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2023 DIGILAW 982 (AP)

Y. B. P. T. A. Prasad v. State of Andhra Pradesh

2023-07-05

D.RAMESH

body2023
ORDER : This Writ Petition under Article 226 of the Constitution of India is filed for the following relief:- “……to set aside the punishment of censure imposed vie impugned proceedings vide Rc.No.288/02/2020 dated 09.03.2021 and also Memo No.1449695/SER-1/A1/2021 of the 1st Respondent dated: 08.09.2021 rejecting the appeal; as illegal, vindictive, arbitrary, violation of Articles 14, 16 and 21 of the Constitution of India; apart from violation of principles of natural justice and pass such other order or orders……” 2. Heard the learned counsel for the petitioner and learned Government Pleader for Home appearing for the respondent Nos.1 & 2. 3. The petitioner was initially appointed as Sub- Inspector in the year 1991 and after promoted as Inspector in the year 2006 and further promoted as DSP on 06.01.2012. In fact recognizing the Service of the petitioner the Government has awarded acceleratory promotion as Deputy Superintendent of police on 06.01.2012 and also awarded Indian Police Medal during the year 2017, and also several rewards and commendations besides cash award are awarded to the petitioner. 4. While working under DGP awaiting posting order, the petitioner was attached to the Commissioner of Police, Vijayawada city on 20.07.2019 for performing duties for Hon’ble Governor as per the memorandum dated 19.07.2019. After completion of the swearing in ceremony of the Hon’ble Governor, the Commissioner of Police, Vijayawada city has posted the petitioner to Traffic-IV by proceedings dated 30.07.2019. 5. While working as A.C.P (Traffic), the petitioner fell ill and applied for medical leave after informing about his illness to Commissioner of Police, Vijayawada and applied medical leave from 23.07.2020 to 01.08.2020. Subsequently, the same was extended up to 08.08.2020. After obtaining the report that he was medically fit from the concerned medical officer, he reported for duty on 09.08.2020. 6. While the petitioner was under the medical leave, the petitioner got a call from the Office of Director General of Police on 31.08.2020 and asked to go out East Godavari District and report before Superintendent of Police, East Godavari, for reporting bundobust. The petitioner had answered, saying that he is under medical leave and he is not in a position to move out. Finally, the petitioner was relieved from Commissioner of Police on 19.09.2020. 7. The petitioner had answered, saying that he is under medical leave and he is not in a position to move out. Finally, the petitioner was relieved from Commissioner of Police on 19.09.2020. 7. Even before the relieving from the Commissioner of Police, a Memorandum dated 03.08.2020, was issued along with two others, seeking explanation on the pain of taking disciplinary action for not reporting before Superintendent of Police, East Godavari. To the said notice the petitioner gave his explanation on 09.08.2020, stating that the petitioner was on medical leave on intimation to the Commissioner of Police. As per the memorandum dated 19.10.2020, for proposing action against the petitioner under Rule 22 of Andhra Pradesh Civil Services (CCA Rules), 1991 alleging that the petitioner have exhibited gross misconduct and violated Rule 3 of the A.P. CS conduct Rules 1964, issued an impugned proceedings dated 09.03.2021 imposing a punishment of censure. Though the petitioner has preferred an appeal before the respondent No.1, appeal was rejected without appreciating the grounds raised in it, vide proceedings dated 08.09.2021. 8. Sri C.Srinivasa Baba, learned counsel appearing on behalf of the petitioner has submitted that it is not in dispute that the petitioner is the senior most eligible candidate for appointment for promotion to the post of Additional Superintendent of Police as per the panel year 2019-2020. Only to deny the promotion to the post of Additional superintendent of Police the respondents have initiated the present action against the petitioner by issuing notice and imposing punishment of censure by proceedings dated 09.03.2021. By virtue of that the respondents have not considered the promotion of the petitioner, while the persons junior to the petitioner were considered. 9. Learned counsel for the petitioner further submitted that the petitioner had made an application for leave from 23.07.2020 to 01.08.2020, and the same was approved by the Commissioner of Police, Vijayawada city and sent the information to the Director General of Police, by the proceedings dated 03.11.2020. He has also placed the reliance of the proceedings issued by the Additional Director General of Police (Law & Order), Andhra Pradesh dated 26.11.2020. According to the said proceedings the leave of the petitioner from 23.07.2020 to 08.08.2020 (17 days) was sanctioned. 10. He has also placed the reliance of the proceedings issued by the Additional Director General of Police (Law & Order), Andhra Pradesh dated 26.11.2020. According to the said proceedings the leave of the petitioner from 23.07.2020 to 08.08.2020 (17 days) was sanctioned. 10. He further submitted that, in view of the above said proceedings, it is clear that the petitioner has made an application to the Commissioner, where the petitioner is attached and the said leave has been sanctioned by the Additional Director General of Police vide proceedings dated 26.11.2022. Hence the question of disobeying the directions of the superiors would not arise, as the petitioner has replied to the communication received from the Director General of Police’s office saying that he is on medical leave. Hence, he would not be able to report before the Superintendent of Police, East Godavari and the very same initiation of the proceedings by the respondents itself clearly establishes that only to deny the promotion of the petitioner to the post of Additional Superintendent of Police, as per the panel year 2019 to 2020. 