VIJAY SHARMA vs STATE OF JHARKHAND

Pramath Patnaik, J

In the instant writ application, prayer has been made for

direction upon the respondents to consider the case of the petitioner for grant of Assured Career Progression and cadre promotion on the ground that

similarly situated persons have been given the same benefits.

The factual matrix, as delineated in the writ application, in brief is that petitioner was appointed on 28.12.1987 on the post of Constable in Jharkhand

Armed Police, Bokaro, but, till date the petitioner has neither been extended the benefit of A.C.P nor he has been given cadre promotion. Aggrieved

thereof, the petitioner submitted several representations before the authorities concerned, but, it did not evoke any response.

Heard Mr. Ayush Aditya, learned counsel for the petitioner and Ms. Neelam Tiwari, Associate Counsel to learned Sr. S.C. I. for the respondents-

State.

Learned counsel for the petitioner submitted that on

bare perusal of report of ‘Recommendation Committee’ meant for grant of A.C.P, it appears that one similarly situated person, Mr. Upendra

Harizan, against whom also a case was pending, was granted A.C.P and Cadre Promotion, but the petitioner has been subjected to hostile

discrimination. It has further been submitted that the petitioner has been denied the benefit of A.C.P and Cadre Promotion due to pendency of

departmental proceeding against Ichak P.S. Case No. 82 of 1997. In this regard, it has been submitted that the petitioner in the said case i.e. Ichak

P.S. Case No. 82 of 1997, which was registered as Sessions Trial No. 409 of 1998, has been acquitted vide order dated 30.07.2007 but even then also

Departmental Proceeding, which was initiated due to pendency of criminal case, has not been dropped.

Learned counsel for the petitioner referring to Resolution dated 20.11.2008 submitted that in clause (5) of the said Resolution, it has clearly been

mentioned that in case of the delay in disposal of departmental proceeding, the incumbent may be given ad-hoc promotion. Learned counsel for the

petitioner submitted with vehemence that for the selfsame relief, one Naresh Kumar, moved this Court by filing W.P. (S) No. 3472 of 2011, which

was allowed in terms of order dated 09.08.2017 taking cognizance of above-referred Resolution and case of the petitioner is squarely covered by this

said decision.

Learned counsel for the petitioner also referring to circular dated 12.07.1991 submitted that as per the circular in case of pendency of departmental

proceeding for more than three years and eight months, the petitioner could have been granted the benefits of promotion with an undertaking given by

the petitioner that promotion is subject to final outcome of the proceeding. But, in case of petitioner the respondents â€" authorities sat tight over the

matter ignoring these circulars.

As against this, learned counsel for the respondents submitted that as per resolution dated 20.11.2008 of State Government, it is the basic

requirement for getting promotion that there should not be any criminal proceeding pending against the government servant. Hence, when it came to

the knowledge of respondent no. 2 that Upendra Harijan, Abul Hassan and Md. Hussain Ahmed Khan, who are accused in Ichak P.S. Case No. 82

of 1997, vide memo dated 20.04.2010, their promotions were cancelled, hence the petitioner cannot claim parity. So far acquittal of the petitioner in the

said case is concerned, the State has preferred Acquittal No. 24 of 2007 before this Hon’ble Court, which is pending for final hearing.

Having heard learned counsel for the parties at length and after bestowing my anxious consideration to the pleadings available on record, I am of

the considered view that the petitioner has been able to make out a case for interference for the following facts, reasons and judicial pronouncements:

 (i).It is alleged that when the petitioner was posted at Simradhab Police Picket under Ichak Police Station on 08.11.1997 and while going to bring

grocery material with his other colleges he received an information that 20-25 naxalites are hidden in the house of Yugal Mahto, whereupon without

any prediction, it is alleged that the petitioner beat Yugal Mahto and his family members. On this the family members of Yugal Mahto snatched

Stanegun of Hawildar-Khiru Rai. Thereafter, on the direction of Hawildar-Khiru Rai, the petitioner opened three founds of fires resulting one casualty.

Basing on these charges, Ichak P.S. Case No. 82 of 1997 was registered against the petitioner against with other colleges.Â

   However, admittedly, in the said case, the petitioner was acquitted vide judgment dated 30.07.2007 in Sessions Trial No. 409 of 1998.

However, the State has preferred an appeal against the acquittal of the petitioner in the said criminal case i.e. S.T. No. 409 of 1998.

