THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT PETITION No.19567 of 2011 Dated:08.08.2011 Between: The Government of Andhra Pradesh, Represented by its Principal Secretary, Home Department, Secretariat Buildings, Hyderabad, And others. … Petition And P.Ravinder Reddy, And others. ... Responde THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT PETITION No.19567 of 2011 ORDER: (Per Hon’ble Sri Justice V.V.S.Rao) The writ petition by the Government, the Director General of Police the territorial Deputy Inspector General of Police is against the interlocu order of the Andhra Pradesh Administrative Tribunal dated 31.03.2011 V.M.A.No.586 of 2011 in O.A.No.3812 of 2010. By the said order, the lear Tribunal while refusing to vacate their ex parte order dated 22.10.2010 M.A.No.2918 of 2010 and dismissing the vacate miscellaneous applica directed the petitioners herein to comply with the interim order directing consider the case of the first respondent for the post of Inspector of Po without reference to the criminal case, being C.C.No.364 of 2002, pend against the first respondent. The first respondent filed the original application praying for a declara that the action of the petitioners in not promoting him to the post of Inspecto Police while promoting juniors as illegal and arbitrary and for a consequen direction. Initially, the learned Tribunal passed an ex parte interim o directing to consider the case of the employee. The Government then mo an application to vacate the stay, which was rejected. The case of the respondent is that he was recruited to the post of Sub Inspector in 1991 in Zo V as per the Presidential Order. The wife of his brother-in-law lodge complaint under Section 498-A of the Indian Penal Code, 1860 (IPC) P.S.Wardhannapeta in Warangal, being Crime No.216 of 2001. A completion of the same, the Investigating Officer filed charge sheet and the c was registered as C.C.No.364 of 2002 on the file of the Court of the Metropolitan Magistrate, Warangal. The first respondent is accused No.5 in said criminal case. In the seniority list of Sub Inspectors, the first respondent is placed serial No.60 and the second respondent is at serial No.62. By proceedi dated 14.11.2008, the second respondent was promoted as Inspector of Po ignoring the first respondent. It appears that the competent authority defe the promotion of the first respondent in view of the pendency of the crim case and also departmental enquiry into the allegations that the first respond was interfering with the investigation. Be that as it is, the first respond contended that even though the case under Section 498-A of IPC was pend his brother-in-law and his wife got divorced and therefore pendency of crim case is not a bar for considering his promotion. The petitioners herein refu all the contentions. This Court while admitting the matter passed directions suspending order of the Tribunal. The first respondent has now moved this Court with application, being W.V.M.P.No.2928 of 2011, for vacating the interim order. the issue is in a narrow compass, with the consent of Counsel for both sid the matter is being disposed of at the interlocutory stage itself. The Government Pleader for Services – I relies on Police Standing O (PSO) 74 and submits that as long as criminal case is pending against the respondent, he cannot claim promotion. He also relies on the decision of Division Bench in State of A.P v A.Ramulu[1]. Further, he would submit the petitioner’s case was considered in 2008 and due to pendency of criminal case his promotion was deferred, which cannot be faulted. Per con the Counsel for the first respondent submits that the criminal case has b pending since 2002, that the complainant and accused No.1 therein separated long back, and therefore, mere pendency cannot be a bar considering the case of his client for promotion. The writ petition itself is filed against the interlocutory order. Theref while the main O.A is pending before the Tribunal, it is not proper for this C to express any opinion on the merits of the case, especially, on the ques whether long pending criminal case against the Government servant is a ba being considered to the higher post for appointment by transfer. Suffice for purpose of this case that when the second respondent was promoted 14.11.2008, the first respondent did not make any attempt to raise objection approached the Tribunal. It is only when further promotions were considere 2010, he chose to file the O.A. This leads to an inference that the respondent was not pursuing the matter seriously. Furthermore, as per PSO 2, a Police Officer facing any departmental enquiry for grave charges involved in any investigation/enquiry or trial into a criminal case against him a regular enquiry or investigation by the Anti-Corruption Bureau or Tribuna Disciplinary Proceedings would incur temporary disqualification and he can be considered to be fit for promotion. Therefore, the order issued by Tribunal to consider the case of the first respondent without reference to pending criminal case, is unsustainable. We may also mention tha A.Ramulu the Division Bench of this Court reiterated the legal position w reference to G.O.Ms.No.257, dated 10.06.1999, which contains sim guidelines as those in PSO No.74-2 and held that when there is a vacuum the Andhra Pradesh State and Subordinate Service Rules, it is open to Government to issue executive instructions which are not ultra vires the Ru We respectfully follow the dicta therein and are inclined to set aside impugned order of the Tribunal. We, however, request the Hon’ble Tribuna dispose of the O.A itself expeditiously. In the result, for the above reasons, the impugned order is set aside, the writ petition is allowed without any order as to costs. _____________ (V.V.S.RAO ________________ (K.G.SHANKAR 08.08.2011 vs [1] 2010 (1) ALD 144 (DB)