THE HON’BLE SRI JUSTICE B. PRAKASH RAO AND THE HON’BLE SRI JUSTICE G. BHAVANI PRASAD WRIT PETITION Nos.11009 of 2000 and 10153 of 2002 Date: .02.2011 W.P.No.11009 of 2000 : Between: A.V. Krishna Murthy … Petitioner And State of A.P., rep.by its Principal Secretary, Education Department, Government of A.P., Secretariat, Hyderabad and others. … Respondents W.P.No.10153 of 2002 : Between: A.V. Krishna Murthy … Petitioner And State of A.P., rep.by its Secretary to Government, Education (HE) Department, Secretariat, Hyderabad and others. … Respondents THE HON’BLE SRI JUSTICE B. PRAKASH RAO AND THE HON’BLE SRI JUSTICE G. BHAVANI PRASAD WRIT PETITION Nos.11009 of 2000 and 10153 of 2002 COMMON ORDER : These two writ petitions have been filed by the very same petitioner under Article 226 of the Constitution of India seeking Writ of Certiorari assailing the correctness of the common order passed by the Andhra Pradesh Administrative Tribunal, Hyderabad, in O.A.Nos.4448 of 1995 and 6829 of 1998 with V.M.A.No.589 of 1998 and M.A.No.634 of 1999 (along with O.A.No.6252 of 1998), dated 21.2.2000, dismissing the applications filed by him and others purportedly under Section 19 of the Administrative Tribunals Act, 1985. 2. The brief facts, which gave rise to the present proceedings are that the petitioner claims that initially he was appointed as Lower Division Clerk in the year 1970 and promoted as Upper Division Clerk in the year 1975 and later promoted as Superintendent in the year 1980 and he has been performing his duties to the satisfaction of the superiors. In the year 1986, when he was sent for auditing, which is for the first time as far as the petitioner is concerned, to the colleges in Tenali and Guntur, the petitioner followed the procedure of auditing as per the guidelines and conducted the audit. However, having regard to the issue raised in the Assembly by the Members of Legislative Assembly regarding certain serious allegations of misappropriation of funds in those colleges, a vigilance enquiry was conducted and ultimately a report was submitted in the year 1987 followed by the House Committee report also in the year 1989, pointing out certain irregularities on the part of the managements of those colleges and the lapses in the process of auditing. The case of the petitioner is that though he became eligible for promotion to the category of Assistant Director in the year 1994, since a charge sheet was issued to him, his case was not considered for promotion. It was also pointed out that, in fact, the competent authority has dropped the charges and yet the Government did not agree with the same and the promotions are being denied to the petitioner. According to the petitioner, even some of the juniors, who have been named in the original applications and despite the fact that they were also similarly placed like the petitioner, were promoted except the petitioner. By referring to the various checkered events, including similar such earlier applications filed by the petitioner before the same Tribunal seeking a direction for his promotion, where the Tribunal had directed for considering his case, the petitioner states that yet no such consideration was done and for no fault of the petitioner, he has been denied the promotion. In the meanwhile, no doubt the petitioner was retired from service on attaining the age of superannuation, however, he could have been given the promotion as and when he fell due and also on the date when his juniors were promoted. In substance, the case of the petitioner is that, merely there are certain irregularities committed by certain employees in those colleges, nothing as such can be attributed to the petitioner nor he should be denied the promotion for any such lapses. 3. The case of the petitioner was contested by the respondents herein by filing respective counter affidavits pointing out the allegations levelled against the petitioner and the very auditing itself and also the lapses committed therein and contended that apart from pendency of the proceedings and issuance of the charge sheet, the petitioner could not have been promoted. The details of all the checkered events have also been narrated in the said counter affidavits. 4. On a consideration of the submissions made by both sides, the Tribunal, by referring to all the aspects and the events, sought to proceed on the premise that admittedly disciplinary action has been initiated against the petitioner on the recommendations of the House Committee, which has submitted a report, and also pointed out that the delay, if any, in the proceedings would not in any way go against the validity of the same and further, by taking into consideration the factum of not accepting to drop the charges by the competent authorities or taking any lenient view by the Government, held that there is justification for non-consideration of the petitioner’s case for promotion. Further, it was also pointed out that there has been due consideration for promotion in pursuance of the proceedings dated 26.06.1996 and 01.11.1996, respectively, and thus the applicants therein does not have any right as such to seek the relief. It has also been reiterated that the post to which the petitioner is seeking promotion is a selection post and, therefore, necessarily merit and ability are the prime basis on which it has to proceed, but not the seniority alone, therefore in view of the allegations against the petitioner and the pendency of the proceedings, the petitioner cannot seek any positive mandate as such against the respondents herein, nor he has got any enforceable right to seek such relief and while holding so, ultimately dismissed all the original applications filed by the petitioner and similarly situated employees. 5. We have heard the matter, in detail, and also perused the material available on record once again. 6. There being no dispute about the checkered events, at the most, the point that would arise in these writ petitions is, in the facts and circumstances, whether the petitioner can seek any relief for a direction to the respondents to consider his case for promotion. 7. Having regard to the aforesaid events and the admitted position with regard to the irregularities found with serious allegations against those concerned in the respective colleges and a lapse in the very process of auditing, which is meant to detect such irregularities, if any, and thereby giving scope for direct attribution against the petitioner in failure to discharge the basic responsibilities and duties, as an official or otherwise, it cannot be said that the petitioner can be absolved of such lapses. There is no dispute to the fact that serious allegations of mis-appropriation and misuse of funds of the colleges have been taken note of in the enquiry, which has been taken up by the House Committee and also the Government. Similarly, proceedings were also initiated for disciplinary action and a charge sheet was also issued against the petitioner and other similarly placed persons. No doubt, the proceedings were pending for quite some time in view of the parallel proceedings, which are pending. Though at one point of time, the competent authority sought to drop the proceedings, but however, the same was set at naught by the Government. Further more, nothing has been pointed out or properly explained by the petitioner as to how such serious irregularities could go on unnoticed. The duty of the Auditing Department and the officials concerned basically is to identify the lapses, but not to give a go- bye or miss the same. 8. We have carefully perused the contents of the original applications filed before the Tribunal and also the affidavits filed in these writ petitions, apart from the explanations given at various points of time. There is no reference, much less any proper explanation to the lapses committed by the petitioner in discharge of his duties as an Audit official while exercising the process of auditing. Hence, having regard to the pendency of the proceedings and also the inception of an enquiry against the petitioner, at the relevant point of time, it cannot be said that the petitioner has got any right to seek such relief for a direction to the respondents to consider his case for promotion. Further, there is also no dispute that the post to which the petitioner is seeking promotion is a selection post, which is based on merit and ability and not merely based upon the seniority alone. 9. Therefore, on a proper appraisal of the merit and ability and the factum of the pendency of the proceedings with such serious allegations, there is any dearth in consideration of the case of the petitioner in proper perspective. We are in entire agreement with the reasoning assigned by the Tribunal and we do not find any merit, much less any reason to come to a different conclusion than the one arrived at by the Tribunal. Hence, the writ petitions are liable to be dismissed. 10. Accordingly, both the writ petitions are dismissed. There shall be no order as to costs. ____________________________ JUSTICE B. PRAKASH RAO _______________________________ JUSTICE G. BHAVANI PRASAD 18.02.2011. Msr THE HON’BLE SRI JUSTICE B. PRAKASH RAO AND THE HON’BLE SRI JUSTICE G. BHAVANI PRASAD WRIT PETITION Nos.11009 of 2000 and 10153 of 2002 18.02.2011 (Msr)