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IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR
JAVED IQBAL WANI, J.
Tanveer Ahmad Khan – Petitioner
Versus
J.K. Bose and Others – Respondents
SWP No. 1065 of 2017
Decided On : 17-08-2022
KEYWORD - Promotion and Disciplinary Proceedings - Jammu and Kashmir Civil Service Regulations, Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 - The court examined the legality of the orders deferring the petitioner's promotion and subsequently debarring him from future promotions. It highlighted that the deferral lacked authority as no disciplinary proceedings were pending at the time. The court emphasized the necessity of following the 'Sealed Cover Procedure' under Regulation 110-A of the CSR, which was not adhered to, leading to the conclusion that the actions taken against the petitioner were arbitrary and constituted a colorable exercise of power. The court's decision was influenced by the principles of natural justice and the requirement for a formal inquiry before imposing such penalties.
Fact of the Case:
The petitioner, an employee of the Board of School Education, sought to quash orders that deferred his promotion to Junior Assistant and subsequently barred him from future promotions due to alleged involvement in a fraud case. The petitioner claimed he was wrongfully implicated after reporting the fraud, and that the orders were arbitrary and violated principles of natural justice.
Finding of the Court:
The court found that the deferral of the petitioner's promotion was without legal authority as no disciplinary proceedings were pending at the time. It ruled that the subsequent order debarring the petitioner from future promotions was a colorable exercise of power, effectively demoting him without following due process.
Issues: "Whether the respondents could defer the petitioner's promotion when it was due.", 'Whether the respondents could debar the petitioner from future promotions retrospectively.'
Ratio Decidendi: The court held that the deferral of promotion was illegal as it was not supported by any ongoing disciplinary proceedings. It emphasized that the 'Sealed Cover Procedure' was not applicable in this case, and the actions taken by the respondents amounted to an indirect demotion without proper inquiry, violating the principles of natural justice.
Final Decision: The court allowed the petition, quashing the orders deferring the promotion and debarring the petitioner from future promotions, and directed the respondents to promote the petitioner to Junior Assistant with all consequential benefits from the date the promotion was due.
JUDGMENT :
JAVED IQBAL WANI, J.
1. In the instant petition filed under Article 226 of the Constitution, petitioner implores for the following reliefs:
(i) An appropriate writ quashing the impugned order bearing Order No. 148-B of 2017, dated 06.03.2017, herein annexure C.
(ii) An appropriate writ quashing Order No. 448-B of 2014, dated 21.07.2014 in so for it defers the promotion of petitioner and reserves one post of Junior Assistant for the petitioner subject to clearance from police.
(iii) An appropriate writ commanding the respondents to promote petitioner to the post of Junior Assistant from 21.07.2014 on the basis of his entitlement to such promotion uninfluenced by pendency of enquiry initiated against petitioner after issuance of Order dated 21.07.2014 and admit petitioner to all consequential benefits.
(iv) Any other appropriate writ, order or direction which this Hon'ble Court deems just and proper in the attending facts and circumstances of the case.
2. The facts as averred in the petition under the shade and cover of which reliefs aforesaid are being claimed are that the petitioner is an employee of the respondent Board of School Education (for short 'the BOSE') holding the post of orderly. The services of the petitioner as that of the other employees of the BOSE are stated to be regulated and governed among others by Jammu and Kashmir Civil Service Regulations (CSR) and Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 (CCA Rules).
3. It is being stated in the petition that the petitioner was posted in the secrecy unit III KD in the year, 2014 and during his posting, as such, in liaison room of the said section, it got revealed that one candidate namely Aadil Gojray had in connivance with some officials of the BOSE written answers on his already evaluated answer sheet. The petitioner states to have detected the fraud and brought into the notice of the higher authorities of BOSE.
4. An FIR is stated to have been got registered for the said fraud committed by the said candidate having been purportedly done in connivance with some BOSE officials.
5. It is being further stated that the petitioner got allegedly implicated therein the said fraud and as a consequence whereof the respondent vide order No. 751-B of 2015, dated 17.10.2015 constituted a committee to enquire into the matter.
6. The petitioner is stated to have filed SWP No. 823/2015 prior to the filing of the instant petition, after respondent Board issued an order No. 448-B of 2014, dated 21.07.2014 promoting two orderlies to the posts of Junior Assistants excluding the petitioner though being senior. In the said promotion order one post of Junior Assistant for the petitioner had been reserved subject to the clearance from the crime Branch. The said petition is stated to be pending.
7. It is being next stated by the petitioner that the respondents issued impugned order dated 06.03.2017 debarring the petitioner from future promotions for six years retrospectively w.e.f. 21.07.2014, as the petitioner was due for promotion on 21.07.2014 and same was denied to him at that relevant point of time.
8. Be that as it may, the instant petition is being maintained inter-alia, on the grounds which in extenso are being extracted and reproduced here under:
(a) Because the impugned order is illegal and has been passed in an arbitrary manner without application of mind to the relevant facts and without complying with the rules and the procedure. The order not only suffers from the vice of being based on no evidence without there being any material to support the conclusions arrived at by the disciplinary authority or enquiry committee. It is submitted that there is no material on the basis of which any reasonable man would arrive at such conclusions or draw such inferences as have been arrived at by the respondents while passing the impugned order. The impugned order is in fact outcome of surmises and conjectures.
(b) Because the order suffers from the vice
AI
The right to be considered for promotion is a fundamental right, and any deferral or denial of promotion must be based on established legal grounds and due process, including adherence to the 'Sealed....
Service Law - Non- implementation of order of promotion - Appointments of officers are subject to DAR/Vigilance/ Criminal case clearance by Railways - Officers should be advised that above officiatin....
Denial of promotion based on mere inquiry without formal charges is arbitrary and violates the right to be considered for promotion under Article 16(1).
Right to promotion consideration exists, but actual promotion requires vigilance clearance; deferment valid pending advanced disciplinary proceedings.
: : (1) To conduct departmental enquiry against a Government servant is not a casual exercise – It cannot be conducted with a closed mind – Enquiry officer has to be unbiased.(2) Evidence recorded in....
The mere pendency of a criminal case does not justify withholding promotion without formal charges, violating principles of natural justice and discrimination.
The 'sealed cover procedure' and relevant Supreme Court judgments establish that an employee acquitted in a criminal case is entitled to promotion and benefits from the date of promotion as if no pro....
Departmental proceedings must adhere to principles of natural justice, and acquittal in criminal cases does not preclude disciplinary action but requires proper evidence examination.
Eligibility for promotion must be determined as of the date it becomes due; subsequent initiation of disciplinary proceedings or imposition of minor penalties cannot be used to retrospectively justif....
The main legal point established in the judgment is that the promotion cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee, as per the Sealed Cov....
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