Gujarat High Court
State Of Gujarat vs Kiran Surendrabhai Sheth on 1 October, 2025
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
C/LPA/1427/2015 JUDGMENT DATED: 01/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1427 of 2015
In R/SPECIAL CIVIL APPLICATION/4251/2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR.JUSTICE L. S. PIRZADA
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Approved for Reporting Yes No
yes
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STATE OF GUJARAT & ORS.
Versus
KIRAN SURENDRABHAI SHETH & ANR.
===============================================================
Appearance:
MS SHRUTI DHRUVE AGP for the Appellant(s) No. 1,2,3
MS HARSHAL N PANDYA(3141) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR.JUSTICE L. S. PIRZADA
Date : 01/10/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. By way of this Letters Patent Appeal, the appellant - State has assailed the judgment and order passed by the learned Single Judge dated 06.08.2015, allowing the captioned writ petition filed by respondent no.1 - employee (original petitioner), challenging the action of the department denying him promotion to the post of Deputy Executive Engineer. The learned Single Judge, after considering the Government Resolutions that were on record and the judgments of the Supreme Court, has ultimately directed the appellant - department to grant actual promotion to the respondent-employee to the post of Deputy Executive Page 1 of 17 Uploaded by Radhika Srinivasan(HCD0042) on Mon Oct 06 2025 Downloaded on : Mon Oct 06 23:45:25 IST 2025 NEUTRAL CITATION C/LPA/1427/2015 JUDGMENT DATED: 01/10/2025 undefined Engineer (Class-II) with effect from 31.05.2015, i.e., the day when his juniors were promoted.
BRIEF FACTS:
2. The brief facts that are established on record and pleadings are that the respondent no.1 - employee (original petitioner) was serving as an Assistant Engineer Civil. As per the seniority list published on 01.03.1993, the name of the respondent-employee figured at Sr. No.670, and his immediate junior - Haresh Narendrabhai Bhatt, at Sr. No.671.
3. On 17.09.2011, the First Information Report, being CR No. I-8 / 2011, came to be registered against the respondent- employee for the offences punishable under the Prevention of Corruption Act, 1988.
4. On 26.09.2012, the Departmental Promotional Committee (DPC) considered the case of the respondent- employee for promotion to the post of Deputy Executive Engineer. The respondent-employee was arrested on 27.12.2012. On 14.02.2013, sanction to prosecute him was granted. On 01.03.2013, he was placed under suspension with effect from the date of his arrest. Thereafter, his suspension was revoked on 26.09.2013. On 31.05.2013, the juniors to the respondent-employee were promoted. On 05.07.2013, the charge-sheet was filed before the Special Court for the offences punishable under the Prevention of Corruption Act.
5. On 24.04.2013, the Gujarat Public Service Commission (GPSC) called for certain details from the State Government regarding the case of the respondent-employee. On Page 2 of 17 Uploaded by Radhika Srinivasan(HCD0042) on Mon Oct 06 2025 Downloaded on : Mon Oct 06 23:45:25 IST 2025 NEUTRAL CITATION C/LPA/1427/2015 JUDGMENT DATED: 01/10/2025 undefined 19.11.2013, the State Government provided the necessary information to the GPSC. On 12.02.2014, the GPSC, after considering the information provided by the State Government, accepted the proposal and recommended the name of the respondent-employee for promotion. Subsequently, on 01.03.2014, another junior was promoted, which constrained the respondent-employee to file the captioned writ petition assailing the action of the department. The learned Single Judge allowed the writ petition by placing reliance upon the judgment of the Supreme Court in the case of Union of India vs. K.V. Janakiraman, AIR 1991 S.C. 2010. The learned Single Judge considered the Government Resolution dated 04.08.2007, regulating the case of promotion of those employees who are facing departmental proceedings or criminal prosecution.
