Telangana High Court
Dr.K.Balu vs The State Of Telangana on 12 October, 2023
Bench: Namavarapu Rajeshwar Rao
*THE HONOURABLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
+I.A.No. 1 of 2023
In/and
W.P. No.25505 OF 2018
% 12-10-2023
#Dr. K. Balu
....petitioner
Vs.
The State of Telangana, rep.by its Principal Secretary,
Health Medical & Family Welfare Department,
Hyderabad and others.
....
Respondents
!Counsel for the petitioner : Sri Santhapur
Satyanarayana Rao.
Counsel for the Respondents : G.P for Services-II
<Gist :
>Head Note:
? Cases referred:
IN THE HIGH COURT FOR THE STATE OF TELANGANA
HYDERABAD
****
+I.A.No. 1 of 2023
In/and
+W.P. No.25505 OF 2018
2
Between:
#Dr. K. Balu
....petitioner
Vs.
The State of Telangana, rep.by its Principal Secretary,
Health Medical & Family Welfare Department,
Hyderabad and others.
....
Respondents
ORDER PRONOUNCED ON: 12.10.2023
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR
RAO
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? :
Yes
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? : Yes
3. Whether His Lordship wishes to
see the fair copy of the Judgment? : Yes
_____________________________________
NAMAVARAPU RAJESHWAR RAO, J
3
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
I.A.No.1 of 2023
in/and
W.P.No.25505 of 2018
ORDER:
This writ petition is filed seeking the following
relief:
"...... to issue a writ, order or direction more
particularly one in the nature of Writ of Mandamus declaring
the action of the respondents in not considering the case of the
petitioner for promotion to the post of Additional Director on
the ground of pendency of F.I.R.No.35 of 2014 and Crime No.
10/ACB-KNR/2015, dated l6.05.2017 as illegal, arbitrary and
contrary to Articles 14 and 16 of the Constitution of India and
consequently direct the respondents to consider the case of the
applicant for promotion to the post of Additional Director on
regular basis without reference to FIR No.35 of 2014 and
Crime No.10/ACB-KNR/2015, dated 16.05.2017 .....".
2. Heard learned counsel appearing for the
petitioner.
3. The brief facts of the case are as follows :
The petitioner was appointed as Civil Assistant
Surgeon (Medical Officer) on 16.11.1989 at Primary
Health Centre, Wankidi, Adilabad District, by the 3rd
respondent. Thereafter, he was transferred to the Civil
Hospital, Chennur, Adilabad District and worked there up
to 1995. Subsequently, he was transferred to Area
Hospital, Manchiryal, Adilabad District, and worked there
up to 2002. Thereafter, again he was transferred to the
Community Health Centre, Bellampally, Adilabad District
and worked there up to 2004. In 2004, he got a seat for
P.G. Course and joined for M.D.Course at Kakatiya
Medical College, Warangal and completed his M.D. course
in the year 2007. After completion of his PG course, he
joined duty at District Head Quarters Hospital, and he
was promoted to the post of Deputy Civil Surgeon in the
year 2007 and posted as Deputy DM & HO at ITDA,
Eturnagaram, Warangal District and worked there up to
2009 and promoted as Municipal Health Officer,
Warangal. He has served various places in Tribal and
Rural areas of Adilabad and Warangal District, and he
was promoted to Civil Surgeon (General Line) and posted
as DM & HO, Karimnagar and reported to duty on
04.09.2013 and worked there up to 17.11.2014.
Throughout his entire service, there was no complaint
against him. While working as DM & HO, Karimnagar, a
trap was laid in his office on 17.11.2014. The ACB
authorities have recovered the bribe amount of
Rs.60,000/- from the Senior Assistant in the office for
doing official favour to the defacto-complainant for
cancellation of his deputation. After the trap, the
scientific method by using samples of phenolphthalein
powder and sodium carbonate powder was conducted,
and in the said test, he was not proven. However, he was
falsely implicated in the ACB case, and even the ACB
authorities did not take his version on the day of the trap.
