THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTIE G. BHAVANI PRASAD WRIT PETITION No.18680 of 2009 ORDER: (Per GBP,J) This writ petition is filed seeking to quash order dated 10.07.2009 passed by the Andhra Pradesh Administrative Tribunal, Hyderabad, in O.A.No.6512 of 2009, whereby the petitioner was directed to promote the respondent to the post of Administrative Officer. 2. O.A.No.6512 of 2009 was filed by the respondent seeking to consider his case for promotion to the post of Administrative Officer with effect from the date on which his junior was promoted, with all consequential benefits, without reference to the disciplinary proceedings, vide charge memo dated 21.04.2009. 3. The case of the respondent is that he was recruited as the Junior Assistant in the Revenue Department on 25.06.1984 and thereafter he was transferred to the Transport Department on Departmental transfer in 1990 and subsequently he was promoted as Senior Assistant and working as such. While so, the Deputy Transport Commissioner, Chittoor, on 29.08.2001 issued a charge memo, which according to the respondent is not in consonance with Rule 20 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (for short ‘the Rules’) levelling certain allegations of misappropriate of Government money, pertaining to the year 2000, though he has not committed any irregularities, to which he submitted detailed explanation denying the allegations. Thereafter, an enquiry officer was appointed who held the charges to have been proved and a show-cause notice was issued to the respondent on 15.09.2005, to which the respondent submitted explanation requesting to drop further action. But the petitioner, vide proceedings dated 20.09.2007, dismissed the respondent from service. Against the same, the respondent filed an appeal to the Government, which too was rejected. Aggrieved thereby, he approached the Tribunal by filing O.A.No.7911 of 2008 and the Tribunal allowed the O.A., on 12.12.2008, setting aside the orders dismissing the respondent and the petitioner was directed to reinstate the respondent into service forthwith, treating the period from the date of dismissal to the date of reinstatement as ‘on duty’ and holding the respondent entitled for all the consequential benefits, leaving it open to the petitioner to initiate disciplinary proceedings in accordance with the Rules, if they so desire, by issuing a fresh charge memo. Accordingly, the petitioner issued proceedings dated 10.03.2009 reinstating the respondent into service and directing the Deputy Transport Commissioner, Kurnool, to issue positing orders and pay all the consequential benefits to the respondent from the date of dismissal to the date of reinstatement into service. According to the respondent, in view of reinstatement proceedings dated 10.03.2009, he is entitled to promotion to the post of Administrative Officer on par with his junior - Mr. B. Nagendra, who was promoted as Senior Assistant during the year 1994, whereas the respondent was promoted as Senior Assistant prior to his junior i.e., in the year 1991 itself and his case for promotion as Administrative Officer was not considered only on the sole ground of pendency of disciplinary proceedings. Accordingly, he made a representation to the petitioner on 21.03.2009 requesting to consider his case for appointment by transfer as Administrative Officer, since his junior was already promoted, but no orders have been passed thereon. However, charge memo has been issued against him on 21.04.2009, which according to the respondent was ab initio void. Therefore, he filed O.A.No.6512 of 2009. The Tribunal, by impugned order 10.07.2009, directed the petitioner to promote the respondent to the post of Administrative Officer from the date on which Sri B. Nagendra, who was junior to him, was promoted i.e., in the month of July, 2007, with all consequential benefits. Accordingly to the respondent, the Tribunal rightly allowed the O.A. with all consequential benefits and promotion. 4. The case of the petitioner is that the claim of the respondent was for promotion as Administrative Officer and as and when the Departmental Promotion Committee (D.P.C.) again meets for panel 2008-2009 as per his seniority, eligibility and other Government Rules, in vogue, the same need be considered. Therefore, the impugned order passed by the Tribunal granting promotion to the respondent from the date when his junior was promoted i.e., in July, 2007, is not sustainable. Therefore, the present writ petition is filed. 5. The Tribunal, while allowing O.A.No.6512 of 2009, considered the relative contentious material and all other aspects of the matter and observed that the promotion could not be given to the respondent by the time D.P.C. met for 2007-2008 since he was under dismissal and thereafter dismissal orders were set aside in O.A.No.7911 of 2008 and therefore, the respondent is entitled for promotion as Administrative Officer in accordance with the Rules from the date when his junior was promoted in July, 2007. 