APHC010476462024 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3460] WEDNESDAY, THE SEVENTEENTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY WRIT PETITION NO: 24593/2024 Between: 1. KUNDRAPU APPA RAO, S/O K. DEMUDU, AGED 55 YEARS, WORKING AS DEPUTY EXECUTIVE ENGINEER (TECH.),DPE CIRCLE, APEPDCL, VISAKHAPATNAM, VISAKHAPATNAM DISTRICT, R/O. PLOT NO.309A, SIMHAPURI LAYOUT PHASE-LL, VEPAGUNTA, NEAR SRI VARSHINI HOMES, VISAKHAPATNAM ...PETITIONER AND 1. THE STATE OF ANDHRA PRADESH, REP. BY ITS PRINCIPAL SECRETARY, ENERGY DEPARTMENT, A. P. SECRETARIAT, VELAGAPUDI, GUNTUR DISTRICT. 2. THE A P EASTERN POWER DISTRIBUTION COMPANY LIMITED APEPDCL, REP. BY ITS CHAIRMAN AND MANAGING DIRECTOR, P AND T COLONY , SEETHAMMADHARA, VISAKHAPATNAM, ANDHRA PRADESH. 3. THE CHIEF GENERAL MANAGER HRD, APEPDCL, SEETHAMMADHARA, VISAKHAPATNAM, ANDHRA PRADESH 2 ...RESPONDENT(S): Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a Writ, Order or Direction more particularly, one in the nature of Writ of Certiorari, (a) by calling for the records relating to connected with Memo No. EPCOR- 06001(87)/1/2016-ESTT-3-CORE-32809/I.No.522040/24, dated 13.02.2024 of the 3rd Respondent and quash or set aside by holding the same as arbitrary, illegal, improper and unsustainable in law apart from being in violation of Articles 14 and 16 of the Constitution of India, (b) also declare the action of Respondents in not reviewing/considering the petitioners promotion on regular basis to the post of Assistant Divisional Engineer/Deputy Executive Engineer and Executive Engineer retrospectively w.e.f. 06/12/2005 and 06/10/2023, i.e. from the date of promotion of his Junior Shri S.V. Hemanth Kumar, on the ground that Criminal Appeal No.1488/2009 is pending before the Honble Andhra Pradesh High Court as being arbitrary, illegal, contrary to Law and unsustainable in law. (c) Consequently direct the respondents to convene review Departmental Promotion Committee for considering the case of the Petitioners promotion to the post of Assistant Divisional Engineer/Deputy Executive Engineer and Executive Engineer on par with his junior from 06/12/2005 and 06/10/2023 respectively, with all consequential benefits flowing from such notional promotions including seniority, pay fixation and other attendant benefits etc. (d) also to direct the respondents to consider the case of the petitioner for promotion as Executive Engineer on par with his Junior in the existing vacancy in terms of G. O. Ms. No. 529 dated 19-08-2008 read with G. O. Ms. No. 593 dated 21-10-2011, and pass such other order. IA NO: 1 OF 2024 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to direct the respondents to consider the case of the petitioner for grant of promotion as 3 Executive Engineer in the existing vacancy in terms of G. O. Ms. No. 529 dated 19-08-2008 read with G. O. Ms. No. 593, dated 21-10-2011 without reference to pendency of Criminal Appeal No 1488/2009, on the file of this Hon’ble Court and to pass such other order. Counsel for the Petitioner: 1. K NARSI REDDY Counsel for the Respondent(S): 1. V V SATISH (SC for APEPDCL) 2. GP FOR SERVICES I The Court made the following: 4 THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY WRIT PETITION No.24593 of 2024 ORDER: 1. The Present Writ Petition is filed seeking to quash the impugned Memo No.EPCOR-06001(87)/1/2016-ESTT-3-COR (E-32809)/I.No.522040/24, dated 13.02.2024, issued by Respondent No.3. 2. The facts leading to filing of the present Writ Petition are as follows; The Petitioner was appointed as Assistant Engineer (Electrical) in APSEB on 07.09.1996 and posted at Vizianagaram Circle. Later, the Petitioner was transferred to TRS Division-VSP and joined on 30.10.2000. Thereafter, the Petitioner was transferred to Visakhapatnam Z-2 Division and joined on 10.10.2002. While so, an ACB case was registered against the Petitioner in the year 2002, the Petitioner was suspended on 20.02.2003 and thereafter the suspension of the Petitioner was revoked in the year 2005. 3. Subsequently, on 08.04.2009, the Petitioner was promoted as Assistant Divisional Engineer (ADE) vide E.O.O (HRD) Rt.No.92, dated 08.04.2009. The Petitioner was further promoted as Deputy 5 Executive Engineer (Electrical). The seniority of the Petitioner was fixed in the cadre of Assistant Engineer vide Lr.No.GM(P)/DS(P)/AS (Per)/PO(adm-I)/(3)/516/2002, dated 20.08.2002. In the criminal case registered against the Petitioner, the Special Judge, SPE & ACB Cases-cum-III Additional District & Sessions Judge, Visakhapatnam acquitted the Petitioner vide Judgment dated 21.09.2009 in C.C.No.1 of 2004. 4. It is stated that during pendency of criminal case before the trial Court, the junior of the Petitioner by name S.V. Hemanth Kumar was promoted as Assistant Divisional Engineer on 06.12.2005 and thereafter to the post of Executive Engineer on 06.10.2023. The departmental proceedings said to have been initiated against the Petitioner were also ended in exoneration of the Petitioner vide Memo No.HRD/ DC/ PO-II/ F.No.19/03/ D.No.197/09, dated 30.03.2009. 