SHAM LAL GUPTA vs POWER DEVELOPMENT DEPARTMENT on 21 October 2026

O R D E R

Per:- Sanjeev Gupta, Judicial Member

The brief facts of the case, as stated in the O.A. are that the applicant was initially appointed as Junior Engineer in the Power Development Department and, on account of his seniority, integrity and dedication, came to be promoted as Assistant Engineer and thereafter as Assistant Executive Engineer on 17.11.1987. He was subsequently promoted as Executive Engineer and confirmed as such w.e.f. 01.09.2003, as reflected in the final seniority list issued vide Government Order No. 292-PDD of 2010 dated 16.11.2010.

2. It is averred that despite the clear mandate of J&K Civil Services Rules 2005 that the Departmental Promotion Committee (DPC) be convened twice in a year, the respondents promoted the applicant as Superintending Engineer on incharge basis in his own pay and grade in 2006 without convening the DPC. Subsequently, the applicant retired from service on 31.03.2007, while serving as In-charge

Engineer. It is further averred that vide communication No. PDD/HRM/46/2018 dated 07.03.2019, the respondents recommended the case of the applicant, along with other officers, for regularisation/confirmation as Superintending Engineer and in the said communication, the applicant figured at Serial No. 22 and his promotion was proposed to be regularised w.e.f. 01.10.2006. It is further averred that despite the applicant being senior to the proforma respondents, the promotion of his juniors were regularised/confirmed as Superintending Engineers vide Government ARUN KUMAR

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Order No. 187-JK(PDD) of 2021 dated 18.11.2021 and Government Order No. 50-JK(PDD) of 2022 dated 22.04.2022, whereas the case of the applicant was ignored. It is further averred that no reasons were assigned in the aforesaid Government Orders for excluding the applicant from regularisation/confirmation. Upon approaching the concerned authorities, the applicant was informed that his case had been dropped on account of his name figuring in FIR No. 04 of 2013 registered with Police Station Vigilance Organisation, Jammu.

3. It is further averred that the applicant is aggrieved of the denial of regularisation/confirmation of his In-charge promotion as Superintending Engineer w.e.f. 01.10.2006, particularly when his juniors have been granted such regularisation. The applicant, therefore, seeks a direction to the respondents to regularise/confirm his In-charge promotion as

Engineer w.e.f. 01.10.2006, with consequential benefits.

4. The respondents have filed reply in which it has been stated that in the year 2021, the Power Development Department issued orders of regularization whereunder the Incharge promotion of the proforma respondents No. 3 & 4 came to be regularized as Superintending Engineer (Electrical) vide Govt. Order No. 187-JK (PDD) of 2021 dated 18.11.2021 and Incharge promotion of the proforma respondents No. 5 to 8 came to be regularized as Superintending Engineer (Electrical) vide Govt Order No. 50-JK (PDD) of 2022 dated 22.04.2022. However, the name of the applicant was ARUN KUMAR

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dropped from the consideration zone of regularization as Superintending Engineer in the Department only on account of the fact that the name of the applicant figured in the FIR bearing No. 04 of 2013 registered with P/S Vigilance Organization, Jammu which is still pending. It is further stated that the competent authority viz; Establishment cum Selection Committee had cleared the regularization/confirmation as Superintending Engineers in favour of those officers only having vigilance clearance. It is further stated that since, the General Administration Department has not conveyed the vigilance clearance in favour of the applicant, therefore, the regularization/confirmation of the applicant as Superintending Engineer was deferred due to non availability of vigilance clearance, as such, no legal right of the applicant has been infringed by the respondent department.

5. Mr. Abhinav Sharma, learned Sr. Counsel for the applicant contended that the action of the respondents of not regularizing the applicant’s promotion as Superintending Engineer w.e.f. 01.10.2006, while regularizing proforma respondents, who are junior to the applicant, via Govt. Order No. 187-JK(PDD) of 2021 and Govt. Order No. 50-JK(PDD) of 2022, is violative of Articles 14 and 16 of the Constitution of India. He further contended that it is a settled position of law that the mere registration of an FIR does not bar a government employee’s right to be considered for promotion, unless a chargesheet or challan has been presented by the date the DPC is convened or the ARUN KUMAR

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promotion of juniors is finalized. Since no chargesheet had been filed against the applicant in FIR No. 04 of 2013 by the time the 2021 and 2022 orders were issued, the applicant is legally entitled to be regularized as Superintending Engineer w.e.f. 01.10.2006. In this regard, he has relied on the following judgements:-

i. Union of India Vs. K.V. Janakiraman (1991) 4 SCC 109

ii. Union of India and others Vs. Anil Kumar Sarkar – Civil Appeal No. 2537 of 2013 (arising out of SLP (C) No. 1933 of 2011 decided on 15.03.2013.

