HONOURABLE SRI JUSTICE V. ESWARAIAH AND HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No. 23177 of 2009. DATED 02nd November, 2009 BETWEEN N.Mohan Rao …….Petitioner and The Govt. of AP, rep. By its Principal Secretary, Home (Prisons-A) Department, Secretariat, Hyderabad, and, ors …Respondents. HONOURABLE SRI JUSTICE V. ESWARAIAH AND HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No. 23177 of 2009. ORDER: ( Per VE.J.) The petitioner herein is the District Fire Officer. He filed O.A.No. 6649 of 2009 before the Andhra Pradesh Administrative Tribunal (for brevity ‘the Tribunal’) seeking a declaration that the action of the respondent authorities in not promoting him to the post of Regional Fire Officer on the ground that disciplinary/criminal proceedings are pending against him, as illegal and a consequential direction to the respondents to promote him to the said post from its feeder category for the panel year 2008-2009. The Tribunal while issuing notice before admission on 23.06.2009 refused to grant the interim relief to the petitioner on the ground that the Departmental Promotion Committee considered the case of the petitioner for promotion and resolved to include the petitioner in the panel but deferred the promotion till the conclusion of the disciplinary proceedings in criminal case. Thereafter, the OA was listed on 16.09.2009 and the Tribunal observed that inasmuch as the matter relates to promotion, it is not a fit case to grant interim order directing the respondents to promote the petitioner to the post of Regional Fire Officer without reference to the disciplinary/criminal proceedings pending in Crime No.165 of 2008 on the file of the III Additional District & Sessions Judge, Guntur. Aggrieved thereby, the petitioner filed the present Writ Petition seeking to quash the orders of the Tribunal dated 23.06.2009 and 16.09.2009 passed in OA.No. 6649 of 2009 by holding that the same are illegal, unjust and contrary to law and a consequential direction to the respondents to consider the case of the petitioner for promotion to the post of Regional Fire Officer. The candidature of the petitioner has been placed before the screening committee for promotion to the post of Regional Fire Officer in Andhra Pradesh Fire & Emergency Services Department and the name of the petitioner was recommended in the panel of District Fire Officers for temporary promotion to the category of Regional Fire Officer, Home Department for the panel year 2008- 2009. Vide G.O.Ms.No. 280, Home (Prisons-A) Department, dated 29.05.2009, his promotion has been deferred in terms of G.O.Ms.No. 424, General Administration (Ser.C) Department, dated 15.4.1976 read with G.O.Ms.No. 257, General Administration (Ser.C) Department, dated 10.6.1999 untill the termination of the criminal/disciplinary cases pending against the petitioner. The learned Counsel for the petitioner submits that the nature of charges in criminal/disciplinary proceedings are minor in nature and they have no bearing on the integrity and efficiency of the petitioner. He further submits that even according to the orders of the Government in G.O.Ms.No. 257 General Administration (Ser.C.) Department, dated 10.6.1999, in case of promotion of 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 case being considered for promotion. The Government while cancelling the earlier orders in G.O.Ms.No. 74, General Administration (Ser.C.) Department, dated 24.02.1994,issued fresh guidelines in G.O.Ms.No. 257 General Administration (Ser.C.) Department, dated 10.6.1999 to 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. In the said G.O., the government directed the appointing authority to place the details of such employees in the zone of consideration for promotion falling under the following categories, before 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 for a criminal charge is pending. (B) Officers who are facing enquiry, trial or investigation can be categorized into the following groups based on the nature of the allegations or 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 ever 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. (C) The suitability of the officers for inclusion in the panel should be considered on an overall assessment based on the record which should include namely; i) Adverse remarks recorded in the Annual Confidential reports, the penalties awarded and the bad reputation of the officer as vouchsafed by the Head of the Department and the Secretary to Government of the Department concerned. The above cases should be considered as falling under category (ii) of Item (B) above. ii) The officers who do not have any adverse entry in the Annual Confidential Report, and who have no penalties awarded against them in the entire duration of the post and not merely in the past five years and whose reputation is vouchsafed by the Head of the Department and Secretary to Government of the Department concerned should be considered as falling under category (iii) of Item (B) above Further, in paragraph No.6 of the said Government Order, it is enumerated that if the charge is one of moral turpitude, misappropriation, embezzlement and grave dereliction of duty, then the appointing authority should consider that such officers are not entitled to be considered for promotion in the public interest. But, however, if the charge is not a grave one, but is a minor, not involving moral turpitude, embezzlement and grave dereliction of duty then only in such cases the appointing authority should consider that such officers are entitled to be considered for promotion, as it would not be against public interest. In the instant case, the charge levelled against the petitioner is on the ground of misappropriation of government amount and a charge memo under Rule 20 of the A.P. Civil Services (CCA) Rules, 1991 in Rc.No. 01/RFO/ER/2008, dated 27.2.2009 was issued to the petitioner and the receipt of the same was acknowledged by him on 18.3.2009 Further, a criminal case against the petitioner in Crime No. 165 of 2008 was registered on the file of the III Additional District & Sessions Judge, Guntur. Therefore, it cannot be said that the charges levelled in the disciplinary proceedings and allegations made in the criminal case against the petitioner are not minor in nature and that the same are tantamount to moral turpitude and misappropriation. In that view of the matter, the Tribunal rightly refused to grant interim relief directing the respondent authorities to consider the case of the petitioner for promotion to the post of Regional Fire Officer without reference to the disciplinary/criminal proceedings pending against him. We do not see any error committed by the Tribunal in refusing to grant interim order to the petitioner. The Writ Petition is devoid of merits and is dismissed accordingly. No order as to costs. ---------------------------- JUSTICE V. ESWARAIAH -------------------------------------- JUSTICE VILAS V. AFZULPURKAR Dated 02nd November, 2009. Msnr.