Subsequently, on 17.12.2014, the ACB authorities served
a notice to him and the same was received by him and
also submitted a detailed explanation to the ACB
authorities on 24.12.2014. Not satisfied with the
explanation, the petitioner was kept under suspension
w.e.f. 17.11.2014 and continued under suspension upto
07.06.2017. Based on the FIR, a criminal case was also
registered against the petitioner in Cr.No.35/ACB-
KNR/2014 and produced him before the II Additional
Special Judge for SPE and ACB Cases at Hyderabad, and
he got bail. The said case is pending adjudication before
the Court below. Thereafter, his suspension was revoked,
and he was reinstated into service and joined duty on
08.06.2017 and posted as Additional DM & HO, ITDA
Utnoor, Adilabad District and working, as such, in the
said place till date.
4. While the matter stood thus, the 3rd
respondent intended to fill the vacant posts of Additional
Directors from the category of Civil Surgeon (General
Line)/Civil Surgeon Specialist under the administrative
control of DPH & FW, Telangana State, Hyderabad, for
the panel year 2017-18 vide proceedings
Rc.No.3556/E1B/2018, dated 05.02.2018 duly enclosing
the seniority list and provisional seniority list requesting
to furnish the confidential reports for the last five years
from 2012-13 to 2016-17 along with 'No charge
Certificate', 'no due Certificate' with Service Registers and
service particulars in respect of Civil Surgeon (General
Line)/ Civil Surgeon Specialist at the earliest on or before
17.02.2018, so as to enable the 3rd respondent to submit
DPC proposals to the 1st respondent for filling up of the
posts of Additional Directors for the panel year 2017-18.
5. Learned counsel appearing for the petitioner
submits that the petitioner is eligible for promotion to the
post of Additional Director, and he stood at Sl.No.5 with
Rank No.9667 in the provisional seniority list issued by
the 3rd respondent. Five posts of Additional Directors are
vacant to be filled in the panel year 2017-18. The
candidate at Sl.No.1 in the provisional seniority list is
retired on 30.06.2018 and thereafter, the petitioner would
stand at Sl.No.2 and has a fair chance of getting
promotion to the post of Additional Director. The
petitioner is afraid his candidature may not be considered
for promotion to Additional Director as the 3rd respondent
has categorically mentioned that the suspension period is
to be regulated.
6. Learned counsel appearing for the petitioner
further submits that the alleged incident occurred during
the year 2014. The petitioner has furnished his detailed
explanation, and since three years have passed, the
enquiry has not been completed in spite of the specific
time fixed by the Government to complete the enquiry
within the period of six months. Till today, the enquiry
has not been completed.
7. Learned counsel for the petitioner further
submitted that as per G.O.Ms.No.257 dated 10.06.1999,
the petitioner is eligible for promotion to the post of
Additional Director and therefore, the petitioner's case
may be considered for promotion as per G.O.Ms.No.257,
General Administration (Ser.C) Department, dated
10.06.1999. The relevant portion of G.O.Ms.No.257 dated
10.06.1999 reads as follows :-
"the Ministry of Personnel, Public Grievances
and Pensions, Government of India, have issued
guidelines in regard to consideration of
Government servants against whom disciplinary or
court proceedings are pending or whose conduct is
under investigation, for promotion to next higher
categories. Keeping in view the said guidelines,
orders have been issued in the G.O. fifth read
above, for consideration of employees for adhoc
promotion where the disciplinary case/criminal
prosecution against the Govt. employees is not
concluded even after the expiry of two years from
the date of the meeting of the first Departmental
Promotion Committee, in which the employee was
considered, in case the employee is not under
suspension.
Government also order that with immediate
effect the following procedure and guidelines, be
followed to consider the employees against whom
disciplinary cases or criminal prosecution are
pending or whose conduct is under investigation,
for appointment by promotion or transfer, to next
higher categories.
