*THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA W.P.No.3148 of 2007 % 22.9.2010 Between: P.Gopalaiah s/o. P. Venkata Subbaiah, Hindu, aged about 74 years, Retired Superintending Engineer (Addl.Charge), I & CAD Department, r/o. D.No.45-25-D-1, Ashok Nagar, Kurnool, Kurnool District. ....PETITIONER AND The Principal Secretary to Government, Irrigation & CAD Department, Secretariat Buildings, Hyderabad, and three others. .....RESPONDENTS ! COUNSEL FOR PETITIONER: Mr.L.J.VEERA REDDY ^ COUNSEL FOR RESPONDENTS: G.P. FOR IRRIGATION AND COMMAND AREA DEVELOPMENT < Gist: > Head Note: ? CITATIONS: [1] 1991 (5) SLR 658 2 1998 (1) SLR 707 3 AIR 2000 SC 2767 4 1991 (5) SLR 602 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) Date:22-9-2010 PRESENT THE HON'BLE SRI JUSTICE B.PRAKASH RAO and THE HON'BLE SRI JUSTICE B.N.RAO NALLA WRIT PETITION NO :3148 of 2007 Between: P.Gopalaiah s/o. P.Venkata Subbaiah ..... PETITIONER AND The Principal Secretary to Government, Irrigation & CAD Department, Secretariat Buildings, Hyderabad, and others ....RESPONDENTS THE HON'BLE SRI JUSTICE B.PRAKASH RAO and THE HON'BLE SRI JUSTICE B.N.RAO NALLA W.P.No.3148 of 2007 ORDER: (Per B.N.Rao Nalla,J) This writ petition is filed for a writ of Certiorari calling for the records relating to the orders dated 12.09.2006 passed by the Andhra Pradesh Administrative Tribunal in O.A.No.6548 of 2001 and quash the same as arbitrary and illegal, and consequently direct the respondents to give notional promotion as Superintending Engineer to the petitioner with retrospective effect i.e. 01.7.1987 with all consequential benefits such as pay fixation, arrears and pension etc. 2. The brief facts of the case are that the petitioner was initially appointed as Junior Engineer (now designated as Assistant Executive Engineer) in the year 1956, subsequently, he was promoted as Assistant Engineer (now designated as Deputy Executive Engineer) and then he was promoted as Executive Engineer through G.O.Ms.No.73, I & CAD Department, dated 22.9.1977. As per seniority in the category of Executive Engineer, he was due for promotion to the post of Superintending Engineer in the year 1987. There were several vacancies of Superintending Engineers at that time. But the authorities had not filled up the posts and all the vacancies of Superintending Engineers were kept vacant. The Executive Engineers were placed on Full Additional Charge of Superintending Engineers. The petitioner was given full Additional Charge of Superintending Engineer in the month of January,1990 and he was continued till his superannuation on 31.7.1990. Thereafter, the first respondent issued G.O.Rt.No.296, 1 & CAD Department, dated 11.04.1991 initiating disciplinary proceedings against the petitioner and another for the irregularities said to have been committed by him relating to appointments of N.M.R(Nominal Muster Roll) workers and promotion of Attenders as Record Assistants while he was working as Superintending Engineer on Full Additional Charge. The Commissioner of Enquiries was appointed as Enquiry Officer to conduct the enquiry and he gave his report holding that none of the charges framed against them are proved. But, the first respondent did not accept the enquiry report and issued show cause notice proposing to penalise the petitioner by deducting Rs.10/- per month from his pension and finally issued G.O.Ms.No.38, 1 & CAD, dated 23.03.1996 deducting Rs.10/- per month from the pension of the petitioner. Aggrieved by the same, the petitioner preferred a revision to the first respondent but no orders were passed. 3. The Government has constituted Departmental Promotion Committee (DPC) on 10.12.1993 for promotions to the post of Superintending Engineers, wherein petitioner’s name was also considered, but his name was deferred on the ground that the enquiry ordered in G.O.Rt.No.296, I & CAD Department, dated 11.04.1991 is pending. 4. The petitioner made representations to the first respondent to pay pending TA bills and Medical reimbursement bills pending with respondent No.4 since 1987 and also to pay his family journey bill consequent on his retirement on 31.7.1990 for journey of himself and his family from Srikalahasti to Kurnool after declaring his new home town as Hyderabad, which is also pending with the second respondent since 1990. But there was no response from the first respondent. 5. For the aforementioned reasons, the petitioner filed O.A.No.6025 of 2001 on the file of the Andhra Pradesh Administrative Tribunal to direct the respondents to give notional promotion to him as Superintending Engineer w.e.f. 01.7.1987 and also to grant all monetary claims pending, with interest by disposing of the representations dated 24.2.1996 and 10.9.2000. The Tribunal after hearing the matter disposed of the O.A. directing the first respondent to examine the representations of the petitioners as per rules and pass appropriate orders within a period of three months from the date of receipt of that order. Pursuant to the order of the Tribunal in the O.A., the first respondent considered the representations of the petitioner and rejected the claim vide Memo No.32920/Ser.II.I/2001-2 dated 28.11.2001. Aggrieved by the same, the petitioner filed O.A.No.6548 of 2002 on the file of the Andhra Pradesh Administrative Tribunal. 