Anil Kumar vs Union Of India & Others

Tarun Shridhar, Member (A)

Shri P.K. Mishra along with Shri Rajesh Kumar, learned counsel for the applicant and Shri S.M. Mishra, learned counsel for the respondents are

present.

The applicant is aggrieved by denial of promotion to him and challenges the impugned order dated 31.03.2016 vide which he has been informed of

this denial.

The brief facts of the case are that the applicant who is working as Technician Grade â€"II was due for promotion to the post of Junior Engineer in

PB -2. He successfully cleared the promotion course, which was a condition attached to his promotion. His name was considered by the

Departmental Promotion Committee and duly recommended. As far as his official work and conduct, as also evaluation of his performance, is

concerned, nothing stood in the way of the applicant and his promotion to the post of J.E. However, during this period the applicant got involved in a

criminal case arising out of matrimonial disputes, which led to his arrest and imprisonment for a short period; and this also resulted in deemed

suspension. The competent Authority has denied him this promotion on the ground of his involvement in this criminal case.

Learned counsel for the applicant argues that at the time of DPC, there was no criminal case pending against the applicant, hence he cannot be

denied this promotion on account of a later incident. He further points out that this issue of pendency of criminal case has already been settled by this

Tribunal in OA No. 08 of 2017 bearing title Rakesh Singh Vs. Union of India and others. Learned counsel points out that the said OA also relies upon

a judgment rendered by the Hon’ble High Court of Delhi in WP (C) No. 6391 of 2016 titled Himanshu Gupta Vs. Engineers India Ltd. Learned

counsel submits that this matter being identically placed also needs to be decided accordingly.

Learned counsel for the respondents, on the other hand, points out that the Railway Board Circular in this matter is unambiguously clear and it

categorically states that an official shall not be promoted if prosecution for the criminal charge is pending against him. This being the case of the

applicant, the learned counsel goes on to argue, there is little choice before the respondents but to withhold his promotion till such time as he is

absolved in the criminal case.

We have heard the arguments put-forth by the learned counsel for the parties and also carefully examined the documents on record. It is not

disputed that the applicant has been found eligible in all respect for promotion to the post of JE. It is also not disputed that there is nothing in the work,

conduct and performance of the officer which could serve as an impediment to his promotion. There is singular ground for denial of promotion and

that ground is pendency of criminal charge. While disposing of the above quoted OA i.e. OA No. 08 of 2017, we have made the following

observations:-

“…………. At the same time, it is to be borne in mind that these charges were neither related to nor were the result of any of the official

responsibilities or conduct of the applicant. These charges were an outcome of a marital dispute he was facing. The DOPT Rules and instructions

relied upon by the learned counsel for the respondents do not conclusively cover the instant case as reading the instructions in their entirety makes it

obvious that the criminal prosecution which will be an impediment to the promotion should essentially be related to the official position, responsibility

and conduct of an employee. This is not the case here. The judgment of the Hon’ble High Court of Delhi in WP (C) No. 6391 of 2016 relied upon

by the applicant makes an unambiguous observation that denial of promotion to an employee on ground of criminal charges, which are not related to

the service of the employee is misconceived and does not stand the scrutiny of lawâ€​.

In view of the position explained above, it is evident that since the criminal charge against the applicant does not arise out of his official position or

any act of commission or omission on his part in the discharge of official duties, the said criminal charge cannot be held as an obstacle to deny him the

promotion.

Accordingly, the OA is allowed and the impugned order dated 31.03.2016 is quashed. The competent authority amongst the respondents is directed

to give effect to the recommendations of the Departmental Promotion Committee qua the applicant by giving him the promotion from the due date.

This direction be complied with within a period of four weeks from the date of receipt of a certified copy of this order. No order as to costs.