@JUDGMENTTAG-ORDER
V. Eswaraiah, J.@mdashState questions the order, dated 14-12-2007, passed by the A.P. Administrative Tribunal, Hyderabad in O.A. No. 5423 of 2007, wherein the application filed by the respondent herein for considering his case for promotion to the post of Assistant Director of Agriculture, was allowed.
2. Heard both sides. Perused the records.
3. The admitted facts are that the respondent herein was appointed as Agricultural Officer and he joined duty on 17-07-1993 in the Wazeedu Mandal, Khammam District and his services were regularized vide proceedings, dated 29-08-1997 and his probation was also declared vide proceedings, dated 27-02-2003. While so, an enquiry was ordered against him for certain irregularities and punishment was imposed vide proceedings, dated 11-12-2001, withholding three annual grade increments with cumulative effect. The imposition of punishment has become final.
4. As per G.O.Ms. No. 342, dated 04-08-1997, whenever any Government employee is awarded the penalty of stoppage of increment with cumulative effect, the cases of such employees shall not be considered for promotion/appointment by transfer for twice the period for which the increments are stopped with cumulative effect, both for selection and non-selection posts. The Government issued the said G.O. under Article 162 of the Constitution of India. The said G.O. provides the effect of minor and major penalties.
5. In the instant case, the respondent suffered a major punishment of stoppage of three annual grade increments with cumulative effect vide proceedings, dated 11-12-2001. Insofar as the period of punishment is concerned, the period of suspension stands from the date of order but insofar as withholding increments is concerned, it will commence as and when the increments fall due i.e., 1st July of every year.
6. Clause 3(iv) (a) (ii) and (iii) of G.O.Ms. No. 342, dated 04-08-1997, reads as follows:
3(iv)(a)(ii) In terms of G.O.Ms. No. 968, General Admn. (Ser.C) Department, dated 26-10-1995, whenever any Government employee is awarded the penalty of stoppage of increment with cumulative effect, the cases of such employees shall not be considered for promotion/appointment by transfer for twice the period for which the increment(s) is/are stopped with cumulative effect, both for selection and non-selection posts.
3(iv)(a)(iii) Whenever any Government employee is awarded the penalty of stoppage of increment with cumulative effect, the individual shall not be considered for promotion/appointment by transfer for twice the period with a minimum of one year both for selection and non-selection posts.
7. As per the aforesaid clause of the Government Order, the respondent herein, who suffered the penalty of stoppage of three increments with cumulative effect, is not entitled to be considered for promotion/appointment by transfer for twice the period for which the increment(s) is/are stopped with cumulative effect, both for selection as well as non-selection posts. The period of six years completes by 10-12-2007. Thus, the respondent is not entitled for promotion up to 10-12-2007.
8. But, it is the case of the respondent that his case was not considered for the panel year 2005-06 and he should have promoted on par with his juniors as the three increments period is already over by withholding three increments by 01.07.2004 as per the clarification issued by the Government in Circular Memo No. 34633/Ser.C/99, GA (Ser.C) Department, dated 04-11-1999, which reads as follows:
It is clarified that where the penalty of stoppage of increments with or without cumulative effect is imposed, under Rule 9 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules 1991, the increment or increments falling due immediately after the date of issue of the order should be withheld. It is also clarified that the employee whose increments were withheld shall not be recommended for promotion during the period for which the increments were ordered to be withheld with effect from the date of the issue of the order imposing the penalty.
9. It is stated that withholding of three increments starts from 01-07-2002 and stoppage of three increments expires by 01-07-2004. Therefore, the petitioners herein ought to have considered his case for promotion as per the above said memo.
10. It is further stated that the Tribunal in a similar case in O.A. No. 803 of 2007 allowed the said O.A., wherein a reference was made to the above said memo dated 4-11-1999, directing to consider the case of the applicant therein and the said order was also confirmed by this Court in W.P. No. 12283 of 2007 by order, dated 14-06-2007. In the present case, the Tribunal, following its earlier order passed in O.A. No. 803 of 2007, allowed the said O.A. observing as follows:
In view of the above clarification issued in 1999 that subsequent to the other orders referred to by the respondents in their counter, it is clear that, the subsistence of punishment of the applicant ends by the end of July, 2004 for the reason that the impugned order withholding of three Annual Grade Increments was issued on 11-12-2001 and the applicant''s actual increment due was on 01-07-2002. Subsequent to the issuance of the punishment order, if the increments were stopped from 01-07-2002, three years increments will be seized for substantive of punishment from 01-07-2002. In view of such circumstances, it is clear in accordance with the clarification issued, he is entitled to be considered for promotion to the post of Assistant Director of Agriculture for the panel 2005-06. Therefore, denying the promotion and promoting his juniors is illegal, arbitrary and contrary to the clarification issued by the Government dated 04-11-1999. Therefore, there shall be a declaration that the applicant is entitled to be promoted for the post of Assistant Director of Agriculture for the panel year 2005-06 on par with his juniors in the reserved category/slots and the respondents have to issue necessary orders of promotion on par with the juniors to the applicant within a period of 8 weeks from the date of receipt of a copy of this order. The O.A. is accordingly allowed.
Aggrieved by the said order, the present writ petition has been filed.
