THE HON'BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE P.DURGA PRASAD WRIT PETITION No.28954 of 2008 ORDER: (Per the Hon’ble Sri Justice Goda Raghuram) Heard Sri D.Linga Rao, learned counsel representing Sri J.Kanakaiah, learned counsel for the petitioner, and Smt. M. Bhaskara Lakshmi, learned standing counsel for respondent Nos.1 and 2. There is no representation on behalf of non-official respondents. The singular grievance of the petitioner is as regards her supercession for promotion to the post of Administrative Officer vis-à-vis respondent Nos.3 and 4. The petitioner joined service in Srikakulam District Unit as a Copyist and was thereafter promoted as Lower Divisional Clerk (LDC) in 1977; as Senior Assistant in 1995; as Superintendent in 1999 and her services were regularized in the post of Superintendent/Head Clerk with effect from 09.07.1999. On the undisputed factual scenario, the petitioner is senior to respondent Nos.3 and 4 in the category of Superintendent/Head Clerk. However, the third respondent was promoted to the post of Administrative Officer on 02.06.2008 and the fourth respondent on 29.11.2008. On 02.07.2010 in this writ petition, this Court observed that in a departmental enquiry (whereat the petitioner was charged with the misconduct of late coming for duties constituting unbecoming behaviour; supervisory negligence while functioning as a Superintendent; adamant and indecent behaviour towards litigant public; harassing the parties by returning the plaints without just and proper cause and misbehaving with Advocates and parties), the second respondent, by order dated 21.12.2009, exonerated the petitioner of all these charges which were held not proved and therefore, the petitioner’s case for promotion to the category of Administrative Officer should be reviewed, and that the matter was adjourned by four weeks to enable the second respondent to review the case of the petitioner for considering her for promotion as Administrative Officer. Subsequently and pursuant to the order of this Court dated 02.07.2010, the second respondent conducted an interview calling the three senior most candidates eligible for promotion to the post Administrative Officer and issued orders dated 26.07.2010 temporarily selecting and promoting the petitioner to the post of Administrative Officer. Admittedly, the petitioner joined service in the promoted post and is continuing as such. The subsisting grievance, however, is that the official respondents, in particular, the second respondent have failed to review her case for promotion to the post of Administrative Officer on par with her juniors – respondent Nos.3 and 4; juniors in the feeder category of Superintendent. In the counter-affidavit to the writ petition filed by the second respondent in paragraph Nos.3 and 4, it is asserted that the petitioner was awarded censure on 05.06.1982 (while she was serving as LDC); that again she was awarded the punishment of censure in 1995 (while serving as a Senior Assistant); that the Presiding Officer under whom she worked had represented that the she is adamant and so also the Staff and Advocates represented several times that she had been adopting indecent behaviour and harassing them; that there is a complaint from the Senior Civil Judge, Bobbili, with regard to the petitioner’s failure to take effective administrative steps for causing repairs to the photocopying machine; that the Advocates of the Bar Association, Bobbili, had represented on 12.03.2008 that they are facing inconvenience on account of the petitioner’s misbehaviour and adamant attitude towards work; and that a departmental enquiry was ordered and is pending against the petitioner for the several acts of misbehaviour during her tenure of office as Superintendent. The counter, in summary projects that this raft of negative performance of the petitioner was the reason for respondent Nos.3 and 4 being preferred to her while effecting promotions to the category of Administrative Officer and in the context of the fact that appointment to the post of Administrative Officers from the feeder category of Superintendents is by selection i.e., on the basis of merit and eligibility; while merit and eligibility are equal approximately as per the relevant statutory rules. In her reply-affidavit, the petitioner, while reiterating the claims asserted in the writ petition, further states that in view of her exoneration in the departmental enquiry of the same allegations spelt out in paragraphs 3 and 4 of the counter-affidavit, vide the order of the second respondent dated 21.12.2009, her claims for promotion to the category of Administrative Officer on par with her juniors – respondent Nos.3 and 4 should be reviewed and considered afresh. This Court, by order dated 26.10.2010, directed the official respondents to file an additional counter as to whether the petitioner’s case was reviewed with effect from the date of the impugned appointment of the fourth respondent in the post of Administrative Officer in the light of the changed circumstances (petitioner’s exoneration in the departmental enquiry) and to explain why the petitioner is prospectively considered for promotion and not with effect from the date she was superceded vis-à-vis the fourth respondent. The second respondent has filed an additional counter-affidavit stating that pending enquiry into the allegations made by the Advocates of the Bar Association, Bobbili, against the petitioner, the then Principal District Judge had given paper promotion to the fourth respondent and that later, a departmental enquiry was initiated against the petitioner. This additional counter clearly asserts that the petitioner’s case was not favourably considered for promotion to the post of Administrative Officer, while so considering the cases of respondent Nos.3 and 4 on account of allegations by the Advocates of Bar Association, Bobbili, and pending enquiry. It is further asserted by the second respondent that pursuant to the interim order of this Court dated 02.07.2010, the case of the petitioner was considered with other Superintendents who are in service and the petitioner was issued orders of appointment to the post of Administrative Officer. The second respondent further asserts in the additional counter that she has not noticed any adverse remarks or adverse conduct of the petitioner and that proceedings were issued on 26.07.2010 promoting the petitioner as Administrative Officer (prospective). On a true and fair construction of the pleadings in opposition including original counter-affidavit and additional counter-affidavit, the equivocation notwithstanding, it emerges that the petitioner was earlier superceded for promotion to the category of Administrative Officer on account of the complaint made by the Advocates of Bar Association, Bobbili, and pending departmental enquiry into those complaints. Pursuant to the interim orders of this Court, the petitioner was promoted as Administrative Officer prospectively, on 26.07.2010. Her case for promotion as Administrative on par with respondent Nos.3 and 4 was, however, not reviewed despite her exoneration from the charges qua the orders of the second respondent in the disciplinary enquiry, dated 21.12.2009. Though on a singular reason the petitioner was not considered for promotion as Administrative Officer on par with her juniors – respondent Nos.3 and 4 to a selection post i.e., on account of pending disciplinary proceedings, since the said disciplinary proceedings culminated in a finding of “not guilty” by the orders of the second respondent dated 21.12.2009, the petitioner ought to be considered de novo on par with respondent Nos.3 and 4 for promotion to the post of Administrative Officer, though promotion to the post of Administrative Officer is by selection under the statutory rules. Since no review of promotion of the petitioner as Administrative Officer on par with respondent Nos.3 and 4 was conducted, the Writ Petition is disposed of with a direction to the second respondent to expeditiously and preferably within three months from the date of receipt of a copy of this order, review the case of the petitioner for promotion as Administrative Officer on par with respondent Nos.3 and 4, and if the petitioner is found on such review to be eligible on parity with respondent Nos.3 and 4 for such promotion, she shall be entitled to all consequential and incidental benefits, consequent on such earlier promotion to the post of Administrative Officer. It is clarified that the second respondent would be obliged to issue notice to respondent Nos. 3 and 4 before reviewing the case of the petitioner for promotion to the post of Administrative Officer on par with respondent Nos. 3 and 4. In the circumstances, however, there shall be no order as to costs. ___________________ GODA RAGHURAM, J ________________ P.DURGA PRASAD, J 21st June, 2011 GHN