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2023 DIGILAW 1027 (AP)

T. Hari Krishna v. State of Andhra Pradesh

2023-07-10

D.RAMESH

body2023
ORDER : 1. This Writ Petition under Article 226 of the Constitution of India is filed seeking to issue a Writ, Order or Direction particularly one in the nature of Writ of Mandamus to set aside the speaking order issued in Rc.No.1131/G3/2021 dated 16.03.2022 by 2nd Respondent as illegal, arbitrary, violation of G.O.M.s.No.66 General Administration (Services-C) Department dated 30.01.1991 apart from violation of legal position. 2. Heard the learned counsel for the petitioner and the learned Government Pleader appearing for the respondents. 3. The case of the petitioner is that the petitioner was initially recruited as Sub Inspector of Police(S.I) in the year 1989 and allotted to Zone II, subsequently got promoted as Inspector on 02.03.2000 with notional date of promotion as Inspector w.e.f. 01.07.1998 and later, promoted to the position of Deputy Superintendent of Police(Dy.S.P.) on 10-05-2010 with notional seniority from 01-05-2009. He was further promoted as Addl. Superintendent of Police (Addl.SP) Vide G.O.Ms.No.7 Home(SER-I) Department dated 28-01-2015 with notional seniority as Addl.SP w.e.f. 01-06-2012, but subsequently pulled down in the seniority list dated 03-06-2021 to 02-09-2014. As per G.O.Ms.No.7 Home (SER-I) Department dated: 28-01-2015, the petitioner has been discharging his duties as Addl.SP from 27-06-2015. 4. While so, the 1st respondent has issued series of final seniority lists of Deputy Superintendent of Police varying the dates, some efforts were made to revert the petitioner to the post of Dy.S.P. Then, the petitioner approached the combined Hon’ble High Court of Telangana and Andhra Pradesh by filing W.P.No.41346/2018, wherein the Hon’ble High Court directed the respondents to let the petitioner continue as Addl.SP. 5. Thereafter, on 03.06.2021 the 1st Respondent has issued provisional seniority list of Addl. SP, wherein Petitioner name was included at SI.No.19 with a peculiar remark that 'petitioner’s promotion would be defer until termination of charges pending against him’. To the said observation, petitioner has submitted his objection. But without considering the said objection, petitioner was totally removed from the final seniority list vide G.O.Ms.No.70 Home (Service-I) Department dated: 07-07-2021. A note was included in the seniority list stating that his seniority would be reviewed subject to the outcome of case pending before Tribunal for Disciplinary Proceedings in the rank of Addl.SP. and also that petitioner not entitled to claim seniority till finalization of the case before Tribunal for Disciplinary Proceedings. A note was included in the seniority list stating that his seniority would be reviewed subject to the outcome of case pending before Tribunal for Disciplinary Proceedings in the rank of Addl.SP. and also that petitioner not entitled to claim seniority till finalization of the case before Tribunal for Disciplinary Proceedings. Again, the petitioner approached the Hon’ble High Court by filing W.P.No.17627/2021 questioning the protracted Disciplinary proceedings against the petitioner vide TEC.No.14/2013 dated: 06-12-2013 on various grounds. 6. The issue of liquor case was subject matter of litigation before the Honb’le High Court and the Hon’ble Court quashed charge memos relating to several persons with regard to the same issue including an Inspector who worked under the petitioner while he was Assistant Commissioner of Police, Vijayawada, West on the ground of protracted disciplinary proceedings. The Prohibition & Excise Department has given G.O.Ms.No.466 of the Revenue (Ex.I) Department, A.P. dated: 06-09-2018 promoting everyone as per the Memo issued by the Revenue Department dated: 19-07-2018 vide Government Memo No.376867/Ex.1/2006. The same is being placed against the petitioner for consideration of his claim for promotion to the post of Superintendent of Police (Non-Cadre). Against the same, the petitioner has filed W.P.No.17627/2021 and this Court has passed an interim order directing the respondents to consider the case of petitioner for promotion to the post of Superintendent of Police(Non-Cadre) in terms of G.O.Ms.No.257, G.A (Ser.C) Department, dated 10.06.99, without reference to the Charge Memo dated 06.12.2013 in T.E.C. No.14 of 2013. As the respondents are not implementing the direction of the interim order, petitioner filed Contempt Case. After notice in the said Contempt Case, respondents have issued a speaking order vide Rc.No.1131/G3/2021 dated 16-03-2022 stating that a crime was registered against the petitioner in Disproportionate Assets case in the year 2019, as such his claim for promotion to the Superintendent of Police(Non-Cadre) does not arise at present. Aggrieved by the same, the present Writ Petition is filed. 