JUDGMENT : Joymalya Bagchi, J. 1. Petitioners/State has challenged the order dated 20.6.2016 in OA No. 9242/2013 with CMA No. 80/2015 wherein The Andhra Pradesh Administrative Tribunal at Hyderabad (for short, 'the Tribunal') set aside the proceeding in D. No. 714/2012/C. No. 4375/A1/2011, dated 23.6.2012 and proceeding in Rc. No. 4926/A1/2013, dated 27.3.2014 and directed the petitioners to consider the case of the respondent employee for promotion to the post of Head Constable on par with his immediate junior with all consequential notional benefits except monetary benefit without reference to the departmental enquiry in C. No. 35/PR/2007, dated 08.6.2007. 2. 1st respondent-employee worked as police constable and after successful completion of pre-promotional training and qualifying in final examination he became eligible to be promoted as Head Constable. When the 2nd petitioner issued the promotional panel vide D. No. 714/2012/C. No. 4375/A1/2001, dated 23.6.2012, the respondent's name was reflected at Serial No. 193 with remark 'punishment under currency'. Accordingly, the respondent-employee was denied promotion. It appears that the respondent had been issued a charge-memo bearing C. No. 155/PR/2002 dated 02.11.2002 on the ground that he was involved in a criminal case and pursuant to the departmental proceedings a punishment of reduction of minimum time scale of pay for a period of 3 years with cumulative effect was imposed upon him. However such penalty was set aside by the Tribunal in OA No. 6757/2008 vide order dated 25.02.2012 and the order of the Tribunal was affirmed by this Court. Though another charge-memo had been issued upon the respondent bearing C. No. 35/PR/2007 dated 08.6.2007 and the same was pending but no punishment had been imposed on the respondent employee at the time when the promotional panel was prepared. As the punishment imposed upon the respondent was set aside by the Tribunal and the order of the Tribunal was confirmed by this Court as aforesaid and no punishment was pending at the time of preparation of the promotion panel, the respondent employee approached this Court challenging the refusal of promotion on the basis of the observation 'punishment under currency' in the remark column. 3. At the interim stage, the Tribunal directed the petitioners to consider the representation of the respondent which came to be disposed of while Rc. 3. At the interim stage, the Tribunal directed the petitioners to consider the representation of the respondent which came to be disposed of while Rc. No. 4926/A1/2013 dated 27.3.2014 wherein a reference was made to the subsequent charge-memo namely C. No. 35/PR/2007 dated 08.6.2007 and it was held as charges had been proved and penalty of RTSP stages for two years with effect: on future increments and pension had been imposed upon the 1st respondent-employee vide proceedings dated 22.3.2014, his prayer for promotion could not be considered. This decision was also assailed before the Tribunal in the same proceedings. 4. After hearing the parties, the Tribunal set aside the impugned proceedings and directed to consider the case of the respondent-employee for promotion to the post of Head Constable on par with his immediate juniors without consequential benefits except monetary benefit without reference to the departmental enquiry, as aforesaid.; 5. Mr. N. Aswartha Narayana, learned Government Pleader for Services-I, submits that the Tribunal failed to consider that the promotional panel was prepared in terms of Rules 73 and 74 of A.P. Police Manual which inter alia states that an employee facing any departmental enquiry for grave charges cannot be promoted. 6. On the other hand Mr. Seena Kumar, learned Counsel appearing on behalf of the respondent-employee submits that the A.P. Police Manual are in the nature of executive instructions and cannot override the statutory rules, particularly Rule 5(b) of the Rules 1996, which applies to the respondent-employee. He further submits that the post of Head Constable is a non-selection post, and therefore, pendency of disciplinary proceedings as per the said rule would not disentitle him to promotion. 7. Admittedly, the post of Head Constable is a non-selection post to the purposes of promotion. Rule 5(b)(i) of the Andhra Pradesh State & Subordinate Services Rules, 1996 (hereinafter to be referred as 'the Rules') reads as follows : 5. Selection Posts:-(a) All first appointments to a State Service and all promotions/appointments by transfer in that service shall be made on grounds of merit and ability, seniority being considered only where merit and ability are approximately equal, by the appointing authority as specified in the sub-rule (a) of Rule 7 from the panel of candidates. Such panel shall be prepared as laid down in Rule 6 by the appointing authority or any other authority empowered in this behalf. Such panel shall be prepared as laid down in Rule 6 by the appointing authority or any other authority empowered in this behalf. (b) Non-Selection posts:-No non-Gazette post should be treated as selection post. 'Promotion and appointment by transfer to higher posts other than those mentioned in sub-rule (a) shall be made in accordance with seniority-cum-fitness, unless: (i) Such promotion or appointment by transfer of a member has been with held as a penalty; From the aforesaid rule, it is clear that only upon imposition of penalty, an employee would be denied promotion to a non-selection post. 8. On the contrary, the petitioners have relied on Rules 73 and 74 of A.P. Police Manual which inter alia provides the conditions for promotion to a non-selection post. (i) He should be an approved probationer. (ii) He should have 5 completed years of regular service. (iii) He should have a good record of service i.e., he should not be under currency of any major or minor punishments. He should not have suffered one major punishment or three or more minor punishments during the last 2 years. (iv) He should not be facing any departmental enquiry for grave charges or trial or investigation into a criminal case or a regular enquiry or Investigation by the Anti-Corruption Bureau or Tribunal for Disciplinary proceedings. (v) He should not be under suspension. Clause (iv) of the aforesaid conditions state that the pendency of any departmental proceeding on a grave charge would disentitle a member of the police force from promotion. 9. Mr. Seena Kumar, learned Counsel for the respondents argues that the aforesaid conditions in the Police Manual do not have statutory force and cannot override Rule 5(b)(i) of 'the Rules'. It is trite law that executive instructions cannot override statutory rules operating in the same field. Thus, we are in agreement with Mr. Seena Kumar that the additional embargo envisaged in condition (iv) as laid down in Rules 73 and 74 of the A.P. Police Manual 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. 10. In the present case, the penalty imposed on the respondent-employee in 2002 had been set aside by the Tribunal and the order of the Tribunal was confirmed by this Court. 10. In the present case, the penalty imposed on the respondent-employee in 2002 had been set aside by the Tribunal and the order of the Tribunal was confirmed by this Court. Though another disciplinary proceedings being C. No. 35/PR/2007 dated 08.6.2007 was pending against him at the time when the promotional panel was prepared in 2012, no penalty was imposed upon him till 2014. Hence the petitioner was denied promotion to a non-selection post in 2012 on an erroneous premise that penalty had been imposed on him. While considering the representation of the respondent-employee as per interim direction of the Tribunal, the authorities again illegally denied him promotion by referring to a penalty imposed in 2014 i.e. after the date on which the promotional panel was prepared. 11. In New Bank of India v. N.P. Sehgal and another, 1991 (1) SCR 473 , the Hon'ble Apex Court inter alia held that pendency of departmental enquiry is no bar for promotion of the Government employee, and that the punishment can be imposed even in the promoted post. 12. In the light of the aforesaid discussion, we are of the opinion that the respondent-employee was illegally denied promotion in 2012 on an erroneous premise that he was suffering punishment. Subsequent rejection of his representation was also contrary to Rule 5(b)(i) of 'the Rules'. Thus, we find no reason to interfere with the order of the Tribunal and accordingly, the writ petition is dismissed. There shall be no order as to costs. 13. As a sequel, miscellaneous petitions, if any, pending in the writ petition shall stand closed.