The State is aggrieved by the order, dated 14.10.2009, passed by the Andhra Pradesh Administrative Tribunal, Hyderabad in allowing O.A.No.10678 of 2008 directing the petitioners to consider the case of the respondent for promotion, without reference to the disciplinary proceedings.
The respondent herein is working as Special Deputy Collector and he is due for promotion as Special Grade Deputy Collector. His grievance is that though his name was included in the panel for the year 2006-07, for want of A.C.Rs he was not promoted. However, it is not in dispute that the Departmental Promotion Commission (D.P.C) had advised the first petitioner-Revenue Department not to fill up three vacancies of Special Grade Deputy Collector, covering the case of the respondent and two other officers, whose A.C.Rs were also not available, so as to review their cases, on availability of A.C.Rs. The recommendations of the D.P.C were approved vide G.O.Ms.No.1153 Revenue (Ser.I) Department, dated 31.08.2007. For the panel year 2008-09, the D.P.C again considered the name of the respondent and was of the opinion that his promotion, however, is required to be deferred in terms of G.O.Ms.No.257, G.A.(Ser.C) Dept., dated 10.06.1999, until termination of the disciplinary proceedings against him. Aggrieved thereby, the respondent approached the Tribunal by the present O.A.
The Tribunal felt that the charges, which are subject matter of disciplinary case, against the respondent relate to the year 1996 and the charge memo itself was given after a long delay i.e., on 05.11.2007. Thereafter, the said disciplinary proceedings remain pending and still are inconclusive. The Tribunal, therefore, followed the decision of the Supreme Court in STATE OF PUNJAB AND OTHERS v. CHAMAN LAL GOYAL (1995) 2 SCC 570, another decision in STATE OF A.P v. N.RADHAKRISHNA (1998) 4 SCC 154 and came to the conclusion that the impugned charge memo was not taken into account when he was earlier promoted as Deputy Collector, as such, on account of huge unexplained delay and the charge being not grave in nature, the case of the respondent is required to be considered for promotion as Special Grade Deputy Collector, without reference to the charge memo.
We have heard the learned counsel appearing on either side.
The learned Government Pleader for Services II submits that the finding of the Tribunal that the charge levelled against the respondent is not grave, is totally incorrect, as much as, the gravaman of the charge is that he gave ?No Objection Certificate? for quarrying the Hill Block of Porumboku land in Venkatapuram Village, Banaganipalli Mandal. He further submitted that the said certificate has been given within a day, without verification and consultation of the Divisional Forest Officer.
The charge and the imputation against the respondent is as follows:
?Article of Charge:
That Sri V.Vijay Kumar while working as Mandal Revenue Officer, Banaganapally, Kurnool district has issued ?No Objection Certificate? without proper verification of land particulars and treating the land as Revenue land whereas the land was actually Reserve Forest Area. He also acted without consulting Divisional Forest Officer, in spite of the fact that Forest Department had opposed the lease on this area resulting in grant of lease, the Deputy Director (M&G), Kurnool for Quarry purpose in favour of Nagabhushanam Reddy on 6.4.96. Thus Sri V.Vijaya Kumar exhibited lack of devotion and negligence towards his legitimate duties and violated Rule 3 of APCS (Conduct) Rules, 1964.
