Promotion cannot be withheld based on suspicion or preliminary investigation, and in the absence of pending criminal or disciplinary proceedings, the employee is entitled to promotion.

1. The petitioner/Union of India is aggrieved by the judgment dated 16.01.2017, passed by the Central Administrative Tribunal allowing O.A. No.4141/2015, filed by the respondent herein, who is presently working on the post of Additional Commissioner in the Income Tax, Department of Revenue, Ministry of Finance, praying inter alia for issuing directions to the respondent/UOI to promote him to the post of Commissioner, Income Tax in terms of the promotion order dated 16.09.2015, with effect from the date when his juniors were promoted, with all consequential benefits.

2. The facts of the case as emerge from the records are that on 05.09.1993, the respondent had joined service as an Assistant Commissioner of Income Tax and had earned promotions from time to time, up to the rank of Additional Commissioner of Income Tax. On 25.11.2010, RC No.0102010A0036 was registered against the respondent under Section 13(2) read with Section 13(1)(e) of Prevention of Corruption Act, 1988, and Section 109 IPC by CBI, ACB, Kolkata. On the conclusion of the investigation, CBI had filed a final closure report dated 29.12.2013, under Section 173 CrPC before the court of the Special Judge, Kolkata seeking closure of the investigation on the ground that same did not reveal sufficient evidence for substantiating the allegation of possession of disproportionate assets by the respondent. Vide order dated 12.03.2014, the learned Special Judge had accepted the report submitted by the CBI for closing the investigation.

3. In the year 2015, a DPC was constituted to consider promotions of eligible officers to the post of Commissioner of Income Tax (CIT), for the vacancy year 2014-15. A meeting of the DPC was held on 05.06.2015, wherein the name of the respondent along with his batch mates was considered and he was found fit. The proposal of the DPC for granting promotion to the respondent and the other officers was forwarded to the DOPT for obtaining the approval of the Appointments Committee of the Cabinet (ACC). While conveying the approval of the ACC in respect of the recommendations made in the DPC held on 05.06.2015, the DOPT had intimated the Department that the ACC had directed it to expedite taking a decision on the pending complaints against the respondent along with six other officers and re-submit their cases for consideration of the ACC at the earliest.

4. The grievance of the respondent as raised before the Tribunal was that though his name had figured at serial number 131 in the proposal placed before the DPC and he was found fit and placed in the List of the recommendations made by the DPC at serial number 105 for his promotion, the promotion order issued on 16.09.2015, did not include his name whereas those who were junior to him, namely, Sh.Satpal Gulati & Sh.B.Venkataswara Rao, were promoted to the post of CIT.

5. The petitioner/UOI entered appearance before the Tribunal and filed a counter-affidavit wherein it was admitted that the name of the respondent was recommended for promotion by the DPC in its meeting convened on 05.06.2015. It was also not denied that the criminal proceedings initiated against the respondent were closed by the Special Judge, CBI, Kolkata vide order dated 12.03.2014. However, it was averred that the request of the CBI for initiating departmental action for major penalty, against the respondent, was still pending.

6. After considering the submission made by the parties, the Tribunal had observed that the case of the respondent is squarely covered by the provisions of OM dated 14.09.1992, issued by the DOPT, pursuant to the judgment of the Supreme Court in the case of the Union of India etc. vs. K.V. Jankiraman (1991) 4 SCC 109, wherein it was stipulated as under:

“2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmenta