Telangana High Court

Mittakola Chandra Mouli vs The State Of Telangana on 24 October, 2024

         THE HON'BLE SRI JUSTICE PULLA KARTHIK

                  WRIT PETITION No.17601 of 2023
ORDER:

This Writ Petition, under Article 226 of the Constitution of India, is

filed seeking the following relief:

"...to issue an appropriate 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 Deputy Chief Executive Officer and rejecting the claim of the petitioner for promotion vide Memo.PRRD-DEST- 1/49/2021. Dt: 17.5.2023 on untenable ground of pendency of currency of penalty even after the currency of punishment was dropped vide G.O.Rt.No. 421, dt: 9.11.2021 as illegal, arbitrary and also violation of guidelines laid down in G.O.Ms.No. 104, dt: 16.2.1990 and seaside the same by holding that the petitioner is entitled for promotion to the post of Deputy Chief Executive Officer from the date of his immediate juniors were promoted on the strength of the orders of dropping punishment in G.O.Rt.No.421, dt: 9.11.2021 issued by the 1st Respondent herein in terms of G.O.Ms.No. 104, GAD (Services) Department, dt: 16.2.1990 with all consequential benefits and to pass..."

2. The brief facts of the case are that the petitioner was initially

appointed as a Village Development Officer on 15.06.1989, and later,

promoted as Extension Officer (RD) and Mandal Parishad Development

Officer (MPDO) in 1998 and 2000 respectively, and since then, he has

been discharging his duties as an MPDO. While so, on 22.11.2021, the

petitioner submitted a representation to respondent No.1 requesting to

consider his case for promotion to the post of Deputy Chief Executive

PK, J

Officer on par with his juniors. Aggrieved by the inaction of the

respondents in considering his case for promotion, the petitioner filed

W.P.No.17577 of 2021, and the same was disposed of vide order dated

30.07.2021 directing the respondents to consider the case of the

petitioner for promotion to the post of Deputy Chief Executive Officer

strictly in terms of G.O.Ms.No.257 dated 10.06.1999 and also

G.O.Ms.No.66 dated 30.01.1991, and pass appropriate orders thereon

within a period of four weeks. Thereafter, in compliance of the said

order, respondent No.1 has issued proceedings dated 21.09.2021

rejecting the claim of the petitioner. Challenging the same, the petitioner

once again approached this Court and filed W.P.No.16776 of 2022 and

the same was disposed of vide order dated 24.01.2023 directing the

respondents to consider the representation of the petitioner dated

22.11.2021 and pass appropriate orders for promotion to the post of

Deputy Chief Executive Officer within eight weeks from the date of

receipt of a copy of that order. In compliance of the same, respondent

No.1 has issued the present impugned order dated 17.05.2023 once

again rejecting the claim of the petitioner for promotion to the post of

Deputy Chief Executive Officer. Hence, the present writ petition.

3. Heard Sri M. Bharath Shah, learned counsel, representing Sri D.

Linga Rao, learned counsel for the petitioner, learned Government

PK, J

Pleader for Services-II, on behalf of respondent Nos.1 and 2, and Sri P.

Kishore Rao, learned Standing Counsel for respondent No.3-Zilla Praja

Parishad.

4. Learned counsel for the petitioner contends that, despite dropping

the punishment of stoppage of one annual grade increment without

cumulative effective vide G.O.Rt.No.421 dated 09.11.2021, the

respondents are not considering the case of the petitioner for promotion

to the post of Deputy Chief Executive Officer, which is contrary to the

orders issued in G.O.Ms.No.104 dated 16.02.1990, which states that an

employee who is exonerated from charges, shall be issued orders of

promotion, with effect from the date on which his immediate junior was

promoted. It is further contended that several juniors of the petitioner

were promoted to the post of Deputy Chief Executive Officer as per

G.O.Rt.No.329 dated 31.08.2021, and that since the currency of

punishment was dropped on 09.11.2021 itself, the petitioner is fully

qualified and eligible for promotion to the said post on par with his

juniors. It is further submitted that respondent No.1 issued a memo

dated 21.08.2021 stating that the case of the petitioner for promotion

may be reviewed after the punishment period is concluded. As such, in

view of dropping of the punishment vide G.O.Rt.No.421 dated

09.11.2021, the petitioner is entitled for promotion.

PK, J

5. It is further contended that the respondents are denying

promotion to the petitioner periodically by altering the grounds to that of

departmental and criminal proceedings initiated in view of the

subsequent sanction orders for prosecuting, and without taking into

consideration the petitioner's eligibility for promotion as on the date on

which his immediate juniors are promoted. The grounds alleged in the

present impugned order dated 17.05.2023 differ from those in the earlier

rejection order dated 21.09.2021. As such, it is clear that the

respondents have issued the present impugned order with the intention

of circumventing the order of this Court dated 24.01.2023 in

W.P.No.16776 of 2023 by creating a novel method of alleging new

grounds. Thus, the action of the respondents in rejecting the claim of

the petitioner for promotion to the post of Deputy Chief Executive Officer

on the alleged ground of pendency of departmental and criminal

proceedings initiated subsequent to the date on which his juniors were

promoted, is illegal, arbitrary and also in violation of the guidelines

issued in G.O.Ms.No.104 dated 16.02.1990. Therefore, it is prayed to

allow the present writ petition.

