An employee facing criminal charges cannot be promoted until acquitted or discharged, and allegations of misrepresentation and concealment must be substantiated with evidence.

1. Heard learned counsel for the parties.

2. The petitioner is aggrieved by a Notification No.10188 dated 17.10.2014, Annexure 9, by which he has been demoted to the post of Under Secretary to which post he was promoted earlier by Notification No.5583 dated 24.6.2013, Annexure 5. He consequently prays for restoration of his promotion with all other attendant monetary benefits etc. The petitioner has also made a prayer to grant him promotion w.e.f. 31.8.2009 on which date his juniors were promoted.

3. The brief facts to decide the controversy raised therein are being noticed herein-below:

4. The petitioner is a member of Jharkhand Administrative Service, who was promoted to the post of Junior Selection grade by Memo No.807 dated 17.2.2004. The petitioner got implicated in a criminal case being Dhanbad P.S.Case No.433/2006 under Section 376 IPC. Charge sheet against him has been submitted in the criminal case on 16.8.2008. The petitioner's case for promotion was considered in a DPC held on 27.8.2009 and it was kept in a sealed cover. Petitioner made a representation after four years on 2nd May,2013 just prior to the DPC held on 4.6.2013. The representation is at Annexure 3 to the writ petition. He made a request for grant of promotion based upon certain instances of employees under the State Government being granted promotion to the next higher post though in their case no charge had been framed by the competent Court of Law. The Departmental Promotion Committee had recommended their case for promotion and they were actually promoted also. In that representation he also cited judgment of the learned Central Administrative Tribunal and sought for promotion based upon those instances. It is also true that he referred to the judgment of the Hon'ble Supreme Court rendered in the case of Union of India Vs. K.V. Jankiraman, reported in AIR 1991 SC 2010. Thereafter on the partitioner's representation the Departmental Promotion Committee recommended his case for promotion and he was actually promoted pursuant to the order dated 24.6.2013, Annexure 5 to the post of Deputy Secretary.

5. The respondents later on realized that such promotion could not have been granted as the petitioner was suffering a chargesheet in the criminal case and the same would have been in the teeth of the ratio laid down by the Apex Court in the case of K.V.Jankiraman (supra). Therefore, they issued a show cause upon the petitioner, Vide Annexure 7 dated 4.9.2013 making allegations that petitioner had resorted to misrepresentation, cheating and violation of service rules. The petitioner gave his reply vide Annexure 8 on 19.12.2013. The impugned notification has been issued thereafter on 17.10.2014, Annexure 9 demoting the petitioner to the post of Under Secretary.

6. The petitioner has assailed the order of demotion on the ground that the findings recorded therein that the petitioner had misrepresented and concealed the fact that the charge sheet has been submitted against him long back, are stigmatic in nature, though there is no such misrepresentation on his part. The representation Annexure-3 would not show that he had ever resorted to any misrepresentation. It is submitted that the impugned notification, therefore, is bad in law and punitive in nature and is not in conformity with the requirement under Article 311 of the Constitution of India. Learned counsel for the petitioner has also tried to make out a case that the petitioner should have been granted promotion earlier in 2007, as there was no charge sheet filed against him on completion of minimum period of Kalawadhi of three years from his earlier promotion in 2004.

7. The respondent-State has filed a counter affidavit. Mr. Jai Prakash, learned AAG fairly submits that from the contents of the show cause it definitely cannot be inferred that there was a misrepresentation to the effect that petitioner had stated that there was no charge sheet filed against him. Petitioner had tried to make out a case