Promotion Cannot Be Withheld Merely Because Disciplinary/Criminal Proceedings Are Pending Against Employee: J&K&L HC

The Jammu and Kashmir and Ladakh High Court has reiterated that merely because some disciplinary/criminal proceedings are pending against the employee, his/her promotion cannot be withheld.

The Bench of Justice Javed Iqbal Wani in the instant case directed promotion of the employee of Board of School Education (BOSE) whose promotion was withheld by the said Board.

The facts of this case are that an FIR was registered against a candidate for having written answers on his already evaluated answer sheet purportedly done in connivance with some BOSE officials.

It was submitted that the petitioner got allegedly implicated therein the said fraud and as a consequence whereof the said Board constituted a committee to enquire into the matter.

The Board promoted two orderlies to the posts of Junior Assistants excluding the petitioner though being senior. In the said promotion order one post of Junior Assistant for the petitioner had been reserved subject to the clearance from the crime Branch which is pending.

The Board also barred the petitioner from future promotions for six years retrospectively.

Aggrieved, the petitioner approached High Court.

Advocate Tasaduq H. Khawaja, appeared for the petitioner and Advocate M. I. Dar, appeared for the respondents-board.

The Court noted that "…when the promotion of the petitioner was deferred and kept subject to the clearance from the Crime Branch, on the said date no disciplinary enquiry had been initiated or was pending against the petitioner so much so no charge sheet was framed against him. The petitioner was not on the said date implicated in the FIR registered in Crime Branch qua the alleged fraud of writing of the answers in the answer sheet of the candidate."

The Court held that the involvement of the petitioner in the said FIR came to the knowledge and notice of the respondents-Board much after the process for promotion undertaken and consequent order of promotion.

The Court held that the deferring of promotion of the petitioner was misconceived and without any authority or sanction of law.

The Court placed reliance on the Judgement of the Apex Court in the case titled as "Union of India V. Anil Kumar Sarkar", wherein it was observed that "…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."

The High Court further observed that "The impugned order dated 21.07.2014 in terms whereof the promotion of the petitioner was deferred and dated 06.03.2016 in terms whereof the penalty was imposed upon the petitioner even though issued after interval of three years indisputably are part of same process read with conjointly having a cumulative effect on the services of the petitioner i.e. after deferring promotion of the petitioner that was due as the respondents have debarred the petitioner for future promotion with retrospective effect."

Therefore, the Court set aside the Order deferring promotion of the petitioner and also the Order debarring the petitioner from future promotions. The Court commanded the respondents-Board to promote the petitioner to the post of Junior Assistant with all consequential benefits to which he has become entitled thereto.

Cause Title- Tanveer Ahmad Khan v. JK BOSE and Others

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