A. The details of employees in the zone of
consideration for promotion falling under the
following categories should be specifically brought
to the notice of the Departmental Promotion
Committees or Screening Committees :
i) Officers under suspension;
ii) Officers in respect of whom a charge sheet has
been issued and the disciplinary proceedings are
pending;
iii) Officers in respect of whom prosecution or
criminal charge is pending.
B. Officers who are facing enquiry, trial, or
investigation can be categorised into the following
groups based on the nature of the allegations of
charges pending against them or about to be
instituted, namely:
(i) an officer with a clean record, the nature of
charges or 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 or
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."
8. Learned counsel appearing for the petitioner
further submitted that the petitioner is entitled to
promotion as per the order of the Division Bench of this
Court in W.P.No.18774 of 2014 dated 10.07.2014,
wherein this Court held as follows :-
"In view of the above decision, it is clear that
to deny the promotion at the relevant point of time,
the charge memo has to be issued or charge-sheet
has to be filed against the delinquent officer in the
competitive criminal Court. In this case, no charge
sheet is filed before the criminal court and no charge
memo was issued by the disciplinary authority.
Hence, the case of the petitioner has to be
considered in accordance with the rules without
referring to the crime registered against him in
Cr.No.6/RCA-EWG/2011 for the offence under
Section 13(2) read with 13(1)(e) of the Act."
9. But, in the present case, after lapse of several
years, charge-sheet was not filed against the petitioner.
10. The contention of the petitioner is that the
incident occurred on 17.11.2014 and charge-sheet was
not filed against him and without filing the charge-sheet,
his promotion cannot be stopped. Further, according to
the above order of the Division Bench of this Court and as
per G.O.Ms.No.257, dated 10.06.1999, the petitioner is
eligible for promotion.
11. Learned counsel for the petitioner further
submitted that during the pendency of the present writ
petition, the juniors of the petitioner were promoted vide
G.O.Rt.No.441, Health, Medical & Family Welfare (B1)
Department, dated 29.08.2019. Therefore, the petitioner
filed I.A.No.1 of 2023 seeking a direction to the
respondents to consider his case for promotion to the post
of Additional Director of Medical & Health Services on par
with his juniors, whose cases were considered vide
G.O.Rt.No.441, dated 29.08.2019 by following the
judgment of the Division Bench of this Court in
W.P.No.18774 of 2014, dated 10.07.2014, without
referring to the pendency of FIR and criminal case
registered against the petitioner.
12. Learned Government Pleader for Services-II
appearing for the respondents filed counter stating that
the 1st respondent has considered the names of the
following persons for promotion to the post of Additional
Directors of Medical and Health Services/Regional
Directors of Medical and health Services :
"1.Dr.K.Usha Rani, CS (GL)
Dr.K.Balu, CS (GL) (promotion should be
deferred until termination of the disciplinary
proceedings).
2. Dr.K.Ravinder Naik, CSS
3. Dr.Ameerya (Amar), CSS
Dr.Mothillal Naik CSS (promotion should be
deferred until termination of the disciplinary
proceedings )
4. Dr.Amar Singh Naik, CSS
5. Dr.P.N.Shoba Devi, CSS"
13. Aggrieved by the said order, the petitioner has
filed the present writ petition. This Court in I.A.No.1 of
2018, dated 17.12.2018 passed the following interim
order :
"Pending further orders, respondents
shall consider petitioner's case for promotion to
the post of Additional Director strictly in
accordance with G.O.Ms.No.257 General
Administration (Ser.C), Department, dated
10.06.1999 as and when promotion to the said
post are taken up."
14. Pursuant to it, the 1st respondent has issued
proceedings dated 20.06.2019 to the petitioner stating
that the DPC Committee has considered his name on
21.07.2018 but deferred his case for promotion for the
panel year 2017-18, in view of pendency of the
disciplinary proceedings.
