ORDER : 1. The petitioner, who is working as Hostel Welfare Officer Grade-II, filed the above writ petition seeking the following relief: “.......to issue an appropriate, writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondents in promoting the unofficial respondents who are juniors to the petitioners to the post of Hostel Welfare Officer Grade-I vide proceedings Rc. No. A1/124/2018-27/28 dated 08.8.2020 without considering the case of the petitioner on the ground of pendency of departmental proceedings dated 14.7.2014 and in Proceedings Rc. No. A3/3922/2022-1 dated 31.12.2021 of the 3rd respondent, though the post of HOW-Gr-I is a nonselection post as illegal, improper, unjust, arbitrary and set-aside the same, further declare that the petitioner is entitled for promotion to the post of Hostel Welfare Officer Grade-I without reference to the pendency of the departmental Proceedings in Charge Memo in Rc. No. A1/164/2014 dated 14.7.2014 and in Proceedings Rc. No. A3/3922/2022-1 dated 31.12.2021 of the 3rd respondent as it is a non-selection post on par with his juniors who are promoted in Rc. No. A1/124/2018-27/28 dated 08.8.2020 with all consequential benefits and pass such other order or orders......” 2. The petitioner was initially appointed as Hostel Welfare Officer Grade-II (for short, HWO Gr.II) on 26.12.2005 through the District Selection Committee and posted at Nunna. Probation was declared and his services were regularized in the cadre of HWO Gr.II. The petitioner worked at Government SW Boys Hostel, Prakashnagar, Vijayawada from 11.6.2011 to 2017. The 2nd respondent issued orders in Rc. No. A1/09/2012, dated 04.9.2012 whereby the petitioner and two others were nominated for training at HRD Centre, Hyderabad from 08.10.2012 to 10.10.2012. 3. While the petitioner was in training, on 08.10.2012 the Vigilance and Enforcement Officers conducted surprise check. After eight months, they submitted appraisal report dated 12.6.2013. One year thereafter, the 1st respondent issued Charge Memo in Rc. No. A1/164/2014 dated 14.7.2014. The petitioner submitted explanation on 30.7.2014 denying all the charges. The 1st respondent appointed Special Grade Deputy Collector, Polavaram Project, Vijayawada as Enquiry Officer and Assistant Social Welfare Officer, Vijayawada (Urban) as Presenting Officer. Notice was issued to the petitioner to appear before the Enquiry Officer on 24.6.2016. No action has been taken by the respondents for the last eight years. 4. The post of HWO is governed by the Social Welfare Subordinate Services Rules issued in G.O.Ms. Notice was issued to the petitioner to appear before the Enquiry Officer on 24.6.2016. No action has been taken by the respondents for the last eight years. 4. The post of HWO is governed by the Social Welfare Subordinate Services Rules issued in G.O.Ms. No. 189 Social Welfare (A.2) Department dated 31.12.1997. The post of HWO Gr.I falls under Class-A and Category-3 of Rule 2 of the above said Rules. Method of recruitment to the post of HWO Gr.I, as per Rule 3, is by promotion from the Category-4 of Class-A. The post of HWO Gr.I is a non-selection post and it should be filled from the candidates of HWO Gr.II strictly as per seniority. 5. Disciplinary proceedings, initiated against an employee, are to be completed within three months in simple cases and six months in complicated cases as per G.O.Ms. No. 679, General Administration (Services-C) Department dated 01.11.2008. As per the list of seniority in the cadre of HWO Gr.II, as on 01.1.2019, the name of the petitioner is shown at serial No. 15 and the persons below him in the list and juniors to him were given promotion as HWO Gr.I by the 1st respondent in Proceedings Rc. No. A1/124/2018-17 dated 08.2.2019 ignoring the case of the petitioner on the ground of pendency of departmental proceedings in Charge Memo in Rc. No. A1/164/2014 dated 14.7.2014. However, in view of the objections received, the promotions were kept in abeyance. Another list of HWOs were prepared in which the name of the petitioner was shown at Serial No. 8 and his juniors were shown at Serial Nos. 9 to 17, 19 to 31, 33, 40 and 51 to 56, and some others were given promotion retrospectively with effect from 08.2.2019 vide Proceedings Rc. No. A1/124/2018-1 to 32, dated 08.8.2020. 6. One Mr. G. Samuel, HWO GR.II approached the Hon’ble Tribunal by filing O.A. No. 743 of 2019 and the same was disposed of on 10.5.2019. Learned Tribunal directed the respondents to consider the case of the applicant without reference to the Charge Memos pending against him. He filed Writ Petition No. 14561 of 2020 to implement the orders in O.A. No. 743 of 2019 and the said writ petition was disposed of on 20.8.2020. Pursuant to the orders in the said writ petition, Mr. G. Samuel was promoted. He filed Writ Petition No. 14561 of 2020 to implement the orders in O.A. No. 743 of 2019 and the said writ petition was disposed of on 20.8.2020. Pursuant to the orders in the said writ petition, Mr. G. Samuel was promoted. With the above averments, the writ petition is filed for the reliefs stated supra. 