Promotion should not be denied to public servants based solely on the pendency of criminal proceedings, especially when there are no disciplinary actions in place.

JUDGMENT :

By the Bench:

1. Appellants in this Intra-Court Appeal seek to assail the order dated 09.08.2021 passed by this Court in W.P.(C) No.22844 of 2021.

2. Shorn of unnecessary details, facts relevant for proper adjudication of this appeal, are stated hereunder.

3. The Respondent is serving as Junior Engineer under Panchayati Raj Department of Government of Odisha. While the Petitioner/ Respondent was serving as a Junior Engineer, Sadar Block, Cuttack, Bhubaneswar (Vigilance) P.S. Case No.45 of 2012 dated 30.06.20212 was registered against him on the allegation of possession of disproportionate asset. The said proceeding is pending in the Court of learned Special Judge (Vigilance), Bhubaneswar.

4. The Respondent, on the plea that a vigilance case is pending against him, was not given promotion to the post of Assistant Engineer (presently Assistant Executive Engineer). Thus, he filed W.P.(C) No.22844 of 2021, which was taken up on 09.08.2021.

5. On the first date of taking up the matter for consideration, the writ petition was disposed of directing the Principal Secretary to Government of Odisha in the Panchayati Raj Department, Bhubaneswar to give promotion to the Respondent to the rank of Assistant Engineer (Civil), [presently Assistant Executive Engineer (Civil)] from the date of his juniors and batchmates got such promotions.

6. In the said order, it was however made clear that promotion of the Respondent pursuant to the direction in the aforesaid writ petition shall be subject to the ultimate outcome in the vigilance proceeding. It was also clarified that the promotion given to the Respondent shall not confer equity in the event he is ultimately found guilty in vigilance proceeding. It was further directed that the entire exercise shall be completed within a period of four weeks from the date of communication of the said order and all consequential benefits of the promotional posts should be extended to the Respondent. It is against the said order, the State Government has filed this Intra-Court Appeal.

7. Mr. Biswal, learned Additional Standing Counsel submits that no opportunity of hearing was given to the Appellants to file Counter Affidavit and defend their case.

8. It is further submitted that due to pendency of the vigilance case in the Court of learned Special Judge, (Vigilance), Bhubaneswar, promotion was not given to the Respondent, as a criminal proceeding is pending against him.

9. Had the Respondent/Appellants been given an opportunity of hearing in the writ petition, they would have been in a position to place their matter. He, therefore, prays for setting aside the impugned order and to remit the matter to the assigned Single Bench for fresh adjudication of the writ petition providing opportunity of hearing to the parties.

10. Mr. Palit, learned Senior Advocate appearing for the Respondent, on the other hand, submits that no disciplinary proceeding is either pending or initiated against the Respondent. It is only on the plea of pendency of the criminal proceeding before the Court of Special Judge (Vigilance), Bhubaneswar, the Respondent has been denied promotion.

11. The criminal proceeding is pending since 2012 and trial of the said vigilance case has not yet commenced. Thus, for no fault of the Respondent, he is punished and deprived of his right to be promoted to the higher posts. In the meantime, his batchmates and juniors have been promoted but the Respondent has been ignored. That apart, the Respondent will be superannuated on attaining the age of superannuation next year, i.e., in the year 2027.

12. In support of his case, Mr. Palit, learned Senior Advocate relied upon the case of State o