The Allahabad High Court has observed that mere pendency of a criminal case coupled with the fact that the petitioner has been permitted to continue in service and also granted promotion, cannot be a ground for denying promotion.
The Single-Judge Bench of Justice Neeraj Tiwari passed the order on a petition filed by one Umesh Pratap Singh.
The High Court, while setting aside the order of the Additional Chief Secretary Home, directed the state government to take necessary action to open the sealed cover envelope and grant promotion to the petitioner within six weeks from the date of production of certified copy of this order with all consequential benefits.
By the petition, petitioner is seeking following reliefs:-
“(ii) issue, a writ order or direction, in the nature of certiorari, quashing the impugned order dated 12.08.2021, passed by respondent No 1, enclosed as Annexure-1, to the writ petition.
(iii) issue, a writ, order or direction, in the nature of mandamus, commanding the Respondent Authorities, to open the Seal Cover Envelop and promote the petitioner on the post of Deputy S.P in pursuance of the Government Order No 13/21/89-Ka-1- 1997, dated 28/05/1997, & Government Order No 1/2018- 13(6)/2017/Ka-1-2018, dated 09/01/2018, with all consequential benefits.
(v) issue, a writ, order or direction, in the nature of mandamus, commanding the Respondent Authorities, to consider the claim of the petitioner for Ad-hoc promotion on the post of Deputy S.P, in pursuance of the Government Order No 13/21/89-Ka-1- 1997, dated 28/05/1997, & Government Order No 1/2018- 13(6)/2017/Ka-1-2018, dated 09/01/2018, with all consequential benefits.”
The Senior Counsel appearing for the petitioner submitted that he was appointed on the post of Sub-Inspector in Civil Police Department on November 17, 1990. While the petitioner was posted at Jaunpur, an FIR was lodged by one Chhedi Lal against three persons namely Jagarnath Chaudhary, Asha Devi and mother of Asha Devi namely Babana Devi, which was registered as Case under section 302, 201, 506 IPC at Police Station Jaunpur, District Jaunpur on 05.06.1999, in which petitioner was not named.
Ultimately, a charge sheet was submitted in 1999, in which the petitioner was also charged under Sections 217, 218, 201 and 120-B IPC, whereas against other accused, charge sheet has been submitted under sections 302, 201, 506, 217, 218 IPC.
Feeling aggrieved by the said charge sheet, petitioner has filed Criminal Misc Application, in which this Court vide order dated 10.09.2003 was pleased to stay the further proceedings, which continued up to year 2020.
It is further submitted that during the pendency of the said criminal proceeding, the petitioner was given out of turn promotion on 14.09.2006 on the post of Inspector. Since then, he has been performing his duty to the full satisfaction of the authorities and no other disciplinary or criminal proceeding has ever been initiated against him.
It is next submitted that meeting of Departmental Promotion Committee (DPC) was held on 01.01.2018 for promotion on the post of Deputy Superintendent of Police, in which case of petitioner was also considered, but due to pendency of criminal proceeding, his name was kept in a sealed cover envelop and juniors to petitioner were granted promotion. Thereafter, a meeting of DPC was also held in the years 2020 & 2021 and other juniors to petitioner have also been promoted.
Counsel for the petitioner said that when the name of petitioner was kept in a sealed cover envelope, petitioner has filed Writ Petition, which was disposed of by the Court order dated 07.02.2020 directing the state government to decide the representation of petitioner. Thereafter, comments were called from the Additional Director General of Police, Administration and vide communication dated 20.08.2020, comments were sent to Secretary Home (Police Services), Secretariat U.P, Lucknow and in the comments, it is mentioned that since last ten years, petitioner was awarded excellent entries and never been penalized either major or minor penalty.
It was also stated in the comments that character role of petitioner is excellent and after promotion on the post of Inspector, upto 17 years, petitioner has never misused his post, but without considering the comments, impugned order has been passed rejecting the claim of petitioner on two grounds; first of all, petitioner has helped the accused and secondly, offence against the petitioner is serious in nature.