7. The 2nd respondent filed counter affidavit. In the counter affidavit, it was contended, inter-alia, that Vigilance and Enforcement Officers conducted surprise check in the Hostel, where the petitioner was working, on 08.10.2012 and found certain irregularities. Articles of charges were framed against the petitioner. After the petitioner submitted explanation, the Enquiry Officer and the Presenting Officer were appointed. Later the Collector and District Magistrate, Krishna appointed the District BC Welfare Officer, Krishna District as Enquiry Officer in place of the Special Grade Deputy Collector, Polavaram Project, Vijayawada, vide Proceedings Rc. No. B2/164/2015-15 and 16, dated 01.9.2020. The Enquiry Officer submitted the enquiry report and dropped all the three charges against the petitioner. The file was circulated to the Collector and District Magistrate, Krishna. Without accepting the said report, the Collector and District Magistrate, Krishna requested the District BC Welfare Officer, Vijayawada (Urban)/the Enquiry Officer to re-conduct the enquiry. The re-conducting of enquiry is not completed and report is yet to be received from the Enquiry Officer. The non-completion of the enquiry within the stipulated time will not give right to employee to consider his case for promotion, who is facing charges. 8. While assessing the suitability of the petitioner, it can be comprehended, the petitioner is facing grave charges including misappropriation to the tune of Rs. 7,165/- and dereliction of duties. In spite of the charges of misappropriation, if the petitioner is promoted to the next higher post, basing on the benefit of doubt, there is jeopardy of committing more grave irregularities, which may lead to untoward incidents, irrecoverable damage and against public interest. The petitioner is falling under the Category (iii) of item ‘B’ detailed in G.O.Ms. No. 257, General Administration (Ser.C) Department, dated 10.6.1999. The petitioner’s case will be considered for promotion soon after expiry of two years from the date of the meeting of present Departmental Promotion Committee in case his pending charges are not concluded. Eventually, prayed the Court to dismiss the writ petition. 9. No. 257, General Administration (Ser.C) Department, dated 10.6.1999. The petitioner’s case will be considered for promotion soon after expiry of two years from the date of the meeting of present Departmental Promotion Committee in case his pending charges are not concluded. Eventually, prayed the Court to dismiss the writ petition. 9. Heard Sri G. Seena Kumar, learned counsel for the petitioner and learned Government Pleader for Services-II. 10. Learned counsel for the petitioner reiterated the contentions in the writ affidavit and would contend that the post of HOW Gr.I is a non-selection post, which has to be filled up by seniority only. Merely because the charges are pending against the petitioner, it will not debar the petitioner from zone of consideration for next level promotion. 11. On the other hand, learned Government Pleader relied upon Rule 5(b)(i) of the Andhra Pradesh State and Subordinate Service Rules, 1996 and would contend that petitioner’s case was not considered in view of Rule 5(b)(i) Andhra Pradesh State and Subordinate Service Rules. Rule 5(b)(i) reads as follows: 5. Selection Posts: (a)............. (b) Non-Selection Posts: No non-gazetted 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. (ii)........... Learned Government Pleader also relied upon Rule 6(i) of the Rules, which reads as follows: 6. Method of Preparation of Panels: (a) to (h)............. (i) Non Selection Posts: For non selection posts referred to in sub rule (b) of rule 5 the appointing authority shall prepare a list of eligible employees every year i.e. from first September of the year to 31st August of the succeeding year after considering the record sheet and the qualifications prescribed for the said post in the relevant Special Rules for promotion to next higher category of non selection post. 12. A perusal of Rule 5(b)(i) would indicate that promotion or appointment by transfer to a higher post other than those mentioned in sub-rule (b) of Rule 5 shall be made in accordance with seniority-cum-fitness. The rider is that one should not suffer penalty. In the case on hand, as indicated supra, the petitioner is facing charges. In the initial enquiry, all the charges against the petitioner were dropped. The rider is that one should not suffer penalty. In the case on hand, as indicated supra, the petitioner is facing charges. In the initial enquiry, all the charges against the petitioner were dropped. However, basing on the remarks of the Collector and District Magistrate, Krishna, re-enquiry is sought to be conducted. 