Syed Faruq Ahmed vs The State Of Andhra Pradesh on 28 April, 2025

Andhra Pradesh High Court – Amravati

Syed Faruq Ahmed vs The State Of Andhra Pradesh on 28 April, 2025

     THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN

                    WRIT PETITION NO: 10731/2025

ORDER:

This Writ Petition is filed under Article 226 of the Constitution
of India for the following relief/s:-

“…to issue an appropriate Writ, order or direction more
particularly one in the nature of Writ of Mandamus, declaring
the action of the respondents 1 to 4 in not granting
appointment by transfer of service to the petitioner from the
cadre of Junior Assistant Prohibition & Excise to Sub
Inspector Prohibition & Excise Department on the ground of
pending ACB case in Crime No.13/RCT-ACB-OGL/2023 of
Ongole and granting appointment by transfer of service as
S.I.,P&E to 5th respondent vide proceedings in
Rc.No.68/2024/A2-32 dated 10.04.2025 who is junior to the
petitioner as bad, illegal, arbitrary, punitive, violative of
Principles of Natural Justice, without jurisdiction and violative
of Articles 14, 16, 21 of Constitution of India and violative of
principles of natural justice and consequently direct the
respondents 1 to 4 to grant appointment by transfer of
service as Sub Inspector, Prohibition & Excise, Zone III,
Guntur Division to the petitioner by restoring seniority over
5th respondent and pass such other order or orders…”

2. Heard Sri D.V.Sasidhar, learned counsel for the petitioner and

learned Assistant Government Pleader for Services-I for

respondents.

3. Petitioner is working as Junior Assistant. An ACB case vide

Crime No.13/RCT-ACB-OGL/2023 of Ongole, was registered on

20.12.2023 for the offences punishable under Section 7A of the

Prevention of Corruption Act, 1988. The matter is under

investigation. Petitioner was initially arrested and sent for judicial

remand and later has been enlarged on bail. He was suspended
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from the service on 25.12.2023 and came to be reinstated into

service on 17.03.2025. In pursuance of the aforesaid crime, the

investigation has so far not resulted in filing of charge sheet, nor

have the respondents initiated any disciplinary proceedings against

petitioner. Petitioner is stated to be eligible for appointment by

transfer as Sub-Inspector in zone-III and in view of pendency of

criminal proceedings, his case is not being considered. As per the

provisional seniority list of Junior Assistant in zone-III, petitioner

stood at serial No.83, persons who are in the seniority list below the

petitioner have been considered for appointment by transfer, by

proceedings dated 10.04.2025.

4. Learned counsel for the petitioner places reliance on Division

Bench judgment rendered by this Court in W.P.No.3315 of 2019,

dated 23.11.2020, and judgment of the Hon’ble Apex Court in Union

of India and others vs. K.V.Janaki Raman and others 1 , while

drawing attention to paragraph Nos.16 and 17, contends that unless

charge sheet in a crime is filed, it cannot be said that disciplinary

proceedings are initiated against the employee, inasmuch as in the

present case such stage has not reached and the petitioner cannot

be deprived the benefit of promotion. He also draws attention to

G.O.Ms.No.66, General Administration (Ser.C) Department, dated

1
(1991) 4 SCC 109
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W.P.No.10731 of 2025
30.01.1991, in particular para-5 which also steps in line with the

aforesaid judgment.

5. Opposing the aforesaid submissions, learned Assistant

Government Pleader on instructions submits that in view of standing

order No. 74(2) of AP Police Manual Volume-I, in case there is any

departmental inquiry for grave charges or involved in any

investigation/inquiry or trial into a criminal case or investigation by

Anti-Corruption Bureau or Tribunal, such person is not entitled to be

considered for promotion.

6. Perused the record and considered the rival submissions.

7. There is no dispute that petitioner is figuring in provisional

seniority list prepared by respondents for zone-III and he stands

within zone of consideration. But for the pendency of crime, which is

under investigation, he has not been considered for promotion.

Record also discloses that persons stand at serial No.84 and below

have been considered for appoint by transfer as Sub Inspector.

