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2025 DIGILAW 312 (HP)

Dev Raj v. State of Himachal Pradesh

2025-03-07

SANDEEP SHARMA

body2025
JUDGMENT : Sandeep Sharma, J. 1. Precisely, the question, which needs to be determined in the case at hand is “whether a person can be debarred from being considered for promotion, on account of pendency of criminal proceedings, when charge was not framed against such employee on the date of holding DPC?” 2. Precisely, the facts relevant for adjudication of the case at hand are that petitioner herein was initially appointed as Patwari on 05.02.1996 and after his having served Department of Revenue for more than twenty one years, he was further promoted to the post of Kanungo vide order dated 11.01.2017. After his being promoted to the post of Kanungo, he joined his duty as Kanungo at place called Rohin.On 28.03.2023, respondent/department circulated a tentative seniority list of Kanungo, wherein name of the petitioner came to be reflected at serial No. 8. Subsequently on 03.06.2023, respondent/department circulated final seniority list, showing the name of the petitioner at serial No. 8. Vide notification dated 19.06.2023, certain persons came to be promoted to the post of Naib Tehsildar, whereas name of the petitioner, despite his being in the consideration zone, was not considered for promotion and incumbents junior to him were given promotion. Vide communication dated 26.07.2023, petitioner requested the respondent to consider his name for promotion to the post of Naib Tehsildar. However, vide communication dated 07.08.2023, petitioner came to be informed that due to pendency of criminal case, no further action can be taken in his case. Though the petitioner repeatedly attempted to convince the respondent/department that since no charge has been framed till date in the criminal case registered against him, his name ought to have been considered by the Departmental Promotion Committee for promotion to the post of Naib Tehsildar, but since no action whatsoever came to be taken at the end of respondent/department, petitioner is compelled to approach this Court in the instant proceedings, praying therein for the following main reliefs: “(i) Writ of certiorari may kindly be issued for quashing the impugned notification dated 19th June, 2023 Annexure P-4 whereby junior to the petitioner have been to the post of Naib Tehsildar. (ii) That writ of mandamus may be issued directing the respondents to promote the petitioner to the post of Naib Tehsildar from due date with all consequential benefits. (ii) That writ of mandamus may be issued directing the respondents to promote the petitioner to the post of Naib Tehsildar from due date with all consequential benefits. (iii) The respondents may further be directed to rectify/modify the seniority list of Naib Tehsildaar after including the name of present petitioner.” 3. Pursuant to notices issued in the instant proceedings, respondents have filed reply under the signatures of Deputy Commissioner, District Bilaspur, wherein facts, as noticed hereinabove, have not been disputed, rather stand admitted. In nutshell, claim of the petitioner came to be refuted on the ground that an FIR No. 93/2019 dated 10.05.2019 was registered against him under Sections 420, 467, 468, 471 and 120-B of the Indian Penal Code and same is pending adjudication in the Court of learned JMFC, Court No. 2, Ghumarwin, District Bilaspur, Himachal Pradesh. Since taking note of the aforesaid criminal case pending against the petitioner, adverse remarks were given in the Integrity Certificate of the petitioner and the Vigilance Clearance Certificate was also withheld by the Director of Vigilance (Annexure R-4). Departmental Promotion Committee in its meeting held on 19.06.2023 refused to consider the case of the petitioner for promotion as Naib Tehsildar. It is apparent from the reply filed on behalf of the respondents that sole reason for not considering the case of the petitioner for promotion by Departmental Promotion Committee in its meeting held on 19.06.2023 was pendency of criminal case, as detailed hereinabove. There is no specific denial to the fact that till 19.06.2023, on which date, meeting of Departmental Promotion Committee was held, no charge in FIR detailed hereinabove was framed against the petitioner. If it is so, prayer made on behalf of the petitioner in the case at hand deserves to be allowed. 