Andhra Pradesh High Court - AmravatiG.Gnana Prakasa Rao vs The State Of Andhra Pradesh, on 31 August, 2020Bench: M.Satyanarayana MurthyTHE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY\n\n                  WRIT PETITION NO.15201 OF 2020\nORDER:This writ petition is filed underArticle 226of the Constitution\n\nof India, to issue Writ of mandamus, declaring the action of 3rd\n\nrespondent in not considering the petitioner for promotion to the\n\npost of Assistant Conservator of Forest pursuant to the list of eligible\n\nForest Range Officers for appointment by promotion to the cadre of\n\nAssistant Conservator of Forests during panel year 2019-2020\n\nissued by the 2nd respondent vide RcNo. 5424/2020/Admn-2 dated\n\n09/08/2020 on the pretext of pending articles of Charge but\n\notherwise eligible for promotion without considering representation\n\ndated 20.08.2020 as illegal, arbitrary and violative of Articles 14 and\n\n16 of Constitution of India.The petitioner joined Forest Department as Forest Guard on\n\n13.09.1994 in Repalle Range of Guntur Forest Division. He was\n\npromoted as Forest Section Officer during 1999 and was posted as\n\nFSO, VEldurti Section of Macherla Range, Guntur Forest Division.\n\nSubsequently, the petitioner was promoted as Forest Range Officer in\n\nJuly 2005 and was posted at Vijayapuri (South) Range, Nagarjuna\n\nSagar (WL) Division, Guntur District. The petitioner underwent\n\ntraining as Forest Range Officer in Forest College, Coimbatore, Tamil\n\nNadu. Later, he was posted as Forest Range Officer in Giddaluru\n\nRange of Giddalur Forest Division. Then, the petitioner was posted\n\nas Forest Range Officer, Guntur in Guntur Forest Division and on\n\ntransfer,   the    petitioner   joined   as   Forest   Range    Officer,\n\nYerragondapalem on 04.06.2017 and continuing since then.MSM,J\n                                                           W.P No.15201 of 20202It is contended that the petitioner worked sincerely throughout\n\nhis career and to the satisfaction of his superior officers. While the\n\nmatter stood thus, the petitioner was served with Article of Charges\n\nin   PCCF&HoFF,      AP    Ref    No.12003/2019/2019/Vig(iv)           dated\n\n17.07.2020 on the allegation that he did not take steps for payment\n\nof wage component of Rs.10,12,580/- for the works done during the\n\nyear 2018-19 under Mahatma Gandhi National Rural Employment\n\nGuarantee Scheme (MGNREGS). It is contended that the petitioner\n\ncarried out the works as per the instructions of the DFO (WL)\n\nMarkapur and as per guidelines for implementation of the Scheme.\n\nThe musters raised were submitted to the office of DFO (WL)\n\nMarkapur for generating Funds Transfer Order (FTO).                  As the\n\npetitioner   submitted    the   musters    to   his   superior   officer   for\n\nprocessing, the petitioner cannot be held responsible for the delay in\n\nprocessing    and   placed      required   documentary       evidences      to\n\nsubstantiate his case and to establish that the allegation is baseless.\n\nThe petitioner submitted an explanation dated 21.08.2020 and there\n\nis likelihood to drop further proceedings, as the petitioner did not\n\ncommit any irregularity.It is further submitted that, the second respondent, who is\n\nhead of the third respondent committee has issued letter vide\n\nRC No.5424/2020/Admn-2 dated 09.08.2020 with list of eligible\n\nForest Range Officers (FROs) for appointment by promotion to the\n\ncadre of Assistant Conservator of Forest (ACF) seeking information\n\nfrom divisional heads of the forest department, wherein, the name of\n\nthe petitioner is in Serial No.11 was not included in the eligible\n\nofficer list for various reasons. Hence, the name of the petitioner is\n                                                                                MSM,J\n                                                                  W.P No.15201 of 20203not likely to be considered for promotion to the post of Assistant\n\nConservator of Forest.On    27.08.2020,      the       Departmental    Promotion       Committee\n\nscheduled a meeting for considering names of suitable Forest Range\n\nOfficers to the post of Assistant Conservator of Forests. But, as the\n\nDepartmental Promotion Committee (DPC) is likely to meet shortly,\n\nand contended that, pendency of disciplinary enquiry is not a bar for\n\npromotion, but, the name of the petitioner is likely not to be\n\nconsidered and requested to issue a direction as stated supra.During hearing, Sri E. Sambasiva Pratap, learned counsel for\n\nthe petitioner while contending that initiation of disciplinary\n\nproceedings is not a bar to promote the petitioner and that too,\n\nsimilar cases were considered by the department vide orders in\n\nG.O.Rt.No.1427 General Administration (SC.C) Department dated\n\n29.06.2018, as the officers were promoted, subject to result of the\n\nproceedings, the same procedure can be adopted even in the case of\n\nthis petitioner and requested to issue a direction as stated above.Whereas, Sri Aswartha Narayana, learned Government Pleader\n\nfor Services submitted the candidature of the petitioner will be\n\nconsidered only subject to G.O.Ms.No.257 General Administration\n\n(SER.C) Department dated 10.06.1999 and requested to issue a\n\ndirection to the department for promotions committee to consider the\n\ncase   of    this    petitioner    in    terms   of   G.O.Ms.No.257         General\n\nAdministration (SER.C) Department dated 10.06.1999.Admittedly, charges were served on the petitioner after\n\ninitiation   of     disciplinary    proceedings       and   it   is   pending     for\n\nconsideration after submission of the explanation to the charges on\n\nthis petitioner. Similarly, the name of this petitioner is appearing at\n                                                                           MSM,J\n                                                             W.P No.15201 of 20204Serial No.11 in the list prepared for promotion by the committee.