11. By order dated 04-02-2009, this Court, while admitting the writ petition, suspended the operation of the impugned order of the Tribunal. The respondent herein, who is the applicant, filed WVMP. No. 1878 of 2009 seeking vacation of the order, dated 04-02-2009.
12. With the consent of both the parties, the main writ petition itself is disposed of.
13. It is not in dispute that imposition of minor and major penalties are provided in C.C.A. Rules. But, the effect of minor and major penalties are not provided in the said Rules. Therefore, the Government in exercise of its executive power under Article 162 of the Constitution of India issued orders in G.O.Ms. No. 342, dated 04-08-2007 (sic.1997), giving effect to minor and major penalties with regard to promotion for selection and non-selection posts.
14. It may be reiterated that as per G.O.Ms. No. 342, dated 04-08-1997, whenever any Government employee is awarded the penalty of stoppage of increment with cumulative effect, the cases of such employees shall not be considered for promotion/appointment by transfer for twice the period for which the increments are stopped with cumulative effect, both for selection and non-selection posts. In any case, even for minor penalty also, an employee is not entitled for consideration for promotion/appointment by transfer for twice the period with a minimum of one year both for selection and non-selection posts. Therefore, as the petitioner was undergoing punishment during the panel year 2005-06, his name was not at all included in the said panel, as his case could not have been considered before expiry of six years period i.e., twice the period of penalty of stoppage of increments with cumulative effect.
15. Learned Counsel for the respondent submits that as per Circular Memo, dated 04-11-1999, which was in force as on the date of panel year 2005-06, he is entitled for promotion. But, the learned Government Pleader appearing for the petitioners, however, submits that the Government issued another Circular Memo No. 5074/Ser.C/Al/2009-1, dated 09-02-2009, clarifying the earlier Circular, dated 04-11-1999, which is as follows:
... Where the penalty of stoppage of increments with cumulative effect is imposed under Rule 9 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991, an employee shall not be considered for promotion to the next higher category for twice the number of years for which the increments are stopped subject to a minimum period of one year with effect from the date of issue of order imposing the penalty as ordered in the G.O.Ms. No. 342, dated 04-08-1997.
16. Learned Counsel for the respondent submits that Circular Memo, dated 09-02-2009, has no retrospective effect and it shall operate from the date of issuance of Circular Memo, dated 09-02-2009, and, therefore, the respondent is entitled for the benefit of Circular Memo, dated 04-11-1999.
17. We have considered the effect of both the circulars and are of the opinion that the Government, in exercise of its power under Article 162 of the Constitution of India, issued G.O.Ms. No. 342, dated 04-08-1997, which has the effect of law. The Government is entitled to conduct its business by issuing appropriate orders in the name of Governor, which shall be specified under the Rules. C.C.A. Rules have been specifically enacted in exercise of powers of the State under proviso to Article 309 of the Constitution of India. As the Rules made under the A.P. Civil Services (Classification, Control and Appeal) Rules do not provide the effect of penalty, the Government issued G.O.Ms. No. 342 under executive power. Therefore, the order of the Government, issued in the name of Governor of Andra Pradesh, under Article 162 of the Constitution of India has an effect of law. As the aforesaid G.O. issued by the Government in exercise of its executive power under Article 154/162 of the Constitution of India is having force of law, as the effect of penalty is not covered by any statutory Rules, both the memos, dated 04-11-1999 and 09-02-2009 are issued by the Secretary to the Government. The Government cannot take away the effect of its order by issuing Circular Memo. G.O.Ms. No. 342 issued by the Government is in the nature of policy of the State for giving effect to the penalties. Therefore, any policy decision of the Government issued in the form of G.O., cannot be diluted by way of Circular Memos, Therefore, we are of the opinion that the Circular Memos have no statutory force and the Circular memo, dated 04-11-1999, which was relied on by the respondent has no effect of G.O.Ms. No. 342. Merely because, this Court dismissed the writ petition i.e., W.P. No. 12283 of 2007 relying on the aforesaid Circular Memo, dated 04-11-1999, it cannot be said that the respondent is entitled to the effect of the said memo. It appears that the Government did not challenge the said writ petition. The Government issued circular memo dated 09-02-2009, clarifying the circular memo dated 04-11-2009, bringing into effect the Government order in G.O.Ms. No. 342.
18. The other writ petition relied on by the respondent in W.P. No. 19043 of 2008 was dismissed by a Division Bench of this Court on 02-09-2009, relying on W.P. No. 12283 of 2007, which was also dismissed by another Division Bench. Therefore, we are of the opinion that the respondent, who has the statutory effect of G.O.Ms. No. 342 under Article 154 of the Constitution of India, has not brought the same to the notice of their Lordships and consequently not considered.
19. In view of the aforesaid facts and circumstances of the case, we are of the opinion that as per G.O.Ms. No. 342 the respondent is not entitled to be considered for promotion till 10-12-2007. However, his case was considered immediately after punishment was over, for the panel year and was subsequently promoted on 30-08-2009.
20. Having regard to the facts and circumstances of the case, we are of the opinion that the Tribunal failed to consider the effect of the aforesaid G.O. and erroneously relied on the clarification Memo dated 04-11-1999.
21. Accordingly, the writ petition is allowed setting aside the order of the Tribunal. There shall be no order as to costs.