6. Per contra, learned Government Pleader for Services-II submits

that the punishment of withholding of one annual grade increment

without cumulative effect was imposed on the petitioner vide proceedings

PK, J

dated 16.02.2021. However, while allowing the appeal preferred by him

vide G.O.Rt.No.421 dated 09.11.2021, respondent No.1 has dropped the

said punishment imposed on the petitioner. It is further submitted that

criminal proceedings under Section 13(1)(e) r/w. 13(2) of the Prevention

of Corruption Act, 1988, are initiated against the petitioner, on the

allegation of possession of disproportionate assets. The said proceedings

are still pending against the petitioner. Therefore, in compliance of the

orders of this Court dated 24.01.2023 in W.P.No.16766 of 2022, the

Government has issued orders in Memo dated 17.05.2023 rejecting the

claim of the petitioner for promotion to the post of Deputy Chief

Executive Officer. As such, there are no merits in the present writ

petition, and it is prayed to dismiss the same.

7. Learned Standing Counsel for respondent No.3 submits that an

article of charge has been issued against the petitioner vide

G.O.Ms.No.45 dated 15.02.2022, in connection with the disciplinary

proceedings under Rule 20 of the Telangana State Civil Services

(Classification, Control and Appeal) Rules, 1991, on the allegation of

possession of disproportionate assets. Thereafter, the Government, vide

G.O.Rt.No.381 dated 25.11.2022, has appointed the Additional Collector

(LB), Warangal District, as an enquiry officer to conduct a detailed

enquiry into the charges framed against the petitioner. As such, in view

PK, J

of the pendency of the disciplinary proceedings, the Government has

rejected the claim of the petitioner for promotion to the post of Deputy

Chief Executive Officer. Therefore, the respondents are justified in

issuing the rejection order vide impugned order dated 17.05.2023. As

such, it is prayed to dismiss the present writ petition.

8. This Court has taken note of the rival submissions made by the

learned counsel for the respective parties and perused the records.

9. A perusal of the record discloses that the while the petitioner was

working as MPDO, a punishment of withholding of one annual grade

increment without cumulative effect was imposed on him vide

proceedings No.3809/CPR&RE/E3/2016 dated 16.02.2021. Assailing

the same, the petitioner filed an appeal before respondent No.1 on

18.02.2021. While so, on 25.06.2021, the respondents prepared a

seniority list of the eligible employees qualified and eligible for promotion

to the post of Deputy Chief Executive Officer, wherein, the petitioner's

name was shown at Sl.No.49. Furthermore, during the pendency of the

petitioner's appeal before respondent No.1, some of the employees, who

are juniors to the petitioner, were promoted as Deputy Chief Executive

Officers vide G.O.Rt.No.329, Panchayat Raj and Rural Development

(Dist. Estt.) Department, dated 31.08.2021. However, claim of the

petitioner for promotion was rejected vide proceedings dated 21.09.2021,

PK, J

on the ground that the petitioner was under the currency of a minor

punishment.

10. Further, the appeal of the petitioner dated 18.02.2021 was allowed

by respondent No.1 vide G.O.Rt.No.421, Panchayat Raj and Rural

Development (VIG.PR&RD) Department, dated 09.11.2021, and the

punishment imposed on him earlier was dropped. As such, the

petitioner submitted his representation to the respondents on

22.11.2021 requesting to consider his case for promotion to the post of

Deputy Chief Executive Officer on par with his juniors. However, since

no action was taken by the respondents, the petitioner was constrained

to file W.P.No.16776 of 2022 before this Court and the same was

disposed of vide order dated 24.01.2023 directing the respondents to

consider and pass appropriate on the representation of the petitioner

dated 22.11.2021. In compliance thereof, the present impugned order

dated 17.05.2023 is passed once again rejecting the claim of the

petitioner on the following two grounds:

"I. That in another case Disciplinary Proceedings under Rule 20 of Telangana State Civil Services (CC&A) Rules, 1991 have been instituted by framing Articles of charge vide G.O.Rt.No.45, PR&RD (Vig.PR&RD) Dept., Dt.25.11.2022 and G.O.Rt.No.56, PR&RD (Vig.PR&RD) Dept., Dt.30.01.2023 respectively. This disciplinary case is pending for finalisation.

II. Further, sanction for prosecution in the Court of law for the offences punishable under section 13(1) (e) r/w 13 (2) of the Prevention of Corruption Act, 1988 on the allegation of possession of disproportionate assets has been booked and permission was issued

PK, J

vide G.O.Rt.No.10, PR&RD (Vig.PR&RD) Dept., Dt.25.03.2022 to the Director General, ACB, Hyderabad. The case is pending."