SUBMISSIONS ON BEHALF OF THE APPELLANT-
STATE:
6. At the outset, learned AGP Ms.Shruti Dhruve submitted that an employee is not entitled to promotion in view of Government Resolution dated 21.09.1981, which was pointed out before the learned Single Judge; however, the learned Single Judge did not consider the same. She read the provisions of Government Resolution dated 23.09.1981, more particularly paragraph Nos. 2 and 7. It is submitted that as per the aforesaid provisions, the case of the respondent- employee cannot be considered, as he was already embroiled in the criminal prosecution. She referred to the dates on which the FIR was registered, and also the date of sanctioning Page 3 of 17 Uploaded by Radhika Srinivasan(HCD0042) on Mon Oct 06 2025 Downloaded on : Mon Oct 06 23:45:25 IST 2025 NEUTRAL CITATION C/LPA/1427/2015 JUDGMENT DATED: 01/10/2025 undefined of the prosecution and submitted that, as per paragraph no. 7 of the Government Resolution dated 23.09.1981, the respondent-employee cannot be promoted till he is completely exonerated from the criminal prosecution. Learned AGP further submitted that the reliance placed on Government Resolution dated 04.08.2007 would not stricto sensu apply to the case of the respondent-employee, as the said Resolution was issued in view of the judgment of the Supreme Court in the case of K.V. Janakiraman (supra). She also placed reliance on the decision of the learned Single Judge in the case of a government employee who was facing criminal prosecution. The judgment dated 01.10.2014 passed in Special Civil Application No.600 of 2013 was referred to, and it is contended that the learned Single Judge, in the said case, after considering the judgment of the Supreme Court in the case of K.V. Janakiraman (supra) and the provisions of Government Resolution dated 23.09.1981 as well as Government Resolution dated 04.08.2007, held that the subsequent Government Resolution of 04.08.2007 does not obliterate the Government Resolution dated 23.09.1981, and the State can deny promotion to an employee who is facing criminal prosecution.
7. Learned AGP further submitted that the aforesaid decision was challenged by the respondent-employee by filing a Letters Patent Appeal, which was subsequently withdrawn. Reliance was also placed on another judgment of the learned Single Judge in the case of Kishorechandra Gandulal Pethani vs. State of Gujarat, (2005) 3 CLR 61, and it was submitted Page 4 of 17 Uploaded by Radhika Srinivasan(HCD0042) on Mon Oct 06 2025 Downloaded on : Mon Oct 06 23:45:25 IST 2025 NEUTRAL CITATION C/LPA/1427/2015 JUDGMENT DATED: 01/10/2025 undefined that in an identical case, the learned Single Judge, while placing reliance on Government Resolution dated 23.09.1981, rejected the writ petition of an employee claiming promotion while facing criminal prosecution.
8. It was further submitted that the DPC held its meeting on 26.09.2012, and the fact of the recording of the F.I.R. in the confidential report was already documented; however, the department did not communicate the same to the DPC. Learned AGP in this regard placed reliance on the averments made in the affidavit-in-reply filed by the State Government in the writ petition, more particularly paragraph Nos.6.5 and 6.6. It was submitted that the registration of the F.I.R. against the respondent-employee was known at a very belated stage, and the information regarding the respondent-employee's suspension was not provided to the GPSC, mistakenly, through oversight. Subsequently, on 12.02.2014, the GPSC recommended the name of the respondent-employee as fit for promotion as on 31.05.2013. However, the Department did not grant promotion to the respondent-employee because he was under suspension on 31.05.2013, i.e., on the date on which his junior was promoted. It was submitted that such action was taken by placing reliance on Government Resolution dated 23.09.1981. He was reinstated by revoking his suspension on 26.09.2013. She further placed reliance on the subsequent communication of the GPSC dated 17.04.2015, wherein the GPSC clarified that the Department's proposal had to be considered as per the Government Resolution dated 23.09.1981. It was therefore urged that since the vital Page 5 of 17 Uploaded by Radhika Srinivasan(HCD0042) on Mon Oct 06 2025 Downloaded on : Mon Oct 06 23:45:25 IST 2025 NEUTRAL CITATION C/LPA/1427/2015 JUDGMENT DATED: 01/10/2025 undefined document i.e. the Government Resolution dated 23.09.1981, though specifically pointed out, was not considered by the learned Single Judge, the appeal may be allowed by setting aside the directions issued by the learned Single Judge. She placed reliance upon the decision of the Division Bench in the case of State of Gujarat vs. Nareshkumar Shashikant Parekh, 2003 (3) G.C.D. 1829.
