The pendency of preliminary investigation without submission of charge-sheet cannot be a ground to deny promotion to an employee who is found otherwise suitable for the same.

JUDGMENT

Sashikanta Mishra, J. - The short point that arises for consideration in the present writ application is, can an employee be denied promotion on the ground of pendency of a criminal proceeding?

2. Bereft of unnecessary details, the facts of the case are that the petitioner was appointed as a Lecturer in History on 01.11.1988 by the Management of Balasore Mahila College (+3 wing) and was subsequently transferred and posted at Soro Women's College, Soro. On 14.11.2015 the Principal-cum-Secretary of Balasore Mahila College submitted the CCRs of 3 Lecturers, including that of the petitioner to the Director, Higher Education, Odisha for consideration of their cases for placement in Lecturer Grade A and State Scale under the Placement Rule, 2014. The Director, after scrutiny, published a report of the colleges of whom CCRs of employees, other documents etc. were not furnished. The name of Balasore Mahila College was mentioned in the said list but the petitioner's name was not indicated. On enquiry, the petitioner came to know that the higher scale had not been granted to her because of pendency of a Vigilance case against her. Further, the opposite party No.3, who is junior to the petitioner, was granted higher scale and State Scale w.e.f. 04.06.2001 and 04.06.2011. It is the case of the petitioner that mere pendency of a criminal case cannot be a bar to grant higher scale of pay to an employee. On such facts the petitioner has filed the instant writ petition seeking the following relief:

'Under the aforesaid facts and circumstances, it is therefore, prayed that this Hon'ble Court may graciously be pleased to:

(i) direct/order State Opp.Parties, more particularly the Opp.Party No.2 to place the petitioner under Lecturer (Gr. A) and Reader (State Scale) from 04.05.2001 and 04.06.2011 i.e., with effect from the date admitted juniors received the consequential and monetary benefits;

(ii) pass such other order (s) or issue direction (s) as may be deemed fit and proper in the bona fide interest of justice.

And for this act of kindness, the petitioner shall as in duty bound every pray.'

The petitioner also filed an additional affidavit intimating that in the Vigilance Case bearing VGR No. 28/2015 Final Form has not yet been submitted.

3. A Preliminary counter affidavit has been filed by the Opposite Party No. 1. It is basically stated in the affidavit that the petitioner could not submit necessary vigilance clearance as required under the Rules. Further, upon information submitted by the Principal of Balasore Mahila College it is ascertained that Balasore Vigilance P.S. Case Nos.57 dated 28.12.2015 and 7 dated 16.02.2018 are pending against the petitioner. That apart, the S.P., Vigilance, Balasore by his letter dated 25.02.2016 has informed that the charges against the petitioner are serious in nature. Therefore, having regard to the provision under Rule-6 of the Odisha Non-Govt. Aided College Lecturers Placement Rules, 2014 (in short 'Placement Rules, 2014'), it is not permissible to grant the relief claimed by the petitioner.

4. Heard Ms. Saswati Mohapatra, learned counsel for the petitioner and Mr. B.P. Tripathy, learned Addl. Govt. Advocate for the State.

5. Ms. Mohapatra would contend that notwithstanding the provision under Rule 6 of the Placement Rules, 2014, law is well settled that mere pendency of a criminal proceeding cannot be a bar to deprive an employee from the higher scale, particularly when charge-sheet has not been submitted in the said proceeding. It is further submitted that when her juniors have received the benefit, non-grant of the same amounts to gross discrimination as also contrary to Article 14 of the Constitution.

6. Per Contra, Mr. Tripathy submits that Rule- 6 of the Placement Rules, 2014 mandates that the Screening Committee is required to examine the status of all departmental and criminal or vigilance proceedings pending against the employee including vigilance clearance certificate. In the instant case, suc