13. Juniors to the petitioner in the list, who were also facing charges, filed O.A. No. 267 of 2019 and O.A. No. 743 of 2019. Both the O.A. were allowed. Learned Tribunal directed the respondents to consider the cases of the applicants therein for promotion to the post of HWO Gr.I without reference to the charges memos. During the course of arguments, learned counsel for the petitioner would submit that pursuant to the orders passed in the respective O.As. the applicants were promoted. Learned government pleader did not dispute the same. 14. As G.O.Ms. No. 679, General Administration (Ser-C) Department, dated 01.11.2008, departmental enquiries have to be completed within three months in simple cases and within six months in respect of complicated cases. 15. In B. George vs. I.G. of Police, 1971 SCC Online A.P. 75 : 1973 (2) SLR 131 the Hon’ble Apex Court held as under: 3. As observed by the judgment of this Court in W.P. No. 496 of 1970 (M. Ram Singh vs. The Government of Andhra Pradesh) the deferring of the promotion amounts to imposition of punishment even before the charges are established in the enquiry and that the failure to consider the case of such Government Servants for promotion would amount to denial of the right under Article 16 of the Constitution. In the counter filed it has not been disclosed as to at what stage the enquiry stands, fit is represented by the learned counsel for the petitioner that the enquiry is still at the preliminary stage. In the circumstances of the case, I do not think the action of the respondents in not considering the case of the petitioner for promotion to the post of Circle Inspector of Police can be justified in law. The writ petition is allowed and me respondents are directed to consider the case of the petitioner for promotion to the post of Circle Inspector of Police and pass appropriate orders. The writ petition is accordingly allowed with costs. Advocate's fee Rs. 100/-. 16. The writ petition is allowed and me respondents are directed to consider the case of the petitioner for promotion to the post of Circle Inspector of Police and pass appropriate orders. The writ petition is accordingly allowed with costs. Advocate's fee Rs. 100/-. 16. In Somaiah vs. Zonal Manager, Food Corporation of India, Madras, 1977 SCC Online A.P. 241 : 1979 (1) SLR 50 the Hon’ble Apex Court held as under: “6. When disciplinary proceedings are initiated and when they are yet to be completed, there is no knowing whether the petitioner can be found to be guilty of the charges that may be framed against him and he can not before then be punished through either withholding of his promotion or by non-consideration of his case for promotion. In either case, it amounts to imposition of punishment violating both the letter and spirit of Article 311 of the Constitution of India. Therefore, the pendency or contemplated initiation of the disciplinary proceedings against a person must be considered to have absolutely no impact upon his right for being considered for promotion......” 17. State of A.P. vs. N. Radhakishan, 1998 (4) SCC 154 the Hon’ble Apex Court held as under: “The essence of the matter is that the court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it....” 18. In A.P. Naidu vs. The General Manager, South Central Railway, 1982 SCC Online A.P. 86 : 1983 (1) LLJ 151 it was held that withholding of the promotion on the ground of pendency of departmental enquiry would amount to violation of Art 16 of the Constitution. 19. In A.P. Naidu vs. The General Manager, South Central Railway, 1982 SCC Online A.P. 86 : 1983 (1) LLJ 151 it was held that withholding of the promotion on the ground of pendency of departmental enquiry would amount to violation of Art 16 of the Constitution. 19. In P.V. Mahadevan vs. MD, T.N. Housing Board, 2005 (6) SCC 636 , it was observed as follows: “.......The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer.” 20. In the case on hand, as stated supra, after enquiry, charges framed against the petitioner in the year 2014 were dropped. Since the Collector and District Magistrate, Krishna has ordered, re-enquiry is still pending against the petitioner. Charges pending against the are vide Rc. No. A1/164/2014 dated 14.7.2014 and vide Proceedings Rc. No. A3/3922/2022-1 dated 31.12.2021. In view of the expression referred to supra, respondents ought not to have declined to consider the case of petitioner on the ground of pendency of the charges against the petitioner. Such a course adopted by petitioner is not only illegally but also contrary to the law referred to supra and, also Art 16 of the Constitution of India. 21. Considering the facts and circumstances of the case and in view of the above discussion, the respondents shall consider the case of the petitioner for promotion to the post of HWO Gr.I without reference to the charge memos vide Rc. No. A1/164/2014 dated 14.7.2014 and Rc. No. A3/3922/2022-1 dated 31.12.2021, if the petitioner is otherwise eligible and qualified. 22. With the above direction, this writ petition is disposed of. No order as to costs. As a sequel, pending miscellaneous petitions, if any, shall stand closed.