JUDGMENT :

Joymalya Bagchi, J.

1. Petitioners/State has challenged the order dated 20.6.2016 in OA No. 9242/2013 with CMA No. 80/2015 wherein The Andhra Pradesh Administrative Tribunal at Hyderabad (for short, 'the Tribunal') set aside the proceeding in D. No. 714/2012/C. No. 4375/A1/2011, dated 23.6.2012 and proceeding in Rc. No. 4926/A1/2013, dated 27.3.2014 and directed the petitioners to consider the case of the respondent employee for promotion to the post of Head Constable on par with his immediate junior with all consequential notional benefits except monetary benefit without reference to the departmental enquiry in C. No. 35/PR/2007, dated 08.6.2007.

2. 1st respondent-employee worked as police constable and after successful completion of pre-promotional training and qualifying in final examination he became eligible to be promoted as Head Constable. When the 2nd petitioner issued the promotional panel vide D. No. 714/2012/C. No. 4375/A1/2001, dated 23.6.2012, the respondent's name was reflected at Serial No. 193 with remark 'punishment under currency'. Accordingly, the respondent-employee was denied promotion. It appears that the respondent had been issued a charge-memo bearing C. No. 155/PR/2002 dated 02.11.2002 on the ground that he was involved in a criminal case and pursuant to the departmental proceedings a punishment of reduction of minimum time scale of pay for a period of 3 years with cumulative effect was imposed upon him. However such penalty was set aside by the Tribunal in OA No. 6757/2008 vide order dated 25.02.2012 and the order of the Tribunal was affirmed by this Court. Though another charge-memo had been issued upon the respondent bearing C. No. 35/PR/2007 dated 08.6.2007 and the same was pending but no punishment had been imposed on the respondent employee at the time when the promotional panel was prepared. As the punishment imposed upon the respondent was set aside by the Tribunal and the order of the Tribunal was confirmed by this Court as aforesaid and no punishment was pending at the time of preparation of the promotion panel, the respondent employee approached this Court challenging the refusal of promotion on the basis of the observation 'punishment under currency' in the remark column.

3. At the interim stage, the Tribunal directed the petitioners to consider the representation of the respondent which came to be disposed of while Rc. No. 4926/A1/2013 dated 27.3.2014 wherein a reference was made to the subsequent charge-memo namely C. No. 35/PR/2007 dated 08.6.2007 and it was held as charges had been proved and penalty of RTSP stages for two years with effect: on future increments and pension had been imposed upon the 1st respondent-employee vide proceedings dated 22.3.2014, his prayer for promotion could not be considered. This decision was also assailed before the Tribunal in the same proceedings.

4. After hearing the parties, the Tribunal set aside the impugned proceedings and directed to consider the case of the respondent-employee for promotion to the post of Head Constable on par with his immediate juniors without consequential benefits except monetary benefit without reference to the departmental enquiry, as aforesaid.;

5. Mr. N. Aswartha Narayana, learned Government Pleader for Services-I, submits that the Tribunal failed to consider that the promotional panel was prepared in terms of Rules 73 and 74 of A.P. Police Manual which inter alia states that an employee facing any departmental enquiry for grave charges cannot be promoted.

6. On the other hand Mr. Seena Kumar, learned Counsel appearing on behalf of the respondent-employee submits that the A.P. Police Manual are in the nature of executive instructions and cannot override the statutory rules, particularly Rule 5(b) of the Rules 1996, which applies to the respondent-employee. He further submits that the post of Head Constable is a non-selection post, and therefore, pendency of disciplinary proceedings as per the said rule would not disent