THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION No. 12200 of 2011 DATE: 14-06-2011 Between: Kakarla Siva Sankara Rao .. Petitioner And The APEPDCL, rep. by its Chairman & Managing Director, Corporate Office, At P & T Colony, Seethammadhara, Visakhapatnam and another. .. Respondents THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION No. 12200 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 Divisional Engineer, as illegal, arbitrary and unconstitutional being violative of Articles 14 and 16 of Constitution of India and consequently direct the respondents to consider the case of the petitioner for promotion as Divisional Engineer, without reference to the disciplinary proceedings vide Memo No.DE/ENQ/VSP/F.DOC.F.221/06 D.No.46/07, dated 13.02.2007 and ACB Case vide Crime No.7/RCA-RJY/2005 and promote him as such with all consequential benefits. 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 in the year 1991, subsequently promoted as Assistant Divisional Engineer in the year 1999 and he is duly eligible and fully qualified for promotion as Divisional Engineer. On 28.06.2005 the Anti-Corruption Bureau authorities have conducted a raid at his residence on an anonymous complaint and registered a case alleging that the petitioner was having disproportionate assets of Rs.30,42,530/- to his known sources of income and arrested on 28.06.2005 at 6.00 PM and produced before concerned Court and the Court released him on bail on 30.06.2005. He was placed under suspension by the 1st respondent vide proceedings dated 04.07.2005 even before receiving the preliminary report from the ACB authorities. The ACB officials have not even considered the Memo No.623/SPL.C/2008-2, dated 15.10.2008, wherein margin of 20% income of the accused Government servant is allowed. The ancestral property belonging to his parents were shown as if he acquired it. A site inherited by his mother through his grand mother and a building raised by his father with his hard earned money and the sthridhanam property of his wife, were also shown as the petitioner’s properties. Therefore, the allegation against the petitioner is totally baseless and not supported by any evidence and that he does not possess any disproportionate assets to the known sources of income. Aggrieved by the above proceedings, the petitioner filed W.P.No.14790 of 2005 and this Court was pleased to suspend the impugned proceedings vide order dated 23.03.2007. Accordingly he was reinstated into service and is working as Assistant Divisional Engineer. Basing on the above allegation, the Divisional Engineer, Enquiries APEPDCL, Visakhapatnam issued a Charge Memo dated 13.02.2007 while he was under suspension and the disciplinary proceedings have not concluded though four years have elapsed, which is contrary to G.O.Ms.No.679, GA(Ser.C) Department dated 01.11.2008. The respondents have promoted the juniors to the petitioner i.e. Sri E.Gireshwara Rao, Sri P.Soloman Raju and Sri G.Syam Babu to the posts of Divisional Engineer, ignoring the case of petitioner for promotion on the sole ground of pendency of disciplinary proceedings. The raid conducted by ACB authorities is on 28.06.2005 and a Charge Memo was issued by the Enquiry Officer on 13.02.2007, i.e. nearly after lapse of about 20 months, though more than 4 years have elapsed, the disciplinary proceedings have not concluded contrary to law and that inordinate delay in concluding the disciplinary enquiries, vitiates the entire proceedings. He reliably learnt that the respondents are effecting promotions by considering the cases of some more juniors for promotion ignoring the case of the petitioner. Hence, the writ petition. 3. The respondents filed a detailed counter affidavit contending that the respondents have not violated any constitutional or statutory right of the petitioner. The case of the petitioner was considered for empanelment in the list of approved candidates during the panel years 2009-10 and 2010- 11 but promotion orders were not issued as per Regulations laid down in APSEB Service Regulations as adopted by APEPDCL and as per the orders issued by the Government vide G.O.Ms.No.66, dated 30.01.1991 subsequently adopted by APEPDCL vide E.O.O.(HRD)Ms.No.78, dated 06.04.2010, since he is facing ACB case and the same is pending till date. His name was empanelled for the above years based on merit- cum-seniority against Roster Point 82 for promotion as Divisional Engineer at appropriate place subject to finalization of disciplinary case, which was pending against him. His case has never been ignored for enlistment in his due turn in the list of approved candidates for promotion subject to finalization of disciplinary case pending against him as per Regulation 3(B)(ii) of APSEB Service Regulations as adopted by APEPDCL. The petitioner was kept under suspension vide Memo dated 04.07.2005 on the allegation of disproportionate assets basing on the report of the ACB authorities. Sanction orders for prosecution was issued on 22.08.2006. As per the orders dated 23.03.2007 in W.P.No.14790 of 2005, which was filed by the petitioner challenging the suspension order, the petitioner was reinstated pending finalization of the ACB case vide Memo dated 08.05.2007. According to the instructions given by the Director General, ACB dated 18.05.2007, a charge sheet was filed in pending case. Therefore, as per Regulations 3(B)(ii) and (iii) the petitioner’s case can be considered for empanelment and promotion would be regulated only after finalization of the disciplinary enquiry. 4. 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. 5. On the other hand, Smt.Jyothi Eswar Gogineni, learned Standing Counsel for APEPDCL 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. 6. Both the learned counsels 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.7/RCA-RJY/2005. 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. 7. 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. 8. 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. 12200 of 2011 DATE: 14-06-2011 MR