THE HON'BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON'BLE SRI JUSTICE G. CHANDRAIAH W.P.No.12107 of 2010 ORDER: (Per Sri G.M,J) 1 Assailing the validity and legality of the order dated 22.12.2009 passed by the Andhra Pradesh Administrative Tribunal at Hyderabad in O.A.No7421 of 2006, this Writ Petition has been filed. 2 The facts, in brief, are that the respondents herein filed O.A.No.7421 of 2006 before the Tribunal contending that they have been furnished with different charge memos basing on the report of the Director General (Vigilance & Enforcement) & Ex-Officio Principal Secretary to Government, vide Vigilance report No.73, dated 25.05.2005 on the ground that excess amounts have been paid by the respondents. In the said report, it is recommended to initiate action besides recovery of expenditure incurred by the respondents. The petitioners herein have issued charge memos stating that the respondents are responsible for the excess payments and expenditure to the extent attributed to them. To the said charge memos, the respondents have submitted their explanation and thereafter the matters were referred for a common enquiry. It is the contention of the respondents that the disciplinary proceedings having been initiated by furnishing Charge Memos, the petitioners herein have issued separate proceedings against each of the applicant for recovering the said amounts before conclusion of the disciplinary proceedings. Therefore, they have challenged the orders issued with respect to the recovery of the said amounts on the ground that the petitioners, without concluding the disciplinary proceedings and before proving the charges levelled against them with respect to making of excess payments and expenditure, have issued the impugned order of recovery, which is illegal. 3 The petitioners have contested the said O.A. by way of filing counters contending that in view of the Vigilance Report, disciplinary proceedings have been initiated besides issuing proceedings for recovery of the excess expenditure incurred by the respondents. 4 Having regard to the said contentions, the Tribunal by holding that the disciplinary proceedings having been concluded pursuant to the Charge Memos issued, the recovery orders have been issued, set aside the orders of recovery dated 16.10.2006 leaving it open to the petitioners to pass appropriate orders after conclusion of the disciplinary proceedings with respect to the recovery. 5 So far as the other prayer of the respondents that in view of the charge memos having been issued to them relating to the incident of the year 2003-04, their cases are not being considered for promotion to the next higher post is concerned, the Tribunal held that in view of the fact that the petitioners herein having not concluded the disciplinary proceedings in accordance with the instructions issued by the Government in Circular Memo.35676/Ser.C/98-1, G.A. Sec.C) Dept., dated 01.07.1998, to conclude the disciplinary proceedings within three months in simple cases, and within 5 to 6 months in complicated cases and in view of instructions having been issued by the Divisional Forest Officer, even in December 2009 to the effect that the matter is being considered by appointing common enquiry officer, the respondents cannot be held responsible for the delay in concluding the disciplinary proceedings. By observing so, the Tribunal directed the petitioners herein to consider the cases of the respondents for promotion to the next higher post, without reference to the impugned charge memos issued to the respondents basing on the Vigilance report No.73, dated 12.05.2005, which relates to the year 2003-04, however gave liberty to the petitioners herein to impose punishment in the promoted post, if the charges are proved. As stated supra, aggrieved by the said direction, this Writ Petition has been filed. 6 The learned Government Pleader appearing for the petitioners contended that in view of the G.O.Ms.No.257 General Administration (Sec.C) Department, dated 10.06.1999, if the charge is one of moral turpitude, misappropriation, embezzlement and grave dereliction of duty, then the appointing authority should consider as not in the public interest the adhoc promotion to such charged officer. He further contended that in view of the G.O.Ms.No.66 G.A. (Ser.C) Department dated 30.01.1991 the government employees who are facing disciplinary proceedings, criminal cases, when conduct is under investigation, shall be dispensed with for promotion to next higher post and in the present case, the charge against the respondents pertains to misappropriation of government funds. He further contended that the cases of the respondents for promotion will be in contravention of provisions of Rule 5 of the A.P. State and Subordinate Services Rules, 1996 as well as the policy of the Government. 7 Having heard the learned counsel appearing on either side, and in view of the G.Os referred to supra, we are of the opinion that the Tribunal ought not to have given a direction to the petitioners to give promotions to the respondents herein when there are disciplinary proceedings pending against them involving their conduct on the charges of misappropriation. 8 Accordingly, this Writ Petition is disposed of with a direction to the petitioners to conclude the enquiry said to have been initiated against the respondents herein as expeditiously as possible, preferably, within a period of three months from the date of receipt of a copy of this order and if they are not found guilty in the said enquiry, their cases may be considered for being promoted as Deputy Range Officers. It is also made clear that the respondents shall cooperate with the enquiry. No order as to costs. ------------------------------ GHULAM MOHAMMED, J Date:28.07.2011 ---------------------- G. CHANDRAIAH, J Kvsn