Y Rajasekhar vs State Of Telangana

P. Naveen Rao, J

Heard learned counsel for petitioner and learned Assistant Government Pleader for Home.

Petitioner is working as Inspector of Police and aspiring for promotion as Deputy Superintendent of Police. Having come to know that

exercise is being undertaken by the respondents to effect promotions to the post of Deputy Superintendent of Police and apprehending that he

is not likely to be considered for promotion on account of pending criminal case against him, this writ petition is instituted praying to direct the

respondents to consider petitioner for promotion as Deputy Superintendent of Police in accordance with his seniority in the cadre of Inspector

of Police and in accordance with G O Ms No. 257 General Administration (Services C) Department dated 10.6.1999 and without reference to

CC No. 16 of 2015 pending in the Court of the Additional Special Judge for SPE and ACB cases at Hyderabad. Petitioner also seeks

direction to consider representation submitted by him on 19.1.2021 requesting to consider him for promotion on same lines as prayed in this

writ petition.

Facts as narrated by the petitioner in the affidavit filed in support of the writ petition disclose that while he was working in Nampally police

station, he was entrusted with the responsibility to conduct investigation in Crime No. 256 of 2013 wherein persons by name Sadiq Hussain

and Shahbaz Hussain @ Gullu Bhai were shown as accused. Petitioner contends that he conducted investigation, arrested the accused and

produced them in the Court for judicial remand and prepared the charge sheet in the case. While so, person by name Sadiq Hussain father of

Shahbaz Hussain @ Gullu Bhai stated to have visited the police station and requested the petitioner to ensure release of his son and offered

money. Upon refusal by the petitioner, said Sadiq Hussain placed Rs. 20,000/- in the bag of the petitioner without his knowledge. Crime No.

34/ACB-CR-1/2013 was registered on 24.1.2013 under Section 7 of the Prevention of Corruption Act, 1988 in the ACB City Range,

Hyderabad police station showing the petitioner as accused. On completion of investigation charge sheet was filed. The petitioner is facing

trial in CC No. 16 of 2015 in the Court of the Additional Special Judge for SPE and ACB cases at Hyderabad.

According to averments made in the affidavit filed in support of the writ petition, no disciplinary action was initiated against the petitioner.

However, after the incident, petitioner was placed under suspension but later reinstated into service.

Learned counsel for petitioner vehemently contends that what is alleged against the petitioner is false, made vindictively by the father of

accused only to ensure that petitioner would not investigate seriously into the allegations leveled against his son and as petitioner was not

obliging to let of son of the complainant.

He further submits that for no fault of him, there is no progress in the criminal case, therefore, petitioner cannot be further harassed and

humiliated by denying him promotion as per his eligibility and suitability. Learned counsel for petitioner placed reliance on the orders passed by

this Court in writ petitions filed by employees claiming promotion without reference to pending disciplinary proceedings.

Learned Assistant Government Pleader for Home asserts that since petitioner is facing trial in a criminal case on grave allegation of

demand and acceptance of illegal gratification to do official favour, he is not entitled for granting promotion and pending criminal case cannot

be ignored while assessing suitability of petitioner for promotion.

There is no mention in the averments made in the affidavit filed in support of the writ petition as to whether petitioner was earlier

considered for promotion and was over looked. In the present writ petition, there is no challenge to the criminal proceedings even on the

ground of inordinate delay in concluding the trial and therefore, Court is not going into the aspect whether there is inordinate delay in

conducting trial and such delay is not attributable to the petitioner, to carve out exception and follow the view taken by the Hon’ble

Supreme Court in State of Punjab and others Vs.Chaman Lal Goyel (1995) 2 SCC 570.

Therefore, the only issue requires consideration is pending criminal case, whether petitioner can be considered for promotion without

reference to criminal proceedings.

Telangana State and Subordinate Service Rules 1996 (for convenience referred to as ‘General Rules’) deal with general conditions

of service of all Government employees. Rule 5 deals with procedure for promotion to selection posts and non-selection posts. According to

this Rule, non-gazetted posts are not treated as selection posts. According to sub-rule (a) of Rule 5, all first appointments to a State service

and all promotions/appointments by transfer in that service should be made on grounds of merit and ability, seniority being considered only

where merit and ability are approximately equal, from the panel of eligible candidates determined. In case of non-section post, sub-rule (b)

contemplates that promotion should be made in accordance with assessment of fitness of persons based on seniority position in the immediate

lower cadre.

