Jammu & Kashmir High Court - Srinagar Bench
Mohammad Yousuf Rather vs Union Territory Of J&K & Ors on 25 February, 2020
Author: Dhiraj Singh Thakur
Bench: Dhiraj Singh Thakur
S. No.185
Suppl. List
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
WP(C) No.474/2020
CM No.987/2020
Mohammad Yousuf Rather
...Petitioners
Through: - Mr. B. A. Rather, Sr. Advocate.
Vs.
Union Territory of J&K & Ors.
...Respondents
Through:-
CORAM: HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE (ORDER) 25.02.2020 Petitioner, while working as I/C Assistant Executive Engineer, came to be implicated in a criminal case in connection with FIR No.23/2010 registered with Police Station Vigilance Organization, Kashmir.
Petitioner claims that on account of pendency of the FIR against him, his case for confirmation as Assistant Engineer from 2001 when he was given incharge position as such and as Assistant Executive Engineer, against which post he has been discharging duties for last more than fifteen years. Reliance is placed upon Regulation 110(A)(6) of the J&K Civil Service Regulations to buttress the point that mere pendency of the criminal case could not permanently bar the petitioner from being considered for promotion and that in case investigation or trial stretches beyond the period of two years, then an ad hoc promotion ought to have been granted to the petitioner.
Since reliance is placed upon Regulation 110(A)(6) of the J&K Civil Service Regulations, it becomes necessary to reproduce the same as under:
"110(A).
6.Procedure for ad hoc promotion:- Inspite of six monthly review as referred to above, there may be some cases, MOHAMMAD ALTAF BHAT 2020.02.28 10:58 I attest to the accuracy and integrity of this document -2- where the disciplinary cases investigation/ criminal prosecution against the Government servants are not concluded even after the expiry of two years from the date of the meeting of the first Departmental Promotion Committee which kept its findings in respect of the Government servant in a sealed cover. In such a situation the appointing authority may review the case of the Government servant, provided he is not under suspension to consider the desirability of giving him adhoc promotion keeping in view the following aspects:-
(f) Whether the promotion of the officer will be against public interest;
(g) Whether the charges are grave enough to warrant continued denial of promotion;
(h) Whether there is no likelihood 6fthe case coming to a conclusion in near future;
(i) Whether the delay in the finalization of proceedings departmental or in a court of law or the investigation is not directly or indirectly attributable to the Government servant concerned;
(j) Whether there is any likelihood of misuse of official position which the Government servant may occupy after adhoc promotion which may adversely effect the conduct of the departmental case/criminal prosecution.
In case appointing authority comes to a conclusion that it would be desirable, keeping in view the factors mentioned above, to allow adhoc promotion to the government servant, his case should be placed before the next Departmental Promotion Committee held in the normal course after the expiry of two years period to decide whether the officer is suitable for promotion on adhoc basis. Where the Government servant is considered for adhoc promotion, the Departmental Promotion Committee should make its assessment on the basis of the totality of the individual's record of service without taking into account the pending disciplinary case/criminal prosecution/investigation against him.
After a decision is taken to promote a Government servant on an adhoc basis, an order of promotion may be issued making it clear in the order itself that:-
(iii) The promotion is being made purely on adhoc basis and the adhoc promotion will not confer any right for regular promotion; and MOHAMMAD ALTAF BHAT 2020.02.28 10:58 I attest to the accuracy and integrity of this document -3-
(iv) The promotion shall be "until further orders". It should also be indicated in the orders that the Government reserve the right to cancel the adhoc promotion and revert at any time the Government servant to the post from which he was promoted.
If the Government servant concerned is acquitted in the criminal prosecution on the merits of the case or is fully exonerated in the departmental proceedings or the investigation did not lead to criminal prosecution/ disciplinary proceedings the adhoc promotion already made may be confirmed and promotion treated as regular one from the date of the adhoc promotion with all attendant benefits. In case the Government servant could have normally got his regular promotion from a date prior to the date of adhoc promotion with reference to his placement in the Departmental Promotion Committee proceedings kept in the sealed covers and the actual date of promotion of the person ranked immediately junior to him by the same Departmental Promotion Committee he would also be allowed due seniority and benefits of notional Promotion as envisaged in sub-rule (4) above.
On a bare perusal of Regulation 110(A)(6), it becomes clear that there is no automatic process to accord ad hoc promotion to such a delinquent officer who is facing investigation/criminal prosecution and that the competent authorities are still to consider various aspects given in 110(A)(6)(a to e). It is only the Government who can decide, upon consideration of all the factors discussed above, whether an ad hoc promotion is to be granted or not.
Counsel for the petitioner, Mr. B. A. Bashir, stated that a Co-ordinate Benches of this Court had issued direction vide interim order dated 27.11.2019 passed in WP(C) No.3423/2019 for considering petitioner in that writ petition for placement as Incharge Assistant Executive Engineer, notwithstanding the pendency of criminal trial. It was prayed that this Court, in order to maintain consistency in orders, may direct the authorities concerned for consideration to the case of the petitioner herein for confirmation as Assistant Engineer, notwithstanding the pendency of FIR.
MOHAMMAD ALTAF BHAT 2020.02.28 10:58 I attest to the accuracy and integrity of this document -4-I have gone through the order dated 27.11.2019 passed in WP(C) No.3423/2019, in which reference is made to SWP No.1012/2018. On a perusal of the said order, it can be seen that the Court was not informed of the procedure which was prescribed in terms of Regulation 110(A) of J&K Civil Service Regulations, which envisages a situation where an employee is facing investigation or criminal prosecution. In my opinion a direction for consideration of the petitioner in terms of Regulation 110(A)(6) would be sufficient to be accord with the requirement of the said Regulation.
Be that as it may, notice to the respondents returnable within eight weeks. Requisites for service upon respondents within one week.
In the meantime, the respondents shall consider the petitioner, strictly in accordance with rules, for placement/confirmation as Assistant Engineer in special reference to the procedure prescribed in terms of 110(A)(6) of the J&K Civil Service Regulations.
This order is subject to alteration/modification on motion.
List again on 15th of April, 2020.
(Dhiraj Singh Thakur) Judge Srinagar 25.02.2020 "Bhat Altaf, PS,"
MOHAMMAD ALTAF BHAT 2020.02.28 10:58 I attest to the accuracy and integrity of this document