4. By now it is well settled that when a charge-memo in a disciplinary proceedings or a charge-sheet in the criminal prosecution is issued to the employee, it can be said that the departmental proceedings/criminal prosecution stands initiated against the employee. However, sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. Pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt sealed cover procedure. However, sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. Pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt sealed cover procedure. However, in the instant case, what to talk about adopting sealed cover procedure, Departmental Promotion Committee even failed to consider the case of the petitioner on 19.06.2023 on account of pendency of criminal case registered against him. Mere pendency of preliminary investigation prior to filing of the charge sheet or framing of charge cannot be sufficient to reject the case of an employee for promotion. In no event promotion of an employee can be withheld on account of pendency of disciplinary/ criminal proceedings, rather to deny such benefit, there must be sufficient material to show that on the date of convening meeting by the Departmental Promotion Committee, charge stood framed against the person seeking promotion. 5. In this regard reliance is placed upon judgment passed by Hon’ble Apex in case titled as Union of India vs. K.V. Jankiraman, AIR 1991 SCC 2010, wherein it has been held as under: “6. 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 chargesheet 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. 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 pending deliberately. Many times they never result in the issue of any charge-memo/chargesheet. 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; (2) …………………………………………………. (3) …………………………………………………. (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." 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 employee. Thus read, there is no inconsistency in the two conclusions. We, therefore, repel the challenge of the appellant- authorities to the said finding of the Full Bench of the Tribunal. 6. It is quite apparent from aforesaid judgment that till the time charge is not framed against a delinquent official, promotion cannot be denied solely on the basis of lodging or registration of a criminal case. We, therefore, repel the challenge of the appellant- authorities to the said finding of the Full Bench of the Tribunal. 6. It is quite apparent from aforesaid judgment that till the time charge is not framed against a delinquent official, promotion cannot be denied solely on the basis of lodging or registration of a criminal case. Since on 19.06.2023, at the time of convening of meeting by the Departmental Promotion Committee, charge was not framed against the petitioner, Departmental Promotion Committee could not have ignored petitioner for promotion to the post of Naib Tehsildar. 7. Though, at this stage, Mr. Rajan Kahol, learned Additional Advocate General, attempted to argue that petitioner is accused of having committed a heinous crime punishable under Sections 420, 467, 468, 471 and 120-B of Indian Penal Code, but such fact, if any, may not be of any relevance as far as claim of the petitioner raised in the instant petition is concerned. Even if the allegations are serious, petitioner cannot be faulted with for any lapse on the part of investigating agency in collecting evidence, enabling trial Court to frame charge. Further if it is presumed that charges are serious, authorities have the power to suspend the employee under the relevant rules and the suspension by itself permits them to resort to sealed cover procedure. In the instant case, Departmental Promotion Committee merely on the basis of pendency of criminal proceedings, proceeded to ignore the petitioner for promotion, which procedure is wholly impermissible in view of the law laid down by Hon’ble Apex Court in K.V. Jankiraman (supra). 8. Consequently, in view of detailed discussion made hereinabove as well as taken into consideration, this Court finds merit in the present petition and accordingly, same is allowed. Respondents are directed to hold review DPC and consider petitioner for promotion. Thereafter if found eligible, he be promoted from the date when his juniors were promoted i.e. w.e.f. 19.06.2023 with all consequential benefits. In view of the fact that the claim pertains to the year 2023, respondents are directed to hold review DPC within two months and if the petitioner is otherwise found eligible for promotion, respondents shall take all consequential steps i.e. issuing promotion order of the petitioner, release of monetary benefits etc. In view of the fact that the claim pertains to the year 2023, respondents are directed to hold review DPC within two months and if the petitioner is otherwise found eligible for promotion, respondents shall take all consequential steps i.e. issuing promotion order of the petitioner, release of monetary benefits etc. within a month thereafter, failing which, petitioner shall be entitled to interest on arrears @ 6% per annum from the due date till actual payment.