11. After notice respondent No.2 has filed the counter. According to the counter, the petitioner was instructed by C.O.Memo dated 19.07.2019, to report before the CP, Vijayawada City for performing duties in view of the Hon’ble Governor’s Swearing in Ceremony and Assembly related duties and further stated that the application was not received in this office and it was not addressed to the DGP, who is the competent authority to permit/sanction any kind of leave and he reported duty only on 09.08.2020 along with fitness certificate. But he was attached temporarily to the SP, East Godavari District, vide proceedings dated 31.07.2020. According to the said proceedings, the petitioner has neither reported before the S.P., East Godavari District nor sent any intimation or request to the DGP who is the competent authority to sanction any kind of leave. 12. Accordingly, his explanation on 09.08.2020 was not convincing, and he should have applied the so called medical leave to the DGP through the C.P. Vijayawada City. On the contrary, he applied the medical leave to the C.P. Vijayawada City, keeping the leave sanctioning authority i.e., ADGP (L&O) Chief Office in dark. His act of absence in the guise of medical leave showing feigned sickness shows his gross disobedience of orders passed by the authorities. On the contrary, he applied the medical leave to the C.P. Vijayawada City, keeping the leave sanctioning authority i.e., ADGP (L&O) Chief Office in dark. His act of absence in the guise of medical leave showing feigned sickness shows his gross disobedience of orders passed by the authorities. The petitioner was attached to C.P., Vijayawada City only to perform certain duties, and in all matters, he has to follow the instructions from the DGP, who is the competent authority. 13. As per the State and Subordinate Service Rules, the petitioner was included in the ad-hoc panel of DSP (Civil) fit to act as Additional Superintendent of Police (Civil) against the 10% reserve vacancy which was issued vide proceedings dated 22.06.2020 and in that approved list the last general candidate who was considered for promotion to the rank of Additional Superintendent of Police (Civil) was Sri A.V.Subba Raju at serial no.34, whereas the petitioner was at serial no.37 in the same list. Hence, no junior to the petitioner was promoted to the rank of Additional Superintendent of Police (Civil) in the panel year 2019- 2020. 14. In view of the currency of punishment of censure the petitioner name was not considered for promotion and stated that no junior to the petitioner was promoted to the rank of Additional Superintendent of Police. 15. Contrary to the above averments made in the counter learned counsel for the petitioner has submitted that the juniors to the petitioner were promoted and based on the above said submissions this Court has directed to file an additional affidavit. Accordingly, the petitioner has filed rejoinder affidavit, according to the averments made in the said affidavit, in the regular panel year 2020-2021, 30 officers who are junior to the petitioner were promoted as Additional Superintendent of Police as per the suitability and eligibility. In that panel year 2020-2021, along with the petitioner some of the juniors were not promoted to the rank of Additional Superintendent of Police due to the pendency of punishment/charges imposed against them and further no panel has been conducted so far for the year 2021-2022. 16. Considering the above pleadings the learned counsel appearing on behalf of the petitioner has submitted that the petitioner was attached to the Commissioner of Police, vide proceedings dated 19.07.2019. Accordingly he reported to the Commissioner and he worked under the instructions of the Commissioner. 16. Considering the above pleadings the learned counsel appearing on behalf of the petitioner has submitted that the petitioner was attached to the Commissioner of Police, vide proceedings dated 19.07.2019. Accordingly he reported to the Commissioner and he worked under the instructions of the Commissioner. Subsequently, the Commissioner had allotted the work as Traffic-IV, accordingly he discharged the duties as A.C.P. (Traffic). In view of the ill health, he applied for the medical leave from 23.07.2020 to 01.08.2020 thereafter extended the same up to 08.08.2020 and the same was forwarded to the DGP and ADGP has also sanctioned. So, such is the situation the question of non-obeying the orders of DGP and reporting before the SP, East Godavari District would not arise as he was under the medical leave. Hence, the punishment action initiated by the petitioner is only to curtail the promotion in the panel year 2020-2021. 17. Considering the submissions made and on perusal of the record clearly discloses that the initiation of the disciplinary proceedings against the petitioner was only to stop the promotion, though the petitioner has made an application for medical leave to the concerned authority i.e., Commissioner of Police, Vijayawada. In fact Commissioner of Police, in turn forwarded the leave application to the DGP and ADGP also sanctioned it. In the said circumstance initiation of the disciplinary proceedings against the petitioner is vitiated. Though the petitioner has preferred the appeal before the respondent No.1, the said appeal was rejected in a single sentence without any reason. The initiation of the disciplinary proceedings by an impugned order dated 09.03.2021, imposing punishment of censure and also rejection of the appeal by the Government in a single sentence clearly discloses the intention of the respondents. Hence, the impugned proceedings dated 09.03.2021 and also the rejection order of the respondent No.1, dated 08.09.2021 was set aside and further directions are given to the respondents to consider the case of the petitioner as per the seniority in the panel year 2020-2021, for the post of Additional Superintendent of Police, within a period of four (04) weeks from the date of receipt of the order. 18. With the above said directions, the present Writ Petition is disposed of. There shall be no Order as to costs. Miscellaneous petitions pending, if any, in this Writ Petition shall stand closed.