THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY W.P.No.8115 of 2010 ORAL ORDER: (per Sri Justice Goda Raghuram) Heard the learned Government Pleader for Services-I for the petitioners and Sri Manik Prabhu for respondent No.1. The writ petition is directed against the order of the learned A.P. Administrative Tribunal (Tribunal) dated 20.1.2010, allowing O.A.No.9074 of 2009 and declaring entitlement of respondent No.1 for promotion as Town Planning Officer (Ordinary Grade), without reference to the criminal case pending against him in C.C.No.9 of 2006 on the file of the Principal Sessions Judge for SPE & ACB cases and without reference to disciplinary proceedings initiated vide G.O.Rt.No.1518 dated 7.11.2005, in an existing vacancy, on the ground that punishment could as well be imposed on the first respondent-applicant in the promoted post (Town Planning Officer), if charges are subsequently proved. The factual matrix leading filing of the application by respondent No.1 before the Tribunal was that despite initiation of prosecution against him in a case pertaining to acquisition of disproportionate assets under the Prevention of Corruption Act, 1988 i.e. C.C.No.9 of 2006 and despite issuance of charge memo annexed to G.O.Rt.No.1518 Municipal Administration dated 7.11.2005, there was no progress either in the prosecution or in the departmental enquiry; and his non consideration for promotion to the next higher post of Town Planning Officer (OG) from the substantive category of Town Planning Supervisor constitutes arbitrary conduct on the part of the employer/State. Earlier, the first respondent’s promotion was also deferred in 2003 on the ground of pendency of the criminal case and a departmental enquiry and consideration was being perpetually deferred. Aggrieved thereby the first respondent approached the Tribunal. By the order impugned, the Tribunal allowed the O.A., granting the reliefs already adverted to. On a careful perusal of the order of the learned Tribunal, it is apparent that the order is vitiated by fundamental incoherence. The grievance of the applicant was non consideration of his case for promotion as Town Planning Officer (OG) from the category of Supervisor, in the A.P. Municipal Town Planning Subordinate Service, governed by rules issued G.O.Ms.No.568 H, MA & UD Department dated 23.5.1981. However, after setting out the relevant matrix of facts pertaining to the applicant, in paragraph 3 by a strange leap of logic the Tribunal proceeds to frame points for consideration, the first of which is “whether the applicant is not entitled for consideration for promotion to the post of Superintendent in view of criminal case pending against him”, an aspect which at variance with the case of either parties. On the analysis on point No.1, in paragraphs 5 to 8 of its order, the Tribunal proceeds on the misconception that the post of Superintendent being a non-selection post, promotions to which is on the basis of seniority alone, promotion to the post of Town Planning Officer (OG) should be complimentary. Again this is nobody’s case. As per the rules issued in G.O.Ms.No.568 dated 23.5.1981, the post of Town Planning Officer (OG) is to be filled up by direct recruitment and by promotion from the category of Supervisors. The rules specifically enjoin that promotion to the post of Town Planning Officer (OG) shall be by selection process. The Tribunal has clearly erred in basing its analysis on wholly irrelevant rules, namely the A.P. Ministerial Service Rules. It also requires to be noticed that from paragraphs 9 to 18, the Tribunal referred to the guidelines issued in G.O.Ms.No.424 General Administration (Ser.C) Department dated 25.5.1976 and G.O.Ms.No.86 dated 30.1.1991. These executive orders set out guidelines for promotion of officers against whom criminal cases or disciplinary proceedings are pending. The Tribunal observed that G.O.Ms.No.424 purports to deal with officers and their consideration for promotion during the pendency of a criminal case or disciplinary proceedings; and that the post Town Planning Officer (OG) is an employee not an officer; therefore, the instructions contained in G.O.Ms.No.424 have no application. The reasoning by the Tribunal on this aspect is misconceived. The orders in G.O.Ms.No.424 constitute generic instructions issued by the State for consideration by appropriate authorities while effecting promotions of all the categories of employees where criminal cases or disciplinary proceedings are pending. To confine the trajectory of the orders/instructions issued in G.O.Ms.No.424 to officers excluding employees and that on strained reasoning by the Tribunal, is subversion of the purposes for which the instructions issued in G.O.Ms.No.424. In the circumstances above, the order of the Tribunal is unsustainable and is accordingly set aside. The matter is remanded to the Tribunal for determination afresh after due consideration of the relevant service rules and in the context of claim of respondent- applicant with respect to promotion as Town Planning Officer (OG), governed by A.P. Municipal Town Planning Subordinate Service Rules issued in G.O.Ms.No.568 M.A. dated 23.5.1981. The writ petition is accordingly allowed. Having regard to the pendency of O.A. for a considerable time now, the Tribunal is requested to consider disposal of the Application expeditiously. There shall be no order as to costs. _________________ GODA RAGHURAM, J ________________________ G.KRISHNA MOHAN REDDY, J Dated: 17-11-2011 DA