Promotion Can’t Be Granted To Govt Servant Making It Subject To Outcome Of Pending Criminal Case Against Him: Orissa High Court

The Orissa High Court has recently reiterated that ad-hoc or regular promotion cannot be granted to a government servant making it contingent upon the outcome of the criminal case pending against him.

While setting aside the order of the Single Judge who permitted such promotions to a number of government employees, the Division Bench of Chief Justice Dr. S. Muralidhar and Justice Gourishankar Satapathy observed,

“…it is not possible for this Court to sustain the impugned orders of the learned Single Judge in the present cases directing the Appellants to grant regular promotion to the Respondents even with the caveat that such promotion would be subject to the outcome of the criminal case against such government servant.”

A batch of writ appeals were filed by the State of Odisha against the corresponding orders of the Bench of Single Judge wherein he had granted ad-hoc promotion to the respondents-government servants against whom criminal cases are pending in the Court of Special Judge (Vigilance).

A common question arose for consideration before the Division Bench, viz.

“Whether during the pendency of a criminal case against the government servant in the Court of the Special Judge (Vigilance), and notwithstanding exoneration of the said employee in the departmental proceedings, could the learned Single Judge have ordered grant of either ad hoc or regular promotion to the government servant subject to the outcome of the criminal proceedings?”

Court’s Observations

The Court noted that the criminal cases involving the respondents in the present appeals are still pending before the Court of the Special Judge (Vigilance) at various stages. In some cases, even the chargesheet is yet to be filed and in other, charges may or may not have been framed; in certain other cases, trial is in progress.

It was argued for the respondents that on account of the long pendency of the criminal case and with the impending superannuation of many of the respondents in the near future, one equitable solution would be for the Court to direct the appellant (State of Odisha) to grant them ‘ad hoc’ promotions.

However, the State produced a compilation of Office Memoranda (OMs) and Notifications issued by the Government of Odisha from time to time. None of them either prescribed or permitted grant of promotion to a government servant either on regular or on ad-hoc basis during the pendency of a criminal case.

Further, the Court placed reliance on the law laid down by the Apex Court in Union of India v. K.V. Janaki Raman and State of Punjab v. Chamanlal Goel. It also referred to the judgments of the High Court in State of Odisha v. Somanath Sahoo and State of Odisha v. Anil Kumar Sethi, wherein it was commonly held that there is no right of the government servant to be considered for promotion during the pendency of either departmental proceedings or criminal proceedings or both against him.

Having regard for the aforesaid, the Court opined that the plea of the respondents that they should be granted at least one ‘ad-hoc promotion’ is also without any legal basis. Therefore, the impugned order of the Single Judge was set aside.

Before the parting with the order, the Court clarified that as and when the criminal proceedings end in favour of the government servants by way of acquittal and when such government servants also stand exonerated from the departmental proceedings, notwithstanding their superannuation, the notional benefits attaching to the promotion that is due to them would be calculated and the pension will be fixed accordingly.

Case Title: State of Odisha & Anr. v. Joseph Barik [and batch of other appeals]

Case No.: W.A. No. 805 of 2021 & Batch of WAs

Order Dated: May 11, 2023

Citation: 2023 LiveLaw (Ori) 62

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