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The Dharwad Bench of the Karnataka High Court has ruled that promotion of a government employee cannot be withheld merely on the grounds that a complaint has been filed against the employee, if it has not resulted in any departmental inquiry or other action as contemplated under the Service Law.

Justic T.M. Nadaf observed,

“In that view of the matter, withholding the promotion of the petitioner who is otherwise eligible for promotion as per the Provisional List prepared is against the settled position of Service Law. A mere intimation by the police or correspondence, without the same resulting in any enquiry as contemplated in the Law, cannot be a circumstance to deny the petitioner, the promotion for which he is otherwise entitled.”

The High Court was hearing a petition filed by M.N. Khaja, a senior health inspector at Kushtagi town municipal council, seeking direction to the respondent authorities to consider his representations and grant him promotion to the post of KMAS Chief Officer Grade II from July 1, 2019 and KMAS Chief Officer Grade I from the date it fell due.

The High Court said that under Rule 8 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957, withholding promotion is exclusively listed as a minor penalty that can be imposed after a duly proved misconduct in a departmental enquiry.

“The Appointing Authority withhold the promotion of a particular employee of the Government under a Sealed Cover procedure, but only under the circumstances, i.e., if a formal charge sheet in a Criminal Case or articles of charge/charge memo in a Departmental Inquiry has been formally served before the Department of Promotion Committee meets,” the Court added.

In the present case, the petitioner was previously considered for promotion in the provisional list. However, he was bypassed, and his juniors— who were positioned below him in the provisional list— were promoted to Chief Officer, Grade-II, and subsequently to Chief Officer, Grade-I.

The respondent authorities contended that the promotion was withheld due to correspondence from the Police Inspector of the Koppal Anti-Corruption Bureau. This correspondence contained a complaint alleging that the petitioner's appointment was based on fake documents, alongside another complaint against the petitioner from the Project Director, Urban Development Department, Koppal.

The court placed reliance on the Supreme Court ruling in Union of India vs. K.V. Jankiraman (1991) and the Division Bench ruling in Smt. Jayashree vs. State of Karnataka and said, “This Court as well as the Hon'ble Supreme Court, in catena of cases, repeatedly held and ruled that, mere contemplation or preliminary investigation of a Criminal or Departmental case without having been issued a formal charge sheet on the date of the DPC, cannot illegally block the promotion or warrant a Sealed Cover procedure.”

The Court observed that nothing adverse was found in the petitioner's service records, and the provisional list had categorically stated that he was eligible for the promotion.

Additionally, the authorities failed to place any material on record to show what action had been contemplated against the petitioner after they received the complaints, the Court noted.

“The respondents are directed to consider the representations submitted by the petitioner and shall accord promotion to him, at least from the date of promotion accorded/ granted to his juniors who were at Sl.No.237 to 250 and shall grant him all service benefits, for which he is entitled in law, in view of settled position of law laid down by the Hon'ble Supreme Court as well as the Division Bench of this Court (supra), within a period of eight (08) weeks from today,” the High Court directed, while disposing of the petition.

Case: M.N. KHAJA HUSSAIN VS STATE OF KARNATAKA & OTHERS

WRIT PETITION NO.103388 OF 2023 (S-PRO)

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