A. Ramu @ Ramu Naik Vs State of Telangana

petition under Article 226 of the Constitution of^{lndia praying that in the} circumstances^{stated in the affidavitfiled therewith,the High court may be pleased} to issue a Writ,^{orderor direction, more particularlyone in the nature of the Writ of} Mandamus, declaring^{that the action of the 1st respondent in not considerand} dispose of the^{representationdated 01t1112023 made by the petitioner with regard to} his^{promotion to the post of special Grade Deputy collector on par with his juniors,} as illelal, improper,^{arbitrary,unjust,violative of principlesof natural justice, violative} of Artibles 14,16,1g^{and 21 of the Constitution of lndia and unconstitutional,keeping} in view of the fact that^{the Departmental Proceedings initiated against the petitioner,} vide G.o. trls. No. 76,^{dated 23.02.2021 was stayed by this Hon'ble court in w.P.} No. 21 754 of 2023, dated^{1810812023 and consequently directthe respondents,to} forthwith consider the case^{of the petitioner for promotion to the post of Special} Grade Deputy Collector^{by duly consider and dispose of the representationof the}

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petitioner dated 01t11t2}23, without reference to the^{pendencyof the Departmental} Proceedings^pending against him,^{within the stipulatedperiod.} { t l.A. NO: i I OF 2:023

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I Petition urrder Section 151 CPC^{praying that in} the^{circumstances stated in the} i affidarlrit filed in support of the^{petition, the High Court may be pleased to direct the} respohdents, I tc forthwith consider^the case^{of the petitione-rfor promotion to the post} of Sdecial l Grade Deputy Collector by duly^{considerand dispose of the} repreJentation^,rf the^petitioner dated 01.11^{.2023,without'referenceto the pendency} i of thelDepartmental i Proceedings^{pendingagainst him, withinthe stipulatedperiod,} pending disposal I of the above writ^petition.

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t Coun5el for the Petitioner: SRI^{CH.VENKATRAMAN} i i Counbel for the Respondents: AGP^{FOR SERVICES-II} I

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The Court macle the fotlowing:^ORDER

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HON'BLE MRS. JUSTICE SUREPALU^NANDA

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ORDER:

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Heald Sri Ch. Venkat Raman, learned^{counsel appearing on} behalf of the^petitioner and^{learned AssistantGovernment} Pleader for Servies-Il appearing^{on behalf of the respondenb.}

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under:

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'....to issue a writ, order or direction more^particularly one in the nature of Writ of^{Mandamusdeclaring the} action of the 1tt respondent^{in not considerand dispose} of the representation dated^{01.11.2023made by the} petitioner with regard to his^promotion to the^{post of} special Grade Deputy collector^{on par with his juniors,} as illegal, improper, arbitrary,^{unjust, violativeof} principles of natural^justice, violative of^{Articles t4, t6,} 19 and 2L of the Constitution^{ofIndia and} unconstitutional, keeping in^view of^{the fact that the} Departmental Proceedings initiated^{against the} petitioner, vide G.O.Ms.No.76, dated 23.02.202L^was stayed by this Hon'ble Court^{in W.P.No.21754of 2023,} dated 18.08.2023 and^{consequentlydirect the} respondents, to forthwith^{consider the case of the} petitioner for promotion to the^post of special^Grade Deputy Collector by duly^{consider and disposeof the} representation of the^{petitioner dated 01.11.2023,}

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the urithout reference to the pendency of Departmental Proceedings pending against him, within the stipulated^period, and^pass such other order...".

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-l-he case of the petitioner, in brief, is that the petitioner worke<J in various capacities during his 28 years of serviceⁱⁿ Govenrment. Initially the^petitioner was appointed as Deputy Tahsilclar Trainee on 31.O7.1995, thereafter the^petitioner was posted as Deputy Tahsildar on 06.08.1996 at Pedda Kothapalli Mandal, Mahabubnagar, and subsequently the petitioner^got promoted as Tahsildar for Golkonda Mandal, Hyderabad on 20.08.2007 and thereafter in view of G.O.Ms.No.563 dated L7.05.2Ot1the petitioner got promoted as Deputy Collector.

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It is the specific case of the petitioner that earlier the petitioner filed W.P.No.1045 of 2017 before this Hon'ble Court seekin,J to declare the action of the 1't respondent in failing to 6sisiflr-rr the case of the petitioner for promotion on adhoc basis on an alleged ground that there is a trap case pending against the pe:titioner while considering the case of others who are juniors to the petitioner in service and the Hon'ble Court was pleaserl to dismiss the said writ petition on t7.04.20t7. In the said order dated 17.O4.2O17 oassed in a batch of writ

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writ oetitions^{includanq W.P.No.1O45of 2017 it was} observed as follows:

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"Their entitlement for^{promotion shall be reviewedon} conclusion of disciplinary^{proceedings. For anyreason,} disciplinary^proceedings are^{notconclud-ed,delaynot} attributable to^{petitioners, theirentitlementfor promotionmay} be considered in accordance^{with G.O. Ms. No' 257 dated} 10.06.1999. Subject to^{above directions W.P.Nos'1045 and} 2451 of 2OL7 arc dismissed."