7. During hearing, learned counsel for the petitioner referred to para No.5 of G.O.Ms.No.66 General Administration (Services-C) Department dated: 30-01-1991 issued by Government of Andhra Pradesh which reads as follows : 5. Aggrieved by the same, the present Writ Petition is filed. 7. During hearing, learned counsel for the petitioner referred to para No.5 of G.O.Ms.No.66 General Administration (Services-C) Department dated: 30-01-1991 issued by Government of Andhra Pradesh which reads as follows : 5. Government therefore, hereby direct that promotion/ appointment by transfer to a higher post in respect of officers who are facing disciplinary proceedings or a criminal case or whose conduct is under investigation and whose case falls under the ground referred to in para 2 (iii) of the G.O first read above, shall be deferred, only 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, as the case may be. 8. As per the above referred paragraph in the said G.O., no employee can be deferred promotion unless 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. In the instant case, the crime was registered in 2019 against the petitioner, 3 years were completed since the raid conducted by Anti-Corruption Bureau, but investigation is not yet completed and no final report was submitted with respect to the said crime. Hence, he contends that the petitioner cannot be deferred for promotion unless charges are framed and served upon him. 9. The learned counsel further contends that even as per the Memo No.623/Spl.C /A1/2008-1 dated: 15-10-2008 issued by the General Administration (SPL-C) Department, Government of Andhra Pradesh, a mandatory direction was given to the investigation agency to complete the investigation within six(6) months which is not done in the present case. Since the raid conducted by Anticorruption Bureau was a foisted one without any basis, the ACB could not secure any incriminating material which caused delay and not yet resulted in concluding the proceedings. 10. The learned counsel further relied on position of law as laid down by the Hon'ble Apex Court in Union of India Vs. Since the raid conducted by Anticorruption Bureau was a foisted one without any basis, the ACB could not secure any incriminating material which caused delay and not yet resulted in concluding the proceedings. 10. The learned counsel further relied on position of law as laid down by the Hon'ble Apex Court in Union of India Vs. K.V. Jankiraman, (1991) 4 SCC 109 , wherein it was categorically held that on the date on which the name of a person is considered by the DPC for promotion to a higher post, such person is neither under suspension nor has any departmental proceedings initiated against him, if he is found meritorious and suitable, has to be brought on selection list. The same view was followed in Delhi Jal Board Vs. Mahinder Singh; apart from G.O.Ms.No.66 General Administration (Services-C) Department dated: 30-01-1991 the objection raised in speaking order has no legs to stand. 11. The Respondent No.2 has filed the counter and submitted that on credible information against the petitioner that he had acquired disproportionate assets in his name and his family members, relatives and Benamies names by indulging in corrupt practices, a crime has been registered in Cr.No.11/RCA-ACB/SKL/2019 U/s.13(1)(b) of the Prevention of Corruption (Amendment) Act, 2018 and investigated into. During the process of investigation, the investigation officer issued a statutory notice on 04.01.2022 to the petitioner/accused Officer seeking his explanation. But the petitioner did not submit the same. Again on 15.02.2022 a remainder notice was issued but no reply was received as on the date of 18.05.2022 and that is the reason why the investigation was delayed. Apart from the above crime, another case is pending before the tribunal for disciplinary proceedings as Tribunal Enquiry Case (TEC) No.14/2013 on allegations of receiving the mamools from the Liquor Syndicate group leading to misconduct. 