THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION No.25598 OF 2007 DATED: 24-01-2008 1.The Commissioner and Inspector General, Registration and Stamps, N.B.K.Estate, Golkonda X Roads, Hyderabad. 2.The Deputy Inspector General of Registration and Stamps, Hyderabad Range, Chandra Vihar Complex, Hyderabad. … Petitioners versus Y.M.Sadashivam, Working as in-Charge Sub-Registrar, Sangareddy, O/o The Joint Sub Registrar, Medak District. … Respondent THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION No.25598 OF 2007 ORAL ORDER: (per the HON’BLE SRI JUSTICE D.S.R.VARMA) Heard learned Special Government Pleader, representing learned Government Pleader for Services-II, appearing for the petitioners, as well as Mr. K.R.Srinivas, learned counsel, appearing for the respondent. 2. This writ petition is filed, under Article 226 of the Constitution of India, seeking certiorari, calling for the records pertaining to the interim order, dated 01.08.2007, passed by the Andhra Pradesh Administrative Tribunal, Hyderabad (for brevity “the Tribunal”), in O.A.No.4401 of 2007, and to quash the same as erroneous, illegal and unreasonable. 3. Petitioners are respondents and the respondent is applicant, in the O.A., before the Tribunal. 4. The interim order, dated 01.08.2007, passed by the Tribunal, reads thus: “A prima-facie case is made out. Therefore, the respondents are directed to consider the case of the applicant for promotion to the post of Sub-Registrar, Grade-II, if he is in the zone of consideration, without reference to the disciplinary proceedings pending against him.” 5. Facts, which are not in dispute, are; while the respondent has been working as Senior Assistant at Sub-Registrar’s Office, Vallabhnagar, Ranga Reddy District, certain vacancies of Sub- Registrar Grade-II have arisen; that the respondent is one among the candidates, who is within the zone of consideration; that the promotion of the respondent to the post of Sub-Registrar Grade II has been withheld by the competent authority on the ground that, as on the date of effecting promotions, he was facing departmental enquiry on certain irregularities viz., causing huge pecuniary loss to the department, which is allegedly serious in nature; that challenging the action of the petitioners, the respondent has filed O.A.No.4401 of 2007, wherein the Tribunal, while admitting the O.A., granted interim order directing the respondents to consider the case of the respondent for promotion to the post of Sub- Registrar, Grade-II, if he is in the zone of consideration, without reference to the disciplinary proceedings, pending against him; that, in pursuance of the same, the respondent had submitted a representation, dated 18.09.2007, to the petitioner No.1, requesting to consider his case for promotion; that, vide proceedings No.Vig.1/2096/2003, dated 23.09.2007, the petitioner No.1 had turned down the request of the respondent on the ground that disciplinary proceedings are pending against him and that the respondent had filed Contempt Application C.A.No.746 of 2007, before the Tribunal, for not implementing the said interim order, which is pending. However, aggrieved by the interim order, passed by the Tribunal, the present writ petition has been filed by the Government. 6. Learned Special Government Pleader, representing learned Government Pleader for Services II, appearing for the petitioners, contends that the promotions in the present circumstances are governed by the Andhra Pradesh State Subordinate Service Rules, 1996 (for short ‘the Service Rules’) and that the relevant Rules are Rule 5 (b) (i) and Rule 6 (i) of the Service Rules. 7. For the sake of convenience and ready reference, it is apt to extract the Rules, to the extent relevant, which are thus: “Rule 5 (b) (i) of the Service Rules reads thus: “5.Selection Posts: (a) … (b) Non-selection posts: No non-gazetted post should be treated as selection post. Promotion and appointment by transfer to higher posts other than those mentioned in sub-rule (a) shall be made in accordance with seniority- cum-fitness, unless (i)such promotion or appointment by transfer of a member has been with held as a penalty; or (ii)… “ Similarly, sub-rule (i) of Rule 6 of the Service Rules reads thus: “Rule 6. Method of Preparation of Panels:- (a) … (b) … (c) … (d) … (e) … (f) … (g) … (h) … (i) Non Selection Posts: For non selection posts referred to in sub-rule (b) of Rule 5, the appointing authority shall prepare a list of eligible employees every year i.e., from first September of the year to 31st August of the succeeding year after considering the record sheet and the qualifications prescribed for the said post in the relevant Special Rules for promotion to next higher category of non selection post.” 8. From a bare reading of the above provisions, it is clear that clause (i) of sub-rule (b) of Rule 5 of the Service Rules is applicable in cases where the incumbent is awarded with a penalty. In this context, it is to be noted that sub-rule (b) is applicable only for non-selection posts as indicated therein. 9. Now, coming to sub-rule (i) of Rule 6 of the Service Rules, it is to be seen that the promotion is to be considered not only basing on the ‘eligibility’, but also the ‘record sheet’ and the qualifications prescribed for the said post. Here, the expression ‘record sheet’ is very much relevant for promotion. 10. Learned Special Government Pleader further contends that the individuals, against whom no disciplinary proceedings are initiated or pending, can be considered by virtue of their strict ‘seniority’, but when the disciplinary proceedings are pending, not only the ‘seniority’ but also the ‘fitness’, have to be taken into consideration, as envisaged in sub-rule (b) of Rule 5 of the Service Rules. 