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It is the further the^{case of the petitioner that in spite of} the above said orders^{of this Hon'ble Court, the Governmenthas} not considered the^{case of the petitioner for promotion to the} post of Special Grade Deputy^{Collectorand issued the impugned} orders in G.O.Rt.No.76^{dated23.C2.2O21relating to the} proceedings pertaining to^{the enquiryinitiated against the} petitioner. In view of the same,^{the petitioner againfiled} W.P.No.21754 of 2023,^{before this Court and this Court was} pleased to pass the interim^{ordersdated 18.08'2023in favourof} the petitioner^{granting interim stay of all furtherproceedings} pursuant to the disciplinary^{proceedingsinitiatedagainstthe} petitioner vide the impugned^{G.O.Rt.No.76dated 23'O2'202L'} Thereafter, the^{petitionermade arepresentation dated} 01.11.2023 to the^{1st respondentto consider the petitioner's} case for^promotion, but the^{respondentshave not considered}

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petitioners request as on date. Aggrieved by the same the

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petitioner filed the present writ petition.

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4. PERUSED THE RECORD.

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(A) The rel vant oortion of the order of this Court datecl 17.04.2O17 oassed in W.P.Nos.1O45 of 2017, 43182 of 2016 and batch. is extracted hereunder:

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"29.2. As seen from the facts in W.p.No.1045 of 2017, the incident relates to the year 2011 and on 29.O9.2Ot4, Government declined the request of ACB to sanction to prosecute the petitioner and instead, decided to entrust the case to the Commissioner of Inquiries. For more than two years. :here is no progress in formulating the charges and the Jisciplinary proceedings are lingering at that stage. On the ,Jround that disciplinary proceedings are pending, his juniors '^/ere promoted in November, 2016. Similarly in W.p.No.2451 of .2017, the incident relates to the year 2014 and the crime was registered on 12.06.2014. On 23.04.2016, Government decided t:o initiate disciplinary action. Thereafter, there is no further [)rogress.^{Having decided} to initiate disciplinary action, there is no justification for the Government to keep silent, not frame the <:harges and conduct enquiry. Thus, in the facts of these two (:ases and by applying the balancing process, !:^deem it^proper to direct the respondents to conclude the glisciolinarv action as exoeditiousty as oossible, preferablv within a period of six months from the date of geceiot of coov of this order. A time schedule to be drawn commensurate with the procedure incorporated in ApCS (CCA) Flules, 1991. Petitioners shall cooperate for early conclusion of t1e enquiry. If the petitioners do not cooperate. it is open to the

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disciplinary authorities to conduct ex^parte enquiry^and conclude the^{proceedings."Their} entitlement^{for promotion shall} be reviewed on conclusion of disciplinary^{proceedings.For any} reason, disciplinary^proceedings are not concluded,^delaynot attributable to petitioners, their entitlement for^promotionmay be considered in accordance with G.Ot Ms. No.^{257 dated} 10.06.1999. Subject to above directions W.P. Nos.^1045and 245L of 2OL7 are dismissed."

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Writ Petition Nos.1045, 245L,2688 and 3576^{of 2OL7 are} dismissed and Writ Petition NOs.43182 of^{20L6, 2448,3188and} 5988 of 20 !7 are disposed of.^There shall be^{no order as to} costs."

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DISCUSSION AND CONCLUSION:

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Learned counsel appearing on behalf of the^petitioner submits that the specific direction^{issuedby this Court vide order} dated 17.04.2OL7^passed in^{W.P.No.1045 of 2017 and batch} directing the respondents to^{concludethe disciplinary action as} expeditiously as^{possible preferably within a period of six months} from the date of^{receipt of copy of this order, had not been} implemented by the^{respondentsherein and the respondents} have not concluded^{the disciplinary actionas on date.}

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This Court ooines that^{promotionis not a fundamental} riqht but Riqht to^{be considereclfor oromotion however is a} fundamental riqht.^{since such a rioht brinqs within its}

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ourview an effective, ouroosefut and meaninqfut

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ra n ce o at on lain th ition n shal for co nsiderino e case of he Detitaon er for oromotion. 7. Division Bench of this Court i.e., High Court of Andhra Pradersh as it then was, in the case of K.Sai Ram y State of Andhra Pradesh reported in 2Ot7 SCC Online Hyderabad 549 vide its Judgment dated O7.O9.2O17 held that a^..person cannot be penalized by keeping disciplinary proceedings pending for unduly long periods,, and in the said case the promotion to the petitioner therein was directed to be consiclered, with a clear observataon that same however shall trc subject to outcome of the disciptinary proceedings.

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Similar view was taken by this Court vide ats Judgment dated 31.07.2018 passed in W.p.No.21306 of 2(,1g.

