Telangana High Court
Nirmala Moluguri vs The District Educational Officer Fac ... on 20 December, 2023
Author: P.Madhavi Devi
Bench: P.Madhavi Devi
THE HON'BLE SMT. JUSTICE P.MADHAVI DEVI
W.P.Nos. 14662 and 14675 of 2021
COMMON ORDER:
In both of these writ petitions, the petitioners are seeking a
writ of mandamus declaring the impugned order dated 26.05.2021
issued by the 1st respondent rejecting the claims of the petitioners
for promotion to the post of Assistant Food Controller/Senior
Scientific Officer and also as Chief Public Analyst respectively,
mechanically and contrary to the Judgment of this Court in
W.P.No.3278 of 2021 and 3279 of 2021 on the ground that a
criminal case is pending against the petitioner, as illegal and
arbitrary and consequently to declare that the petitioners are
entitled for promotion without reference to the pendency of the
criminal case against them.
2. Brief facts leading to the filing of the present writ petitions are
that the petitioner in W.P.No.14662 of 2021 was working as
Gazzetted Food Inspector, Adilabad, while ACB registered a case of
disproportionate assets vide FIR No.03/ACB-ADB/2017, dated
19.08.2017 on the file of I Additional Special Judge for SPE and
ACB Cases, Karimnagar. The case of the petitioner is that he has
been unnecessarily implicated in the disproportionate assets case,
for which he has been placed under suspension on 01.09.2017 and
W.P.Nos.14662 & 14675 of 2021
later reinstated into duty on 04.12.2019. It is submitted that after
registering of the criminal case, there was no further progress in the
investigation and at the time of filing of writ petition, no charge
sheet was filed as there was no sanction for prosecuting the
petitioner in the said ACB case. The learned counsel for the
petitioner submits that the respondents have communicated a
provisional seniority list on 22.10.2020, wherein the petitioner's
name is shown at Serial No.1, but his case was not considered for
the consequent promotion on the ground that ACB case is pending
against him.
3. It is submitted that the petitioner has made a representation
to the respondents to consider his case in terms of G.O.Ms.No.66
GAD, dated 30.01.1991 and also in terms of G.O.Ms.No.257
GA(Ser), dated 10.06.1999 for promotion to higher post even though
disciplinary proceedings were pending against them. It is submitted
that the respondents did not consider his case and therefore the
petitioner had approached this Court by filing W.P.No.3278 of 2021
and by order dated 19.03.2021, this Court directed the respondents
to consider his case strictly in terms of G.O.Ms.No.66, dated
30.01.1991 and G.O.Ms.No.257, dated 10.06.1999. It is submitted
that the 1st respondent has however, rejected the case of the
petitioner by orders dated 26.05.2021 and the grievance of the
W.P.Nos.14662 & 14675 of 2021
petitioner is that the said order is passed mechanically without any
application of mind.
4. Similarly, as regards the petitioner in W.P.No.14675 of 2021,
he was working as Public Analyst/Chief Public Analyst, at the time
when ACB conducted a surprise check at the office of the State Food
Laboratory, Nacharam on 15.07.2017 and a case was booked
against the petitioner. It is submitted that even in the ACB surprise
check, no cash was recovered from the petitioner nor was the
phenolphthalein test proved positive as there was no demand or
acceptance of any bribe. It is submitted that the petitioner was
unnecessarily implicated in the above case and he was arrested and
kept in judicial custody and thereafter, he was placed under
suspension vide proceedings dated 20.07.2017 and was
subsequently reinstated into service on 13.12.2019.
5. It is submitted that after the reinstatement, there is no further
progress in the investigation and no charge sheet is filed and there
was no sanction from the Government for prosecuting the petitioner
in ACB case. It is submitted that though the petitioner was eligible
for further promotion and his name was included in the seniority
list and the persons who are juniors to the petitioner, have been
promoted as Senior Scientific Officer on the ground of pendency of
criminal case in ACB Court against the petitioner. The petitioner
W.P.Nos.14662 & 14675 of 2021
had therefore, made representation to the respondents to consider
his case for promotion in terms of G.O.Ms.66, dated 30.01.1991 and
the same was not considered and that the petitioner filed
W.P.No.3279 of 2021 and vide orders dated 19.01.2021, the writ
petition was disposed of directing the respondents to consider his
case for promotion strictly in terms of G.O.Ms.No.66, dated
30.01.1991 and G.O.Ms.No.257, dated 10.06.1999.
6. It is submitted that thereafter, the 1st respondent has passed
the impugned proceedings dated 26.05.2021 rejecting the claim of
the petitioners herein for promotion mechanically without any
application of mind. Therefore, the present writ petitions are filed by
the respective petitioners.