 (ii).For the said criminal case, departmental proceeding was also initiated against the petitioner, which is still pending even after lapse of about two

decades, for the reasons best known to the respondents.

   Be that as it may be, from bare perusal of Resolution

dated 20.11.2008, on which both the parties has relied upon, it appears that Clause (5) of the said Resolution explicitly deals with a situation where

there is delay in disposal of proceeding and in such circumstances, ad hoc promotion has been advised to be given. For better appreciation, the

relevant Clause 5 of the Resolution dated

20.11.2008 is reproduced herein below:

“5. dk;Zokgh fu""iknu es a foyEc dh fLFkfr es a rnFkZ izkUsufr dh lHa kkouk%&mi;ZqDr dafMdk&4 es a mfYyf[kr Nekgh leh{kk fd;s tkus ds

ckotwn] dqN ,sl s ekeys Hkh gks ldrs gSa] ftueas igyh foHkkxh; izksUufr lfefr] ftlus ljdkjh lsod ds laca/k eas vius fu""d""kksZa dk s eqgjcan fyQkQs

eas j[kk Fkk] dh cSBd dh frfFk ls nks lky ckn Hkh ljdkjh lsod ds fo:) vuq’kklfud ekeys@vkijkf/kd vfHk;kts u laca/kh ekeykas es a vafre :i ugha

fn;k tk ldk gSA ,ls h ifjfLFkfr eas fu;qfDr vf/kdkjh ,ls s ljdkjh lsod ds ekeys dh leh{kk djsAa vxj og ljdkjh lsod fuyEcuk/khu u gks] rk s fuEukfadr

igyqvkas dk s /;ku es a j[krs gq, mls rnFkZ izkUsufr fn;s tkus dh laHkkouk ij fopkj fd;k tk;%&

¼d½ D;k ljdkjh lsod dh izkUsUkfr ykds fgr ds fo:) gksxh\

¼[k½ D;k vkjksi brus xHa khj gS fd mls izksUufr ls oafpr j[ks jguk t:jh gS\

¼x½ D;k fudV Hkfo""; es a bl ekeys ds iwjk gkus s dh laHkkouk gS\

¼?k½ D;k fdlh foHkkxh; vFkok fdlh vkijkf/kd dk;Zokgh dk s vafre :i fn;s tkus eas gksus okys foyEc eas lh/ks rkSj ij vFkok ijks{k :i eas lacaf/kr

lsod dk dkbs Z gkFk gS\

¼Må½ D;k ,slh dkbs Z laHkkouk gS fd lacaf/kr lsod rnFkZ izkUsufr ds ckn izkIr gqbZ viuh ljdkjh gSfl;r dk nq:i;kxs dj ldrk gS vkSj ftlds

ifj.kkeLo:i foHkkxh; ekeys@vkijkf/kd dk;oZ kgh ls lacaf/kr dkjZokbZ ij dksbZ izfrdwy izHkko iM+ ldrk gS\

 fu;qfDr izkf/kdkj ;fn mfpr le>s rk s dkj.kkas dk s fyf[kr :i ls n’kkZr s gq, ykds k;qDr ds dk;kZy;] fuxjkuh foHkkx vFkok dsUnzh; vUos""k.k

C;wjk]s ftuds izfrosnu ds vk/kkj ij vuq’kklfud dkjZokbZ@vkijkf/kd vfHk;kts u izkjEHk gqvk Fkk] ls ijke’kZ fy;k tk ldrk gSA fdUrq fu;qfDr

izkf/kdkj bl ladYi es a mfYyf[kr funs’kks a ds foijhr ijke’kZ dks ekuus ds fy, ck/; ugha gksaxsAâ€​ Â

 (iii).From perusal of recommendation of respondents-authorities dated 29.01.2006, it appears that the petitioner has been denied A.C.P solely on

the ground of pendency of Ichak P.S case No. 82 of 1997, in which, now the petitioner has been acquitted. However, the State has preferred acquittal

appeal, against the acquittal of the petitioner but it is pending for a quite considerable period.

As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, it would be apposite to direct the respondents to consider the

case of the petitioner for grant of Assured Career Progression and cadre promotion in the light of observations made in the foregoing paragraphs,

more particularly Resolution dated 20.11.2008, within a period of eight weeks from the date of receipt/production of copy of this order.

With the aforesaid observations and directions, the writ petition stands disposed of.Â