SUBMISSIONS ON BEHALF OF RESPONDENT-
EMPLOYEE :
9. In response to the aforesaid submissions, learned advocate Ms.Harshal Pandya, appearing for the respondent- employee, has urged that the judgment and order passed by the learned Single Judge may not be interfered with, as the same has been precisely passed. She submitted that it is an established fact that when the junior was promoted on 31.05.2013, no charge-sheet had been filed in the criminal case, and it was subsequently filed on 05.07.2013. Hence, she urged that the learned Single Judge, while placing reliance on the judgment of the Supreme Court in the case of K.V. Janakiraman (supra), has rightly held that till the charge sheet is not filed before the competent criminal court, it cannot be said that criminal proceedings are initiated, and the respondent-employee was entitled to promotion along with his juniors on 31.05.2013. It was submitted that subsequently, the suspension was also revoked on 26.09.2013. It was further submitted that thereafter, another junior to the respondent- employee was promoted on 01.03.2014.
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10. Learned advocate Ms.Pandya, in support of her submission, placed reliance on the decision of the Supreme Court in the case of Union of India & Ors. vs. Doly Loyi, AIR 2024 S.C. 4834, and contended that the sealed cover procedure can only be resorted to after the issuance of the charge-sheet, whereas in the present case, there was no occasion to adopt the sealed cover procedure.
11. While placing reliance upon the aforesaid judgment and the decision of the Supreme Court in the case of Union of India & Ors. vs. Anil Kumar Sarkar, (2013) 4 S.C.C. 161, she submitted that the provisions of paragraph No.7 of the Government Resolution dated 23.09.1981 will not apply to the case of the respondent-employee. Reliance was also placed on the judgment dated 23.11.2016, passed by the learned Single Judge of this Court in Special Civil Application No.14060 of 2008, which was confirmed by the Division Bench vide judgment and order dated 08.07.2017 passed in Letters Patent Appeal No.1047 of 2017. It is thus urged that the judgment and order passed by the learned Single Judge may not be interfered with.
ANALYSIS AND CONCLUSION:
12. We have heard the learned advocates appearing for the respective parties at length, and we have also assessed the merits of the matter and the documents that were pointed out before us.
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13. It is also noticed by us that by way of an interim order dated 05.01.2016, the Coordinate Bench had stayed the operation and implementation of the judgment, in view of the pendency of the criminal case. However, the said interim order was challenged before the Supreme Court by the respondent-employee by way of filing Special Leave to Appeal No.12364 of 2016. By the order dated 11.07.2016, the Supreme Court set aside the interim order passed by the Coordinate Bench in the present appeal and clarified that the High Court shall hear the present appeal without waiting for the final decision in the criminal case. However, the criminal case is still pending even after the passage of more than 15 years.
14. The facts as narrated hereinabove establish that when the charge-sheet was filed in the criminal court against the respondent-employee for the offences punishable under the Prevention of Corruption Act on 05.07.2013, the junior to the respondent-employee had already been promoted on 31.05.2013.
15. It is the case of the appellant-Department that since the respondent was already embroiled in a criminal case, - an F.I.R. having been registered on 17.09.2011, prior to the holding of the Departmental Promotion Committee (DPC) on 26.09.2012, his arrest on 27.12.2012, the sanction for prosecution granted on 14.02.2013, and his placement under suspension on 01.03.2013, he is disqualified from being promoted to the post of Deputy Executive Engineer.
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16. In the DPC meeting held on 26.09.2012, the respondent- employee's case was also recommended for promotion. The documents on record, i.e. inter se communication between the GPSC and the Department, reveal that the approval sought by the Department to promote the respondent was allowed by the GPSC on 12.02.2014. Thus, the Commission approved the Department's proposal seeking promotion of respondent no.1- employee.
