Orissa High Court: In a writ petition under Article 226 of the Constitution of India, the petitioner sought directions regarding his promotion to the post of Deputy Executive Engineer, Executive Engineer and Superintendent Engineer, as it was not given effect to and sealed cover procedure was adopted owing to the pendency of the criminal proceedings, Single Judge Sibo Sankar Mishra, J. allowed the writ petition and directed the authorities concerned to promote the petitioner, subject to the outcome of the pending vigilance proceeding. The Court held that unexplained prolongation of criminal trial violates the constitutional rights of an accused and denial of statutory or any other rights, for that matter, for a delinquent officer or Government servant impending such delayed trial is double jeopardy.
In the matter at hand, a criminal prosecution is pending against the petitioner, which was initiated in the year 2001, although the Disciplinary Committee had recommended his case for promotion, but sealed cover procedure was adopted owing to the pendency of the criminal prosecution against him. The said writ petition was filed by the petitioner in the year 2021. The Single Judge of the Coordinate Bench had allowed the petition and directed the authorities concerned to grant promotion to the petitioner from the date which his immediate juniors got such promotions, and to grant all consequential service and financial benefits including further promotion within a stipulated time, however the promotions were subjected to the outcome in the Vigilance Proceeding. In the intra-Court appeal, the Division Bench set aside the Single Judge’s decision and remanded the matter back to the Single Judge for afresh decision.
The Court said that an employee has no right to promotion, there is only a right to be considered for promotion. The Court clarified that when the promotion was recommended by the DPC, the result could not have been withheld awaiting the conclusion of disciplinary proceeding/criminal prosecution indefinitely. The Court referred to the guidelines issued by the Department of Personnel, Public Grievances and Pensions advising the methodology to be followed in the cases where sealed cover procedure have been adopted and promotion of the Government employees have been withheld because of the pendency of disciplinary proceeding/criminal prosecution.
The Court said that the act of keeping the petitioner’s promotion recommendation in sealed cover without even once subjecting it to review, is nothing but adding insult to the injury.
Further, the Court said that the vigilance proceeding was initiated in the year 2001 and charge-sheet was filed but the trial is moving at snail’s pace since past 25 years and the petitioner’s prayer for promotion is a time bourn right and delay at the instance of the State would cause serious deprival from his rightful claim. The Court stated that “unexplained prolongation of criminal trial violates the constitutional rights of an accused and denial of statutory or any other rights, for that matter, for a delinquent officer or Government servant impending such delayed trial is a case of double jeopardy”.
The Court relied on Union of India v. K.V. Jankiraman, (1991) 4 SCC 109, wherein it was held that “irrespective of pendency of criminal cases, the Petitioner has continued to serve and mere pendency of criminal case cannot be taken as ground to delay the promotion to the Petitioner nor the Competent Authority can withheld the recommendation of the Petitioner indefinitely on the ground of adopting the sealed cover procedure during the pendency of criminal proceedings”.
Therefore, the Court allowed the writ petition and directed the authorities to promote the Petitioner to the rank of the Deputy Executive Engineer (Civil), Executive Engineer (Civil) and Superintendent Engineer (Civil) from the date of his juniors and batch-mates got such promotion subject to the condition that in the event the Petitioner is convicted in the impeding criminal case, he shall be reverted back down the hierarchy. The Court also made it clear that the Petitioner’s promotion would be subject to the outcome of the pending vigilance proceeding.
[Nihar Ranjan Choudhury v. State of Odisha, 2023 SCC OnLine Ori 6183, Decided on 06-11-2023]