12. It is further stated in the counter affidavit that even though the petitioner was given promotion as Inspector of Police (Civil) on 02.03.2000, he was given notional seniority from 14.11.1997 and he was also given better notional seniority in the rank of DSP (Civil) as 01.05.2009 rather than his actual date of promotion on 01.07.1998. Hence, no injustice was done at both the levels of promotion. Hence, no injustice was done at both the levels of promotion. Thereafter, in view of the directions given by the Hon’ble High Court in order dated 19.09.2017 in W.P.No.9654/2016 to rectify the defects in drawing up the seniority in the feeder category of police (Civil), in pursuance of that order, took up the consequential exercise and seniority position of the officers of the Inspectors of Police (Civil), DSPs (Civil), Addl.S.P. (Civil) and S.Ps (NC) were revised. As such, the petitioner was assigned notional date of seniority in the rank of DSP w.e.f. 01.05.2009 and became eligible for promotion as Addl.S.P. in the panel year 2014-2015. Accordingly, Government vide G.O.Ms.No.52, Home (Ser.I) Dept., dt. 25.05.2021 considered for promotion as Addl.S.P. and deferred his case until termination of the charges pending against him. 13. Further while issuing seniority list of Addl.S.Ps from the panel year 2014-2015 to 2019-2020 vide G.O.Ms.No.70, dt.07.07.2021 of Home (Ser.I) Dept., observed the following : Sri T. Hari Krishna(Petitioner), presently working as Addl.S.P (Civil) shall be continued as Addl.S.P (Civil) as per Hon’ble High Court order issued vide LA.No.I of 2018 in W.P.No.41346/2018 “reversion of the petitioner, if proposed shall remain stayed pending further orders”. His seniority will be received subject to outcome of the Tribunal for Disciplinary Proceedings pending against in the rank of Addl.S.P. (Civil). He is not entitled for claiming the seniority till finalization of his seniority in the cadre of Addl.S.'P (Civil). 14. Thus, the petitioner is continued as Addl.S.P and was not reverted to the rank of DSP(Civil) though he was not figured in the final seniority list of Addl.S.P (Civil). 15. The Government issued the provisional seniority list of Addl.S.P. vide G.O.Ms.No.66 to call for objections, if any, from the affected parties and those affected parties, if any, should know the reasons for continuing him in the rank of Addl.S.P.(Civil). In view of that, the Government incorporated certain remarks against the name of the petitioner in the provisional seniority list. The intention of the Government for mentioning that is to avoid further legal complications from the affected parties. 16. In view of that, the Government incorporated certain remarks against the name of the petitioner in the provisional seniority list. The intention of the Government for mentioning that is to avoid further legal complications from the affected parties. 16. The Disciplinary Proceedings pending in the Tribunal vide TEC No.14/2023 dated 06.12.2013 is with regard to allegation that while petitioner was working as Assistant Commissioner of Police West Zone, Vijayawada Commissionerate, received an amount of Rs.1300, 4000, 2000 and 2000 monthly mamools in the months of July, September, October and November 2011 from one Sri. Vennam Uma. Maheswar Rao, Liquor syndicate leader Vijayawada through Sri Lingavarapu Anil Police constable PC 28•6 II Town PS Vijayawada Commissionerate. The Hon’ble Tribunal framed the charge against the petitioner and the case is pending for enquiry. 17. With regard to Disproportionate Assets case, during the course of investigation, IO obtained lot of evidence from Government institutions, private institutions, banks, etc., with regard to Assets, Income and Expenditure of AO and his dependents. To finalize the investigation, IO issued a statutory notice to which the petitioner has not submitted his reply till date. During the course of investigation, Search Warrants were obtained from the Hon’ble Court of 3rd Additional District &Sessions Judge-Cum-Special Judge for ACB cases Visakhapatnam on 17.12.2019 and on 19.12.2019 searches were conducted on the residence of the petitioner and some other places simultaneously. During the course of searches, many documents relating to assets, income and expenditure of the petitioner were found and seized under the cover of inventory proceedings and mediators reports. Various documents were obtained from various departments in the name of petitioner and his dependents in connection with Assets, Income and Expenditure along with pay drawn particulars of Accused Officers. Hence, time was consumed to collect the information and to ascertain the true facts of the case. IO completed almost all the investigation; it was the petitioner who has been delaying without submitting the explanation. The petitioner being a Senior Police Officer is not co-operating with the investigation. 18. Hence, time was consumed to collect the information and to ascertain the true facts of the case. IO completed almost all the investigation; it was the petitioner who has been delaying without submitting the explanation. The petitioner being a Senior Police Officer is not co-operating with the investigation. 