IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THE HON'BLE SRI JUSTICE K.C. BHANU WRIT PETITION No.17992 of 2011 Date:29.06.2011 Between: Jammula Nageswara Rao and another .....Petitioners AND The Chairman & Managing Director, A.P.S.P.D.C., Tirupati and 2 others. ....Respondents The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU WRIT PETITION No.17992 of 2011 ORDER: 1. This writ petition is filed under Article 226 of the Constitution of India to declare the action of the 3rd respondent in proposing to give promotion to the petitioners’ juniors though the names of the petitioners find place at Sl.No.1 and 2 in the Seniority list dated 31.05.2009, only on the ground that disciplinary proceedings are pending against them, as being illegal, arbitrary and unconstitutional and contrary to the G.O.Ms.No.529 dated 19.08.2008 and their own proceedings in S.O.O (CGM-HRD) Ms.No.154 dated 25.11.2008 and consequently direct the respondents to promote the petitioners as Line Inspector and to grant such other reliefs. 2. The brief facts that are necessary for disposal of the present writ petition may be stated as follows: The petitioners while working as Linemen in the respondent company were placed under suspension on 21.11.2001 by the Divisional Executive Engineer, Operation, as per the instructions of the Superintending Engineer (Operation), Guntur. After lapse of 4 months i.e., on 27.2.2002 an enquiry officer was appointed under Reg.10(2) A. Prior to the suspension of the petitioners, the Chief Engineer, Electricity (HRD) APSPDCL, Tirupati appointed the Accounts Officer, Internal Audit, Vijayawada as an enquiry officer. Subsequently, the same was cancelled, and the first respondent appointed the Financial Advisor & Chief Controller of Accounts/APSPDCL, Tirupati as Enquiry Officer on 27.2.2002. Later the enquiry officer issued a charge sheet to the petitioners on 2.8.2003. Pursuant to considering the petitioners’ reply, the Enquiry Officer issued proceedings on 16.2.2004 for conducting the departmental enquiry on 23.2.2004 and 24.2.2004 at 10.30 a.m to 5.00 p.m. While so, the Government issued orders for reinstatement of the employees who were continued under suspension for more than two years. Therefore, the petitioners requested the respondents to consider their cases for reinstatement, since they were continued under suspension for more than two years, that when the respondents did not implement the Government orders, the petitioners were constrained to approach this Court and filed W.P.No.2275 of 2010 and the said W.P was disposed of vide order dated 5.2.2010. In pursuance of the said orders, the respondent authorities have reinstated the petitioners into service on 12.11.2010. Subsequently the Government vide orders in G.O.Ms.No.52 dated 25.2.2010 directed the respondent authorities to revise the pay scales of the reinstated employees from suspension. Accordingly the pay scales of the petitioners were revised. It is stated that the enquiry should be conducted based on the allegations at the time of issuing charge sheet as per Regulation 10(2)(aq) and 10.3(a)(i) of the APSEB Discipline and Appeal Regulations. The respondent authorities have prepared the seniority list of Lineman for promotion to the post of Line Inspector in the year 2009, as per the said list, the names of the petitioners are shown at Sl.Nos.1 and 2, but the respondent authorities ignoring the said seniority list have given promotion to the juniors of the petitioners on 24.5.2010 only on the ground of pendency of the disciplinary proceedings without issuing any sort of intimation. It is further stated that due to the retirement of P. Somaiah and G. Narasimha Rao, two posts of Line Inspector are falling vacant due to retirement on 30.06.2011, that the petitioners came to know that the respondent-authorities are proposing to fill the said posts ignoring the petitioners though their names are reflecting at Sl.No.1 and 2 of the seniority list. At this stage, if their cases are not considered for promotion to the post of Line Inspector, injustice will be caused to them. 3. The contention of the learned counsel for the petitioners is that though the petitioners are seniors, they were not considered for the promotion on the earlier occasion also and hence the writ petition may be allowed. 4. On the other hand, the learned counsel appearing for the respondents contended that as per the Service Regulations of A.P. State Electricity Board, the names of the petitioners will be included in the panel and after disciplinary proceedings are over appropriate decision will be taken with regard to their promotion., 5. The A.P.S.E. Board Service Regulations Part-III – Amendment was issued by the Government of Andhra Pradesh vide B.P.Ms.No.6 dated 6.4.1990 with regard to the Departmental Promotions. Section 3(B) (ii) of the relevant provision of the Regulations reads as follows: ii) Enquiry Officers is appointed or Show cases notice proposing the punishment is issued or Under suspension or Disciplinary authority has recorded on file his decision that a “Prima facie” case exists iii) After finalisation of the disciplinary proceeding indicated under sub clause (ii) above such cases shall be regulated as follows: a) Exoneration or warning Shall be considered for promotion in their due turn and included in the list of approved candidates at appropriate place after satisfying all other requirements. A note shall however be recorded against the entry in the list that the enlistment i s subject to the result of the disciplinary case. Shall be promoted notionally with effect from the date of assumption of charge on promotion of his immediate Junior in the list of approved candidates, His pay shall be regulated with reference to that junior without payment of arrears as per regulations. The first clause deals with when prima facie case exists for disciplinary authority, his name shall be considered for promotion and shall be included in the list of approved candidates at appropriate place but a note shall be recorded against the entry that the enlistment is subject to the result of the disciplinary case. After finalisation of the disciplinary proceedings, he shall be promoted notionally with effect from the date of assumption of charge on promotion of his immediate junior in the list of approved candidates, his pay shall be regulated with reference to that junior without payment of arrears as per regulations. 6. Therefore, from the above rules, it is clear that the case of the petitioners can be considered for placing them in the list of empanelment for promotion even when a disciplinary enquiry is pending against an employee. It is not disputed that the enquiry is pending against the petitioners. 7. The learned counsel for the petitioners placed reliance on unreported judgment of Division Bench of this Court in W.P.No.11795 of 2007 dated 08.06.2007 wherein it was held: “On a perusal of the record, it is apparent that the disciplinary proceedings are pending against the respondent-applicant. But however, delay in completing the enquiry proceedings, cannot be detrimental to the rights of the applicant. In this view of the matter and in view of the pendency of disciplinary proceedings, without expressing any opinion on the merits of the case, we feel it appropriate to direct the petitioners to consider the case of the respondent-applicant for the present for promotion to the post of Superintendent on par with his juniors who were already promoted. However, it is made clear that this will not preclude the petitioners-authorities to proceed with the enquiry and pass orders in accordance with law. It is further made clear that consideration of the case of the petitioner for the present, shall be without prejudicial to the disciplinary proceedings pending against him.” In that case, the rule 3(B)(ii) of the Regulation has not fallen for consideration in the above case. Therefore, the above decision has no application to the facts of the present case. 8. In view of the clear regulations of A.P. Electricity Board, there shall be a direction to the respondents to consider the case of the petitioners for promotion and empanel them in the list of promotions if they otherwise suitable and eligible. It is needless to observe that the petitioners shall be given promotion if they are exonerated from the departmental proceedings. 9. Subject to the above observations, the writ petition is disposed of. There shall be no order as to costs. ________________ K.C. BHANU, J. June, 29, 2010 Gk. THE HON’BLE SRI JUSTICE K.C. BHANU WRIT PETITION No.17992 of 2011 29th June, 2011 Gk.