5. Consequent thereto, the Petitioner had given a representation to the Respondents to review his case for promotion as Executive Engineer (Electrical) on par with his junior S.V. Hemanth Kumar in the light of acquittal in the criminal case as well as the exoneration in departmental proceedings vide Memo, dated 30.03.2009. Crl.A.No.1488 of 2009 was filed against the Petitioner before this 6 Court and the case of the Petitioner would be examined as and when the result of the Criminal Appeal is pronounced by the High Court. Hence, the present Writ Petition is filed. 6. In the Counter Affidavit filed, the factum of acquittal in criminal case as well as the exoneration in departmental proceedings are not in dispute. The ground of pendency of Criminal Appeal as mentioned in the impugned order was reiterated. 7. Heard the respective counsel. 8. The pendency of Crl.A.No.1488 of 2009 before this Court is the basis for rejection to examine the case of the Petitioner for the correction of the date of fixation of seniority in the promoted post. The pendency of Criminal Appeal cannot be considered to be a bar for examining the case of Petitioner as the Criminal Appeal against acquittal cannot be considered as continuance of criminal case. 9. A Division Bench of the erstwhile Common High Court of Andhra Pradesh at Hyderabad in W.P.Nos.27607, 27614 and 22929 of 2009, dated 28.01.2010 considered whether a person is not entitled for retirement benefits merely on account of pendency of appeal filed by the State after acquittal in the trial Court. The relevant Paragraphs of the Judgment are extracted below; 7 “20. Insofar as the criminal cases are concerned, the Department has got a right to file an appeal. But, it cannot be said that the judicial proceedings have not been concluded. Once the criminal court acquits the accused, it must amount to be the conclusion of the judicial proceedings in the first instance. Therefore, the appeals filed against the acquittal orders cannot be treated as continuation of criminal proceedings. The same view was taken by a Division Bench of Calcutta High Court in STATE OF WEST BENGAL's case (1 supra), referred to above. Para 9 of the said judgment reads as follows: “The submission of Mr. Chakraborty to the effect that pendency of the appeal against acquittal will amount to continuation of the proceedings cannot be accepted. Continuation of the proceedings must relate to investigation, enquiry or trial, and such investigation, enquiry or trial, if any, have come to an end with the judgment of acquittal. The same being continuing in the instant case, is misconceived, only on the ground that an appeal there against is pending. If the respondent No.1 is convicted by the Appeal Court for commission of a criminal offence, sub-rule (4) of Rule 3 of the said Rules would be attracted. Keeping in view the fact that different sub-rules of Rules 3 operative in different fields, we are of the opinion that sub-rule (3) of Rule 3 be held to be operative only in the case namely, when an investigation enquiry or trial remains pending and not or when the employee person is acquitted. The situations obtaining under different sub-rule being absolutely different, in our opinion, sub-rule (3) of Rule 3 must be given a restrictive interpretation." 8 21. If the appeal is not in continuation of original criminal proceedings, the order of acquittal is a final order within the ambit of Rule 52 of the Pension Rules, referred to above. After the orders of acquittal passed by the criminal court, as already stated above, there is no power for the Government to withhold pension or retirement benefits. The said benefits, therefore, are liable to be paid immediately after acquittal order. 22. If the appeal or revision proceedings are in continuation of the criminal proceedings, there will be no end for the litigation and the employees, who have been acquitted honourably, shall not get retirement benefits till conclusion of all appeals, revisions, special leave petitions etc. Appeal against acquittal, not being continuation of original criminal proceedings, Rule 52 as above, will not be available to Government for withholding retirement benefits.” 10. On the analogy of the above referred Division Bench Judgment, the Writ Petition is allowed with the following directions; (i) The impugned Memo No.EPCOR-06001(87)/1/2016-ESTT- 3-COR (E-32809)/I.No.522040/24, dated 13.02.2024, issued by Respondent No.3 is hereby quashed; (ii) The Respondents are directed to examine the representation of the Petitioner for fixation of his seniority without reference to the pendency of the Criminal Appeal, as expeditiously as possible; (iii) No order as to costs. 9 11. As a sequel, miscellaneous petitions, pending if any, shall stand closed. _________________ NYAPATHY VIJAY, J Date: 17.09.2025 IS 10 THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY WRIT PETITION No.24593 of 2024 Dated: 17.09.2025 IS