Promotion cannot be denied solely due to pending criminal proceedings; a charge must be framed for such denial to be valid.

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.

(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