IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 128 (SS) of 2009 Naresh Chand …Petitioner Versus State of Uttarakhand and others …Respondents Mr. M.S. Pal, learned Senior Advocate assisted by Mr. Vijay Bhatt, learned counsel for the petitioner. Mr. H.M. Raturi, learned Standing Counsel for the State of Uttarakhand. Dated: December 14, 2009 Hon’ble V.K. Bist, J. Present writ petition has been filed by the petitioner for the following reliefs:- “(i) To issue suitable writ, order or direction in the nature of Mandamus commanding the respondent to open the sealed covers respecting the promotion of the petitioner and if found qualified then to promote him as Inspector in the police. (ii) To issue such other suitable writ, order or direction which this Hon’ble Court may deem fit and proper under the facts and circumstances of the case. (iii) To award the cost of the petition to the petitioner.” Brief facts of the case as emerged out from the record are that the petitioner was appointed as Sub-Inspector on 15.10.1982 and is presently working as S.O. Lohaghat, district Champawat. A criminal case no. 340 of 1997, under Sections 466, 471, 191, 193, 201, 218 and 120-B IPC read with Section 3(1) 8 of the SC/ST Act was registered against the petitioner at Police Station Khatima, district Udham Singh Nagar. The State Government vide letter No. 983/XX (3)- 05/Police/2007 dated 10.07.2007 granted permission to C.I.D. to initiate prosecution against the petitioner. The petitioner alongwith other Sub-Inspectors was considered for promotion 2 on the post of Inspector but was not granted promotion due to pendency of aforesaid criminal case. On 18.08.2008 the petitioner represented to the respondents regarding his grievance and prayed that he be given the benefit of promotion in the light of the relevant Government Order dated 13.05.2003 bearing No. 1595/Karmik-2/2002, but in vain. On 11.11.2008, the petitioner sought some information under the Right to Information Act and prayed for the issuance of the list of Sub- Inspectors, who were considered for promotion by the Departmental Promotion Committee. The same was supplied to the petitioner same day but it did not mention anything about the petitioner. On 22.12.2008, the petitioner again sought details about himself under the Right to Information Act and on 22.12.2008 the petitioner was informed that sealed cover procedure had been adopted in his matter. A list of candidates alongwith marks was also supplied to the petitioner in which the petitioner was placed at serial no. 12 with the endorsement that result is sealed. The names of Shri Mohan Chand Durgapal and Shri Surendra Singh Bisht were placed at serial no. 17 and 18 respectively. These two persons were promoted as Inspector inspite of the fact that prosecution had been initiated against them after sanction and trial against them was going on in the judicial courts. On 20.01.2009, the petitioner again represented to the respondents praying that he be given his due promotion but all his prayers have fallen on deaf ears. Hence present petition. The respondents in their counter affidavit have admitted that the petitioner on the basis of his seniority was found suitable for promotion but due to pendency of criminal case, sealed cover procedure was adopted in the matter of petitioner as per G.O. NO. 1595/Karmik-2/2002 dated 13.05.2003. 3 Learned counsel for the petitioner made statement at bar that investigation is still going on and no charge sheet has been filed against the petitioner so far. He submitted that pendency of permission for prosecution or even any prosecution pending is not an impediment for promotion of the petitioner without any conviction against him. He further submitted that the petitioner is being deprived of his right of promotion by the respondents but at the same time persons of same batch namely, Mohan Chandra Durgapal and Surendra Singh Bisht, against whom prosecution is going on in the judicial courts have been promoted. He further submitted that his work and conduct has been excellent and he has never been communicated with anything adverse by the respondents. Learned counsel for the petitioner further submitted that Clause-10 of G.O. dated 13.05.2003 provides that an employee who is not suspended and has been charged for the first time and sealed cover procedure has been adopted for more than one year, shall be considered for promotion and therefore the petitioner deserves to be given the benefit of promotion. Learned counsel for the petitioner argued that the procedure adopted by the respondents for promotion of Sub-Inspectors as Inspectors is not fair and is quite arbitrary as the petitioner who deserves to be considered and given the benefit of promotion is being ignored and other equally placed persons against whom trials are going on have been promoted. Learned counsel for the petitioner in his support relied upon a judgment in the case of Union of India and others Vs. K.V. Jankiraman and others reported in [1994(4) SCC 109]; in which it has been held that the consideration of case of an employee for promotion, selection grade, crossing of efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of any preliminary inquiry/criminal investigation against him and sealed cover procedure can be adopted only after the date of issuance of charge memo/charge sheet. 4 Sri H.M. Raturi, learned Standing Counsel for the State/respondents submitted that due to Government Order No. 1595/Karmik-2/2002 dated 13.05.2003 the recommendation of selection committee regarding petitioner has been kept in sealed cover and matter pertaining to promotion shall only be considered after the final result of the criminal proceedings. He further submitted that promotion to Mohan Chandra Durgapal and Surendra Singh Bisht was given as at the time of promotion no information regarding pendency of criminal cases against them was received by the Headquarter. Heard learned counsel for the parties. The Hon’ble Apex Court in the matter of Union Of India Vs. K.V. Jankiraman [1991 (4) SCC 109] has held that sealed cover procedure is to be resorted to only after the charge-memo/charge sheet is issued. Paragraphs 16 and 17 of the judgment are reproduced below: “16. On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/ criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/ criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge- memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant-authorities that when there are serious allegations and it 5 takes time to collect necessary evidence to prepare and issue charge- memo/charge sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge- memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy. It was then contended on behalf of the authorities that conclusions Nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Those conclusions are as follows: (ATC p. 196, para 39) “(1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official; (2) * * * (3) * * * (4) the sealed cover procedure can be resorted to only after a charge memo is served on the concerned official or the charge-sheet filed before the criminal court and no before;” (17). There is no doubt that there is a seeming contradiction between the two conclusions. But read harmoniously, and that is what the Full Bench has intended, the two conclusions can be reconciled with each other. The 6 conclusion No. 1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant time pending at the stage when charge-memo/charge-sheet has already been issued to the employee. Thus read, there is no inconsistency in the two conclusions.” In the present case it is not disputed that criminal case crime no. 340/1997 was registered against the petitioner but investigation is still going on and charge sheet has not been filed so far. Hence, the respondents are not justified in adopting sealed cover procedure in the matter of the petitioner. The sealed cover procedure should have been adopted only after the filing of charge-sheet. In view of aforesaid discussion, the writ petition is allowed. Respondents are directed to open the sealed cover and if the petitioner is found fit for promotion, grant him promotion from the date which his immediate junior was promoted. No order as to costs. (V.K. Bist, J.) VKG 14.12.2009