Petitioner is presently working as Forest Section Officer/Forester and aspiring for promotion as Deputy Range Officer. Petitioner was served with charge memo dated 13.2.2017. It is alleged that petitioner allowed the sawmill owners to use additional saw bands in their sawmills violating the orders of the Hon’ble Supreme Court in W.P. No. 202 of 1995 and failed to implement A.P. Sawmill (Regulation) Rules, 1969. Petitioner filed his written statement of defense on 23.10.2017 denying the allegations. He was served with notice dated 18.5.2018 informing him that enquiry is fixed on 1.6.2018. On 1.6.2018 petitioner appeared before the Enquiry Officer and submitted his written statement of defense. According to petitioner, 8 persons were promoted as Deputy Range Officers on 24.10.2017, out of them 4 were juniors to him and two more were promoted on 2.4.2018. Alleging that he is illegally ignored for promotion by promoting his juniors and that for no fault on him, disciplinary proceedings are not concluded, this writ petition is filed.

2. Learned counsel for petitioner would submit that promotion to the post of Deputy Range Officer is based on seniority; that it is non-selection post. Promotion to non selection posts are covered by Rule 5(b) of A.P. State and Subordinate Service Rules, 1996. For promotion to non selection post, pending departmental proceedings is not a bar, therefore, petitioner could not have been ignored for promotion while promoting his juniors. He would submit that G.O.Ms.No.257 G.A. (Ser.C) Department, dated 10.6.1999 is applicable only to selection posts. He would further submit that as per policy of the Government, enquiry has to be completed in case of minor allegations within three months and in case of major allegations within six months, whereas in the case on hand, though charge memo was drawn on 13.2.2017, for more than one year, there is no progress in the enquiry. He would therefore submit that petitioner is entitled to be considered for promotion without reference to pending disciplinary proceedings.

3. The issue for consideration is whether petitioner is entitled for promotion pending disciplinary proceedings.

4. One of the important parameters of public service is if an employee is facing disciplinary action/trial on his/her misdemeanor or misconduct-criminal/civil, he/she should not be granted promotion. It is not in public interest to grant promotion to an employee when on allegation, enquiry/trial/investigation is pending against him. Thus, though employee is entitled to be considered for promotion, on such consideration even if he is found fit, his promotion can be differed on the ground that disciplinary proceedings/ criminal proceedings are pending. On this proposition, no distinction can be made between selection posts and non-selection posts. An employee has right for consideration for promotion, but has no right to ask promotion as a matter of course [K. Samantaray Vs. National Insurance Company Limited - (2004) 9 SCC 286]. In Delhi Development Authority v. H.C. Khurana (1993) 3 SCC 196, Supreme Court set out scope of consideration of competing claims. Supreme Court observed as under:

“8. …..Where a decision has been taken to initiate the disciplinary proceedings against a government servant, his promotion, even if he is found otherwise suitable, would be incongruous, because a government servant under such a cloud should not be promoted till he is cleared of the allegations against him, into which an inquiry has to be made according to the decision taken. In such a situation, the correctness of the allegation being dependent on the final outcome of the disciplinary proceedings, it would not be fair to exclude him from consideration for promotion till conclusion of the disciplinary proceedings, even though it would be improper to promote him, if found otherwise suitable, unless exonerated. To reconcile these conflicting interests, of the government servant and public administration, the