15. In their counter, it is also stated as follows :
'The petitioner has been informed that as
per G.O.Ms.No.257, GA (Ser.C), Department,
dated 10.06.1999 at para -B (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. He is also informed that the officers
categorised as under item (iii) of
G.O.Ms.No.424, GA (Ser.C) Department, dated
25.05.1976 as mentioned above only should be
considered for ad hoc promotion after
completion of two years from the date of DPC or
screening Committee meeting in which their
cases were considered for the first time."
16. It is further stated in the counter that the
petitioner was informed that his request for considering
his case for promotion to the post of Additional Director is
not feasible as per the guidelines issued in
G.O.Ms.No.257 dated 10.06.1999 since two years period
from the date of DPC is not completed. Accordingly his
request was rejected vide speaking orders dated
20.06.2019. Aggrieved by the same, the petitioner has
filed C.C.No.1092 of 2019. This Court has closed the
Contempt Case, which reads as under :
"The counsel for petitioner states that the
order whose contempt is alleged in this
contempt case has since been complied with.
Therefore, the contempt case is closed."
17. It is further stated that after the issuance of
speaking orders vide Memo No.1106/B1/2019 dated
20.06.2019 only one DPC has been conducted for the
panel year 2020-2021 and at present, there are no
vacancies of Additional Directors. After examining the
written statement of defence of the charged officer
Dr.K.Balu, Additional Director (Leprosy), Office of the
Director of Public Health and Family Welfare, Hyderabad
was appointed as an Inquiring Authority vide
G.O.Rt.No.226, dated 22.04.2022. The enquiry report is
awaited. The petitioner is not eligible for promotion as per
Rule 6 of TS SSS Rules since the merit list seniority is the
criteria for promotion. As per the Government instruction
issued in G.O.Ms.No.257, dated 10.06.1999, his case is
already rejected. Therefore, there are no merits in the
writ petition and the same is liable to be dismissed.
18. This Court, having considered the above
submissions made by learned counsel for the petitioner
and as per the counter affidavit filed by the respondents,
is of the view that this Court granted interim direction on
17.12.2018, and the respondent authorities did not
consider the same. Aggrieved by the said action of the
respondents, the petitioner has filed a Contempt Case and
the said Contempt Case was closed, after recording the
submission made by the learned counsel for the
petitioner. Once the Contempt Case was closed in
compliance with the interim order, the question of
rejection of the petitioner's case does not arise. Even
otherwise also, the rejection was not because of his
ineligibility and only because of non-availability of
vacancies of Additional Directors. It means, if there are
vacancies, the petitioner must have been promoted to the
post of Additional Director. So, the question of
ineligibility of the petitioner does not arise in the present
case.
19. Once there is a specific condition to complete
the enquiry within a specified time, due to the delay of the
Government, the petitioner cannot be made to suffer for
getting promotion and his case was rejected on the
ground of non-availability of vacancies, but not due to the
ineligibility of the petitioner. Further, in W.P.No.18774 of
2014 dated 10.07.2014, this Court in the similar
circumstances has specifically directed the respondents
therein to consider the case of the petitioner therein
without referring to the criminal case registered against
the petitioner therein. Further, learned counsel for the
petitioner submitted that the juniors of the petitioner were
promoted to the post of Additional Director vide
G.O.Rt.No.441, dated 29.08.2019.
20. Therefore, the respondents are directed to
consider the case of the petitioner for promotion to the
post of Additional Director in terms of G.O.Ms.No.257,
dated 10.06.1999, on par with his juniors, whose cases
were considered vide G.O.Rt.No.441, dated 29.08.2019,
by following the judgment of the Division Bench of this
Court in W.P.No.18774 of 2014, dated 10.07.2014,
without referring to the pendency of FIR No.35 of 2014
and Cr.No.10/ACB-KNR-2015, dated 16.05.2017
registered against the petitioner.
21. Accordingly, I.A.No.1 of 2023 and the writ
petition are disposed of. No order as to costs.
As a sequel, the miscellaneous petitions pending, if
any, shall stand closed.
_____________________________________
NAMAVARAPU RAJESHWAR RAO, J
Date:12-10-2023
Note:
L.R.copy to be marked
(B/o)
Prv
