differed till the
proceedings pending against him are concluded. Government notified its
policy vide G.O.Ms.No.424, dated 25.05.19762.
18. For the purpose of such consideration, Government
classified the Officers, who are facing enquiry, trial or investigation, into
three categories. According to G.O.Ms.No.424, dated 25.05.1976,
Officers falling into third category should be deferred for promotion
pending departmental enquiry/trial/ investigation. Most of the litigation
is generated in cases falling into third category.
2 G.O.Ms.No.424 dated 25.5.1976:
The three categories are as under:
(i) An officer with a clean record, the nature of charges/allegations against whom relate to minor lapses having no bearing on his integrity or efficiency, which, even if held proved, would not stand in the way of his being promoted;
(ii) An officer whose record is such that he would not be promoted, irrespective of the allegations/charges under enquiry, trial or investigation; and
(iii) An officer whose record is such that he would have been promoted had he not been facing enquiry, trial or investigation, in respect of charges which, if held proved, would be sufficient to supersede him.
10 PNRJ
WP 1439/2021
19. On further review of this policy and subsequent orders of the
Government, Government notified its fresh policy vide G.O.Ms.No.257
dated 10.06.1999. Learned counsel for petitioner laid great emphasis on
G.O.Ms.No.257 dated 10.06.1999.
20. G.O.Ms.No.257, dated 10.06.1999 mandates that the
concerned authority should bring to the notice of the Departmental
Promotion Committee, the details of the employees in the zone of
consideration for promotion falling under the three categories mentioned
there under i.e., (i) officers under suspension; (ii) officers in respect of
whom a charge sheet has been issued and the disciplinary proceedings
are pending; and (iii) officers in respect of whom prosecution on criminal
charges are pending. Similar categorization of officers as was notified in
G.O.Ms. No. 424 is also incorporated in paragraph-5(B) of this G.O.
21. The G.O. enables consideration of claims of officers falling
under the third category to grant ad hoc promotion, if, even after
completion of two years from the date of the Departmental Promotion
Committee or Screening Committee meeting, there was no progress in
the enquiry/trial/investigation. However, even this consideration is
confined to officers against whom charge leveled is not grave, but is a
minor one, not involving moral turpitude, embezzlement and grave
dereliction of duty.
22. In other words, even if two years time has elapsed after the
earlier Departmental Promotion Committee meeting and there is no
progress in the case, the officer cannot be considered even to grant 11 PNRJ WP 1439/2021
ad hoc promotion if charge leveled is either one of moral turpitude,
misappropriation, embezzlement and grave dereliction of duty or all of
them.
23. Thus, to claim ad hoc promotion, Officer is required to fulfill
two conditions, (i) that even after two years from the date of earlier
Departmental Promotion Committee meeting, there is no progress in the
departmental enquiry/trial/investigation; and (ii) that the allegations
leveled do not deal with moral turpitude, misappropriation,
embezzlement and grave dereliction of duties.
24. As seen from the two Government orders, policy of the
Government is clear and unambiguous; that the Government does not
intend to grant promotion even on ad hoc basis if the allegations leveled
against the employee/officer are grave and that such officer/employee is
facing enquiry/trial/investigation. Since, what is alleged against
petitioner is demand and acceptance of illegal gratification for doing
official favour, the exception carved out is also not attracted.
25. It is settled principle of law that an employee has right for
consideration for promotion, but has no right to ask promotion as a
matter of course [K Samantaray v. National Insurance Company
Limited, (2004) 9 SCC 286]. One of the important parameters of public
service is if an employee is facing disciplinary action/trial on his/her
misdemeanor or misconduct-criminal/civil, he/she should not be
granted promotion. It is not in public interest to grant promotion to an
employee when on serious allegation enquiry/trial is pending against
him. Thus, employee is entitled to be considered for promotion and in 12 PNRJ WP 1439/2021
such consideration even if he is found fit, his promotion can be differed
on the ground that disciplinary proceedings/criminal proceedings are
pending. Thus, employee cannot seek consideration for promotion and
to grant promotion without reference to pending criminal proceedings
and disciplinary proceedings.
26. In W.P.Nos.2688 of 2017 and 3576 of 2017, identical
contentions were urged by the petitioners therein, and sought for
direction to grant promotion without reference to pending departmental
proceedings and criminal proceedings. They were facing charges of
corruption. The above two writ petitions along with several other writ
petitions were considered and common judgment was rendered on
17.04.2017 which was reported as A.Jalender Reddy vs. State of
Telangana and another3. The batch of cases concern different aspects
of non-consideration for promotion pending departmental
proceedings/criminal proceedings including on the ground of inordinate
delay.
27. This Court reviewed precedent decisions on all aspects
concerning grievance of employees against not granting promotion to
them on the ground that disciplinary proceedings and/or criminal
proceedings are pending. Having regard to the policy of the Government,
as noted above, the claims of petitioners in W.P.No.2686 of 2017 and
3576 of 2017 on the identical issue was considered from paragraphs 64
to 101 of the decision reported in the ALD journal and was rejected. The
3 2017 (4) ALD 538 13 PNRJ WP 1439/2021
operative portion of the order in the above two writ petitions reads as
under:
"105. In WP Nos. 2688 of 2017 and 3576 of 2017 admittedly charge sheets are filed and trial has to be conducted. Though petitioners contend that they are not responsible for the delay in completion of trial, it is to be noted that registration of crime and continuation of criminal proceedings is not the subject matter in these writ petitions. To maintain sanctity in public service, no person who is facing such serious allegations can be rewarded with promotion. It is not in public interest. The policy of the Government is clear and unambiguous and in terms thereof petitioners are not entitled for promotion even on ad hoc basis when criminal cases are pending. It cannot be said that such employee is remediless. If he comes clean on the charge of illegal gratification, he can claim all benefits from retrospective date. Thus, these writ petitions deserve to be dismissed. They are accordingly, dismissed."
28. At this stage, if the prayer of the petitioner is seen, on the
one hand, petitioner asks for consideration of his case in accordance
with G.O.Ms No. 257 dated 10.6.1999 and on the other hand he seeks
direction to ignore pendency of criminal case while considering him for
promotion. Both cannot go hand in hand. As noticed above, G.O.Ms No.
257 dated 10.6.1999 categorizes employees on various parameters and
consideration of employee facing disciplinary action/ criminal action
depends on fitting into those parameters. If allegation is grave, such as
demand and acceptance of illegal gratification as in this case, the
question of granting promotion even on ad hoc basis, does not arise. In
the instant case, petitioner has not disclosed as to whether he was
earlier considered for promotion, therefore, question of considering him
for granting ad-hoc promotion also does not arise.
29. For the foregoing reasons, writ petition merits no
consideration and accordingly dismissed. However, it is made clear that
this order does not come in the way of consideration of the petitioner 14 PNRJ WP 1439/2021
strictly in accordance with G O Ms No. 257 dated 10.6.1999 by duly
taking note of pending criminal case. No costs. Miscellaneous petitions, if
any pending, shall stand closed.
__________________ P.NAVEEN RAO,J Date: 01.02.2021 tvk
Note: Mark L R Copy--YES 15 PNRJ WP 1439/2021
THE HON'BLE SRI JUSTICE P NAVEEN RAO
WRIT PETITION NO. 1439 OF 2021
Date: 1.2.2021