11. Here, it is to be noted that the punishment of withholding of one

annual grade increment without cumulative effect, earlier imposed on

the petitioner vide proceedings dated 16.02.2021, was dropped by

respondent No.1 vide G.O.Rt.No.421, Panchayat Raj and Rural

Development (VIG.PR&RD) Department, dated 09.11.2021. Therefore, it

can be inferred that the petitioner was deemed to have been exonerated

from the charges alleged against him vide charge memo dated

31.07.2017, as on the date on which his juniors were promoted as

Deputy Chief Executive Officers vide G.O.Rt.No.329 dated 31.08.2021.

12. It is pertinent to refer to G.O.Ms.No.104, General Administration

(Services-C) Department, dated 16.12.1990, and the relevant portion of

the said G.O. is extracted hereunder:

"The Government have examined the issue, keeping in view the instructions issued by the government of India in this regard, and decided that promotion / appointment by transfer to higher post of an office included in the panel, if between the date of inclusion in the panel and the date of actual promotion, disciplinary proceedings / investigation / enquiry / trial has been taken up against such officer whose case falls under the group referred to in para 2 (iii) of the G.O. third read as mentioned in para 1 above shall be deferred, until after termination of all such proceedings. In the event, the officer concerned is completely exonerated, he should be promoted/appointed to the post restoring him his rightful place with retrospective effect viz., with effect from the date on which his immediate junior was promoted or from the date on which he would have been promoted, has the enquiry / investigation/ trial not been initiated against him, as the case may be."

PK, J

13. From the above, it is very clear that the petitioner was eligible for

promotion on 31.08.2021 i.e., the date on which his immediate juniors

were promoted. However, his case was initially rejected vide proceedings

dated 21.09.2021, on the ground that he was under the currency of a

minor punishment was imposed on him. Later, the said punishment

was dropped on 09.11.2021, and the petitioner was exonerated from the

charges pertaining to the charge memo of the year 2017. Despite his

exoneration from the said charges, the respondents have denied

promotion to the petitioner on the grounds of pendency of disciplinary

proceedings in relation to the articles of charge vide G.O.Rt.Nos.45 and

56 dated 25.11.2022 and 30.01.2023 respectively, and that a sanction

for prosecution in the court of law was accorded vide G.O.Rt.No.10 dated

25.03.2022. Here, it is to be noted that aforementioned incidents took

place subsequent to the date on which the petitioner's immediate juniors

were promoted to the post of Deputy Chief Executive Officers i.e., on

31.08.2021.

14. The Hon'ble Apex Court in Bank of India v. Degala

Suryanarayana 1, categorically held it illegal to withhold promotion

based on departmental or criminal proceedings initiated after the date on

1 (1999) 5 SCC 762

PK, J

which the candidate was considered for promotion. The relevant excerpt

of the said decision is extracted hereunder:

"14. However, the matter as to promotion stands on a different footing and the judgments of the High Court have to be sustained. The sealed cover procedure is now a well-established concept in service jurisprudence. The procedure is adopted when an employee is due for promotion, increment etc. but disciplinary/criminal proceedings are pending against him and hence the findings as to his entitlement to the service benefit of promotion, increment etc. are kept in a sealed cover to be opened after the proceedings in question are over (see Union of India v. K.V. Janakiraman SCC at pp. 114- 115 : AIR at p. 2013). As on 1-1-1986 the only proceedings pending against the respondent were the criminal proceedings which ended in acquittal of the respondent wiping out with retrospective effect the adverse consequences, if any, flowing from the pendency thereof. The departmental enquiry proceedings were initiated with the delivery of the charge-sheet on 3-12-1991. In the year 1986-87 when the respondent became due for promotion and when the Promotion Committee held its proceedings, there were no departmental enquiry proceedings pending against the respondent. The sealed cover procedure could not have been resorted to nor could the promotion in the year 1986-87 be withheld for the DE proceedings initiated at the fag end of the year 1991. The High Court was therefore right in directing the promotion to be given effect to to which the respondent was found entitled as on 1-1-1986. In the facts and circumstances, the order of punishment made in the year 1995 cannot deprive the respondent of the benefit of the promotion earned on 1-1-1986."

15. In the light of the above legal principle, this Court is of the view

that the earlier punishment should no longer have an impact on the

petitioner's promotion once he has been exonerated of the charges.

Since the petitioner was already exonerated, any subsequent proceedings

initiated after on which he was considered for promotion and the date of

promotion of his juniors, should not deprive him the promotion that he

PK, J

was rightfully entitled to at that time. As such, the impugned rejection

order is not sustainable.

16. In the foregoing discussion, this Court holds that the petitioner is

entitled for promotion to the post of Deputy Chief Executive Officer on

par with his juniors who were promoted vide G.O.Rt.No.329, Panchayat