11. A conjoint reading of the above two Rules would abundantly makes it clear that, when the disciplinary proceedings are pending, it is not the ‘seniority’ alone, that should be taken into consideration, but also the ‘record sheet’, for effecting promotions. In other words, the conduct of the incumbent has also to be looked into. While considering the aspect of conduct, it is essential that ‘record sheet’, which contains the details as to whether any disciplinary proceedings are pending as on the date of consideration for effecting promotions of the individuals, has to be looked into. 12. That apart, learned Special Government Pleader brought to the notice of this Court that these two Service Rules, in fact, had been specifically applied to the present situation and therefore, the above Service Rules have to be read in conjunction. 13. Learned Special Government Pleader further contends that, even otherwise, if the present situation is not specifically covered by the Rules, the Government had exercised its subordinate jurisdiction and issued certain G.Os and among them, G.O.Ms.No.424, dated 25.05.1976, is the earliest G.O., which deals with the present contingency. 14. Of course, it is categorically stated in the said G.O., as follows: “The Departmental Promotion Committee or other authority should consider whether such an officer would have been recommended for promotion, if the officer, had his conduct not been under enquiry, trial or investigation, and make its recommendations and the rank to be assigned to him in the promotion list.” 15. From the above, it is clear that it is not only the Departmental Promotion Committee (for short ‘ the DPC’), but also the other authority, which may or may not recommend the employees for promotion. It is further clear that the individuals would not be recommended for promotion, if their conduct is under enquiry, trial or investigation. 16. However, G.O.Ms.Nos.104 and 66, dated 16.02.1990 and 30.01.1991, respectively, were issued in order to meet other contingencies. 17. It is to be noted that, the earlier G.O.Ms.No.424, dated 25.05.1976, has been specifically referred to, in both the subsequent G.Os. However, it is submitted that the subsequent two G.Os., are relevant for a limited purpose, to show that the Government was keen to meet different contingencies. 18. It is further pointed out by learned Special Government Pleader that, in fact, the case of the respondent is covered by the Special Rules for the Andhra Pradesh Registration Subordinate Services Rules, 1983. These Rules have been introduced through G.O.Ms.No.372, dated 24.02.1983. Rule 4 of the said Rules reads thus: “4. List of Approved Candidates: Appointment of Sub-Registrars Grade-I and II shall be made from the list of approved candidates prepared for each year by the Inspector General of Registration and Stamps for each zone of the Deputy Inspectors General of Registration and Stamps.” 19. From the above, it is clear that it is not necessary for the competent authority to prepare a list of ‘approved candidates’ in order to appoint the individuals to the posts of Sub-Registrar Grade-I or II. This again indicates that it is not essential for the competent authority to prepare a list of eligible candidates, but strict adherence to the ‘seniority’ has to be followed. In other words ‘fitness’ has something to do with it. ‘Fitness’, in other words, means the conduct of an individual, which is in surveillance of the charges by way of departmental enquiry. It would rather keep such an individual away from the zone of consideration for sometime and such an individual would be restored to his original status due, in case he is exonerated of the charges as contemplated in G.O.Ms.No.66, dated 30.01.1991. 20. Per contra, learned counsel appearing for the respondent contends that the Rules, which have been referred to, by the Government, should not be understood in the manner as they were presented and that the G.Os., which have been referred to above, are only meant for selection posts, inasmuch as, in all the G.Os., selection by the DPC has been referred to, and therefore, the said G.Os., are not applicable to the present case, as the post, which the respondent seeks to be promoted, being a non-selection post, and in such a case, it is only Rule 5 of the Service Rules, as extracted above, shall have to be followed. 21. As already discussed above, insofar as the contention of learned Special Government Pleader, there appears to be a prima facie case, which is to be looked into in detail. 22. Insofar as the contention of learned counsel appearing for the respondent that the G.Os., are not applicable to the present case and applicable only to the promotion to the selection posts, it has been pointed out by Special Government Pleader that it is mentioned in the G.Os., that not only the DPC but also the authority concerned shall consider the case of the individuals for the purpose of promotion on the same criteria. Therefore, it is contended by Special Government Pleader that the parameters that are to be applied insofar as the promotion in the circumstances, where the disciplinary proceedings are pending against an individual and his case is to be considered, are the same as in the case of selection posts envisaged in the G.Os. 23. Of course, it has been further pointed out that in the absence of any Rule in the Special Rules providing to meet a particular contingency, the General Rules have to be resorted to, and that where there is repugnancy between the Special Rules and General Rules, it is the Service Rules that would alone prevail. Even on this question, we are not expressing any view. But, on the whole, we are convinced that the petitioners have made out a prima facie case and therefore, we are of the view that it is imminently a fit case where the interim order granted by the Tribunal is to be vacated. 24. Accordingly, the writ petition is allowed, vacating the interim order, dated 01.08.2007, granted by the Tribunal, in O.A.No.4401 of 2007, and the matter is remanded to the Tribunal to consider the main O.A., on merits. However, there shall be no order as to costs. 25. We make it clear that the observations, if any, made by this Court, in this order, shall not be understood as the view of this Court, and the view expressed by this Court is confined only to the extent of vacating the interim order, granted by the Tribunal. ----------------------------- JUSTICE D.S.R.VARMA --------------------------- JUSTICE K.C.BHANU 24TH JANUARY 2008 HSD