\n\nBut, on account of pendency of disciplinary proceedings, promotion\n\ncannot be denied, since it is not a bar. However, promotion is not a\n\nmatter of right, but the case of the petitioner for promotion can be\n\nconsidered. At best, the petitioner may request the Court to issue a\n\ndirection to consider his candidature for promotion.In any view of the matter, the Government after careful\n\nconsideration of similar cases, issued G.O.Ms.No.257 General\n\nAdministration (SER.C) Department dated 10.06.1999 prescribing\n\ncertain guidelines for consideration of employees during pendency of\n\nthe departmental proceedings and they are as follows:1. The details of employees in the zone of consideration for\n      promotion falling under the following categories should be\n      specifically brought to the notice of the Departmental\n      Promotion Committees or Screening Committees:-(i) Officers under suspension;(ii) Officers in respect of whom a charge sheet has been issued and\n      the disciplinary proceedings are\n      pending;(iii) Officers in respect of whom prosecution for a criminal charge is\n      pending.2. Officers who are facing enquiry, trial or investigation can be\n      categorised into the following groups based on the nature of\n      the allegations of charges pending against them or about to be\n      instituted namely:-(i) an officer with a clean record, the nature of charges or allegations\n      against whom relate to minor\n      lapses having no bearing on his integrity or efficiency, which even if\n      held proved, would not stand\n      in the way of his being promoted;(ii) an officer whose record is such that he would not be promoted,\n      irrespective of the allegations or\n      charges under enquiry, trial or investigation; and(iii) an officer whose record is such that he would have been promoted\n      had he not been facing enquiry,\n      trial or investigation, in respect of charges which, if held proved,\n      would be sufficient to supersede\n      him.3. The suitability of the officers for inclusion in the panel\n      should be considered on an overall assessment based on the\n      record which should include namely:-MSM,J\n                                                                           W.P No.15201 of 20205(i) Adverse remarks recorded in the Annual Confidential reports, the\n          penalties awarded and the bad reputation of the officer as vouchsafed\n          by the Head of the Department and the Secretary to\n          Government of the Department concerned; The above cases should be\n          considered as falling under category (ii) of item (B) above.(ii) The officers who do not have any adverse entry in the Annual\n          Confidential Report, and who have no penalties awarded against\n          them in the entire duration of the post and not merely in the past five\n          years and whose reputation is vouchsafed by the Head of the\n          Department and Secretary to Government of the Department\n          concerned should be considered as falling under category (iii) of item\n          (B) above The officers categorised as under item (iii) of G.O.Ms.No.424,\n          GA (Ser.C) Dept., dated 25-05-76 as mentioned above only should be\n          considered for adhoc promotion after completion of two years from the\n          date of the Departmental Promotion committee or Screening committee\n          Meeting in which their cases were considered for the first time.In C.O. Arumugam and others v. State of Tamil Nadu1, the\n\nApex Court held as follows:"5. As to the merits of the matter, it is necessary to state\n                  that every civil servants has a right to have his case\n                  considered for promotion according to his turn and it is a\n                  guarantee flowing from Articles 14 and 16(1) of the\n                  Constitution. The consideration of promotion could be\n                  postponed only on reasonable grounds. To avoid\n                  arbitrariness, it would be better to follow certain\n                  uniform principles. The promotion of persons against\n                  whom charge has been framed in the disciplinary\n                  proceedings or charge-sheet has been filed in criminal\n                  case may be deferred till the proceedings are\n                  concluded. They must, however, be considered for\n                  promotion if they are exonerated or acquitted from the\n                  charges. If found suitable, they shall then be given the\n                  promotion with retrospective effect from the date on which\n                  their juniors were promoted."In New Bank of India v. N.P. Sehgaland another2, the\n\nSupreme Court held as follows:"7. On a plain reading of this clause it is clear that even if\n                  disciplinary action is in process against an officer of the\n                  appellant Bank, that would not entitle the appellant Bank\n                  to exclude from consideration for promotion the officer\n                  concerned if he is otherwise entitled to be so considered.