Promotion cannot be denied based on mere suspicion or pending preliminary investigations; a charge sheet must be issued for such denial.

JUDGMENT

Mr. Jagmohan Bansal, J. (Oral)

The petitioner through instant petition under Articles 226/227 of the Constitution of India is seeking direction to the respondents to promote him w.e.f. 25.04.2017 instead of 16.03.2020.

2. The petitioner w.e.f. 05.05.2007 joined respondent-Indo Tibetan Border Police Force (for short 'ITBP') as Constable (General Duty). In September' 2011, he was selected and sent on deputation to National Security Guards (for short 'NSG'). The respondent found that petitioner during 2012- 2016 has been made payment by them in addition to the payments made by NSG. On the asking of respondent-ITBP, the petitioner returned excess payment to the tune of Rs. 17,02,156/- on 12.06.2017. The petitioner remained on deputation till 31.12.2016. The petitioner re-joined his parent department in 2017. The respondent-ITBP vide order dated 24.04.2017 (Annexure P-3), promoted him along with other employees. The promotion was granted subject to conditions contemplated in the aforesaid order. The respondent-ITBP formed an opinion that petitioner does not comply with Condition No.(d) of the promotion order dated 25.04.2017 (Annexure P-3), thus, he is not eligible to promotion. The petitioner was thereafter actually promoted w.e.f. 16.03.2020.

3. Mr. Rajeev Anand, Advocate submits that on 25.04.2017 no departmental or vigilance matter was pending against the petitioner, thus, he could not be denied fruit of the promotion. The case of the petitioner is squarely covered by judgment of Apex Court in Union of India and others v. K.V. Jankiraman and others, (1991) 4 SCC 109. The Government of India has issued Office Memorandum dated 25.10.2004 (Annexure P-9) which is in consonance with judgment of Supreme Court in K.V. Jankiraman (supra). In the said memorandum, it has been categorically provided that promotion shall not be withheld merely on the basis of suspicion or doubt or where the matter is under preliminary investigation and has not reached the stage of charge sheet.

4. Per contra, Mr. Sunil Kumar Sharma, Advocate submits that in the order dated 25.04.2017 (Annexure P-3), it was categorically mentioned that an employee would not be promoted if the departmental inquiry or vigilance matter is pending or contemplated against him or his integrity is doubtful. The petitioner was paid excess payment to the tune of Rs. 16.40 Lakhs during January' 2012 to February' 2017, thus, by order dated 24.03.2017, a committee was constituted to inquire into the matter. As the committee to inquire the excess payment has already been constituted before 25.04.2017, the petitioner was not promoted w.e.f. 24.03.2017.

5. I have heard the arguments of learned counsels for both sides and perused the record with their able assistance.

6. The conceded position emerging from the record is that the petitioner joined respondent-ITBP on 05.05.2007 and he remained posted with ITBP till 31.12.2011. He joined NSG on deputation w.e.f. 01.01.2012. He worked with NSG till 31.12.2016. He joined his parent department in 2017. While he was posted with NSG, the respondent-ITBP made him excess payment to the tune Rs. 16.40 Lakhs. The petitioner, in June' 2017, returned excess payment. The petitioner was promoted along with other officers vide order dated 25.04.2017 subject to conditions mentioned in the said order. The respondent-ITBP did not actually promote the petitioner w.e.f. 25.04.2017 because a committee had been constituted on 24.03.2017 with respect to excess payment made to him. The petitioner was actually promoted w.e.f. 16.03.2020.

7. From the conceded position and argument of both sides, the question which arises for the consideration of this Court is whether the petitioner could be denied promotion w.e.f. 25.04.2017 on the ground that a committee prior to said date was constituted to enquire excess payment made to him.

8. From the perusal of order dated 25.04.2017 (Annexure P-3), it comes out that a number of officers were promoted subject to conditi