It is also stated in the impugned order that petitioner was chargesheeted in case under Sections 217, 218 & 120-B IPC.
He further said that trial of main accused has been concluded and ultimately, they have been convicted order dated 02.09.2014 passed by Additional Session Judge, Jaunpur under section 304 IPC, which itself shows that petitioner is not guilty for any charges coupled with this fact that petitioner has excellent service record and also he has been promoted on the post of Inspector during the pendency of criminal proceeding.
He further placed reliance upon the Government Order dated 28.05.1997 and submitted that para-10 is having specific provision that after considering the promotion of a first time charged employee and keeping his name in a sealed cover envelope, after completion of one year, the same shall be considered for ad hoc promotion. Again in Government Order dated 09.01.2018, it is stated that in case of pendency of criminal case in different courts, cases have to be examined for further proceeding subject to final decision of the cases pending before the Court. After examination, if it is found proper, further proceeding should have been ensured.
Standing counsel, on the basis of counter affidavit, has vehemently opposed the submissions made by counsel for petitioner, but could not dispute the factual as well as legal submissions made by the Senior Counsel appearing on behalf of petitioner.
The Court noted that the Petitioner was appointed to the post of Sub-Inspector in the Civil Police Department in the year1990 and a charge sheet was submitted against him in the year 1999. Thereafter, he was promoted on the post of Inspector in the year 2006 and first DPC for promotion on the post of Deputy Superintendent of Police was also held on 01.01.2018, in which name of petitioner was considered, but due to pendency of criminal proceeding, his name was kept in a sealed cover envelop and juniors to him have been granted promotion. Further, as per comments of ADGP, Administration dated 20.08.2020, several excellent entries were given to the petitioner in last ten years of his service coupled with this fact that no punishment, either minor or major was warded to the petitioner and after promotion, he has never misused his post in any way.
The Court has also perused the judgment of the Court passed in Neeraj Kumar Pandey (Supra). In the said judgment, after the DPC, the name of the petitioner was kept in a sealed envelope denying the promotion. Court has considered this fact that even after pendency of criminal proceedings, petitioner has continued in service, directing the State to open the envelope to grant promotion. While allowing the petition, the Court has also considered the Government Orders dated 28.5.1997 & 9.1.2018.
The Court held that,
So far as the case of petitioner is concerned, it is on better footing than the case of Neeraj Kumar Pandey (Supra). Undisputedly, even after initiation of criminal proceedings, petitioner was granted promotion to the post of Inspector on 14.09.2006 upon which he is still working without any misuse of post. Further, the petitioner was granted excellent entries for the last 10 years as mentioned in the comments of ADGP, Administration dated 20.08.2020. Not only this, even the criminal proceeding so initiated against the petitioner along with other co-accused, trial of co-accused was completed and Additional Session Judge vide order dated 2.9.2014 awarded the punishment under Section 304 IPC for seven years only, which also shows that petitioner was not at fault in the said criminal proceeding so initiated against him.
After considering the entire facts of the case as well as law laid down by this Court in Neeraj Kumar Pandey (Supra), the Court is of the firm view that mere pendency of a criminal case coupled with this fact that petitioner has been permitted to continue in service and also granted promotion, cannot be a ground for denying promotion. Further, additional fact may be taken into consideration i.e subsequent service record of petitioner while opening the sealed cover envelope and in case subsequent service record of petitioner is found excellent, unblemished, without any punishment, the same should have been an additional ground to grant him promotion.
“Therefore, under such facts and circumstances, the order dated 12.8.2021 passed by state government is contrary to the provisions of Government Orders dated 28.05.1997 & 09.01.2018 as well as law laid down by the Court in the matter of Neeraj Kumar Pandey (Supra), which is not sustainable and hereby set aside”, the Court observed while allowing the writ petition.