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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
PRASHANT KUMAR MISHRA, D.V.S.S. SOMAYAJULU, JJ.
State of A.P. Rep. by its Principal Secretary, Home Department – Appellant
Versus
Ch. Venkata Rao S/o Late Peda Krishnamma – Respondent
Writ Appeal No. 550 of 2022
Decided On : 06-09-2022
PROMOTION - DEFERMENT - RULE 5(B)(I) OF THE ANDHRA PRADESH STATE AND SUBORDINATE SERVICE RULES, 1996 - G.O.MS. NO. 424 GA (SER. C) DEPARTMENT, DATED 25.05.1976 - G.O.MS. NO. 66, GENERAL ADMINISTRATION (SERVICES-C) DEPARTMENT, DATED 30.01.1991 - SUMMARY: The court held that the post of Head Constable is a non-selection post for the purposes of promotion and therefore, in view of Rule 5(b)(i) of the Rules, 1996, the promotion can be deferred only upon imposition of penalty and not otherwise.
Fact of the Case:
The petitioner, a Head Constable, was denied promotion to the post of Assistant Sub-Inspector due to the pendency of disciplinary proceedings against him. The petitioner challenged the denial of promotion, arguing that Rule 5(b)(i) of the Andhra Pradesh State and Subordinate Service Rules, 1996 (Rules, 1996) prohibits the deferment of promotion merely on the ground of pendency of disciplinary proceedings.
Finding of the Court:
The court held that the post of Head Constable is a non-selection post for the purposes of promotion and therefore, in view of Rule 5(b)(i) of the Rules, 1996, the promotion can be deferred only upon imposition of penalty and not otherwise. The court also held that neither G.O.Ms. No. 424, GA (Ser. C) department, dated 25.05.1976 nor G.O.Ms. No. 66, General Administration (Services-C) department, dated 30.01.1991 would come in the way of the writ petitioner to claim relief of promotion.
Issues: Whether the petitioner's promotion could be deferred merely on the ground of pendency of disciplinary proceedings.
Ratio Decidendi: The court relied on Rule 5(b)(i) of the Rules, 1996, which states that promotion to a non-selection post may be denied only if the incumbent is subjected to a penalty and not otherwise. The court also held that the additional embargo, if any created under a G.O., which is not issued in exercise of powers under Article 309 of the Constitution of India, would not override Rule 5(b)(i) of the Rules, which clearly states that promotion to a non-selection post may be denied only if the incumbent is subjected to a penalty and not otherwise.
Final Decision: The court dismissed the writ appeal and held that the petitioner was entitled to the relief claimed for.
JUDGMENT :
PRASHANT KUMAR MISHRA, J.
1. This writ appeal would call in question the legality and validity of the order dated 02.03.2022 passed by learned single Judge allowing W.P. No. 165 of 2022 filed by the respondent/writ petitioner claiming promotion as Assistant Sub-Inspector with retrospective effect from the date of promotion of his junior.
2. It is not in dispute that while the writ petitioner was working as Head Constable with effect from 05.09.2012, an FIR in Crime No. 154 of 2019 was registered against him on 01.05.2019 for the offence under Sections 338 and 337 IPC, which was altered to Sections 304-A and 337 IPC r/w Sections 132 and 134 of the Motor Vehicles Act for rash and negligent driving of the petitioner. Subsequently, C.C. No. 567 of 2019 arising out of the said crime number ended in acquittal in the Court of the XV Additional Metropolitan Magistrate, Bheemunipatnam vide order dated 06.11.2020. However, in the meanwhile, the 2nd respondent in the writ petition (appellant No. 2 in this appeal) issued a charge memo in C. No. 08/PR/2019 to the petitioner on the same set of allegations. On 03.10.2019, the petitioner submitted his explanation to the charge memo. During pendency of the said proceedings, the 2nd respondent issued a final interspersed seniority list of Men and Women Head Constables (HC)/Assistant Sub-Inspectors (ASI) of Visakhapatnam city as on 01.01.2020 showing the petitioner at serial No. 176 and one junior Ms. Zia Ruxana at senior No. 186. In the subsequent interspersed seniority list of HCs/ASIs of Visakhapatnam city unit, in which seniority position was shown as on 01.01.2022, the petitioner was shown at serial No. 99 and his junior Ms. Zia Ruxana was shown at serial No. 105 and she was promoted on 22.09.2020 as ASI, whereas the petitioner has not been considered for promotion though he is placed at serial No. 99 i.e. above Ms. Zia Ruxana, who was at serial No. 105.
3. Referring to Rule 5(b)(i) of the Andhra Pradesh State and Subordinate Service Rules, 1996 (hereinafter referred to as ‘Rules, 1996, the learned counsel for the petitioner argued that the petitioner cannot be denied promotion merely on the ground of pendency of disciplinary proceedings.
4. On the other hand, the learned Government Pleader for Services I has referred to G.O.Ms. No. 66 General Administration (Services-C) Department, dated 30.01.1991 to contend that when charges of misconduct are framed by the competent authority and served on the concerned delinquent officer, or a charge sheet has been filed against him in criminal court, his case for promotion is required to be deferred.
5. We have heard Mr. Aswartha Narayana, learned Government Pleader for Services I appearing for the appellants and Mr. G. Seena Kumar, learned counsel for the respondent/writ petitioner, and perused the material available on record.
6. The learned single Judge has referred to the Judgment rendered by the Division Bench of this Court in the case of State of Andhra Pradesh rep., by its Secretary, Home Department vs. Motupalli Narasimha Raju (W.P. No. 3099 of 2017), dated 27.08.2021, to hold that G.O.Ms. No. 424 GA (Ser. C) department, dated 25.05.1976 is not applicable in the case of the petitioner, who is a constable and it is applicable to the selection post falling under Rule 5(a) and Rule 6 of the Rules, 1996, and the said G.O. does not come in the way of the petitioner to claim promotion during pendency of the departmental proceedings and therefore, the petitioner is entitled to the relief claimed for.
7. In the Division Bench judgment in Motupalli Narasimha Raju (supra), a Coordinate Bench has held that the post of Head Constable is a non-selection post for the purposes of promotion and therefore, in view of Rule 5(b)(i) of the Rules, 1996, the promotion can be deferred only upon imposition of penalty and not otherwise. It has also been held that the additional embargo, if any created under a G.O., which is not issued in exercise of powers under Art
Promotion to a non-selection post can be deferred only upon imposition of penalty and not otherwise.
The main legal point established in the judgment is that a petitioner, fully exonerated from a minor punishment, is entitled to be considered for promotion from the date when his juniors were promote....
Settled seniority cannot be unsettled after the lapse of several years, and belated claims for retrospective promotion can disrupt the established seniority and promotion positions.
Promotion cannot be claimed as a matter of right when a criminal case is pending against an employee, despite the right to be considered for promotion.
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