The right to promotion of an employee under investigation is affirmed, as promotion cannot be denied based on mere FIR registration when juniors are promoted prior to charge-sheet filing.

JUDGMENT :

A.S. SUPEHIA, J.

1. By way of this Letters Patent Appeal, the appellant – State has assailed the judgment and order passed by the learned Single Judge dated 06.08.2015, allowing the captioned writ petition filed by respondent no.1 – employee (original petitioner), challenging the action of the department denying him promotion to the post of Deputy Executive Engineer. The learned Single Judge, after considering the Government Resolutions that were on record and the judgments of the Supreme Court, has ultimately directed the appellant – department to grant actual promotion to the respondent-employee to the post of Deputy Executive Engineer (Class-II) with effect from 31.05.2015, i.e., the day when his juniors were promoted.

BRIEF FACTS:

2. The brief facts that are established on record and pleadings are that the respondent no.1 – employee (original petitioner) was serving as an Assistant Engineer Civil. As per the seniority list published on 01.03.1993, the name of the respondent-employee figured at Sr. No.670, and his immediate junior - Haresh Narendrabhai Bhatt, at Sr. No.671. 3. On 17.09.2011, the First Information Report, being CR No. I-8 / 2011, came to be registered against the respondent- employee for the offences punishable under the Prevention of Corruption Act, 1988.

4. On 26.09.2012, the Departmental Promotional Committee (DPC) considered the case of the respondent- employee for promotion to the post of Deputy Executive Engineer. The respondent-employee was arrested on 27.12.2012. On 14.02.2013, sanction to prosecute him was granted. On 01.03.2013, he was placed under suspension with effect from the date of his arrest. Thereafter, his suspension was revoked on 26.09.2013. On 31.05.2013, the juniors to the respondent-employee were promoted. On 05.07.2013, the charge-sheet was filed before the Special Court for the offences punishable under the Prevention of Corruption Act.

5. On 24.04.2013, the Gujarat Public Service Commission (GPSC) called for certain details from the State Government regarding the case of the respondent-employee. On19.11.2013, the State Government provided the necessary information to the GPSC. On 12.02.2014, the GPSC, after considering the information provided by the State Government, accepted the proposal and recommended the name of the respondent-employee for promotion. Subsequently, on 01.03.2014, another junior was promoted, which constrained the respondent-employee to file the captioned writ petition assailing the action of the department. The learned Single Judge allowed the writ petition by placing reliance upon the judgment of the Supreme Court in the case of Union of India vs. K.V. Janakiraman , AIR 1991 S.C. 2010. The learned Single Judge considered the Government Resolution dated 04.08.2007, regulating the case of promotion of those employees who are facing departmental proceedings or criminal prosecution.

SUBMISSIONS ON BEHALF OF THE APPELLANT-STATE:

6. At the outset, learned AGP Ms.Shruti Dhruve submitted that an employee is not entitled to promotion in view of Government Resolution dated 21.09.1981, which was pointed out before the learned Single Judge; however, the learned Single Judge did not consider the same. She read the provisions of Government Resolution dated 23.09.1981, more particularly paragraph Nos. 2 and 7. It is submitted that as per the aforesaid provisions, the case of the respondent- employee cannot be considered, as he was already embroiled in the criminal prosecution. She referred to the dates on which the FIR was registered, and also the date of sanctioning of the prosecution and submitted that, as per paragraph no. 7 of the Government Resolution dated 23.09.1981, the respondent-employee cannot be promoted till he is completely exonerated from the criminal prosecution. Learned AGP further submitted that the reliance placed on Government Resolution dated 04.08.2007 would not stricto sensu apply to the case of the respondent–employee, as the said Resolution was i