The Deputy Director, Mines & Geology, Kurnool granted quarry lease to one Sri Ch.Nagi Reddy of Venkatapuram Village, Banaganapally Mandal, Kurnool District for a period of 10 years from 9.3.1993 to 8.3.2003 based on no objection certificate issued by the then Mandal Revenue Officer, Banaganapally dt:3.11.1992. During the course of quarrying the local forest officials noticed that the quarry area is falling in reserve forest and interfered in quarry work. The matter was carried to the Court by the lease holder in OS No.9/93 in District Munsif Court, Banaganapally and obtained injunction orders on 17.4.1995. Meanwhile on the same area Sri Ch.Nagabhushanam Reddy a brother of Nagi Reddy has applied a quarry lease on 3.2.1996. The same was forwarded by the Assistant Director, Mines & Geology, Kurnool to the Mandal Revenue Officer, Banaganapally on 5.2.1996. Sri V.Vijay Kumar, the then Mandal Revenue Officer, Banaganapally has issued no objection certificate on the very next day i.e., on 6.2.1996 without conducting any field verification and without consulting the Divisional Forest Officer inspite of the fact that the forest Department had already opposed the lease on this area. Based on the NOC the Deputy Collector, Mines & Geology, Kurnool granted quarry lease in favour of Sri Nagabhushanam Reddy on 6.4.1996. The Mandal Revenue Officer acted without verification of the field despite the pendency of the Court litigation in OS No.9/93 in District Munsif Court, Banaganapally where in the DFO and Collector were the parties. Thus, Sri V.Vijay Kumar exhibited lack of devotion and negligence towards his legitimate duties and violated Rule 3 of APCS (Conduct) Rules, 1964. Hence, the above charge.?
It is, therefore, contended by the learned Government Pleader that the Tribunal was not right in holding that the said charge is not grave, when it apparently suggests collusion of the Officer as per the Vigilance Report dated 01.05.2003, based on which, disciplinary proceedings are initiated. The learned Government Pleader also submits that the counter-affidavit filed by the State before the Tribunal itself states that the case of the respondent was considered by the D.P.C for the panel years 2006-07 and 2008-09 and that he had not sought for quashing of the charge on the ground of delay as is now projected, as such, the Tribunal was not justified in giving the impugned direction.
Sri P.Venkateshwara Rao, learned counsel appearing for the respondent relies upon the decision of the Supreme Court in STATE OF PUNJAB AND OTHERS v. CHAMAN LAL GOYAL (1 supra), particularly paragraph 12 thereof, and submitted that in the said decision also though departmental enquiry was pending for 5 years, the Supreme Court issued directions that the case of the delinquent officer be considered for promotion pending enquiry and such promotion shall be subject to the result of the enquiry. Therefore, he supports the impugned judgment of the Tribunal by further emphasising that in this particular case the delay is about 11 years and it is a better case on facts than the above reported decision of the Supreme Court. He also submitted that though the name of the respondent was included in the panel year 2006-07, for want of A.C.Rs he was not promoted, and that at that time no charge memo was pending against him. Thus, for no fault of his, the respondent was deprived of the promotion for the earlier panel year as well as the subsequent panel year. The said disciplinary enquiry was initiated after a long delay and is still remaining incomplete for no fault of the respondent. He further submitted that the charge as such cane be demonstrated to be unsustainable since for the previous year also similar ?No Objection Certificate? was given by the respondent to another lessee, who is the brother of the present lessee.
We have considered the aforesaid submissions. So far as the contention of either side with regard to the charge and imputations are concerned, the above extracted imputations would clearly show that notwithstanding the objections of the Forest Authorities, the earlier and later No Objection Certificates were given by the respondent allowing mining, without verification of land and without consultation of the Divisional Forest Officer. Prima facie, we are unable to accept the finding of the Tribunal that the charge levelled against the respondent is not very grave. However, since we are of the view that enquiry must be concluded on its own merits, we would not make any observations on the contentions of either side, the charge and disciplinary case.
So far as the direction of the Tribunal with regard to consideration of the case of the respondent is concerned, it has been categorically stated by the petitioners in paragraphs 2 and 3 of their counter before the Tribunal that the case of the respondent was considered for promotion for the panel year 2006-07 as well as the later panel year 2008-09.
With regard to G.O.Ms.No.257, G.A.(Ser.C) Dept., dated 10.06.1999, we have already considered the same in our decision in W.P.Nos.19913 and 21739 of 2009, dated 30.10.2009 and have held that the aforesaid policy of the State Government fully protects the case of such Officers, who are facing the disciplinary proceedings vis--vis promotion and their right to be considered for promotion.