\n                  The only right given to the appellant in such cases is that,\n                  in case such an officer is otherwise found fit for\n                  promotion and selected for promotion, that promotion\n                  can be withheld until the officer is exonerated from the\n                  charges. It is significant that the said clause goes to state\n                  that in case such an officer is exonerated from the\n                  charges, promotion will have to be given effect to from\n                  the date on which it would have been otherwise effective\n                  but for the disciplinary action. This rule gives rise to\n                  the implication that till disciplinary action is in\n                  process or initiated, the officer concerned, against11991 Supp (2) SCC 1992(1991) 2 SCC 220\n                                                                                     MSM,J\n                                                                       W.P No.15201 of 20206whom allegations of misconduct might be made,\n                  can neither be excluded from consideration for\n                  promotion if he is entitled to be considered\n                  otherwise nor can the promotion be denied to him.\n                  In these circumstances, when the promotion from Scale\n                  II to Scale III was granted to respondent 1 on July 17,\n                  1984, there could be no question of condonation of\n                  the earlier acts of misconduct by reason of this\n                  promotion because in law and in view of the said clause\n                  (9) the appellant had no option but to consider\n                  respondent 1 for promotion and if he was otherwise\n                  found fit for promotion to promote him. In view of this\n                  conclusion, it must follow that the charge sheet\n                  submitted against respondent 1 and the disciplinary\n                  proceedings pursuant to the said charge sheet cannot be\n                  said to be bad in law and cannot be interfered with on the\n                  ground of condonation. In our view, the courts below\n                  were in error in holding that the earlier alleged acts of\n                  misconduct of respondent 1 had been condoned by the\n                  appellant and basing their conclusions thereon."In Union of India v. K.V. Janakiramanand others3, the\n\nSupreme Court observed that, the sealed cover procedure is to be\n\nresorted to only after the charge memo/charge sheet is issued and\n\nheld as follows:".........The sealed cover procedure is to be resorted to\n                  only after the charge-memo/charge-sheet is issued.\n                  The pendency of preliminary investigation prior to that\n                  stage will not be sufficient to enable the authorities to\n                  adopt the sealed cover procedure. We are in agreement\n                  with the Tribunal on this point......."The law laid down by the Supreme Court in the above\n\njudgments was followed in A. Jalender Reddy, s/o Sathi v. The\n\nState of Telangana4, wherein, the learned single Judge of High\n\nCourt of Telangana held that, "normally, pendency or contemplated\n\ninitiation of disciplinary proceedings against a candidate must be\n\nconsidered to have absolutely no impact upon his right to be\n\nconsidered. If the departmental enquiry had reached the stage of\n\nframing of charges after a prima facie case has been made out, the\n\nnormal procedure followed as mentioned by the Tribunal was 'sealed\n\ncover' procedure but if the disciplinary proceedings had not reached3(1991) 4 SCC 10942017 (4) ALT 225\n                                                                                MSM,J\n                                                                  W.P No.15201 of 20207that stage of framing of the charge after prima facie case is\n\nestablished the consideration for the promotion to a higher or\n\nselection grade cannot be withheld merely on the ground of pendency\n\nof such disciplinary proceedings." The same principle was reiterated\n\ninMeer Mubhashir Ali vs. The State of Telangana5.Therefore, by following the principles laid down in the\n\njudgments coupled with Government Order referred above, I find that\n\nit is a fit case to issue a direction to consider the candidature of the\n\npetitioner for promotion, and directed to follow sealed cover\n\nprocedure.In   view     of   these   guidelines   in    G.O.Ms.No.257       General\n\nAdministration           (SER.C)     Department        dated   10.06.1999,       the\n\ndepartments including the respondents/ departments herein are\n\nbound to adhere to the guidelines and pass appropriate orders. On\n\nthe other hand, similar case was considered by the department for\n\npromotional            committee     and   issued      G.O.Rt.No.1427       General\n\nAdministration (SC.C.) Department dated 29.06.2018. Keeping in\n\nmind G.O.Rt.No.1427 General Administration (SC.C.) Department\n\ndated       29.06.2018       and     G.O.Ms.No.257      General    Administration\n\n(SER.C) Department dated 10.06.1999, the Departmental Promotion\n\nCommittee i.e. the third respondent is directed to take appropriate\n\naction while considering the candidature of this petitioner for\n\npromotion in terms of G.O.Ms.No.257 General Administration\n\n(SER.C) Department dated 10.06.1999 and the earlier order passed\n\nby the Government in G.O.Rt.No.1427 General Administration\n\n(SC.C.) Department dated 29.06.2018.                   Learned counsel for the\n\npetitioner and learned Government Pleader for Services-I are52018 (4) ALT 413\n                                                                     MSM,J\n                                                       W.P No.15201 of 20208permitted   to   communicate    this   order   by   telephone    to   the\n\nDepartmental Promotion Committee immediately. No costs.With the above direction, the writ petition is disposed of.\n\n      Consequently, miscellaneous petitions pending, if any, shall\n\nalso stand closed._________________________________________\n                           JUSTICE M. SATYANARAYANA MURTHY\nDate:31.08.2020\n\nsp