6. The learned Government Pleader for Services-II appearing for the petitioner submitted that the Tribunal failed to follow G.O.Ms.No.257 dated 10.06.2009, whereby certain guidelines were issued for consideration of promotions/transfers to higher categories of employees who are facing disciplinary cases, and granting of promotion to the respondent from the date when his junior was promoted, is unwarranted in the facts and circumstances of the case, and therefore, the impugned order cannot be sustained in law. 7. The learned counsel for the respondent submitted that since the dismissal order of the respondent was set aside, he is entitled for promotion which he could have get, when D.P.C. met in 2007 but for the subsistence of the illegal dismissal orders and therefore, the Tribunal rightly allowed O.A.No.6512 of 2009 giving all attendant benefits, to which the respondent in entitled to. He further submitted that subsistence of departmental proceedings could not come in the way of promotion of an employee and placed reliance on the decision of the Apex Court in Union of India vs Dr. Sudha Salhan[1], wherein it was held as under: “The question, however, stands concluded by a three-Judge decision of this Court in Union of India vs. K.V. Jankiraman [(1991) 4 SCC 109 : 1993 SCC (L&S) 387 : (1993) 23 ATC 322] in which the same view has been taken. We are in respectful agreement with the above decision. We are also of the opinion that if on the date on which the name of a person is considered by the Departmental Promotion Committee for promotion to a higher post, such person is neither under suspension nor has any departmental proceedings been initiated against him, his name, if he is found meritorious and suitable, has to be brought on the select list and the “sealed cover” procedure cannot be adopted. The recommendation of the Departmental Promotion Committee can be placed in a “sealed cover” only if on the date of consideration of the name for promotion, the departmental proceedings had been initiated or were pending or on its conclusion, final orders had not been passed by the appropriate authority. It is obvious that if the officer, against whom the departmental proceedings were initiated, is ultimately exonerated, the sealed cover containing the recommendation of the Departmental Promotion Committee would be opened, and the recommendation would be given effect to.” In support of his contention, reliance is further placed on yet another judgment of the Apex Court in Bank of India vs. Degala Suryanarayana[2], whereby it was observed as under: “However, the matter as to promotion stands on a different footing and the judgments of the High Court have to be sustained. The sealed cover procedure is now a well-established concept in service jurisprudence. The procedure is adopted when an employee is due for promotion, increment etc. but disciplinary/criminal proceedings are pending against him and hence the findings as to his entitlement to the service benefit of promotion, increment etc. are kept in a sealed cover to be opened after the proceedings in question are over (see Union of India v. K.V.Jankiraman [(1991)4 SCC 109, 114-115: 1993 SCC (L&S) 387: (1993) 23 ATC 322: AIR 1991 SC 2010] SCC at pp.114-115: AIR at p.2013). As on 1-1-1986 the only proceedings pending against the respondent were the criminal proceedings which ended in acquittal of the respondent wiping out with retrospective effect the adverse consequences, if any, flowing from the pendency thereof. The departmental enquiry proceedings were initiated with the delivery of the charge-sheet on 3-12-1991. In the year 1986-87 when the respondent became due for promotion and when the Promotion Committee held its proceedings, there were no departmental enquiry proceedings pending against the respondent. The sealed cover procedure could not have been resorted to nor could the promotion in the year 1986-87 be withheld for the DE proceedings initiated at the fag end of the year 1991. The High Court was therefore right in directing the promotion to be given effect to to which the respondent was found entitled as on 1-1-1986. In the facts and circumstances of the case, the order of punishment made in the year 1995 cannot deprive the respondent of the benefit of the promotion earned on 1-1-1986.” By impugned order dated 10.09.2009, the Tribunal, while allowing O.A.No.6512 of 2009, gave the following direction, which reads thus: “In these circumstances, the respondent is directed to promote the applicant to the post of Administrative Officer from the date on which Sri B. Nagendra, who was junior to the applicant, was promoted in the month of July, 2007, giving notional benefits to him from the date of the promotion of his junior within a period of 4 weeks from the date of receipt of a copy of this order without reference to the Charge Memo, which was issued subsequently on 21.04.2009. The O.A. is accordingly allowed.” Having heard the learned counsel for both the parties and having perused the material on record, it is seen that the departmental proceedings initiated against the respondent culminated in dismissal of the respondent from service and the appeal preferred therefor was also dismissed. However, O.A.No.7911 of 2008 filed by the respondent was allowed by the Tribunal holding that since the departmental proceedings were not in accordance with the Rules, the same and the consequential dismissal order were quashed and the respondent was reinstated with all consequential benefits. However, as the promotion could not be given to the respondent when D.P.C. met in 2007 but for the illegal dismissal order, when the respondent represented for promotion on par with his junior, fresh departmental proceedings dated 21.04.2009 were initiated, assailing which he filed O.A.No.6512 of 2009. The Tribunal, while allowing O.A.No.6512 of 2009 gave directions, as extracted above. Though, it is true that the respondent was deprived of promotion when D.P.C. met in 2007, due to subsistence of dismissal orders, the Tribunal giving promotion to the respondent from the date when his junior was promoted is excessive. It would suffice, if the respondent’s case for promotion shall be considered for the panel 2007-2008. Accordingly, the direction in the impugned order dated 10.07.2009 in O.A.No.6512 of 2009 as extracted above is modified to the extent that the petitioner shall consider the case of the respondent for promotion to the post of Administrative Officer for the panel 2007-2008, if he is otherwise eligible. With the above modification, the Writ Petition is dismissed. There shall be no order as to costs. ______________________ GHULAM MOHAMMED, J _____________________ 22nd April, 2010 G. BHAVANI PRASAD, J GHN [1] (1998) 3 SCC 394 [2] (1999) 5 SCC 762