Indisputably the respondent has to be considered for promotion under the scheme of the aforesaid G.O. As soon as the cloud of the disciplinary case is removed, the respondent could be entitled to be promoted as per the decision of the D.P.C. The consequence of the disciplinary proceedings pending, therefore, would be only to the extent of deferring the promotion of the respondent. It is not as if the case of the respondent has been rejected by the D.P.C and it only appears to be a case where his promotion is deferred, since the right of the respondent to be considered for promotion is already fulfilled by considering his case. It is not as if that any further action is required to be taken till the disciplinary case is concluded.
It is useful to extract the relevant paragraphs of G.O.Ms.No.257, G.A (Ser.C) Dept., dated 10.6.1999, which reads as under:
?Government also order that with immediate effect the following procedure and guidelines, be followed to consider the employees against whom disciplinary cases or criminal prosecution are pending or whose conduct is under investigation, for appointment by promotion or transfer, to next higher categories:
(A) The details of employees in the zone of consideration for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committees or Screening Committees:
(i) Officers under suspension;
(ii) Officers in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending;
(iii) Officers in respect of whom prosecution for a criminal charge is pending.
(B) Officers who are facing enquiry, trial or investigation can be categorized into the following groups based on the nature of the allegations or charges pending against them or about to be instituted namely;
(i) an Officer with a clean record, the nature of charges or allegations against who related to minor lapses having no bearing on his integrity or efficiency, which even if held proved, would not stand in the way of his being promoted;
(ii) an Officer whose record is such that he would not be promoted, irrespective of the allegations or charges under enquiry, trial or investigation; and
(iii) an Officer whose record is such that he would have been promoted had he not been facing enquiry, trial or investigation, in respect of charges which, if held proved, would be sufficient to supersede him.
(C) The suitability of the Officers for inclusion in the panel should be considered on an overall assessment based on the record, which should include namely:
(i) Adverse remarks recorded in the Annual Confidential Reports, the penalties awarded and the bad reputation of the Officer as vouchsafed by the Head of the Department and the Secretary to Government of the Department concerned;
The above cases should be considered as falling under category (ii) of item (B) above.
(ii) The Officers who do not have any adverse entry in the Annual Confidential Report and who have no penalties awarded against them in the entire duration of the post and not merely in the past five years and whose reputation is vouchsafed by the Head of the Department and the Secretary to Government of the Department concerned should be considered as falling under category (iii) of item (B) above.
The Officers categorized as under item (iii) of G.O.Ms.No.424, G.A (Ser.C) Dept., dated 25.5.1976 as mentioned above only should be considered for ad-hoc promotion after completion of two years from the date of the Departmental Promotion Committee or Screening Committee Meeting in which their cases were considered for the first time.
(6) The Appointing Authority should consider and decide that it would not be against public interest to allow ad-hoc promotion to the Officer concerned and this shall be decided with reference to the charge under enquiry. If the charge is one of moral turpitude, misappropriation, embezzlement and grave dereliction of duty then the appointing authority should consider as not in the public interest to consider ad-hoc promotion to such Charged Officer. But, however, if the charge is not a grave one but is a minor one, not involving moral turpitude, embezzlement and grave dereliction of duty then only in such cases the Appointing Authority should consider that it would not be against public interest to allow ad-hoc promotion because till then his record is clear with reference to ACRs, past punishment and reputation in the Department as vouchsafed by the Head of the Department and Secretary to Government. The Appointing Authorities should strive to finalize the disciplinary cases pursuing them vigorously so that within two years the proceedings are concluded and final orders issued.
(7) If the Officer concerned is acquitted, in the criminal prosecution on the merits of the case or is fully exonerated in the Departmental Proceedings, the ad-hoc promotion already made may be confirmed and the promotion treated as a regular one from the date of the ad-hoc promotion with all attendant benefits. In case the Officer could have normally got his regular promotion from a date prior to the date of his ad-hoc promotion with reference to his placement in the Departmental Promotion Committee proceedings and the actual date of promotion of the person ranked immediately junior to him by the Departmental Promotion Committee, he would also be allowed his due seniority and benefit of notional promotion.
(8) If the Officer is not acquitted on merits in the criminal prosecution but purely on technical grounds and Government either proposes to take up the matter to a higher Court or to proceed against him departmentally or if the Officer is not exonerated in the departmental proceedings, the ad-hoc promotion granted to him should be brought to an end.?