Rule 6 deals with method of preparation of panels. The salient features of this provision are, panel of approved candidates as envisaged in

Rule 5 (a) should be prepared by appointing authority/authority empowered, in consultation with, the Departmental Promotion Committee if

such posts are outside the purview of the Telangana State Public Service Commission and the Screening Committee, in respect of the posts

within the purview of Telangana State Public Service Commission. The appointment should be made from the panels so drawn. Where no

consultation is required from the Public Service Commission, panel should be prepared ordinarily during the month of September every year on

the basis of estimate of vacancies. The 1st September of the year shall be reckoned as qualifying date to determine the eligibility and such

panel would lapse on 31st December of the succeeding year or when the next panel is prepared, whichever is earlier. The zone of

consideration is confined to 1:3. For computation of vacancies, 1st September of the year to the 31st August of the succeeding year should be

reckoned as the period.

According to Rule 6(i) for non selection posts, competent authority should prepare list of eligible employees every year i.e., from 1st

September of the year to the 31st August of the succeeding year, after considering the record sheet and qualifications prescribed.

It is appropriate to notice that Rules 5 and 6 of the Telangana State and Subordinate Service Rules, 1996 do not deal with the issue of

consideration for promotion when disciplinary proceedings or criminal proceedings are pending. However, these Rules give sufficient

indication when they contemplate assessment of suitability/ fitness the conduct of employee is an important attribute to be looked into before

granting promotion.

An employee is entitled to seek advancement in service. Stagnation in a particular post is anti-thesis to the very concept of organizing the

service. Every employee has right for consideration for promotion. However, such consideration is subject to seniority, eligibility and

availability of vacancy in the higher cadre. If a person fulfils the above criteria, granting promotion depends on assessment of suitability. Once

he is found suitable, his promotion cannot be ignored. However, while assessing the suitability, it is permissible for the employer to take note of

pending disciplinary action/criminal prosecution and side line him when there is a cloud on his conduct. More particularly, criminal prosecution

directly attributable to the work of employee is more relevant as compared to involvement of an employee in criminal proceedings

unconnected to the employment. In the case on hand, crime was registered against the petitioner on the charge of demand and acceptance of

illegal gratification to do official favour and petitioner is facing trial before the Special Court. Thus, the conduct of the petitioner as Inspector

of Police is under cloud.

(o) One of the important parameters in public employment is conduct, character and ability to discharge duties and responsibilities by the

employee to the satisfaction of the employer to grant advancement in service. Therefore, the employer assesses the suitability of the person

before granting promotion and employer can seek to weed out /keep aside an employee facing disciplinary action/ criminal proceedings till

conclusion of such proceedings. It must be made clear at this stage that every employee has right for consideration, including an employee

facing disciplinary action/ criminal proceedings but such consideration need not result in granting promotion, if the policy of the Government is

against granting promotion to an employee facing disciplinary proceedings/ criminal proceedings.

(p) The administrative instructions /orders notified vide G.O.Ms.Nos.424 General Administration (Services. C) Department, dated 25.05.1976

and G.O.Ms.No.257 General Administration (Ser.C) Department, dated 10.06.1999 fill the vacuum created in the Rules and supplement the

intendment of the Rules. They reflect the policy of the Government on consideration for promotion when disciplinary proceedings / criminal

proceedings are pending.

(q) At this stage, it is expedient to consider the policy of the State Government on consideration for promotion of such Officers. In the

combined State, prior to bifurcation, the Government formulated promotion policy on consideration of employees/officers facing the

disciplinary proceedings and criminal proceedings and the same is in force in this State. This State has not adopted sealed cover procedure.

After consideration of the case by the DPC or by the appointing authority, if the employee is found suitable/fit for promotion, the result of

consideration is declared but his actual promotion is differed till the proceedings pending against him are concluded. Government notified its

policy vide G.O.Ms.No.424, dated 25.05.19762.

(r) For the purpose of such consideration, Government classified the Officers, who are facing enquiry, trial or investigation, into three

categories. According to G.O.Ms.No.424, dated 25.05.1976, Officers falling into third category should be deferred for promotion pending

departmental enquiry/trial/ investigation. Most of the litigation is generated in cases falling into third category.

On further review of this policy and subsequent orders of the Government, Government notified its fresh policy vide G.O.Ms.No.257

dated 10.06.1999. Learned counsel for petitioner laid great emphasis on G.O.Ms.No.257 dated 10.06.1999.

G.O.Ms.No.257, dated 10.06.1999 mandates that the concerned authority should bring to the notice of the Departmental Promotion

Committee, the details of the employees in the zone of consideration for promotion falling under the three categories mentioned there under

i.e., (i) officers under suspension; (ii) officers in respect of whom a charge sheet has been issued and the disciplinary proceedings are

pending; and (iii) officers in respect of whom prosecution on criminal charges are pending. Similar categorization of officers as was notified in

G.O.Ms. No. 424 is also incorporated in paragraph-5(B) of this G.O.

