Arvind Kumar vs Union Of India & Ors

Mohan Pyare, Member (A)

Shri S.K. Kushwaha, learned counsel for the applicant and Shri Shivaji Singh, learned counsel for the respondents are present.

By means of this OA, the applicant has sought the following reliefs :

“(i)The Hon'ble Tribunal may graciously be pleased to issue a writ, order and direction in the nature of certiorari to quash and set aside the impugned order dated 09.11.2022 (Annexure A-1/1 ) and further issue a writ, order or direction in the nature of mandamus directing the respondents to grant the promotion to the applicant to the post of Senior Section Engineer (Tele), by opening to sealed cover (if any), with all consequential benefits including arrears of pay etc., as the respondents themselves found that applicant is fit for promotion and having the overall grading as 'Very Good'.

(ii) The Hon'ble Tribunal may further graciously be pleased to issue any other suitable order or direction which this Hon'ble Court finds deem fit and proper.

(iii) Cost in favour of the applicant.”

The brief facts of the case are that the applicant was appointed as Junior Engineer-II (Tele) on 04.04.2007, was excluded from the 2013 promotion list despite his junior being promoted, primarily due to a criminal case filed by his in-laws, for which he surrendered on 19.11.2011. After getting bail from the Hon'ble High Court Allahabad on 19.04.2018, respondents have revoked the suspension order. Applicant had asked for fixation of pay as per 7th C.P.C. as well as promotion in respect of his junior. He has given several representations in this regard. On 15.06.2021, the applicant has again represented to the respondents stating that his case should have been put in sealed cover procedure as per Railway Board's Circular dated 21.01.1993, which has been issued in compliance of the order of the Hon'ble Supreme Court in case of K.V. Jankiraman's case. His APARs for 2018-19 to 2020-21 were graded “Very Good” and recommended him as fit for promotion, yet no action was taken, even though another employee (G. Satish) facing a pending criminal trial was granted promotion under the same circular1993. Hence, this OA.

Learned counsel for the applicant submitted that a Criminal Case was lodged by his in-laws on 17.11.2011 and applicant was arrested and he was sent to jail. The respondents have considered similarly placed officers for promotion and promoted them in a letter dated 03.10.2013 and 07.10.2013 but due to pendency of criminal case, the applicant was not considered for promotion. Master Circular No.37 dated 10.10.2019 clearly mentioned that during the pendency of disciplinary/criminal proceedings adhoc promotion can be given but applicant was not even considered for adhoc promotion. The A.P.A.R of applicant from the period 01.04.2018 to 31.03.2021 is „Very Good‟ and applicant is fit for promotion, an employee named G. Satish Technician-III/TMC III was promoted during the pendency of a criminal case regarding family matter. The Principal Bench, New Delhi has passed the order dated 24.02.2022 in OA No. 216 of 2022, The Guwahati Bench in OA No.195 of 2016 decided on 17.06.2016 and in Writ Petition (Civil) No.6391 of 2016 – Himanshu Gupta Vs. Engineers India Limited decided on 22.03.2017 it has been held that mere pendency of the criminal case, promotion cannot be withheld indefinitely. The Hon‟ble High Court of Allahabad in the case of Neeraj Kumar Pandey Vs. State of U.P. & ors decided on 26.05.2022 directed the respondents to consider the claim of the petitioner to open the sealed cover by relying on the judgment of Hon‟ble Apex Court in K.V. Janki Raman case. The respondents have passed the impugned order without considering the judicial pronouncements and the action of respondents are highly illegal, arbitrary, non-est in the eyes of law, hence, requested to allow this OA and direct the respondents to promote the applicant.

The respondents have strongly refuted the contention of applicant by filing counter affidavit in which they have submitted that during the period of suspension and imprisonment of the applicant, action was taken to fill the vacant post in 2013 in accordance with RBE No.13/1993. It was mentioned that once applicant is acquitted the proforma promotion will be given to the applicant at par with his junior on the basis of merit of his case. The applicant was released on bail on 19.04.2018. The representation of the applicant dated 15.06.2021 was decided by the competent authority by passing a reasoned and speaking order dated 09.11.2022 in the light of existing rules of the department. The RBE No. 235/2001 clearly mention that even for adhoc promotion instructions given in RBE No.13/1993 has to be followed. On the basis of above submissions, learned counsel for the respondents has submitted that there is no merit in the OA and the OA should be dismissed as devoid of merit.

