( 1 ) RULE. Learned AGP Mr. Hasurkar waives service of notice of rule on behalf of the respondents. At the joint request of the learned advocates appearing for the parties, the petition is taken up for final disposal today.

( 2 ) IN the present petition, the petitioner has complained about his non-promotion by the Government from the post of Legal Superintendent (Junior Duty) Class-II in the pay-scale of Rs. 6500-10500 to the next promotional post of Legal Superintendent (Senior Duty) Class-II in the scale of Rs. 8000-13500.

( 3 ) THE short facts leading to the present petition are that the petitioner who is working with the Government as Legal Superintendent (Junior Duty) Class-II was due for consideration for his promotion to the next higher post of Legal Superintendent (Senior Duty) Class-II. On availability of vacancy, meeting of the Departmental Promotion Committee was held on June 18, 2003. It is the case of the petitioner, with which there is no serious dispute raised by the respondents, that the DPC considered the case of the petitioner for promotion and he was also placed in the select list. It is also the case of the petitioner that as required under the Rules, the proposed promotion of the petitioner was also approved by the Gujarat Public Service Commission (hereinafter to be referred to as GPSC) on 22. 8. 03. The petitioner has further contended that the General Administration Department also cleared the proposal for promotion of the petitioner and the said proposal was also approved by the Minister concerned.

( 4 ) WHILE this process was going on, on 26. 9. 03 a criminal complaint being CR No. II-259/2003 came to be filed before Madhavpura Police Station against the petitioner by the wife of a co-Government employee alleging offences punishable under section 307, 323, 294, 506 (2) and 114 of the Indian Penal Code as also under section 135 of the BOMBAY POLICE ACT, 1951. The petitioner was arrested pursuant to the said criminal complaint on 26. 9. 03 and was released on bail on 7. 10. 03. On 14. 10. 03, the petitioner was placed under suspension. His suspension was, however, subsequently revoked on 15. 1. 04 and the petitioner was reinstated in active service. A chargesheet came to be filed against the petitioner on 8. 11. 03 in the criminal case, FIR for which was filed on 26. 9. 2003 as noted above. This has been averred by the respondents in the affidavit in reply and though the learned advocate for the petitioner submitted that the petitioner has not so far received any chargesheet from the criminal court, he did not dispute the averments made by the respondents in this regard in the affidavit in reply. Thus it is clear that a chargesheet in the criminal case came to be issued against the petitioner on 8. 11. 03.

( 5 ) IN view of the above factual averments, the petitioner contends that it was not open for the respondents to withhold his promotion in view of the fact that on the date of convening of the meeting of the DPC no chargesheet was issued against the petitioner in the criminal case. It is further contended that not only that the DPC considered the case of the petitioner for promotion and found him fit for promotion; but also placed the petitioner in the select list. It is additionally pointed out that after the DPC found the petitioner fit for promotion, further steps were also taken in the form of obtaining approval from the GPSC and General Administration Department and the concerned Minister to promote the petitioner. It was, therefore, submitted on behalf of the petitioner that when no chargesheet was filed against the petitioner before the criminal court right up to the stage when his name was cleared by all other authorities for promotion, it was not open for the respondents to withhold his promotion on mere filing of the FIR. In the affidavit in rejoinder, the petitioner has further stated to the effect that Mr. Jha whose wife has lodged the criminal case against the petitioner