17. It appears that thereafter, the fact of registration of the F.I.R. was also brought to the notice of the GPSC by the Department, and on 17.04.2015, in response to the proposal/ request sent by the Department to keep the name of the respondent-employee in a sealed cover, the GPSC responded and informed that the case of the respondent can be examined as per Government Resolution dated 23.09.1981.
18. The entire case of the department hinges on Paragraph No.7 of Government Resolution dated 23.09.1981. The same reads as under:
"7. A Government servant whose name is included in the select list but who is subsequently placed under suspension or against whom criminal proceedings/departmental proceedings have been initiated should not be promoted on the basis of his inclusion in the select list until he is completely exonerated of the charges against him. If the Government servant is completely exonerated of the charges, he will be promoted on the basis of his position in the select list, to the post which has been filled on a temporary basis pending disposal of the charges against him. If the exoneration is not complete, the question of his suitability for promotion will have to be adjudged afresh as mentioned in para 5 above..."Page 9 of 17 Uploaded by Radhika Srinivasan(HCD0042) on Mon Oct 06 2025 Downloaded on : Mon Oct 06 23:45:25 IST 2025
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19. A close reading of the provisions of Government Resolution dated 23.09.1981, paragraph no.7, exposits that a Government servant, whose name is included in the select list but is subsequently placed under suspension or against whom criminal proceedings / departmental proceedings have been initiated should not be promoted on the basis of inclusion in the selection list until he is completely exonerated from the charges against him.
20. It is the case of the appellant-department that since the criminal proceedings were already initiated against the respondent-employee vide F.I.R. dated 17.09.2011 and sanction to prosecute was granted on 14.02.2013, in view of Clause-7 of the Government Resolution dated 23.09.1981, he would not be entitled to promotion.
21. We shall examine the expression "who is subsequently placed under suspension or against whom criminal proceedings / departmental proceedings have been initiated"
used in Clause-7 of Government Resolution dated 23.09.1981 in light of settled legal precedent.
22. In the present case, it is established that the registration of the F.I.R., the holding of the DPC, and the promotion of the junior occurred prior to the filing of the charge-sheet in the criminal case. It is a settled legal precedent, as enunciated in various decisions of the Supreme Court, including K.V. Janakiraman (supra), Doly Loyi (supra), and Anil Kumar (supra), that disciplinary/criminal proceedings can be said to Page 10 of 17 Uploaded by Radhika Srinivasan(HCD0042) on Mon Oct 06 2025 Downloaded on : Mon Oct 06 23:45:25 IST 2025 NEUTRAL CITATION C/LPA/1427/2015 JUDGMENT DATED: 01/10/2025 undefined be initiated only when a charge memo is issued in departmental proceedings or a charge sheet is filed in a competent criminal court. The sealed cover procedure can only be resorted to after the issuance of a charge memo or charge sheet. The mere pendency of investigation or grant of prosecution sanction is not sufficient to trigger the sealed cover procedure.
The relevant observations are incorporated in the latest decision of Doly Loyi (supra), which reads as follows:
"24. Considering the above position, the disciplinary/criminal proceedings can be said to be initiated against the employee only when a charge memo is issued to the employee in a disciplinary proceeding or a charge-sheet for a criminal prosecution is filed in the competent Court. The sealed cover procedure is to be resorted to only after the issuance of the charge-memo/charge-sheet. The pendency of investigation and grant of prosecution sanction will not be sufficient to enable the authorities to adopt the sealed cover procedure."
23. Thus, the department has misapplied and illegally invoked the provisions of Clause 7 of the Government Resolution dated 23.09.1981. In view of the fact that on the date when the DPC met and the juniors to the respondent- employee were promoted, no charge sheet had been filed before the competent criminal court. The charge sheet was filed on 05.07.2013, which is subsequent to the holding of the DPC on 26.09.2012 and the promotion of the juniors on 31.05.2013. Thus, the conditions mentioned in paragraph 7 of the Government Resolution dated 23.09.1981 can only be invoked in those cases where an employee is facing criminal proceedings or departmental proceedings on the basis of a filed charge sheet or charge memo, and not prior thereto, and Page 11 of 17 Uploaded by Radhika Srinivasan(HCD0042) on Mon Oct 06 2025 Downloaded on : Mon Oct 06 23:45:25 IST 2025 NEUTRAL CITATION C/LPA/1427/2015 JUDGMENT DATED: 01/10/2025 undefined the promotion is yet to be given after the employee is placed in the select list. In the present case, the right of the respondent to be promoted crystallized on 31.05.2013, when his junior was promoted, and at that time no charge sheet had been filed in the criminal case. The expression "subsequently" used in Clause-7 cannot encompass the right of promotion with retrospective effect, when the junior has already been promoted. The right accrues when the junior is promoted and no charge-sheet or memo has yet been filed.