iii. Union of India & Ors Vs. Sangam Keshari Nayak – Civil Appeal No. 3691 of 2005 dated 27.04.2007 decided on 27.04.2007

6. On the other hand, learned D.A.G., has reiterated the submissions made in his reply.

7. We have heard the learned counsel for the parties and perused the record.

8. The short controversy falling for determination before this Tribunal is whether the official respondents were legally justified in withholding/dropping the name of the applicant for consideration for regularisation/confirmation to the post of Superintending Engineer w.e.f. 01.10.2006 solely on the ground of the pendency of FIR No. 04 of 2013 registered with Police Station Vigilance Organisation, Jammu, particularly when no charge-sheet/challan had been filed in a court of competent jurisdiction against the applicant. ARUN KUMAR

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9. Admittedly, the applicant was placed as In-charge Superintending Engineer in the year 2006 and retired from government service on reaching the age of superannuation on 31.03.2007. It is also admitted that the respondents themselves recommended the applicant’s case at Serial No. 22 for regularisation/confirmation as Superintending Engineer w.e.f. 01.10.2006 vide communication No. PDD/HRM/46/2018 dated 07.03.2019. While the promotions of private/proforma respondents who were admittedly junior to the applicant were regularised vide Government Order No. 187-JK(PDD) of 2021 dated 18.11.2021 and Government Order No. 50-JK(PDD) of 2022 dated 22.04.2022, the applicant was excluded solely for want of vigilance clearance due to the registration of FIR No. 04 of 2013. It is also not disputed that no charge sheet was presented in a court of law against the applicant in FIR No. 04 of 2013, at the relevant point of time, when juniors of the applicant were promoted.

10. The legal position regarding the stage at which promotion or regularisation can be withheld is no longer res integra. In the landmark judgment of the Hon’ble Supreme Court in K.V. Janakiraman (supra), the Hon’ble Apex Court held that:- “17. …The conclusion No. 1 should be read to mean that the 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.” ARUN KUMAR

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11. The aforesaid principle has been consistently reaffirmed by the Hon’ble Supreme Court in Sangam Keshari Nayak (supra) and Anil Kumar Sarkar (supra), wherein it was categorically ruled that the mere registration of an FIR, does not constitute an impediment to consideration for promotion or regularisation. In other words, unless and until a formal charge-sheet/challan is filed in a criminal court or a charge-memo is served in departmental proceedings prior to the date of consideration, an employee has a right to be considered for promotion or regularization alongside his peers and juniors.

12. Learned counsel for the respondents has not been able to dispute the settled principle of law noticed hereinabove.

13. In the present case, the FIR in question was registered in the year 2013, nearly six years after the applicant had already superannuated from service on 31.03.2007. Undisputedly, even on the date, the DPC/Establishment-cum-Selection Committee met and when the junior officers were regularised in 2021 and 2022, no charge-sheet had been framed or filed in court against the applicant. The respondents cannot withhold or defer regularisation indefinitely on the basis of investigation in a FIR without the presentation of a formal charge-sheet.

14. That being so, the act of respondents of treating the investigation in aforesaid FIR, pending against the applicant as an impediment, so as to withhold the promotion of applicant is incorrect. ARUN KUMAR

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15. Consequently, in view of the judicial precedents cited and the totality of facts and circumstances of the case in hand, the action of the respondents in dropping the applicant's name from regularisation/confirmation as Superintending Engineer w.e.f. 01.10.2006, while granting the same benefit to his juniors, is held to be arbitrary, discriminatory, and legally unsustainable, in violation of Article 14 of the Constitution of India.

16. Accordingly, this O.A. is allowed with the following directions:- i. The respondents are directed to confirm/regularize the incharge promotion of the applicant as Superintending Engineer w.e.f. 01.10.2006, as was recommended to the DPC/PSC by Respondent No. 1 along with names of proforma respondents, who were juniors to the applicant, without insisting for vigilance clearance. ii. The respondent No. 1 is further directed to release the arrears of salary in the pay scale/pay band attached to the post of Superintending Engineer w.e.f 01.10.2006 and thereafter to recommend the case of the applicant to the office of Accountant General for revised fixation of his pension and for issuance of fresh pension payment order.

17. Let the aforesaid exercise be completed within a period of eight weeks from the date of receipt of a certified copy of this order.

18. No order as to costs.

(Pragya Sahay Saksena)

(Sanjeev Gupta) Administrative Member

Judicial Member Arun… ARUN KUMAR

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