18. In reply to the same, learned counsel for the petitioner has submitted that after this Court in W.P.No.17627/2021 has given direction to consider the case of the petitioner for promotion to the post of S.P.(Non-Cadre), instead of following the said directions, the respondents acted like an appellate authority and passed a speaking order rejecting the petitioner’s claim for promotion to the post of S.P(Non-cadre). 19. When the petitioner filed O.A.No.4191 of 2014 in APAT, the Hon’ble APAT passed order directing the respondents to consider the case of petitioner for promotion to the post of Addl.S.P without reference to the charge memo dated 02.06.2014 and 04.06.2014 (served vide TEC No.14/2013 for disciplinary Proceedings) for the panel years 2010-11, 2011-12 and 2012-2013. Thereafter, petitioner filed another petition Vide O.A.No.4852 of 2014 where in the Hon’ble APAT passed order directing the respondents to review the claim of the petitioner before effecting the promotions to the posts of Addl.S.P by including his name over and above his Juniors without reference to the letter addressed to the Government by the ACB to initiate enquiry in TDP on 11-09-2012 in connection with TEC No.14/2013. Accordingly petitioner was placed at appropriate place, but the posting orders were issued only after filing OA.No.968/2015 and Contempt Petition No.258 of 2015. 20. Even as per the integrated seniority list of Inspectors of Police (Civil) and revised Final combined seniority list of Dy. S.P(Civil) vide G.O.No.187 dated 29-11-2018, the petitioner was placed at SI.No.1296 above Sri. M. Narasimha Rao (SI.No.1298), and also in G.O.No.52 dated 25-05-2021 petitioner was placed at Serial No, 19 and his junior Sri. M. Narasimha Rao was placed at SI.No.21 of the same panel year was promoted as Addl.SP. But petitioner was deferred for promotion until the termination of charges pending against him. 21. M. Narasimha Rao (SI.No.1298), and also in G.O.No.52 dated 25-05-2021 petitioner was placed at Serial No, 19 and his junior Sri. M. Narasimha Rao was placed at SI.No.21 of the same panel year was promoted as Addl.SP. But petitioner was deferred for promotion until the termination of charges pending against him. 21. It is submitted that the petitioner was falsely implicated in the disproportionate assets case u/s.13(1)(b) of PC(Amendment Act) 2018 dated 17-12-2019 in which FIR was registered suo-moto on a complaint of a police officer who has professional rivalry against the petitioner, with a malafide intention to spoil his merit list and not to allow him to get the IPS and also submitted suo-moto reports. Petitioner has submitted several representations to the Director General, ACB, Vijayawada and to the Government and Vigilance Commissioner as to how the false case was foisted. Petitioner has also submitted two explanations separately on 29-09-2022 and 15-12-2022 respectively to the investigating officer for the two notices issued on 04-01-2022 and on 07-06-2022 enclosing all documentary and oral evidence in support of his legal sources of Income, Expenditure and Assets. 22. It is contended that all the excise officials who were connected to the allegations in the FIR were promoted with the common orders issued by the government. Since the FIR was registered on 19.12.2019 with false allegations and till date neither charge sheet/final report was not submitted to the Court nor served to the petitioner. 23. As per the observations made by the Apex Court in Union of India Vs. K.V. Jankiraman, it is clear that in the instant case, no charge sheet is filed. Hence, it is not reasonable on the part of the authorities to defer the case of the petitioner for promotion. The Hon’ble Apex Court has categorically held that if the charge sheet is filed in Criminal Prosecution or the charge memo is issued in the disciplinary proceedings, then only it should be construed that the proceedings are pending before the delinquent officer. Only on those circumstances, the consideration of promotion can be withheld. But, in the instant case, no charge sheet/charge memo is filed. 24. Only on those circumstances, the consideration of promotion can be withheld. But, in the instant case, no charge sheet/charge memo is filed. 24. Considering the above submissions and on perusal of the observations made by the Apex Court, the impugned orders dated 16.03.2022 of the 2nd respondent are set aside directing the respondents to consider the case of the petitioner for promotion to the post of Superintendent of Police(Non-Cadre) without reference to the crime registered against the petitioner in Disproportionate Assets Case. 25. With the above directions, this Writ Petition is disposed of. No costs. 26. Miscellaneous petitions pending, if any, in this Writ Petition shall stand closed.