24. The first step for consideration of promotion of an employee is at the time when the Departmental Promotional Committee meets and considers the eligibility of the employee after evaluating the service record. In case an employee is issued a charge memo or charge sheet, the same would amount to initiation of departmental inquiry or criminal prosecution, and his/her case is required to be kept in a sealed cover after judging his/her suitability for promotion. The sealed cover is to be opened upon the conclusion of the respective proceedings. The issuance of a show cause notice in departmental proceedings and the mere registration of an FIR in criminal proceedings cannot be considered detrimental to the consideration and grant of promotion. An employee cannot be denied promotion if any junior to that employee is promoted prior to the filing of the charge memo/charge sheet. In the instant case, curiously, it is contended by the department that the DPC was not aware of the registration of the FIR, though it was recorded in the file, and hence, inadvertently, the approval was sought from the GPSC, and Page 12 of 17 Uploaded by Radhika Srinivasan(HCD0042) on Mon Oct 06 2025 Downloaded on : Mon Oct 06 23:45:25 IST 2025 NEUTRAL CITATION C/LPA/1427/2015 JUDGMENT DATED: 01/10/2025 undefined the GPSC also granted the same. Assuming the excuse to be correct, such a lacuna will not help the department. The DPC could not have denied the consideration of promotion of the respondent-employee on the mere registration of an FIR and the grant of sanction to prosecute.
25. Thus, the action of the appellant-department of invoking Clause-7 of the Government Resolution dated 23.09.1981 in the case of the present employee is misconceived, in light of the fact that on the date of the promotion of the juniors and the meeting of the DPC, no criminal proceedings were either initiated or pending. As held by us, the subsequent filing of the charge sheet in the criminal case cannot defeat the respondent's right to promotion, since his junior had already been promoted.
26. The judgments on which reliance is placed by the appellant-department will not come to its rescue in view of the aforementioned judgments of the Supreme Court. The Division Bench judgment in the case of Nareshkumar (supra), on which reliance is placed by the appellant- Department, reveals that the Division Bench has not considered the decision of the Supreme Court in the case of K.V. Janakiraman (supra) and the legal principle laid down therein that the filing of the charge sheet can only be the trigger point for the initiation of criminal proceedings or departmental proceedings. Similarly, in the judgment of the learned Single Judge in the case of Kishorechandra (supra), it is noticed by us that though the learned Single Judge has Page 13 of 17 Uploaded by Radhika Srinivasan(HCD0042) on Mon Oct 06 2025 Downloaded on : Mon Oct 06 23:45:25 IST 2025 NEUTRAL CITATION C/LPA/1427/2015 JUDGMENT DATED: 01/10/2025 undefined considered the judgment of K.V.Janakiraman (supra), he placed reliance on the Government Resolution dated 23.09.1981 and held that the State Government has the power to restrict promotion. However, in the present case, as noticed hereinabove, we respectfully disagree with the view expressed by the learned Single Judge in light of the law laid down by the Supreme Court in the aforementioned judgments.
27. We find that the learned Single Judge in Kishorechandra (supra) placed reliance on the Government Resolution dated 05.08.1992, which was not placed on record in the present matter but was handed over during submissions. However, we find that even if the said Government Resolution was invoked in Kishorechandra (supra), it would still not scuttle the case of the respondent- employee for promotion, since, in the present case, the juniors were promoted prior to the filing of the charge sheet in the criminal case.
