IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FOURTH DAY OF JUNE TWO THOUSAND AND TEN PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH AND THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION Nos: 22714 and 28559 of 2009 and 410, 635, 711, 729, 2213 and 2551 of 2010 WRIT PETITION No: 22714 of 2009 BETWEEN: Transport Commissioner and another. ... PETITIONERS AND M. Samiyullah. ...RESPONDENT Counsel for the Petitioners: GP FOR SERVICES - II Counsel for the Respondent: MR. SUBRAHMANYA REDDY MR. S. KHADER MOHIDDIN WRIT PETITION No: 28559 of 2009 BETWEEN: Transport Commissioner and two others. ... PETITIONERS AND T. Prema and another. ...RESPONDENT Counsel for the Petitioners: GP FOR SERVICES - II Counsel for the Respondent: SMT. K. RAJYA LAXMI MR. V. RAVICHANDRAN WRIT PETITION No: 410 of 2010 BETWEEN: Government of Andhra Pradesh, rep. By its Special Chief Secretary to Government, Environment, Forests, Science and Technology Department, Secretariat, Hyderabad and three others. ... PETITIONERS AND S. Trinadhulu and another. ...RESPONDENTS Counsel for the Petitioners: GP FOR SERVICES - II Counsel for the Respondent: SMT. K. RAJYA LAXMI MR. V. RAVICHANDRAN WRIT PETITION No: 635 of 2010 BETWEEN: Government of Andhra Pradesh, rep. By its Special Chief Secretary to Government, Environment, Forests, Science and Technology Department, Secretariat, Hyderabad and three others. ... PETITIONERS AND Ch. Srinivasa Rao and another. ...RESPONDENTS Counsel for the Petitioners: GP FOR SERVICES - II Counsel for the Respondent: SMT. K. RAJYA LAXMI MR. V. RAVICHANDRAN WRIT PETITION No: 711 of 2010 BETWEEN: The Chief Conservator of Forests, Rajahmundry Circle, Rajahmundry, East Godavari District and two others. ... PETITIONERS AND M. Srinivasa Reddy and another. ...RESPONDENTS Counsel for the Petitioners: GP FOR SERVICES - II Counsel for the Respondent: SMT. K. RAJYA LAXMI MR. V. RAVICHANDRAN WRIT PETITION No: 729 of 2010 BETWEEN: Government of Andhra Pradesh, rep. By its Special Chief Secretary to Government, Environment, Forests, Science and Technology Department, Secretariat, Hyderabad and three others. ... PETITIONERS AND P. Venkata Rao and another. ...RESPONDENTS Counsel for the Petitioners: GP FOR SERVICES - II Counsel for the Respondent: SMT. K. RAJYA LAXMI MR. V. RAVICHANDRAN WRIT PETITION No: 2213 of 2010 BETWEEN: Government of Andhra Pradesh, rep. By its Special Chief Secretary to Government, Environment, Forests, Science and Technology Department, Secretariat, Hyderabad and three others. ... PETITIONERS AND I. Dhanaraju and another. ...RESPONDENTS Counsel for the Petitioners: GP FOR SERVICES - II Counsel for the Respondent: SMT. K. RAJYA LAXMI MR. V. RAVICHANDRAN WRIT PETITION No: 2551 of 2010 BETWEEN: Government of Andhra Pradesh, rep. By its Special Chief Secretary to Government, Environment, Forests, Science and Technology Department, Secretariat, Hyderabad and three others. ... PETITIONERS AND K. Jayananda Raju and another. ...RESPONDENTS Counsel for the Petitioners: GP FOR SERVICES - II Counsel for the Respondent: SMT. K. RAJYA LAXMI MR. V. RAVICHANDRAN The Court made the following: COMMON ORDER: (per Hon’ble Sri Justice Vilas V. Afzulpurkar) This batch of cases, filed by the petitioner-State, is directed against the different orders of the Andhra Pradesh Administrative Tribunal in the OA’s filed by the applicants/respondents herein respectively wherein the tribunal directed that the case of each of the applicants in the batch of OA’s be considered for promotion without reference to the disciplinary proceedings pending against the applicants. It was, further, directed that it is open for the State to take action against the applicants in the promoted post also, if the charges are held proved. 2. When these writ petitions initially came up before us on 23.12.2009 we had pointed out that these cases appear to be prima facie covered by our earlier orders in WP.No.27384 of 2009 dated 23.12.1009 and based on that we had suspended the impugned order while ordering notice. Later, the counter affidavits have been filed by the respondents herein, who are applicants before the tribunal. 3. Learned counsel for the applicants contended that there are some distinguishing features in these cases and they may be separately heard. Accordingly, we had heard these cases separately just before vacation on 21.04.2010 and reserved the batch for judgment. 4. During the hearing, we had carefully perused all the decisions cited by the learned counsel for the applicants, reference to which will be made hereinafter. We have also once again perused our decisions referred to above, which are since reported as STATE OF A.P. v. A. RAMULU[1] and SPECIAL CHIEF SECY. To GOVT. OF A.P., REV. (SER.I) DEPT v. V.V. KUMAR[2] and we are of the view that the present batch of cases is squarely covered by the aforesaid two decisions rendered by us. 5. For the sake of brevity, we would very briefly consider the contentions and refer to the judgments relied upon by the learned counsel for the applicants. For the purpose of appreciation of the said contentions we may refer to the facts in WP.No.22714 of 2009, which are almost similar in all the matters. Parties are referred to as they are arrayed before the Tribunal. WP.No.22714 of 2009: 6. The applicant in this writ petition had filed O.A.No.5222 of 2009 before the tribunal contending that he is working as Senior Assistant in the Office of the Deputy Transport Commissioner, Nellore and in the seniority of Senior Assistants stands at the top of