6. The respondents filed counter inter alia stating that the name of the petitioner was included in the Common Gradation List of Assistant Engineers and Executive Engineers in G.O.Ms.No.210, I & CAD, (Ser.I) Department, dated 15.7.1993 and G.O.Ms.No.318 , I & CAD Department, dated 26.11.1993. Further, his name was included in the panel of Executive Engineers for notional promotion to Superintending Engineers’ cadre and review of promotion made up to the year 1987. But, his name was deferred due to the pendency of the disciplinary proceedings. Aggrieved for non-inclusion of his name in the Superintending Engineers’ cadre, he made a representation to the Government on 24.2.1996 and the Government after examining all the issues put-forth by him negatived his request for giving promotion as Superintending Engineer on par with his juniors vide Memo No.10002/Ser.II.I/96-5, dated 13.5.1997. 7. The Tribunal having gone through the material placed on record and having heard the counsel on either side, dismissed the O.A. holding that the Departmental Promotion Committee considered the name of the petitioner for promotion to the post of Superintending Engineer, but because of pendency of departmental enquiry against him, his name was deferred, and as such its interference does not arise. Challenging the same, the present writ petition has been preferred by the petitioner. 8. The learned counsel for the petitioner contends that the Tribunal should have noticed that the enquiry initiated against the petitioner pertains to the irregularities said to have been committed by the petitioner in the year 1990 while he was holding the additional charge of Superintending Engineer and the said enquiry would not come in the way of his promotion as Superintending Engineer since his promotion was to be considered w.e.f. 01.7.1987; that the Tribunal should have seen the nature of the enquiry conducted against the petitioner; that the Tribunal ought not to have stated that the complaint filed by the petitioner before the Lokayuktha for not giving promotion, was dismissed on the ground of pendency of disciplinary proceedings, which is contrary to the Rules and law governing the field and that the observation of the Tribunal that the representation of the petitioner for promotion to the post of Superintending Engineer was considered by the authorities and the same was rejected, is contrary to the Administrative Tribunals Act and Rules framed thereunder. Therefore, he contends that the order of the Tribunal is liable to be set-aside. 9. On the other hand, the learned Government Pleader for Services-II submits that the petitioner while working as Executive Engineer was given Full Additional Charge of Superintending Engineer, Telugu Ganga Project Circle, Srikalahasti on 31.01.1990. The name of the petitioner was included in the Common Gradation List issued in G.O.Ms.No.210, I &CAD (Ser.1) Department dated 15.7.1993 and G.O.Ms.No.318, I & CAD (Ser.II) Department dated 26.11.1993. The petitioner has committed irregularities relating to conversion of NMRs into work-charged establishment and giving irregular promotions and appointments to the provincial categories from that of Attenders without following rules. As such, disciplinary proceedings were initiated against the petitioner. The name of the petitioner for promotion to the post of Superintending Engineer was considered in the D.P.C. but his name was deferred as the enquiry ordered in G.O.Rt.No. 296, I & CAD Department dated 11.4.1991 was pending. Further, after completion of disciplinary proceedings, punishment was imposed on the petitioner in G.O.Ms.No.38, I & CAD Department dated 23.3.1996 by deducting Rs.10/- per month from his pension. The petitioner’s representation dated 24.2.1996 to the first respondent for giving notional promotion as Superintending Engineer was rejected after examining all the issues put-forth by him, vide Memo. No.10002/Ser.II.1/96-5, dated 13.5.1997. The petitioner filed Complaint No. 1236/1998 before the Lokayuktha and Upa-Lokayuktha with similar request to promote him notionally as Superintending Engineer with effect from 01.7.1987 and the same was dismissed vide its proceedings dated 16.8.2000. Then O.A.No.6025 of 2001 filed by the petitioner for the self-same relief was disposed of directing the authorities to examine the representations of the petitioner and pass appropriate orders as per rules. Pursuant to the orders in the O.A., the authorities examined the representations of the petitioner and the same were rejected since there are no new grounds other than those that were adduced by him in his earlier representation. Further, the claim of T.A. Bills and medical reimbursement of the petitioner are not received by the Irrigation Circle, Kurnool as reported by the Superintending Engineer, Irrigation Circle Kurnool vide letter No.367M dated 17.3.2007. For the aforementioned reasons, he submits that the writ petition is liable to be dismissed as there are no new grounds put-forth by the petitioner. 