THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION No. 12449 of 2011 DATE: 14-06-2011 Between: K.Kesaiah .. Petitioner And The Chairman and Managing Director, Transmission Corporation of Andhra Pradesh, APTRANSCO, Vidyut Soudha, Hyderabad and others. .. Respondents THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION No. 12449 of 2011 ORDER: This Writ Petition is filed to declare the action of the respondents in not considering the case of the petitioner for promotion to the post of Assistant Divisional Engineer by following the guidelines issued under Regulation 3-B (Part III) of A.P.S.E.B. Regulations, as illegal, arbitrary, void and unconstitutional being violative of Articles 14 and 16 of the Constitution of India and consequently direct the respondents to consider the case of the petitioner for promotion to the post of Assistant Divisional Engineer, without reference to the disciplinary proceedings pending against him regarding ACB case vide Cr.No.2/RCT-EWG-2008 by following the guidelines issued under Regulation 3-B (Part III) of A.P.S.E.B. Regulations. 2. The brief facts that are necessary for disposal of the present Writ Petition may be stated as follows: The petitioner was initially appointed as Assistant Engineer in respondent Corporation on 03.11.1998 and while working as Assistant Engineer, TLC Division, Rajahmundry, on a complaint, ACB officials registered a case against him in Crime No.2/RCT-EWG-2008. The 2nd respondent placed him under suspension vide proceedings dated 29.01.2008, thereafter reinstated him into service by proceedings dated 31.05.2010 and the 3rd respondent posted him as Assistant Engineer under the control of the 2nd respondent. He was placed at Sl.No.96 in the seniority list issued by 2nd respondent on 08.12.2009 and his case was ignored and not considered for promotion as Assistant Divisional Engineer on the ground of pendency of ACB case. After formation of the Corporation, the Regulations of APSEB are adopted. The guidelines were issued under Regulation 3-B (Part III) of APSEB Regulations for Departmental Promotion Committee for effecting promotions in various cadres and who are facing allegations or complaints, which shall not be a bar for considering promotions. When, in a case, an Enquiry Officer is appointed, charges are framed and served on concerned employee, show cause notice proposing punishment is issued or under suspension or disciplinary authority has recorded its decision that prima facie case exists against him, in the said circumstances, the employee’s case shall be considered as per the guidelines in his due turn and included in the approved candidates’ list at appropriate place after satisfying all other requirements and a note shall be recorded against the entry in the list, as subject to the result of the disciplinary case. The crime was registered by ACB against the petitioner in the year 2008 and the trial is not started before the concerned Court till date and as per the above guidelines his case has to be considered for next promotion to the post of Assistant Divisional Engineer for which he is duly eligible and qualified but his juniors were promoted to the next higher post. He made a representation to the 1st respondent on 18.03.2011 requesting to consider his case for promotion to the next higher post, pending finalization of ACB case. Hence, the writ petition. 3. Learned counsel for the petitioner contended that the pendency of disciplinary proceedings is not a bar for giving promotion and that this Court vide order dated 26.04.2011 in W.P.No.11971 of 2011 directed the authority to consider the case of the petitioner therein for promotion without reference to the charge memo and, therefore, requested to give a direction to the respondents. 4. On the other hand, Smt.Jyothi Eswar Gogineni, learned Standing Counsel for APTRANSCO contended that so long as the disciplinary proceedings are pending the question of giving promotion does not arise, but the petitioner can be included in the panel for promotion, and as and when the disciplinary proceedings are cleared the promotion will be given notionally and, therefore, there are no grounds to give a direction to the respondents. 5. Both the learned counsel did not dispute about the Regulations governing the service conditions of the petitioner for giving promotion. It is not in dispute that the petitioner was involved in an ACB case in Crime No.2/RCT-EWG-2008. It is not in dispute before this Court that the disciplinary enquiry is pending against the petitioner. The relevant Rules governing the service conditions, particularly with reference to the promotion, are Regulations 3(B)(ii) and 3(B)(iii)(a) of APSEB Service Regulations as adopted by the respondents. The Regulations 3(B)(ii) and 3(B)(iii) of APSEB Service Regulations read as follows: 3(B)(ii) Enquiry Officer is appointed and a charge sheet has been framed and served on the concerned OR show cause notice proposing the punishment is issued OR Disciplinary authority has recorded on file his decision that a prima facie case exists. 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 is subject to the result of the disciplinary case. 3(B)(iii) After finalization of the disciplinary proceedings indicated under Sub- clause (ii) above, such cases shall be regulated as follows: (a) Exoneration or warning 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 a per Regulation. (b) Censure Shall be promoted after six months from the date of awarding “Censure” or when the turn of his junior from the list of approved candidates comes up for promotion, after the date of awarding “Censure” whichever is earlier. (c) Any other punishment Shall be deemed to have been deleted from the list of approved candidates of the original list. Shall be considered for promotion only in the subsequent list. 6. So, as per Regulation 3(B)(ii), promotion to the higher cadre has to be considered in the due turn and if the petitioner is otherwise eligible to be promoted his name will be included in the list of approved candidates by endorsing an entry that the empanelment is subject to the result of disciplinary proceedings. So, this Regulation has been relied upon by learned counsel for the petitioner for the purpose of giving promotion to the petitioner to the next higher post. This Regulation does not clearly mandate that the petitioner is entitled for promotion when a disciplinary case is pending. This Regulation only provides to the empanelment of eligible candidates for giving promotion. The Regulation No.3(B)(iii) provides that after finalization of disciplinary proceedings the petitioner shall be promoted notionally with effect from the date of assumption of charge on the promotion of his immediate junior in the list of approved candidates. So, if the petitioner is exonerated from the departmental proceedings and his name is included in the list of approved candidates, then only the promotion will be given notionally from the date on which his immediate junior has assumed the charge. So, if both the Regulations 3(B)(ii) and 3(B)(iii) have to be read together in juxtaposition as they have got to be, it is clear that so long as the disciplinary proceedings are pending against the petitioner, he is not entitled for promotion, but he is only entitled to be included in the approved list. Therefore, this writ petition is devoid of merits. 7. Accordingly, the writ petition is dismissed at the stage of admission. There shall be no order as to costs. _____________ K.C.BHANU, J 14-06-2011 MR THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION No. 12449 of 2011 DATE: 14-06-2011 MR