Unblemished Record Necessary For Promotion, Employee Facing Criminal Charges Not Entitled To Promotion During Pendency: J&K High Court

The court further said that that an employee found guilty of misconduct cannot be placed on par with the other employees and his case has to be treated differently. There is therefore no discrimination when in the matter of promotion, he is treated differently, it underscored.

“To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. An employee found guilty of misconduct cannot be placed on par with the other employees and his case has to be treated differently”, the court emphasised.

The court made these observations while addressing the petition of Naba Kumar Giri, a 54-year-old Assistant Sub Inspector in the Central Reserve Police Force (CRPF) who had challenged the denial of his promotion and financial benefits, which were withheld due to ongoing criminal proceedings against him.

Giri had been appointed as a Constable in April 1990. He later underwent training for the post of Sub Inspector but was promoted as an Assistant Sub Inspector (ASI) in 2010 due to non-availability of vacancies. Giri contended that he was eligible for promotion to Sub Inspector in 2018 but was excluded from the list. He also claimed that he was denied financial benefits under the Modified Assured Career Progression (MACP) Scheme, which were due since 2013.

Giri's counsel argued that the denial of promotion and financial benefits was unjust, emphasizing his right to be considered for promotion. He submitted that his eligibility for the MACP Scheme and subsequent promotions should not be hindered by the pending case, citing his long service and initial promotions.

On the other hand, the respondents highlighted the seriousness of the charges against Giri, including allegations of corruption. They argued that under the existing rules, promotion and financial benefits could not be granted to an individual facing criminal prosecution or disciplinary proceedings. They pointed out that vigilance clearance was a prerequisite for such promotions, which Giri lacked due to the ongoing case.

Meticulously examining the relevant guidelines and case laws the court highlighted that while an employee has a right to be considered for promotion, this right is contingent upon several factors. A blemish-free record is an essential requirement to ensure a clean and efficient administration and an employee facing criminal charges cannot be equated with those having a clean record, the bench underscored.

Observing that financial upgradation under the MACP Scheme requires vigilance clearance and an absence of pending disciplinary or criminal proceedings the court cited several office memorandums issued by the Government which specify that vigilance clearance for promotion can be denied if the employee is under suspension, facing disciplinary proceedings, or prosecution.

Citing Union of India v. K. V. Jana Kiraman and State of Punjab v. Chamanlal Goel the court recorded,

“there is no right in a government servant to be considered for promotion during pendency of either departmental proceedings or criminal proceedings or both against such government servant”.

Ruling that Giri's petition lacked merit owing to these pending criminal proceedings the Court clarified that if Giri is eventually acquitted and exonerated from departmental proceedings, he would be entitled to claim notional benefits associated with the promotion, even if he has superannuated by then.

Case Title: Naba Kumar Giri Vs Union Of India

Citation: 2024 LiveLaw (JKL) 143

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