10. Heard the learned counsel on either side and perused the record. 11. It is to be seen that the petitioner while working as Executive Engineer, was given Full Additional Charge of Superintending Engineer, Telugu Ganga Project Circle, Srikalahasti on 31.01.1990 and he retired from service on attaining the age of superannuation on 31.7.1990 while holding the above said Full Additional Charge. The petitioner was due for promotion to the post of Superintending Engineer in the year 1987. The petitioner is said to have committed irregularities relating to conversion of NMRs into work-charged establishment and giving irregular promotions and appointments to the provincial categories from that of Attenders without following rules, while holding the Full Additional Charge of Superintending Engineer and as such, disciplinary proceedings were initiated against him. The post of Superintending Engineer is a selection post. 12. The Government has explained the reasons for not effecting the promotions in time as there was delay in finalisation of seniority list due to administrative reasons and pendency of litigation on the said aspect. The Government issued final integrated seniority list of Deputy Executive Engineers as on 31.12.1982 in G.O.Ms.No.41, I & CAD (Ser.IV) Department dated 23.2.1991. Based on that list, notional promotions were given to the cadre of Executive Engineers and Superintending Engineers in 1991. While effecting promotions in 1991, no notional promotions were given to the persons who were junior to the petitioner. Subsequently, A.P. Administrative Tribunal vide orders dated 27.9.1994 in O.A.Nos.24481-487 of 1991 has quashed the integrated list and ordered to prepare zonal seniority lists of Deputy Executive Engineers comprising 6 Zones covering the period from 18.10.1975 to 31.12.1981. However, as per the orders of the Supreme Court dated 26.10.1987 relating to the Common Gradation List, there was review of promotions of Assistant Executive Engineers, Executive Engineers and Superintending Engineers. The name of the petitioner was included in Common Gradation List issued in G.O.Ms.No.210, 1 & CAD (Ser.1) Department dated 15.7.1993 and G.O.Ms.No.318, I & CAD, dated 26.11.1993. His name was also included in the panel of Executive Engineers for notional promotion to the post of Superintending Engineers and review of promotion made up to the year 1987. The petitioner’s name was considered by the Departmental Promotion Committee, but his name was deferred due to the pendency of the disciplinary proceedings against him. 13. The Commissioner of Enquiries was appointed as Enquiry Officer to conduct departmental enquiry against the petitioner and another for irregularities relating to conversion of NMRs into work-charged establishment and giving irregular promotions and appointments to the provincial categories from that of Attenders without following rules and after due enquiry he found that the charges framed against the petitioner and another were not proved, but, the Government rejected the findings of the Enquiry Officer. Based on the preliminary enquiry report dated 01.09.1990 and after carefully examining the original records obtained from the Officers concerned, the Government has decided to impose a penalty of deducting Rs.10/- per month from the pension of the petitioner vide G.O.Ms.No.38, I & CAD Department, dated 23.03.1996. 14. The decisions relied on by the learned counsel for the petitioner in Kehar Singh, Deputy Superintendent of Police v. The State of Punjab and others[1], Chinmoy Moulik & others v. Damodar Valley Corporation & Others[2], Delhi Jal Board v. Mahinder Singh[3] and Union of India v. K.V.Jankiraman [4] are not relevant to the facts and circumstances of the case on hand. Hence, they are not considered. 15. In the circumstances, we are of the considered opinion that the respondent authorities have initiated disciplinary proceedings against the petitioner for irregularities which were proved after due enquiry and he was penalised. As such, the petitioner is not entitled for notional promotion as Superintending Engineer. Therefore, we do not find any infirmity in the impugned order dated 12.09.2006 in O.A.No.6548 of 2001 on the file of the A.P. Administrative Tribunal warranting interference under Article 226 of the Constitution of India. 16. The writ petition is devoid of merit and the same is accordingly dismissed. No order as to costs. _______________________ JUSTICE B.PRAKASH RAO ___________________ JUSTICE B.N.RAO NALLA 22.9.2010 Stp [1] 1991 (5) SLR 658 [2] 1998 (1) SLR 707 [3] AIR 2000 SC 2767 [4] 1991 (5) SLR 602