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2013 DIGILAW 499 (ALL)

Diwakar Singh v. State of U. P.

2013-02-08

TARUN AGARWALA

body2013
JUDGMENT Tarun Agarwala, J. Heard the learned counsel for the parties. The petitioner was considered for promotion on the post of Inspector and the recommendation of the Departmental Promotion Committee was kept in a sealed cover by an order dated 27.10.2005 on the ground that case crime No.203 of 1998 and case crime No.444 of 2000 were pending before the Court concerned. In so far as case crime No.203 of 1998 is concerned, the petitioner has been acquitted by a judgment dated 12.3.2012. In so far as case crime No.444 of 2000 is concerned, further proceedings has been stayed by an interim order passed by the Court, dated 25.8.2003, which is still continuing. However, on the same charges, a domestic inquiry was also initiated against the petitioner, in which an inquiry report dated 17.4.2009 has already been filed inspite of which the employers have not taken any decision on it. It has further been brought on record that the petitioner filed a Writ Petition No.7421 of 2001, which was disposed of by an order dated 9.2.2011, directing the employers to take a final decision in the matter within three months. Inspite of the service of the order no action has been taken by the employer till date. Having heard the learned counsel for the parties, the Court is of the opinion, that mere pendency of a criminal case cannot debar the petitioner from not being considered for a promotional post. There is no Rule or Regulation commanding the employers to keep the recommendation of the departmental proceedings in abeyance, till the conclusion of the criminal case. The Court is of the opinion, that action pursuant to the departmental proceedings should be taken and, in the event criminal proceedings goes against the petitioner, action on it, can be taken at that stage. But, in anticipation of the result of the criminal proceedings, the decision of the Departmental Promotion Committee cannot be kept in abeyance nor can it be kept in a sealed cover. The concept of a sealed cover is not for the purpose of keeping the recommendation of the Departmental Promotion Committee in abeyance. The concept of a sealed cover has been explained by this Court in Km. The concept of a sealed cover is not for the purpose of keeping the recommendation of the Departmental Promotion Committee in abeyance. The concept of a sealed cover has been explained by this Court in Km. Maya Mahalla vs. State of U.P. and others, 2011(5) ADJ 818 .The Court held- "The concept of "sealed cover" is normally applicable when conduct of an employee is under investigation, as to whether such person is guilty of misconduct warranting any kind of punishment which may dis-entitle him any promotion on higher post and during such period of suspended animation the authority keeps the matter of promotion in sealed cover so as to take a decision in this regard later on in accordance with the result of inquiry held against such person. But in cases where the incumbent has been considered for promotion in accordance with rules according to zone of consideration and field of eligibility and has been found ultimately selected therein, the question of keeping his result in a sealed cover is nothing but a flimsy pretext inasmuch as result of selection is already known to every body. Mere pendency of the matter of cadre allocation or if for any reason the incumbent is not relieved for joining in Uttranchal State, it ought not to have caused any hindrance in the matter of carrier advancement of such persons since for such pendency the incumbent concerned cannot be said to be at fault." Further, the Court finds that the petitioner has already been acquitted in one criminal case and inquiry report had already been submitted in the departmental proceedings with regard to the second case against the petitioner, in which no decision has been taken by the employers for the past three years. In the light of the aforesaid, the impugned order dated 27.10.2005, in so far as it directs the recommendation of the Departmental Promotion Committee to remain in a sealed cover is quashed. The authorities are directed to consider the recommendation of the Departmental Promotion Committee and take appropriate action on it within four weeks from the date of the production of a certified copy of this order. The writ petition is disposed of.