Research › Search › Judgment

Andhra High Court · body

2002 DIGILAW 773 (AP)

M. Gangi Reddy v. A. P. TRANSCO Ltd. , Hyderabad

2002-06-25

L.NARASIMHA REDDY

body2002
L. NARASIMHA REDDY, J. ( 1 ) THE petitioner was appointed as Junior engineer in 1964 in the Andhra Pradesh state Electricity Board. He was promoted as asst. Divisional Engineer in 1984 and thereafter as Divisional Engineer in 1991. He became eligible to be promoted to the next higher post i. e. Superintending Engineer in the year 1999. At present he is working as Incharge superintending Engineer. ( 2 ) THE promotion to the post of superintending Engineer is by way of selection. The Departmental Promotion committee (DPC) met in September 1999 to prepare the panel for promotion to the post of Superintending Engineer. ( 3 ) THE case of the petitioner was also considered. The DPC approved the list on 30th September, 1999 which included the name of the petitioner and he was placed at no. 4 in the selected list. Having regard to the existing vacancies, the petitioner was entitled to be issued the orders of promotion. However he was denied the promotion by the Competent Authority on the ground that they have received certain information from the Anti Corruption bureau (ACB) that the petitioner was responsible for loss to the Board to a tune of rs. 35 lakhs on account of a transaction, which took place in the year 1995. ( 4 ) HENCE this Writ Petition seeking a declaration that the action of the respondent in denying promotion to him is illegal arbitrary and for a consequential direction to the respondents to promote him to the post of Superintending Engineer with effect from the date on which his immediate junior was promoted. ( 5 ) THE respondents filed counter- affidavit. The various service particulars furnished by the petitioner were not disputed. They justified their refusal to promote the petitioner on the ground that they have received certain information from the ACB as to the involvement of the petitioner in certain transactions resulting in loss to the Board and that they contemplated disciplinary action against the petitioner. ( 6 ) WHILE admitting the Writ Petition an interim direction dated 12-7-2001 was issued by this court to consider the case of the petitioner for promotion to the post of superintending Engineer. The respondents passed orders dated 18-8-2001, which is to the effect that in view of the contemplation of enquiry against the petitioner he is not eligible for promotion. The respondents passed orders dated 18-8-2001, which is to the effect that in view of the contemplation of enquiry against the petitioner he is not eligible for promotion. ( 7 ) SRI C. V. Mohan Reddy, learned counsel for the petitioner submits that once the DPC has found the petitioner fit and eligible to be promoted to the superior post, the refusal by the respondents to promote him in contemplation of an enquiry is contrary to law and results in denial of rights guaranteed under Articles 14 and 16 of the Constitution of India. It is his further case that admittedly even as on to-day no proceedings have been initiated on the basis of so called ACB report. It is his case that the disciplinary proceedings can be said to have commenced only on issue of charge-sheet and as long as no charge-sheet is issued, it cannot be said that the petitioner has incurred any disqualification in the matter of promotion. ( 8 ) SRI S. Ravindranath and Smt. Sesha rajyam, learned Standing Counsel for the respective respondents submit that though the petitioner was selected by the DPC, he has no right to be promoted and it is the prerogative of the appointing authority whether or not to promote any candidate and denial of promotion on the contemplated enquiry on the basis of ACB report cannot be said to be unjustified, ( 9 ) THE fact that the case of the petitioner was considered for promotion to the post of superintending Engineer by the DPC is not in dispute. In the panel dated 30-9-1999 the dpc included the name of the petitioner at si. No. 4. The purpose of constituting the departmental Promotion Committee is to assess the eligibility and fitness of the candidates from several points of view such as integrity, fitness and other related factors, as are reflected in the concerned records. It is no doubt settled principle of law that mere inclusion of name of a candidate in the panel does not entitle him to claim promotion as of right. However the right accrued on being included in the panel can be denied only for reasons to be recorded and such reasons being supported by the relevant service rules. It is no doubt settled principle of law that mere inclusion of name of a candidate in the panel does not entitle him to claim promotion as of right. However the right accrued on being included in the panel can be denied only for reasons to be recorded and such reasons being supported by the relevant service rules. ( 10 ) THE only basis pleaded by the respondents, be it in the counter-affidavit or in the proceedings dated 18-8-2001 is that they have received certain information from the ACB, which suggests the involvement of the petitioner in a transaction, which has resulted in loss to the respondents to the tune of several lakhs. The fact remains that ever since 1995, such information did not result in any imputation of allegations against the petitioner. In the matter of promotions particularly in the context of the existence of allegations against employees, the respondents have framed APSEB Service regulations. Regulation-2 deals with method of recruitment. Regulation 2. 3. B stipulates the procedure to be followed by the DPC for evaluating the performance of the employees for promotion to higher grade in various situations where the employees are facing allegations/charges. They range from mere allegations to pendency of disciplinary proceedings and culmination thereof resulting in different kinds of punishment. ( 11 ) THE present situation even by taking the allegations contained in the counter-affidavit on its face value, would at the most fit into the first circumstance contemplated under Rule 2. 3. B which deals with the situation of the pendency of allegations or complaints. The consequence provided therefor is that " (it) shall not be a bar for considering promotion. " ( 12 ) WHEN the rule is so unambiguous and specific about such situation, there is absolutely no jurisdiction for the respondents in withholding the promotion of the petitioner on the mere ground of existence of certain allegations or complaints against the petitioner; The DPC on its part has undertaken the exercise strictly in accordance with the regulations. It is the appointing Authority, which, in a way is proposing to exercise the functions ascribed to the DPC and is trying to withhold the promotion, which, the petitioner is otherwise entitled to. The learned counsel for the respondents placed reliance upon regulation 9-A which is to the effect that the promotion shall be made on merit-cum-seniority for certain posts including superintending Engineer. The learned counsel for the respondents placed reliance upon regulation 9-A which is to the effect that the promotion shall be made on merit-cum-seniority for certain posts including superintending Engineer. There is absolutely no quarrel with the contents of this provision. It is not the case of the petitioner that he should have been promoted on the basis of his seniority alone. The DPC has considered the case with reference to the parameters prescribed by the regulations, and found him fit. The petitioner has sufficient seniority, which enables him to be promoted. The very fact that despite the situation presented by the respondents, the petitioner has been functioning as In-charge Superintending engineer suggests that the stand taken by the petitioner (sic. respondents) is not sustainable either on facts or in law. ( 13 ) NORMALLY in a case where the denial of promotion of an employee is found to be not lawful, the matter has to be considered by the competent Authority afresh. In this case the DPC has found the petitioner fit to be promoted. The place of the petitioner in the seniority list is not in dispute. It is not denied that several officers included in" the list dated 30-9-1999 who were juniors to the petitioner were also promoted. The only basis as pleaded in the counter affidavit as well as in the proceedings dated 30-9-1999 (sic. 18-8-2001) is about the allegations, communicated by the ACB to the respondents. Inasmuch as that ground was found to be contrary to the regulations framed by the respondents themselves, there does not exist any hurdle in the matter of promoting the petitioner, which was long overdue. ( 14 ) ACCORDINGLY the Writ Petition is allowed and the respondents are directed to issue necessary orders promoting the petitioner with effect from the date on which his immediate junior was promoted and to the extent of consequential benefits. It is made clear that this order does not preclude the respondents from taking such action as they intend to take on the basis of the reports said to have been received by them from the acb. There shall be no order as to costs.