The demotion of an employee due to a pending criminal case should follow the sealed cover procedure, and the employee should be considered for ad hoc promotion after two years, in accordance with the relevant rules and guidelines.

JUDGMENT

Neena Bansal Krishna, J. The petition under Article 226 of the Constitution of India has been filed for quashing of the impugned Order dated 29.10.2021 issued by the respondent No. 2 demoting the petitioner from Inspector to Sub-Inspector and also for direction to respondent No. 2 to give ad hoc promotion to the petitioner till the disposal of the criminal case as per DPC Guidelines dated 10.04.1989 Rule 17.8.1 with further direction to the respondent not to make any recovery of salary or any amount from the petitioner. The petitioner has also sought directions for setting aside Rules 13(3), 13(5), 13A of CCS Rules/Clause/Condition and Rule 11.1 of DPC Guidelines dated 10.04.1989 which put illegal conditions for promotion

2. The vignette of facts are that the petitioner (having UIN no. 13240774) joined Sashastra Seema Bal (hereinafter referred to as "SSB"), the respondent No. 2 herein, on 23.11.2012 and after his training was completed, he joined the 51st Bn, Sitamarhi-II as Sub-Inspector, General Duty in 2014.

3. The name of petitioner was approved for promotion from Sub-Inspector, General Duty, to Inspector, General Duty vide Office Order No. 147/51st BN/SSB/EII/Promo(SOs)/GD-Cadre/Vol-11/18/11689-706 dated 13.06.2018, by the Departmental Promotion Committee (hereinafter referred to as "DPC") after following due procedure for promotion and clearance from the Department.

4. The petitioner on promotion, was transferred from 51st Bn to 55th Bn vide Order dated 25.06.2018 consequent to which Petitioner took charge as Sub-Inspector (General Duty/GD). Thereafter, on the recommendation of DPC, the Respondent no. 2/Competent Authority approved promotion of the Petitioner to the rank of Inspector (GD), on 17.07.2018.

5. However, after completing 3 years and 5 months in the rank of Inspector, (G D), on the recommendation of Review DPC, the Respondent No. 2 vide Order No. 1/3/R-DPC/SI-Insp/SSB/Pers-II/2018/pt-02/50732-35 dated 29.10.2021 reversed the petitioner to Sub-Inspector, (GD). The ground taken for reversal of the petitioner's promotion was that a Criminal Case bearing No. 554/2016 under Sections 141, 145(b), 146, 147, 174(a) of the Railway Act, 1989 is pending in the court of Judicial Magistrate (First Class) for Railways, Kazipet, Telangana.

6. The petitioner has challenged the reversal of petitioner's promotion as being ex facie illegal and arbitrary for the reason that Rule 13.2 of the CCA/CCS Rules, 1965 provides that at the time of consideration of the cases of Government servants for promotion, details of Government servants "in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending", should be specifically brought to the notice of the DPC. As the Charge Sheet against the petitioner had been filed on 27.06.2017, while the promotion of the petitioner was done subsequently on 25.06.2018, DPC should have checked the record of the petitioner before promoting him to the Rank of Inspector, (GD) at the following stages:

"(i) At the time of checking the records of departmental proceeding pending against the petitioner;

(ii) Twice at the time of vigilance clearance. Vigilance clearance must be given after successful consideration of fact that no prosecution for a criminal charge is pending against the petitioner:

(a) At the when DPC recommended the petitioner;

(b) At the time when petitioner was actually promoted.

(iii) During the period of one year when the petitioner was in ad hoc period of promotion;

(iv) Every three consecutive years, when the DPC sits to recommend promotion and review;

(v) At the time when the respondent No. 2 has conducted the enquiry;

(vi) Every three consecutive years, when the ACR of the petitioner is submitted to the Department."

7. The petitioner has asserted that despite having checked the record of the petitioner at the stages as stated above, both the respondent No. 2 and DPC had not acted and all of a sudden, after a span of 3 years and 5 months, the respon