7. In both the writ petitions, the common ground is that even
though no charge sheet has been filed against the petitioners and
no disciplinary proceedings were initiated against the petitioners,
their promotions have been deferred only on the ground that ACB
cases are pending against them. The petitioners are therefore
seeking directions from this Court to the respondents to consider
their case for promotion in terms of G.O.Ms.No.66, dated
30.01.1991 and G.O.Ms.No.257, dated 10.06.1999.
W.P.Nos.14662 & 14675 of 2021
8. Learned counsel for the petitioners placed reliance upon the
judgment of Hon'ble Supreme Court in the case of Union of India
and Others Vs. Anil Kumar Sarkar1, wherein it is held that
disciplinary proceedings commence only when a charge sheet is
issued and departmental proceedings are normally said to be
initiated only when a charge memo is issued. He also placed
reliance upon the judgment of the Hon'ble High Court of Patna in
the case of Anju Kumar Vs. State of Bihar2, wherein it is held that
when no charge memo was issued in the disciplinary proceedings
nor charge sheet was issued in the criminal proceedings and they
were pending for consideration, then the petitioner is entitled to ACP
and MACP as and when it was due.
9. Learned counsel for the petitioner is seeking direction from
this Court to consider the case of the petitioners for promotion
without reference to ACB cases pending against them.
10. Learned counsel for the respondents placed reliance upon the
averments made in the counter affidavit and submitted that the
case of the petitioners were considered in terms of G.O.Ms.No.66 as
well as G.O.Ms.No.257 and were deferred after due consideration of
their cases. As regards judgments relied upon by the learned
(2013) 4 SCC161
Civil Writ Jurisdiction Case No.7931 of 2021
W.P.Nos.14662 & 14675 of 2021
counsel for the petitioners, he submits that those judgments are
distinguishable on facts. He also places reliance upon the judgment
of this Court in the case of A.Jalender Reddy Vs. State of
Telangana and the State of Andhra Pradesh3 in W.P.Nos.43182 of
2016 and batch, wherein, after considering the issue extensively
and also the impact of G.O.Ms.Nos.66 & 257, this Court has held
that the policy of the Government is clear and unambiguous, that
the Government does not intend to grant promotion even on adhoc
basis if the allegations levelled against the employee/officer are
grave and that such officer/employee is facing
enquiry/trial/investigation and that the allegations levelled deal
with moral turpitude, misappropriation, embezzlement and grave
dereliction of duties. He also referred to the Judgment of this Court
in W.P.No.19217 of 2018, dated 18.06.2018 wherein similar
observations have been made and therefore, he prayed for dismissal
of the writ petitions.
11. Learned counsel for the respondents further submitted that in
the case of the petitioner in W.P.No.14675 of 2021, the Government
has granted permission for prosecuting the ACB Case.
12. Having regard to the rival contentions and material on record,
it is noticed that in both the cases, the ACB cases are pending
2017 SCC Online Hyderabad 621
W.P.Nos.14662 & 14675 of 2021
against the petitioners and they were suspended and subsequently
reinstated into service, but when their cases were to be considered
for promotion, they were deferred on the ground of pendency of ACB
cases against them.
13. In the case of E.Bapuji i.e., petitioner in W.P.No.14662 of
2021, an ACB case was registered on 19.08.2017 and till the date of
the decision of the High Court, admittedly the Government had not
granted permission for prosecution and therefore, in such cases, the
G.O.Ms.Nos.66 and 257 would apply and the respondents are
required to consider his case for promotion. In the case of the
petitioner, i.e., N.Ravindra in W.P.No.14675 of 2021, the
respondents have stated that the prosecution permission was given
by the Government. However, the stage of trial in the criminal case
is not known.
14. In view of the above facts and also that all the relevant facts
are not available before this Court, this Court deems it fit and
proper to direct the respondents to reconsider the case of the
petitioners in both the writ petitions for promotion in terms of
G.O.Ms.Nos.66 and 257 as and when promotion is next due to the
petitioners. However, the promotion so granted shall be subject to
the final outcome of the criminal proceedings against the petitioners
if the trial is concluded against the petitioners.
W.P.Nos.14662 & 14675 of 2021
15. The writ petitions are accordingly disposed of. There shall be
no order as to costs.
Miscellaneous applications, if any pending, shall also stand
closed.
_____________________________
JUSTICE P.MADHAVI DEVI
Date: 29.10.2022
bak
W.P.Nos.14662 & 14675 of 2021
THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
WRIT PETITION Nos. 14662 & 14675 of 2021
Date: 29.10.2022
bak