the list and he is qualified and eligible to be promoted to the post of Administrative Officer. There was a surprise check by the Anti Corruption Bureau (ACB) authorities in the said office on 27.05.2004 wherein some private persons were found occupying the seats of the applicant and others and based on the report, disciplinary action was initiated against the applicant and other officers. It was stated that the charge memo dated 28.06.2008 was issued against the applicant and the disciplinary proceedings are pending in TEC.No.16/2006 before the tribunal for disciplinary proceedings. The applicant had approached the tribunal earlier in O.A.No.3928 of 2008 seeking consideration of his case for promotion as no charge memo was issued by then. Though the said OA was allowed, later the charge memo was issued and only in view of the pendency of the disciplinary proceedings the applicant’s case for promotion is not being considered. By the present OA, the applicant sought a direction that his case should be considered for promotion, as the said disciplinary case is still pending without any progress and the applicant, though is due and eligible for promotion, he is not being considered therefor. The petitioners herein i.e. State opposed the said OA by claiming that it is following G.O.Ms.No.257 General Administration (SER.C) Department dated 10.06.1999 and the circular memo No.15813/Ser.C/2007 dated 11.09.2007 and procedures and guidelines stipulated therein are being followed while considering the cases of such employees for promotion, against whom disciplinary cases or criminal cases are pending or where their conduct is under investigation. The tribunal, however, referred to the decision of the Supreme Court in STATE OF PUNJAB v. CHAMAN LAL GOYAL [(1995) 2 SCC 570] and on the ground that there is inordinate delay in concluding the disciplinary proceedings allowed the OA’s, as above. The petitioner – State questions the said order. 7. Learned senior counsel appearing in support of WP.No.22714 of 2009 contended that the petitioner-State must make distinctions between the promotion to selection post and to non-selection post, which is purely governed by seniority. He also relied upon Chaman Lal Goyal’s decision referred to above as well as a Division Bench judgment of this Court in WP.No.24810 of 2007 dated 15.04.2008 as well as UNION OF INDIA v. K.V. JANKIRAMAN[3]; UNION OF INDIA v. TEJINDER SINGH[4]; STATE OF ANDHRA PRADESH v. N. RADHAKISHAN[5]; P.V. MAHADEVAN v. M.D., TAMIL NADU HOUSING BOARD[6] and NEW BANK OF INDIA v. N.P. SEHGAL[7] and it is contended that some of the judgments referred to above were not placed before us when we rendered the two decisions, referred to above. The learned senior counsel submitted that the case of the applicant deserves to be considered for promotion. 8. While adopting the said submissions of the learned senior counsel other learned counsel appearing for the applicants also contended that various memos and guidelines issued by the Government requiring that the disciplinary cases must be completed within a fixed time frame are not being adhered to and the said instructions are followed more in breach. It is also contended that the petitioner – State is not keeping in mind the nature of the charge and not assessing as to whether it is a trivial charge or a serious charge nor it has kept in mind the length of time that has elapsed after the alleged irregularity. The State is also unmindful of the fact that the employees themselves are not in any way responsible for the delay in completion of the disciplinary proceedings and as such, their right for consideration for promotion cannot be denied merely because the disciplinary case initiated long back remained pending for no fault of the employee. Learned counsel also contended that even G.O.Ms.No.257 dated 10.06.1999 is also not being given effect to by the petitioner – State and as such, the cases are not categorized based upon the nature of the allegations or charges stipulated under Para B of the said GO. The effect, therefore, is that every case where an employee deserves promotion, even if he has otherwise a clean record, is denied the same because at some point of time some charge was framed against him, which remained undecided on account of pendency of the disciplinary case. 9. Per contra, the learned Government Pleader appearing for the State submits that directions issued by this Court in RAMULU’S case (1 supra) and the other cases referred to above clearly apply to this batch of cases and on facts as well as on law, these cases are fully covered by the aforesaid decisions. Learned Government Pleader submits that the petitioner – State is bound to follow its own guidelines and GO’s and in particular G.O.Ms.No.257 dated 10.06.1996, referred to above, and therefore, there is no impediment so far as consideration of cases for promotion of such of the officers whose cases deserve consideration in terms of the aforesaid GO. 10. The point for consideration, therefore, is whether this batch of cases warrants taking of a different view than the one expressed by us in RAMULU’s case (1 supra) and SPECIAL CHIEF SECRETARY’s case (2 supra). 