Subodh Kumar Jain vs State Of Rajasthan And Ors

Petitioner has preferred this writ petition seeking following prayer:-

(I) by an appropriate writ, order or direction the proceedings of the DPC dated 08.06.2017(Annexure-6) and dated 31.05.2018(Annexure-10) for the

post of Chief Engineer for the year 2017-18 and 2018-19 may kindly be declared to be illegal and the same may be quashed and set aside.

(ii) by further appropriate writ, order or direction the respondents may kindly be directed to hold review DPCs for the post of Chief Engineer for the

years 2017-18 and 2018-19 by taking into consideration the petitioner's required record including relevant APARs as per law and then recommend him

for promotion to the post of Chief Engineer for the year 2017-18 with all consequential benefits;

(iii) by further appropriate writ, order or direction the respondents mat kindly be directed to give promotion to the petitioner to the post of Chief

Engineer in the year 2017-18 from the date his juniors have been promoted in that year with all consequential benefits;

(iv) any other appropriate writ, order or direction, which may be considered just and proper in the facts and circumstances of the case, may kindly be

issued in favour of the petitioner;

(v) costs of the writ petition may kindly be awarded in favour of the petitioner.

In nut shell the case of the petitioner is that the petitioner is working as Additional Chief Engineer. He was not considered by the DPC on the

ground that annual confidential report in the year 2015-2016 was not available and that he was being prosecuted for receiving bribe before the ACB

Court. It is contended by counsel for the petitioner that the averment in the report of the DPC that the ACR was not available is dehors of the record

as petitioner has obtained his ACR and the entire ACR was available and the same is very good and outstanding for the entire period of service since

2003.

It is contended by counsel for the petitioner that as per Clause 12.5 of Circular dated 04.06.2008 wherein guidelines for urgent temporary and

regular promotions in Government service are provided and it is obligatory on the DPC that where departmental proceedings/criminal case pending

against Government servant is under suspension, in such cases candidature of officer must be considered on merit as per rules ignoring the

departmental proceedings/criminal case/suspension and if the officer is found suitable, the recommendations must be kept in sealed cover.

It is contended that the departmental promotion has not ignored the factum of filing of the criminal case and has not erred in not recommending the

name of the petitioner and kept the same in sealed cover. It is also contended by counsel for the petitioner that a criminal case is pending, promotions

cannot be withheld. Petitioner is discharging the functions of Chief Engineer and is to retire in Feb. 2020. Hence, respondents should be directed to

give promotion to the petitioner to the post of Chief Engineer.

Counsel for the petitioner has placed reliance on Kailash Chand Bohra vs State(Home Department) & Anr., S.B. Civil Writ Petition

No.17238/2015. It is also contended that a criminal case is pending, promotions cannot be withheld and Government has given promotion to various

officers against whom criminal cases were pending.

Mr. Anil Mehta, learned AAG, appearing for the State has vehementally opposed the writ petition. It is contended that petitioner was caught in an

anti-corruption case and after due sanction from the Government he is being prosecuted by the ACB Court. It is also contended that at the time when

meeting of the ACB Court was convened petitioner was in custody. It is also contended that even if the candidature of the petitioner was kept in seal

cover, the same could not be considered as the criminal case is still pending and the petitioner is to retire in Feb.2020.

I have considered the contentions.

As far as proceedings of the DPC dated 08.06.2017 so far as relates to the present petition is concerned, the Departmental Promotion Committee

has not considered the candidature of the petitioner on the ground of non-availability of the ACR and on account of petitioner being involved in an anti

corruption case. From the writ petition, it is revealed that the entire ACR was with the department and the ACR of 2015-2016 was also available with

the department and the same has not been obtained by the petitioner by moving an application under RTI Act. The other ground for non consideration

of the petitioner was that petitioner was involved in an anti-corruption case.

Government has issued circular dated 04.06.2008 laying down guidelines for urgent temporary and regular promotions in Government service.

Clause 12.5 of the said circular enjoins upon and it is obligatory on the DPC that where departmental proceedings/criminal case is pending against a

Government servant or where a Government servant is under suspension, in such cases the candidature of officer must be considered on merits as per

rules ignoring the departmental proceedings/criminal case/suspension and if on merit the employee is selected by the DPC then his recommendations

should be kept in seal cover. As per Rule 12.6 of the said circular, seal cover is not required to be opened till the conclusion of the criminal case.

Admittedly, the criminal case is still pending. As far as non consideration of the candidature of the petitioner by the DPC is concerned, DPC has

erred in not considering the candidature of the petitioner on merits as the DPC was not required to consider the pendency of the criminal case against

the petitioner. DPC was required to consider the candidature ignoring the pendency of criminal case.

In view of the same, the order passed by the DPC cannot be sustained and respondent is directed to convene a fresh DPC and the DPC should

ignore the pendency of criminal case while considering the candidature of the petitioner. However, as far as the prayer for petitioner for giving

promotion to the post of Chief Engineer is concerned, the same cannot be allowed as even if the petitioner is found suitable by the DPC his

candidature cannot be considered till the disposal of the criminal case more particularly when the criminal case pertains to an anti corruption matter.

In view of the same, the writ petition is partly allowed. Department is directed to convene a fresh DPC. The result of the DPC be kept in sealed

cover.