The G.O. enables consideration of claims of officers falling under the third category to grant ad hoc promotion, if, even after completion of

two years from the date of the Departmental Promotion Committee or Screening Committee meeting, there was no progress in the

enquiry/trial/investigation. However, even this consideration is confined to officers against whom charge leveled is not grave, but is a minor

one, not involving moral turpitude, embezzlement and grave dereliction of duty.

In other words, even if two years time has elapsed after the earlier Departmental Promotion Committee meeting and there is no progress

in the case, the officer cannot be considered even to grant ad hoc promotion if charge leveled is either one of moral turpitude,

misappropriation, embezzlement and grave dereliction of duty or all of them.

Thus, to claim ad hoc promotion, Officer is required to fulfill two conditions, (i) that even after two years from the date of earlier

Departmental Promotion Committee meeting, there is no progress in the departmental enquiry/trial/investigation; and (ii) that the allegations

leveled do not deal with moral turpitude, misappropriation, embezzlement and grave dereliction of duties.

As seen from the two Government orders, policy of the Government is clear and unambiguous; that the Government does not intend to

grant promotion even on ad hoc basis if the allegations leveled against the employee/officer are grave and that such officer/employee is facing

enquiry/trial/investigation. Since, what is alleged against petitioner is demand and acceptance of illegal gratification for doing official favour,

the exception carved out is also not attracted.

It is settled principle of law that an employee has right for consideration for promotion, but has no right to ask promotion as a matter of

course [K Samantaray v. National Insurance Company Limited, (2004) 9 SCC 286]. One of the important parameters of public service is if an

employee is facing disciplinary action/trial on his/her misdemeanor or misconduct-criminal/civil, he/she should not be granted promotion. It is

not in public interest to grant promotion to an employee when on serious allegation enquiry/trial is pending against him. Thus, employee is

entitled to be considered for promotion and in such consideration even if he is found fit, his promotion can be differed on the ground that

disciplinary proceedings/criminal proceedings are pending. Thus, employee cannot seek consideration for promotion and to grant promotion

without reference to pending criminal proceedings and disciplinary proceedings.

In W.P.Nos.2688 of 2017 and 3576 of 2017, identical contentions were urged by the petitioners therein, and sought for direction to grant

promotion without reference to pending departmental proceedings and criminal proceedings. They were facing charges of corruption. The

above two writ petitions along with several other writ petitions were considered and common judgment was rendered on 17.04.2017 which

was reported as A.Jalender Reddy vs. State of Telangana and another 2017 (4) ALD 538. The batch of cases concern different aspects of

non-consideration for promotion pending departmental proceedings/criminal proceedings including on the ground of inordinate delay.

This Court reviewed precedent decisions on all aspects concerning grievance of employees against not granting promotion to them on the

ground that disciplinary proceedings and/or criminal proceedings are pending. Having regard to the policy of the Government, as noted above,

the claims of petitioners in W.P.No.2686 of 2017 and 3576 of 2017 on the identical issue was considered from paragraphs 64 to 101 of the

decision reported in the ALD journal and was rejected. The operative portion of the order in the above two writ petitions reads as under:

“105. In WP Nos. 2688 of 2017 and 3576 of 2017 admittedly charge sheets are filed and trial has to be conducted. Though petitioners

contend that they are not responsible for the delay in completion of trial, it is to be noted that registration of crime and continuation of criminal

proceedings is not the subject matter in these writ petitions. To maintain sanctity in public service, no person who is facing such serious

allegations can be rewarded with promotion. It is not in public interest. The policy of the Government is clear and unambiguous and in terms

thereof petitioners are not entitled for promotion even on ad hoc basis when criminal cases are pending. It cannot be said that such employee

is remediless. If he comes clean on the charge of illegal gratification, he can claim all benefits from retrospective date. Thus, these writ

petitions deserve to be dismissed. They are accordingly, dismissed.â€​

At this stage, if the prayer of the petitioner is seen, on the one hand, petitioner asks for consideration of his case in accordance with

G.O.Ms No. 257 dated 10.6.1999 and on the other hand he seeks direction to ignore pendency of criminal case while considering him for

promotion. Both cannot go hand in hand. As noticed above, G.O.Ms No. 257 dated 10.6.1999 categorizes employees on various parameters

and consideration of employee facing disciplinary action/ criminal action depends on fitting into those parameters. If allegation is grave, such

as demand and acceptance of illegal gratification as in this case, the question of granting promotion even on ad hoc basis, does not arise. In

the instant case, petitioner has not disclosed as to whether he was earlier considered for promotion, therefore, question of considering him for

granting ad-hoc promotion also does not arise.

For the foregoing reasons, writ petition merits no consideration and accordingly dismissed. However, it is made clear that this order does

not come in the way of consideration of the petitioner strictly in accordance with G O Ms No. 257 dated 10.6.1999 by duly taking note of

pending criminal case. No costs. Miscellaneous petitions, if any pending, shall stand closed.