In rejoinder affidavit, the applicant has reiterated the same facts as given in the OA.

We have considered the rival submissions and verified the documents available on record.

The applicant has mainly relied on the order passed in OA No.08 of 2017 in the case of Rakesh Singh Vs. UOI & ors. decided on 23.12.2021 by this Tribunal. The relevant para of the aforesaid order is reproduced as below :-

“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 law.”

The above issue was decided in Writ-A No.9587 of 2022 in which Hon‟ble High Court of Allahabad have come to the following conclusion :-

“ In our opinion, mere pendency of criminal case unrelated to the official duties being discharged, could not be a ground for denying grant of promotion to the senior time scale. We also find that the Tribunal has recorded satisfactory reasons for allowing the original application.”

The respondents have gone for review of the above order of the Hon‟ble High Court, which was dismissed.

He further relied on Writ-A No.8151 of 2022 in the case of Neeraj Kumar Pandey Vs. State of U.P. & ors. passed by Hon‟ble High Court on 26.05.2022. The relevant portion of the aforesaid judgment is reproduced as below :-

“Having heard the learned counsel for petitioner, the learned standing counsel for State-respondents and upon perusal of record, the Court finds that it is an undisputed fact that irrespective of pendency of criminal case, petitioner has been allowed to continue. Therefore, mere pendency of a criminal case, prima-facie, cannot be taken as a ground to deny promotion of petitioner. The Competent Authority cannot withhold the claim of petitioner indefinitely on the ground of having adopted Sealed Cover Procedure, due to the pendency of criminal case.”

The applicant filed Special Appeal, which was dismissed as infructuous. He further relied on the order passed by Hon‟ble High Court of New Delhi in W.P. (C) No.6391 of 2016 in the case of Himanshu Gupta Vs. Engineers India Limited decided on 22.03.2017. The relevant portion of the aforesaid order is reproduced as below :-

“ In view of the aforesaid discussion, this writ petition is allowed and the respondent's procedure of putting the promotion of the petitioner in a sealed cover of the DPC with respect to promotion of the petitioner to the post of Deputy Manager is quashed. The result of the petitioner's promotion in terms of the DPC for which results were to be declared on 30.6.2014 will now be declared within a period of two weeks and such results will be taken as having been declared as regards the petitioner on 30.06.2014. Petitioner will be entitiled to appropriate consequential reliefs.”

The applicant also relied on the order passed in OA No.1080 of 2019 in the case of Pawan Kumar Kaushik Vs. UOI & ors. decided on 25.04.2022 by this Tribunal. The relevant para of the aforesaid order is reproduced as below :-

“In view of the above observations, the original application is allowed. The respondents are directed to open the sealed cover adopted by the respondents in pursuance of assessment process held on 26.04.2018 forthwith, in case the applicant has been recommended for promotion, he shall be promoted from the date his immediate juniors were promoted. In case the applicant is not found fit in the assessment process held on 26.04.2018 the respondents shall consider the name of the applicant for the subsequent assessments i.e., for 2019-2020 and 2020-2021 by conducting a review assessment of the applicant in casehis name was not considered already. It is needless to say that the applicant shall be entitled to all consequential benefits that may arise from the said promotion including seniority the said promotion shall be subject to the outcome of the alleged pending criminal proceedings. No Costs.”

In the light of abobve discussion and rule position, the OA deserves to be allowed and is accordingly allowed. Order dated 09.11.2022 is set aside. The competent authority amongst the respondents is directed to consider the promotion of the applicant in the light of above discussion, keeping in mind that applicant is out on bail w.e.f. 19.04.2018 and serving in the department as well as the criminal proceedings pending against him is not due to discharge of his official duty, and pass an appropriate order within a period of four months from the date of receipt of certified copy of this order. No order as to costs.

All MAs pending in this O.A. also stand disposed off.