Promotion Cannot Be Denied Merely Because Criminal Proceedings Are Pending Against The Employee: J&K&L High Court

A bench comprising Justice Javed Iqbal Wani was hearing a plea in terms of which the petitioner had challenged orders whereby the petitioner had been deprived of his promotion and had been barred for being considered for any promotions in future.

The petitioner contended that by issuing the impugned order the respondents have tried to achieve something indirectly which they could not do directly. The petitioner further argued that in essence it was not just a case of debarring future promotion but also a case of demotion achieved by first taking away accrued promotion and then stopping further promotion from retrospective date and such course cannot be adopted.

Taking recourse to the available record the bench noted that the petitioner is an employee of the respondent Board of School Education and that the petitioner was posted in the secrecy unit III KD in the year 2014 and during his posting, as such, in liaison room of the said section, it got revealed that one candidate had in connivance with some officials of the BOSE written answers on his already evaluated answer sheet. Record also revealed that an FIR is stated to have been got registered for the said fraud committed by the said candidate and the petitioner got allegedly implicated therein the said fraud and as a consequence whereof the respondent constituted a committee to enquire into the matter.

The bench also took note of the fact that the respondent Board in the meanwhile issued an order dated 21.07.2014 promoting two orderlies to the posts of Junior Assistants excluding the petitioner though being senior and in the said promotion order one post of Junior Assistant for the petitioner had been reserved subject to the clearance from the crime Branch. Subsequently the respondents issued another impugned order dated 06.03.2017 debarring the petitioner from future promotions for six years retrospectively w.e.f. 21.07.2014 and both these orders were subject matter of challenge before the court.

The moot questions that fell for adjudication before the court were,

(a) Whether respondents could have deferred promotion of the petitioner when it was due on 21.07.2014 and kept it subject to the clearance by the Crime Branch

(b) Whether the respondents could debar the petitioner from future promotions from retrospective date, (when promotion of the petitioner was already deferred) on the basis of enquiry that was initiated after the promotion of the petitioner was deferred on 21.07.2014

Exploring the law applicable to address the first issue the bench observed that the record tends to show that on 21.07.2014, when the promotion of the petitioner was deferred and kept subject to the clearance from the Crime Branch, on the said date no disciplinary enquiry had been initiated or was pending against the petitioner so much so no charge sheet was framed against him. The petitioner was not on the said date implicated in the FIR registered in Crime Branch qua the alleged fraud of writing of the answers in the answer sheet of the candidate, the bench recorded.

The bench further observed that the record demonstrates that during the course of investigation in the said FIR the involvement of the petitioner came to be reported for the first time vide letter of Sr. Superintendent of Police, Crime Branch addressed to the respondent BOSE dated 31.07.2015. Thus, the involvement of the petitioner in the said FIR came to the knowledge and notice of the respondents BOSE in terms of letter dated 31.07.2015 i.e. much after the process for promotion undertaken and consequent order of promotion dated 21.07.2014, the bench underscored.

In view of the said position and ignoring the regulations provided under "Sealed Cover Procedure" as mandated under regulation 110-A of J&K CSR the act of deferring the promotion of the petitioner on 21.07.2014 can safely be said to be misconceived and without any authority or sanction of law, the bench observed.

Buttressing the said point of Law the bench also found it worthwhile to record the observations made by Supreme court in "Union of India V. Anil Kumar Sarkar", reported in 2013 wherein it was observed.

"The promotion, etc. cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant time pending at the stage when charge memo/charge-sheet has already been issued to the employee."

The bench also placed reliance on another Supreme court Judgement in "Union of India and Others V. Sangram Keshari Nayak, reported in 2007 wherein it was recorded,

"Promotion is not a fundamental right. Right to be considered for promotion, however, is a fundamental right. Such a right brings within its purview an effective, purposeful and meaningful consideration. Suitability or otherwise of the candidate concerned, however, must be left at the hands of the DPC, but the same has to be determined in terms of the rules applicable therefor"

Dealing with the second issue the Justice Wani observed that it seemingly appears that the respondents while imposing minor punishment upon the petitioner under the impression that only future promotion of the petitioner has been deferred, have in essence debarred the petitioner retrospectively for promotion. The respondents by adopting the said procedure have nonetheless ensured same consequences without formally demoting the petitioner, in that, the respondents firstly wrongly deferred the promotion of the petitioner in 2014 and subsequently debarred him for future promotion from retrospective date, the bench underscored.

Accordingly the petition is allowed by issuance of writ of certiorari and impugned orders are quashed and by issuance of writ of mandamus, the respondents are commanded to promote the petitioner to the post of Junior Assistant w.e.f. 21.07.2014 with all consequential benefits to which he has become entitled thereto, the bench concluded.

Case Title: Tanveer Ahmad Khan Vs JK BOSE

Citation: 2022 LiveLaw (JKL) 108

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