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Th x n m In 1 5 Suo rme Court Cas 570. ated 31 .o1.199 in s of P e v ch Lal al os. 2and 1 3 obse edasu der:

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"12. Applying the balancing process, we are of the opinion that the quashing of charges and of the order appointing en'1uiry officer was not warranted in the facts and

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circumstances of the case. It is more appropriate^{and in the} interest of^justice as well as in the interest of^{administration} that the enquiry which had^proceeded to a^{large extent be} allowed to be completed. At the same time, it^{is directed} that the respondent should be considered^forthwithfor promotion without reference to and withou! taking into consideration the charges or the^pendency of^{the said} enquiry and if he is found fit for^{promotion,he should be} promoted immediatelv. This direction is made in the particular facts and circumstances of the case though^{we are} aware that the Rules and^{practicenormally followed in such} cases may be different. The^{promotionso made, if any,} oending the enquirv shall, however,^{be subiect} .to review after the conclusion of the enquirv^{and in the} lioht of the findinos in the enquiry. It^{is also directed} that the enquiry against the^{respondent shall be concluded} within eight months from today.^{The respondentshall} cooperate in concluding the enquiry.^{It is obviousthat if the} respondent does not so cooperate,^{it shall be open to the} enquiry officer to^proceed ex-parte.^{If the enquiry is not} concluded and final orders are^{not passedwithin the} aforesaid period, the enquiry shall^{be deemed to have been} dropped.

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The High Court^{has relied upon the decision of this} Court in State of^Ma dhva^{Pradeshv. Bani} noh & Anr. (1990 (Suppl.) S.C.C.738) on the^{questionof delay. That was a} case where the charges^{were seryed and disciplinary enquiry} sought to be initiated^{after a lapse of twelve years from the} alleged irregularities.^{From the reportof the judgment,the} nature of the charges concerned^{thereinalso do not appear.} we do not know whether the^{chargestherewere grave as in}

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this case. Probably, they were not. There is another cistinguishing feature in the case before us: by the date of tre^judgment of High Court, the major part of the enquiry u/as over. This is also a circumstance going into the scales r,,rhile weighing the factors for and against. As stated hereinabove, wherever delay is put forwa rd as a ground for quashing the charges, the court has to weigh all the factors, both for and against the delinquent officer and come to a c,:nclusion which is just and proper in the circumstances. In the circumstances, the principle of the said decision cannot h elp the respondent".

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Learn counsel aDDearano n behalf f the ubmi the lim I fa ht e tition er in the o nt writ oeti ion is a di ion to st ntt der evan th natitin ncr eG ri ut frrrth hrr i ha nFi iiana vt da reD ntation dated O1.11.2O23 add ssed to t e l"t on !n ss ate on reou est of the Detitione r for Dro otion on adhoc ba is to the ost of Deputv Coll or, an accorda nce to law, within a reas onable Deraod.

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l.earned Assistant Government pleader appearang on behalt of the respondents does not daspute the said submission made by the learned counsel appearing on behalf of the petitaoner.

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L2. Takinq into consideration:

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(A) The aforesaid facts and circumstances of^the

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case,

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(B) The submissions made by the learned^counsel appearing on behalf of the^{petitioner and the tearned} Assistant Government Pleader appearing^{on behalf of the} respondents,

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(c) The specific directions issued in^favour of^the petitioner in w.P.No.1O45 of 2017 and^batchdated t7.O4.2Ot7, directing the^{respondents to concludethe} disciplinary action as expeditiously^{as possible preferably} within a period of six months^{from the date of receipt of} copy of the said order,

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(D) The fact that the orders^{passed in W.P.No'1O45} of 2OL7 dated 1-7.O4.2OL7^{had not been implementedas} on date and disciplinary^{proceedingsinitiated againstthe} petitioner had not been concluded^{even as on date,}

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(E) The contents of the detailed^{representation of} the petitioner dated^{01.11.29,23 addressed to the 1"t} respondent herein,

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The Writ Petition is allowed directing the respo'ndents to consider the grievance of the petitioner as put forth in the representation dated 01.11.2023 addrr:ssed to the 1't respondent herein pertaining to the request of the petitioner for promotion on adhoc basis to the post of Deputy Collector on par with petitioner's junior.s duly taking into consideration the orders passed in favour of the petitioner in W.P.No.1O45 of 1Otl filed by the petitioner whereunder the respondents had been directed to conclude the disciplinary action as expeclitiously as possible preferably within a period of six montlrs from the date of receipt of copy of the said order dated 17.O4.2OL7 passed in W.P.No.1O45 of ZAtt and batch with a further stipulation that failing which the petitioner's entitlement for promotion may be considered in accordance with G.O.Ms.No.257 dated 10.06.1.ggg, and pass appropriate orders on petitioner's representation dated 01.1L.2O23 duly taking into consideration the obseruations of the Apex court in the judgment referred to anrl extracted above and also the order of the division bench of this Court dated tt.O4.2OL7 passed in w.P.No.1045 of 2oL7 and batch (referred to and extracted

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above), in accordance to law, in^{conformity with} principles of natural justice and duly communicate the decision on petitioner's representation^{dated 01.11.2023} seeking promotion to the^post of^{Deputy Collectoron par} with petitioner's^juniors. There shatl be^{no order as to} costs.

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The miscellaneous applications, if any^{pending, shall stand}

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closed.

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