APHC010587152023 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI [3208]

(Special Original Jurisdiction)

WEDNESDAY,THE EIGHTH DAY OF APRIL TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SRI JUSTICE D RAMESH WRIT PETITION NO: 30313/2023 Between:

1. K . LAKSHMI BAI, D/O. SHIVAIAH NAIK AGE- 40 YEARS, OCC-

GR. II HOSTEL WELFARE OFFICER, GOVT.S.W GIRLS (HOSTEL) DHONE, NANDYAL DISTRICT. STATE OF ANDHRA PRADESH ...PETITIONER AND

1. T HE DISTRICT COLLECTOR, (SCW) KUMOOL, KUMOOL DISTRICT.

2. T HE DISTRICT COLLECTOR, NANDYAL, NANDYAL DISTRICT.

3. T HE DEPUTY DIRECTOR, SOCIAL WELFARE DEPARTMENT, NANDYAL, NANDYAL DISTRICT.

4. T HE STATE OF ANDHRA PRADESH, REP. BY ITS PRINCIPAL SECRETARY, SOCIAL WELFARE DEPARTMENT, SECRETARIAT, VELAGAPUDI, GUNTUR DISTRICT.

...RESPONDENT(S):

The Court made the following ORDER:

1. This Writ Petition is filed seeking to declare the action of Respondents 1 and 2 in not considering the case of the petitioner for promotion to the post of Grade-I Hostel Welfare Officer, which is a non- selection post, where seniority in the feeder category alone is the criterion for promotion, even though the petitioner is fully eligible, qualified, and within the zone of consideration, while considering the names of her juniors for promotion on the untenable ground that departmental proceedings initiated vide Charge Memo in Procgs. Rc. No.A1/123/2019-6, dated 20.08.2019, issued by the respondent in respect of the incident dated 06.09.2018 are pending, as highly illegal and arbitrary

2. Heard the learned counsel for the petitioner and the learned Government Pleader for the respondents.

3. The issue involved in the present case has already been considered by a Division Bench of this Court in W.A. No.550 of 2022 (State of A.P. vs.

Ch. Venkata Rao), wherein it was held as follows-

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. 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 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. Thus, 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