IMPORTANT POINT
Indefinite withholding of promotion due to pending vigilance proceedings is unjust, and employees have a right to timely consideration for promotion, even when criminal proceedings are ongoing.

JUDGMENT

Sibo Sankar Mishra, J.

The Petitioner has filed the present Writ Petition under Article 226 of the Constitution of India inter alia seeking writ against the Opposite Parties to give promotion to him to the rank of Superintendent Engineer along with all consequential service benefits. The Petitioner is facing a criminal prosecution initiated in the year 2011, therefore, although DPC has recommended his case for promotion but sealed cover procedure has been adopted owing to the pendency of the criminal prosecution against him. There is no disciplinary proceeding initiated by the department against him. 2. The said Writ Petition indeed was heard at length on 17.11.2021. The Coordinate Bench of this Court after hearing both parties was pleased to allow the Writ Petition. Relevant is to reproduce the order dated 17.11.2021 passed by learned Single Judge :-

'2. Heard learned counsel for the parties.

3. The petitioner has filed this application seeking direction to the opposite parties to give him promotion to the rank of Superintendent Engineer in lieu of the order passed in W.P.(C) No.12359 of 2016 and delay in proceeding as T.R. Case No.19/11 within a stipulated time.

4. Moot question involves if a promotion of employee can be withheld for indefinite period on the premises of pendency of vigilance proceeding over a period of decades.

5. This Court considering such situation has already settled the position of law keeping the sealed cover promotion aspect in view of pendency of the Disciplinary Proceeding and/or Vigilance Proceeding for decades becomes bad.

6. Fact involving the case reveals that there is no disciplinary proceeding against the petitioner except the vigilance proceeding pending in the court of Spl. Judge, (Vigilance), Cuttack in Vigilance Proceeding Vig. G.R. No.19 of 2011. Involving the allegation against the petitioner, it appears the Vigilance Proceeding initiated in the year 2011. However the said vigilance case is yet to be disposed of. Pleading also further made clear that no Disciplinary Proceeding initiated against the petitioner. In this background of case an allegation is made that promotion of the petitioner taking effect in the year 2018 has been kept in sealed cover only on the premises that a vigilance proceeding involving the petitioner is pending since 2011. For the settled position of law, this Court in disposal of the writ petition observes, petitioner cannot suffer for the long pendency of the vigilance proceeding. It is also not known when the Vigilance Proceeding initiated in the year 2011 will come to end. It is keeping in this view, this Court in disposal of the writ petition directs opposite party no.2- Commissioner-cum-Secretary to Govt. Works Department, Orissa to give promotion to the petitioner to the rank of Superintendent Engineer from the date of his juniors and batchmates got such promotion. However the promotion of the petitioner as per direction of this Court shall be subject to the ultimate outcome in the Vigilance Proceeding. Further it is also clarified that the promotion given to the petitioner to the rank of Superintendent Engineer shall not confer equity in the event, he will ultimately lose the Vigilance Proceeding. Entire exercise shall be completed within four weeks from the date of communication of this direction. It is also clarified that upon promotion, petitioner shall also be entitled to all consequential benefits.

7. With the above observation, the writ petition thus stands disposed of.'

3. The Opposite Parties preferred intra-court Appeal against the judgment of the Coordinate Bench dated 17.11.2021 being W.A. No.1221 of 2022 contending therein that they were not given opportunity to file counter and contest the Writ Petition. The Division Bench of this Court was pleased to allow the Writ Appeal, set aside the order of the learned Single Judge and remanded the matter back to the learned Single Judge to decide afresh by giving opportunity to the Opposite Parties