The reliance placed by the learned counsel for the respondent on the decision of the Supreme Court in STATE OF PUNJAB AND OTHERS v. CHAMAN LAL GOYAL (1 supra) is clearly misplaced to the facts of the present case. Paragraph 12 of the said judgement states ?This direction is made in the particular facts and circumstances of the case though we are aware that the rules and practice normally followed in such cases may be different.?
The said direction in that particular case was on the particular facts and circumstances of that case and the contention of the learned counsel for the respondent that every Officer, who is facing disciplinary enquiry, has to be promoted subject to the result of the disciplinary case, is neither the intention nor the purport of the said decision.
The other decision in NEW BANK OF INDIA V N.P.SEHGAL AND ANOTHER (1991) 2 Supreme Court Cases 220 is also distinguishable, as in that case also it was very categorically stated by the Supreme Court in paragraph 10 as follows:
???However, it is unnecessary for us to decide this question because Mr Pai, learned counsel for the appellant has agreed that without creating a precedent, the appellant will grant promotion to respondent 1 from Scale III to Scale IV if it is found that the Departmental Promotion Committee found him fit for promotion and that this promotion will be granted from the date on which he would have been promoted but for the departmental enquiry being contemplated against him.?
On the facts of that case, and in the light of the concession by the learned counsel for the employer, the aforesaid direction was made. The said case also therefore cannot be applied in every case as contended by the respondent.
In the present case, the relief sought for by the respondent in the O.A is as follows:
?Hence, it is just and necessary that this Hon?ble Tribunal may be pleased to direct the respondents to consider the case of the applicant for promotion to the post of Special Grade Deputy Collector, without reference to the disciplinary proceedings vide charge memo bearing G.O.Rt.No.2356, Revenue (Vig.III) Department, dt.5-11-2007 issued by 1st respondent and promote him as such with all consequential benefits and to pass such other order or orders as this Hon?ble Tribunal may deem fit and proper in the circumstances of the case.?
In view of the averments made by the petitioners in the counter-affidavit that the case of the respondent was considered for both the panel years, we are of the view that no further direction is warranted on the facts and circumstances of the case. The O.A. filed by the respondent, therefore, is liable to be dismissed rather than being allowed as was done under the impugned order of the Tribunal. The writ petition deserves to be allowed and is accordingly allowed.
Before parting with the case, we need to notice that the charge against the respondent relates to the year 1996. However, the petitioners have leisurely conducted preliminary enquiry and have issued charge memo only on 05.
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11.2007 vide G.O.Ms.No.2356. These 11 years, which lapsed before issuing the charge memo, therefore, is clearly on account of clear inaction, negligence and casual attitude on the part of the officer(s) concerned. Even after the charge memo is issued i.e., on 05.11.2007, under G.O.Rt.No.1538 Revenue Vig-III dated 23.10.2009, the Joint Collector, Kunool was appointed as enquiry officer and was required to submit a report within two months. Even though those two months were also over, the learned Government Pleader is not able to state whether the enquiry is completed or not. But, as per the learned counsel for the respondent the enquiry is still yet to be completed. In the facts and circumstances of the case, we are satisfied that the first petitioner must identify the officers responsible for this huge delay. We have also come across several other cases, where such disciplinary cases are initiated and then left as it is without any further follow up action and without showing any necessity to complete the disciplinary case. The Government have issued directions from time to time for early completion of the disciplinary cases, but none of those directions are followed. The present case also is one such. It is necessary for the first petitioner herein to have the matter enquired into and identify the officers responsible for such huge delay and take appropriate disciplinary action for keeping the proceedings pending without any progress over the period of years. The prejudice caused to the officer, who is facing the disciplinary enquiry, is therefore, evident and in such cases immediate remedial action is warranted. However, in the overall circumstances of the case, we grant time to the petitioners till the end of January, 2010 to complete the disciplinary proceedings in entirety. The respondent is at liberty to approach the Tribunal seeking appropriate relief, if the aforesaid direction is not followed. The writ petition is accordingly allowed, with the above directions.