Himachal Pradesh High Court | Promotion Cannot Be Withheld on Pending Criminal Case Without Chargesheet or Framing of Charges
Safiya Malik
The High Court of Himachal Pradesh Single Bench of Justice Sandeep Sharma decided that an employee’s promotion cannot be withheld merely because a criminal case is pending when neither a charge sheet has been filed nor charges have been framed. The Court reasoned that the possibility of further investigation does not bar consideration for advancement, particularly where the employee has already been cleared in a departmental inquiry. It allowed the petition and directed the authorities to evaluate the petitioner’s promotion to the post of Honorary Assistant Sub Inspector (ASI) along with consequential service entitlements.
The matter concerned the claim of a police official seeking promotion to the rank of Honorary Assistant Sub Inspector (ASI). The petitioner approached the High Court after the authorities denied consideration for promotion on the ground of pendency of a criminal case.
The petitioner’s contention was that no charge sheet had been filed in the case, no charges had been framed by the competent Magistrate, and he had already been exonerated of all allegations in the departmental proceedings. According to him, denial of promotion solely on the basis of an incomplete criminal proceeding was arbitrary and contrary to established principles.
The respondents opposed the petition. They argued that since a criminal case was still pending against the petitioner, his case could not be processed for promotion. They relied on the fact that the Magistrate had the authority to order further investigation, which, according to them, justified withholding promotion until the outcome of the case was clear.
The dispute therefore turned on whether pendency of a criminal case, where no charge sheet had been filed and charges were not framed, could lawfully operate as a bar to promotion.
The Court considered the applicable service rules and Standing Orders issued by the Director General of Police. Clause 3 of the Standing Order was placed on record, which required adoption of the sealed cover procedure only after charges are framed in a criminal case or when an employee is found guilty in a departmental inquiry.
The petitioner relied upon the decision of the Supreme Court in Union of India v. K.V. Jankiraman, which laid down the principle that sealed cover procedure is applicable only where charges are framed or the employee is under suspension. The petitioner maintained that since neither condition applied, he was entitled to be considered for promotion with all consequential benefits.
The evidence submitted in the case included the departmental inquiry records, the absence of a charge sheet, and the Standing Order of the Director General of Police. The statutory provision involved was primarily the principle derived from service jurisprudence on promotion, supplemented by the cited precedent from the Supreme Court and the departmental Standing Order.
The Court began by recording: “Admittedly no charge sheet has been served upon the petitioner.” It further stated: “Though the Magistrate concerned is well within his/her right to order further investigation, such fact, if any, cannot be a ground for the respondents to deny promotion to the higher post, especially when charge has not been framed till date.”
The Court observed: “Since the petitioner stands fully exonerated in the departmental inquiry, there is no justification for the respondents to withhold his case for promotion.”
In addressing the applicability of sealed cover procedure, the Court recorded: “As per Clause 3 of the Standing Order issued by the Director General of Police, sealed cover procedure can be adopted only in cases where a charge has been framed in the criminal case or where the employee is found guilty in departmental proceedings.”
The Court also referred to the binding precedent of the Supreme Court, stating: “The law laid down in Union of India v. K.V. Jankiraman makes it abundantly clear that pendency of investigation without framing of charges is not sufficient to apply the sealed cover procedure.”
The Court stated: “The pendency of a criminal case, in which neither a charge sheet has been filed nor charges have been framed, cannot be made a basis to deny promotion to the petitioner.”
The Court concluded its reasoning with the observation: “The action of the respondents in withholding the promotion of the petitioner is not sustainable in the eyes of law.”
“Consequently, in view of the above, this Court finds merit in the present petition and accordingly same is allowed.”
“The respondents are directed to consider the case of the petitioner for promotion to the post of Honorary ASI from due date when his immediate juniors were promoted. Needless to say, petitioner on account of his promotion shall be entitled to all consequential benefits. Pending applications, if any, also stand disposed of.”
Advocates Representing the Parties
For the Petitioner: Mr. Kashmir Singh Thakur, Senior Advocate with Mr. Vijay Thakur, Advocate.
For the Respondents: Mr. Rajan Kahol, Mr. Vishal Panwar, and Mr. B.C. Verma, Additional Advocate Generals, with Mr. Ravi Chauhan, Deputy Advocate General.
Case Title: Bir Singh versus State of Himachal Pradesh and others
Case Number: CWP No. 7099 of 2023
Bench: Justice Sandeep Sharma
