A government servant's right to promotion can be denied due to serious allegations if a charge-sheet is issued or a criminal investigation is ongoing.

JUDGMENT

The petitioner has challenged departmental communications under which his request for promotion has been rejected.

[2] Brief facts are as under :

The petitioner is holding the post of Second-in-Command in Assam Rifles. On 31.07.2015 Assam Rifles issued what is titled as “tentative charge-sheet” in which it is alleged that while working in the Directorate General of Assam Rifles at Shillong between 6th December 2012 to 14th January, 2015 the petitioner failed to establish the source of cash deposits of Rs.17,43,994/- in his bank account which was done during the period between 10th December, 2011 to 3rd March, 2014. It is also alleged that the petitioner failed to establish the source of two fixed deposits of Rs.11,83,861/- and Rs.10,82,233/- in his bank accounts during the same period. Subsequently, on 29.07.2019 the first information report was also lodged against the petitioner in Shillong for offence punishable under Section 13 (2) read with Section 13 (1)(e) of the Prevention of Corruption Act. In this complaint it was alleged that the petitioner was holding assets to the extent of Rs.1,19,59,865/- disproportionate to the known source of income. A detailed account of the petitioner’s known sources of income, his reasonable expenditure and the assets of the petitioner detected by the department were also listed. The CBI has submitted a charge-sheet in connection with the said criminal case on 30.03.2021. The criminal case is pending.

[3] According to the petitioner, two persons in his cadre who are junior to him namely, Shri G.R. Pillai and Rampal Singh, in the meantime have been promoted to the next post of Commandant ignoring the claim of the petitioner. The petitioner, therefore, made representations to the department for grant of promotion. By the impugned communications, his request was refused. In one such communication dated 02.07.2020 it is stated that the criminal case is still under investigation and, therefore, the petitioner cannot be promoted for want of vigilance clearance. At that stage, the petitioner has filed the present petition. His request is that he should be promoted to the post of Commandant since when his turn arrived for consideration for promotion, neither departmental charge-sheet was issued nor charge-sheet filed in the criminal case. Obviously, the petitioner is placing heavy reliance on the decision of the Supreme Court in case of Union of India and others v. K.V. Jankiraman and others reported in (1991) 4 SCC 109. Learned counsel for the petitioner vehemently contended that on the date when the petitioner’s juniors were promoted, the department had not yet issued a departmental charge-sheet, nor CBI had presented its charge-sheet before the criminal court. Subsequent presentation of the charge-sheet would not take away the petitioner’s right which was denied at the relevant time. He, therefore, submitted that the respondents be directed to open the sealed cover containing the recommendations of the petitioner if they have followed sealed cover procedure, or else the respondents be directed to convene a review DPC to consider the case of the petitioner as on the date on which his juniors were considered.

[4] On the other hand, learned Assistant Solicitor General appeared for the respondents and opposed the petition contending that the petitioner is facing serious charges. The CBI has investigated the allegations and filed a charge-sheet before the criminal court for commission of offence punishable under Section 13 (2) of the Prevention of Corruption Act. It was found that the petitioner is holding large amount of assets disproportionate to his known source of income