11. As we have already discussed in the above decisions, paragraph 12 in CHAMAN LAL GOYAL’s case (supra) clearly shows the distinction between that case and the present batch of cases and it is clear that the direction given in that case was only on facts and circumstances of that particular case and is not of a general application and in fact, the Supreme Court cautiously added the words ‘that the general practice is otherwise’. The unreported Division Bench judgment in WP.No.24810 of 2007, referred to above does not contain any reasoning nor any of these decisions were brought to their Lordships notice by either side including the decisions of the Supreme Court. Reliance upon JANKIRAMAN’s case (3 supra) is clearly misplaced as that case arouse out of Central Civil Services and deals with sealed cover procedure, which is not applicable to the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, as no such sealed cover procedure is prescribed under the Rules relating to such services. TEJINDER SINGH’s case (4 supra) arose out of interim order made by the Central Administrative Tribunal while considering the case of the applicant for quashing of the contemplated departmental enquiry against him. The tribunal had by an interim order, directed consideration of the case of the application for promotion, the Supreme Court disapproved such interim order by holding that tribunal had no jurisdiction to make interim order of such a nature. The said decision hardly helps the applicants as it relates to contemplated departmental proceedings and secondly, the interim order passed by the tribunal was set aside by the Supreme Court. RADHAKISHAN’s case (5 supra) was a case where the applicant sought quashing of the charges against him on the ground of inordinate delay in concluding the disciplinary case. The Supreme Court was of the view that though it is not possible to lay down any determined principles applicable to all cases and in all circumstances, where there is a delay in concluding the disciplinary proceedings, whether on that ground the disciplinary proceedings are to be dropped, each case has to be examined on the facts and circumstances of that case. On the facts of that case, the Supreme Court was satisfied that the applicant had not obstructed or caused delay in enquiry at any stage and as such, the Supreme Court found that the tribunal was justified in quashing the charge memo and directing the State to promote the applicant as per the recommendations of the DPC ignoring subsequent charge memos. It is to be remembered that in none of these cases the applicants are seeking quashment of the charges except for one writ petition, which is separately dealt with in this batch. All the OA’s and the writ petitions, therefore, arise out of prayer of the applicants seeking consideration of their cases without reference to the charge memo pending against them. These cases, on facts, therefore, stand on a different footing than the ratio of RADHAKISHAN’S case (5 supra) referred to above. MAHADEVAN’S case (6 supra) also related to a writ petition filed by the applicant for quashing of the charge memo on the ground of inordinate delay, the said case also stands on a different footing than the present batch of writ petitions. Similarly, CHAMAN LAL GOYAL’S case, referred to above, also related to a writ petition seeking quashing of the charges on the ground of unexplained and inordinate delay. N.P. SEHGAL’s case (7 supra) arose out of service regulations of a bank and related to promotion policy adopted by the banks in all cases where disciplinary proceedings was initiated or pending. It was laid down that he could neither be excluded from consideration nor promotion can be denied to him as per the policy. The said decision also has no application to the present batch of cases. 12. We are, therefore, of the view that a distinction has to be made in cases where applicants have challenged and sought quashment of the charge memo either on the ground of inordinate delay or other ground and the present batch of cases where only relief sought for in the OA was for directing the State to consider their cases for promotion without reference to charge memo. As has been held by us in RAMULU’S case (1 supra) and SPECIAL CHIEF SECRETARY’S case (2 supra), all such cases pending disciplinary proceedings vis-à-vis consideration of the employee for promotion is fully regulated by G.O.Ms.No.257 dated 10.06.1996. The said GO also provides safeguards with regard to such category of officers, who have otherwise clean record and where the charges are not serious. However, each case has to be categorized and examined by the State in the light of G.O.Ms.No.257 dated 10.06.1996 and based on such categorization, if the case of the applicant deserves consideration for promotion, notwithstanding pending of the charge memo, it is open for the petitioner – State to consider such cases for promotion. However, the category of cases, which do not fall under category B of G.O.Ms.No.257 dated 10.06.1996, will have to await the result of the disciplinary proceedings so far as promotion of such officers are concerned. As per the rules, if and when the disciplinary case ends in favour of the employee, he would be eligible to get promotion on par with the junior. We are, therefore, unable to accept the contentions of the learned counsel for the applicants and for the reasons mentioned by us in detail in RAMULU’S case (1 supra) and SPECIAL CHIEF SECRETARY’S case (2 supra), the impugned orders are set aside and the OA’s stand dismissed. The writ petitions are accordingly allowed. There shall be no order as to costs. ______________ V. ESWARAIAH, J _____________________ VILAS V. AFZULPURKAR, J June 4th , 2010 DSK [1] 2010 (1) ALD 144 (DB) [2] 2010 (1) ALD 746 (DB) [3] AIR 1991 SC 2010 [4] (1991) 4 SCC 129 [5] AIR 1998 SC 1833 [6] 2005 (5) SURPEME 611 [7] (1991) 2 SCC 220