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2025 DIGILAW 1143 (RAJ)

Kuldeep Khatri v. State of Rajasthan

2025-04-22

VINIT KUMAR MATHUR

body2025
ORDER : 1. Heard learned counsel for the parties. 2. The present writ petition has been filed with a prayer that the sealed cover procedure adopted in the case of the petitioner for his promotion to the post of Assistant Administrative Officer may be opened and the petitioner may be extended all the service benefits due to him in accordance with the relevant rules. 3. Briefly noted the facts in the present writ petition are that the petitioner, while working as an Upper Division Clerk (UDC) in the respondent-Department, was proceeded against by the Anti- Corruption Bureau and an FIR being FIR No.46/2015 dated 25.03.2015 was lodged against him, initiating a criminal case. The investigation in the said criminal case was pending, and during its pendency, the petitioner preferred a writ petition before this Court wherein, the Coordinate Bench of this Court granted an interim order in favour of the petitioner. Consequently, the prosecution sanction dated 16.04.2016 has been stayed and till date, no charge-sheet in the present case has been filed. The Department has also not served any charge sheet in pursuance to the disciplinary proceedings.Although the petitioner was suspended by the respondent-Department, however, the same has been revoked vide order dated 17.10.2019. In these circumstances, the petitioner continues to serve the respondent Department on the post of UDC. The petitioner became eligible for the promotion to the next higher post of Assistant Administrative Officer and, therefore, the case of the petitioner was considered by the respondent- Department. However, the proceedings of the DPC has been kept in sealed cover and the same is not being opened on account of the pendency of the criminal case against the petitioner. Hence, the present writ petition has been filed. 4. Learned counsel for the petitioner submits that mere pendency of the criminal case cannot be a ground for not opening the sealed cover containing the result of the consideration of the petitioner for promotion to the post of Assistant Administrative Officer. He further submits that neither any charge sheet is pending consideration before the criminal court, nor the Department has served any charge sheet for the disciplinary enquiry. He further submits that neither any charge sheet is pending consideration before the criminal court, nor the Department has served any charge sheet for the disciplinary enquiry. He, therefore, submits that in these circumstances, Clause 12 of the Circular dated 04.06.2008 gains significance and the respondents are under an obligation to act in accordance with Clause 12 by opening the sealed cover containing the result of the consideration of the petitioner for promotion to the post of Assistant Administrative Officer. To support his submissions, learned counsel for the petitioner has relied upon the judgment rendered by this Court in S.B. Civil Writ Petition No. 18074/2018, Sandeep Kumar Berar vs. State of Rajasthan & Ors. decided on 31.03.2023, as well as the judgment passed by Hon’ble Supreme Court in the case of Union of India vs. K.V. Jankiraman, (1991) 4 SCC 109 . He, therefore, prays that the writ petition may be allowed and the respondents may be directed to open the sealed cover and declare the result of the petitioner for the promotion to the post of Assistant Administrative Officer and if, the petitioner is found suitable, then he may be promoted and may be granted all consequential service benefits for which he is entitled, in accordance with the applicable rules. 5. Per contra, learned counsel for the respondents submits that since the petitioner has been proceeded in the criminal case and the same is pending consideration, the Department has rightly adopted the sealed cover procedure for his promotion to the post of Assistant Administrative Officer. He further submits that the respondents are proceeding and acting in consonance with the Circular dated 04.06.2008. He, therefore, prays that the writ petition may be dismissed. 6. I have considered the submissions made at the Bar and have gone through the relevant records of the case. 7. The undisputed facts in the present writ petition are that the petitioner, while working on the post of UDC, was proceeded against by the Anti Corruption Bureau and is facing a criminal case. Although a prosecution sanction dated 16.04.2016 was granted, however, the same has been stayed by the Coordinate Bench of this Court vide order dated 02.06.2016. Further, no disciplinary proceeding has been initiated by the Department against the petitioner as no charge-sheet has been served till date. Although a prosecution sanction dated 16.04.2016 was granted, however, the same has been stayed by the Coordinate Bench of this Court vide order dated 02.06.2016. Further, no disciplinary proceeding has been initiated by the Department against the petitioner as no charge-sheet has been served till date. In these circumstances, it can safely be inferred that neither any charge-sheet has been filed in the criminal case nor has any charge-sheet in the disciplinary enquiry been served to the petitioner. Therefore, in view of the provisions of the Circular dated 04.06.2008, there is no justification for the respondents to deny the promotion to the petitioner solely in the wake of pendency of the criminal case against him. For brevity, Clause 12 of the Circular dated 04.06.2008, more particularly Clause 12.2 and 12.3 are reproduced herein under: A plain reading of Clause 12.2 & 12.3 clearly shows that mere pendency of the criminal case cannot be a ground for the Department to withhold opening of the sealed cover containing the result for the promotion to the higher posts. 8. In the case of Sandeep Kumar Berar (Supra) this Court has also held that merely the pendency of the criminal case cannot, by itself, be a ground to deny opening of sealed cover holding the result of the promotion to a higher post, more particularly when in other number of cases, the State Government has opened the sealed cover and granted promotions to the persons, who were similarly situated. 9. The Hon’ble Supreme Court in the case of K.V. Jankiraman (supra) has also held in paragraph 16, which reads 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 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 per-sons, they are kept 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: (ATC p. 196, para 39) "(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; (2) * * * (3) * * * (4) the sealed cover procedure can be resorted to only after a charge memo is served on the concerned official or the charge- sheet filed before the criminal court and not before;”” 10. In view of the discussions made above and keeping in mind the law laid down by the Hon’ble Supreme Court as well as the provisions contained in Circular dated 04.06.2008, this Court is of the considered opinion that the case of the present petitioner merits acceptance. The same is, therefore, allowed. 11. In view of the discussions made above and keeping in mind the law laid down by the Hon’ble Supreme Court as well as the provisions contained in Circular dated 04.06.2008, this Court is of the considered opinion that the case of the present petitioner merits acceptance. The same is, therefore, allowed. 11. The respondents are directed to open the sealed cover containing the result of the petitioner for promotion to the post of Assistant Administrative Officer and declare the same. If the recommendations are found to be favourable for promotion of the petitioner, then the respondents are directed to grant him the promotion as well as all the consequential benefits of the promotional post in accordance with law. 12. It is further ordered that such promotion as well as grant of consequential benefits shall remain subject to the outcome of the criminal case pending against the petitioner.