8. Crime No.13/RCT-ACB-OGL/2023, registered against

petitioner by Anti-Corruption Bureau is still at the stage of

investigation and no charge sheet has been filed. The Apex Court in

the above judgment has categorically held that unless charge sheet

is filed it cannot be said that criminal proceedings are pending
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against an employee, therefore, denying the benefit of promotion to

such person on mere pendency of the investigation would be

contrary to law. Even G.O.Ms.No.66, dated 30.01.1991, issued by

the Government, is also to the same effect. Paragraph Nos.16 and

17 of K.V.Janaki Raman (supra-1) judgment read as under:

“16. On the first question, viz., as to when for the purposes
of the sealed cover procedure the disciplinary/criminal
proceedings can be said to have commenced, the Full
Bench of the Tribunal has held that it is only when a charge-
memo in a disciplinary proceedings or a charge-sheet in a
criminal prosecution is issued to the employee that it can be
said that the departmental proceedings/criminal prosecution
is initiated against the employee. The sealed cover
procedure is to be resorted to only after the charge-
memo/charge-sheet is issued. The pendency of preliminary
investigation prior to that stage will not be sufficient to
enable the authorities to adopt the sealed cover procedure.
We are in agreement with the Tribunal on this point. The
contention advanced by the learned counsel for the
appellant-authorities that when there are serious allegations
and it takes time to collect necessary evidence to prepare
and issue charge-memo/charge-sheet, it would not be in the
interest of the purity of administration to reward the
employee with a promotion, increment etc. does not impress
us. The acceptance of this contention would result in
injustice to the employees in many-cases. As has been the
experience so far, the preliminary investigations take an
inordinately long time and particularly when they are initiated
at the instance of the interested persons, they are kept
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pending deliberately. Many times they never result in the
issue of any charge-memo/charge-sheet. If the allegations
are serious and the authorities are keen in investigating
them, ordinarily it should not take much time to collect the
relevant evidence and finalise the charges. What is further, if
the charges are that serious, the authorities have the power
to suspend the employee under the relevant rules, and the
suspension by itself permits a resort to the sealed cover
procedure. The authorities thus are not without a, remedy. It
was then contended on behalf of the authorities that
conclusions nos. 1 and 4 of the Full Bench of the Tribunal
are inconsistent with each other. Those conclusions are as
follows:

(1) consideration for promotion, selection grade, crossing the
efficiency bar or higher scale of pay cannot be withheld
merely on the ground of pendency of a disciplinary or
criminal proceedings against an official;

( ) ………………………………………… (4) the sealed cover
procedure can be resorted only after a charge memo is
served on the concerned official or the charge sheet filed
before the criminal court and not before .

17. There is no doubt that there is a seeming
contradiction between the two conclusions. But read
harmoniously, and that is what the Full Bench has intended,
the two conclusions can be reconciled with each other. The
conclusion no. 1 should be read to mean that the promotion
etc. cannot be withheld merely because some
disciplinary/criminal proceedings are pending against the
employee. To deny the said benefit, they must be at the
relevant time pending at the stage when charge-
memo/charge-sheet has already been issued to the
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employee. Thus read, there is no inconsistency in the two
conclusions.”

9. In view of the Apex Court judgment, Clause-5 of the said G.O

has to be construed in the context of the para-17 of the aforesaid

judgment. As investigation has not resulted in filing of the charge

sheet, petitioner has every right to be considered for promotion and

on that ground respondents cannot deny him the said benefit.

10. In view of the facts and circumstances, the Writ Petition is

allowed, directing the respondents to consider the case of the

petitioner for promotion to the post of Sub Inspector, Prohibition &

Excise Department, as per his seniority and in terms of

G.O.Ms.No.66, General Administration (Ser.C) Department, dated

30.01.1991, in accordance with law. There shall be no order as to

costs.

As a sequel, miscellaneous petitions, pending if any, shall

stand closed.

______________________________________
JUSTICE CHALLA GUNARANJAN

Date: 28.04.2025
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