28. It is also noticed by us that the Circular dated 05.08.1992 does not refer to Government Resolution dated 23.09.1981, which governs the cases of employees facing departmental or criminal prosecution. The Government Resolution dated 05.08.1992 deals with employees facing departmental proceedings and not criminal prosecution, which often gets prolonged for years--15 years in the present case. Reliance is also placed on Government Resolution dated 30.10.1993, which prescribes the procedure to be adopted in the case of employees whose cases are kept in sealed cover Page 14 of 17 Uploaded by Radhika Srinivasan(HCD0042) on Mon Oct 06 2025 Downloaded on : Mon Oct 06 23:45:25 IST 2025 NEUTRAL CITATION C/LPA/1427/2015 JUDGMENT DATED: 01/10/2025 undefined and those facing criminal prosecution. In the present case, the sealed cover procedure was not precisely adopted by the DPC, only on the basis of the F.I.R. registration. The GPSC was aware of the procedure and the facts and hence gave its approval for promotion in the first instance; however, it later only clarified that the case of the respondent may be considered as per the Government Resolution dated 23.09.1981.
29. The aforesaid Government Resolution dated 30.10.1993 specifically mentions that where the criminal prosecution is not concluded within a period of two years after the meeting of the DPC, the employee can be offered ad hoc promotion after conducting a periodical review.
30. In the present case, in the further affidavit filed by the appellant-State in the present appeal, which was not placed before the learned Single Judge in the writ petition, it is mentioned that the appellant-Department reviewed the case of the respondent-employee for the grant of ad hoc promotion on 10.03.2017, for the first time, i.e., after a period of almost four years from the date of promotion of the juniors. In the meantime, another junior to the respondent was also promoted on 01.03.2014, and the committee, while reviewing the case of the respondent-employee, opined that since the respondent-employee is facing criminal prosecution under the Prevention of Corruption Act involving an amount of Rs.70,00,000/-, he is not required to be granted ad hoc promotion. In our opinion, this aspect only comes into play Page 15 of 17 Uploaded by Radhika Srinivasan(HCD0042) on Mon Oct 06 2025 Downloaded on : Mon Oct 06 23:45:25 IST 2025 NEUTRAL CITATION C/LPA/1427/2015 JUDGMENT DATED: 01/10/2025 undefined when an employee is facing criminal prosecution after filing of the charge-sheet / memo at the time of the DPC meeting or when the juniors are promoted.
31. The appellant-department has also placed reliance on another judgment dated 01.10.2014 (in the case of H.M. Lathya) in Special Civil Application No.600 of 2013. We have perused the same. The learned Single Judge, after considering the judgments of the Supreme Court in the case of K.V. Janakiraman (supra) and the provisions of Government Resolution dated 23.09.1981, recorded that the Government Resolution dated 04.08.2007 does not obliterate the Government Resolution dated 23.09.1981 and that the Department can refuse to grant promotion to those employees against whom criminal prosecution is pending. As we have already dealt with Clause-7 of the Government Resolution dated 23.09.1981, on which the appellant's case is premised, the respondent-employee could not have been denied promotion merely on the basis of registration of the F.I.R. and grant of sanction for prosecution. Hence, the said judgment will not assist the appellant-Department.
32. Thus, the appellant-Department is directed to confer promotion upon the respondent-employee to the post of Deputy Executive Engineer (Civil), Class-II, from the date on which his junior was promoted i.e, 31.05.2013, without actual monetary benefits, as directed by the learned Single Judge. The consequential retirement benefits and pension shall be revised on a notional basis for the interregnum period. After Page 16 of 17 Uploaded by Radhika Srinivasan(HCD0042) on Mon Oct 06 2025 Downloaded on : Mon Oct 06 23:45:25 IST 2025 NEUTRAL CITATION C/LPA/1427/2015 JUDGMENT DATED: 01/10/2025 undefined passing the necessary orders, the monetary benefits shall be disbursed to the respondent. The entire exercise shall be completed within a period of three months from the date of receipt of the writ of this order.
33. The judgment and order passed by the learned Single Judge do not call for any interference. Accordingly, the present appeal fails and is dismissed.
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