# Umesh Pratap Singh v. State of U.P. & Ors

- **Citation:** (2022) 10 ILRA 45
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-09
- **Case number:** Writ-A No. 7917 of 2022
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/umesh-pratap-singh-v-state-of-u-p-ors-47744
- **Pages:** 5

## Headnote

A. Service Law - Promotion - Mere
pendency of a criminal case, prima-facie,
cannot be taken as a ground to deny
promotion.
The
Competent
Authority
cannot withhold the claim indefinitely on
the ground of having adopted Sealed
Cover Procedure, due to the pendency of
criminal case. (Para 12)

Facts of the case are undisputed. Petitioner was
appointed on the post of Sub-Inspector in Civil
Police Department in the year 1990 and
chargesheet was submitted against him in the
year 1999. Thereafter, he was promoted on the
post of Inspector in the year 2006 and first DPC
for promotion on the post of DSP was also held
on 01.01.2018, in which name of petitioner was
considered, but due to pendency of criminal
proceeding, his name was kept in a sealed cover
envelop and juniors to him have been granted
promotion. Further, as per comments of ADGP,
Administration
dated
20.08.2020,
several
excellent entries were given to the petitioner in
last ten years of his service coupled with this
fact that no punishment, either minor or major
was awarded to the petitioner and after
promotion, he has never misused his post in any
way. (Para 10, 12)

Mere pendency of a criminal case coupled with
this fact that petitioner has been permitted to
continue in service and also granted promotion,
cannot be a ground for denying promotion.
Further, additional fact may be taken into
consideration i.e. subsequent service record of
petitioner while opening the sealed cover
envelop and in case subsequent service record
of petitioner is found excellent, unblemished,
without any punishment, the same should have
been an additional ground to grant him
promotion. (Para 13)

Impugned order dated 12.8.2021 is contrary to
the provisions of GOs dated 28.05.1997 &
09.01.2018 as well as law laid down by this
Court in the matter of Neeraj Kumar Pandey
(infra), which is not sustainable and hereby set
aside.

Writ petition allowed. (E-4)

Precedent followed:

## Text

10 All. Umesh Pratap Singh Vs. State of U.P. & Ors.
45
compassionate ground on the post of Sub
Inspector of Civil Police along with other
five candidates who have secured the
identical marks against one post lying
vacant due to withdrawal of one selected
candidate Atul Kumar, in accordance with
law, within a period of three months from
the date of production of a certified copy of
this order.

14. Needless to say that while
considering such claim of the petitioner, the
competent authority shall take note of that
the petitioner is placed at Serial No.1 in the
second list of 79 candidates and she is also
older in age than five candidates who have
secured equal marks as the petitioner, in the
light of Note provided under Rule 15.
----------
(2022) 10 ILRA 45
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2022

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Writ-A No. 7917 of 2022

Umesh Pratap Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ms. Atipriya Gautam, Sri Devesh Mishra, Sri
Rishabh Kesarwani, Sri Vijay Gautam (Sr.
Advocate)

Counsel for the Respondents:
C.S.C.

A. Service Law - Promotion - Mere
pendency of a criminal case, prima-facie,
cannot be taken as a ground to deny
promotion.
The
Competent
Authority
cannot withhold the claim indefinitely on
the ground of having adopted Sealed
Cover Procedure, due to the pendency of
criminal case. (Para 12)

Facts of the case are undisputed. Petitioner was
appointed on the post of Sub-Inspector in Civil
Police Department in the year 1990 and
chargesheet was submitted against him in the
year 1999. Thereafter, he was promoted on the
post of Inspector in the year 2006 and first DPC
for promotion on the post of DSP was also held
on 01.01.2018, in which name of petitioner was
considered, but due to pendency of criminal
proceeding, his name was kept in a sealed cover
envelop and juniors to him have been granted
promotion. Further, as per comments of ADGP,
Administration
dated
20.08.2020,
several
excellent entries were given to the petitioner in
last ten years of his service coupled with this
fact that no punishment, either minor or major
was awarded to the petitioner and after
promotion, he has never misused his post in any
way. (Para 10, 12)

Mere pendency of a criminal case coupled with
this fact that petitioner has been permitted to
continue in service and also granted promotion,
cannot be a ground for denying promotion.
Further, additional fact may be taken into
consideration i.e. subsequent service record of
petitioner while opening the sealed cover
envelop and in case subsequent service record
of petitioner is found excellent, unblemished,
without any punishment, the same should have
been an additional ground to grant him
promotion. (Para 13)

Impugned order dated 12.8.2021 is contrary to
the provisions of GOs dated 28.05.1997 &
09.01.2018 as well as law laid down by this
Court in the matter of Neeraj Kumar Pandey
(infra), which is not sustainable and hereby set
aside.

Writ petition allowed. (E-4)

Precedent followed:

1. Neeraj Kumar Pandey Vs The St. of U.P. &
ors. (Writ-A No. 8151 of 2022) (Para 7)

Present
petition
assails
order
dated
12.08.2021,
passed
by
Addl.
46 INDIAN LAW REPORTS ALLAHABAD SERIES
Chief/Principal Secretary, Home, Uttar
Pradesh Shasan, Secretariat, Lucknow.

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard Sri Vijay Gautam, learned
Senior Counsel assisted by Ms. Atipriya
Gautam, learned counsel for petitioner and
learned
standing
counsel
for
Staterespondents.

2. Pleadings have been exchanged
between the parties, with the consent of the
parties, the instant writ petition is being
finally decided at the admission stage.

3. By way of present petition,
petitioner is seeking following reliefs:-

"(ii) issue, a writ order or
direction, in the nature of certiorari,
quashing
the
impugned
order
dated
12.08.2021, passed by respondent No. 1,
enclosed as Annexure-1, to the writ
petition.

(iii) issue, a writ, order or
direction, in the nature of mandamus,
commanding the Respondent Authorities,
to open the Seal Cover Envelop and
promote the petitioner on the post of
Dy.S.P. in pursuance of the Government
Order
No.
13/21/89-Ka-1-1997, dated
28/05/1997, & Government Order No.
1/2018-13(6)/2017/Ka-1-2018,
dated
09/01/2018, with all consequential benefits.

(v) issue, a writ, order or
direction, in the nature of mandamus,
commanding the Respondent Authorities,
to consider the claim of the petitioner for
Ad-hoc promotion on the post of Dy.S.P.,
in pursuance of the Government Order No.
13/21/89-Ka-1-1997, dated 28/05/1997, &
Government
Order
No.
1/201813(6)/2017/Ka-1-2018, dated 09/01/2018,
with all consequential benefits."

4. Learned Senior Counsel appearing
for petitioner submitted that petitioner was
appointed on the post of Sub-Inspector in
Civil Police Department on 17.09.1990.
While petitioner was posted at Jaunpur, an
F.I.R. has been lodged by one Chhedi Lal
against three persons namely Jagarnath
Chaudhary, Asha Devi and mother of Asha
Devi namely Babana Devi, which was
registered as Case Crime No. 172 of 1999
u/s 302, 201, 506 IPC at Police Station
Jaunpur, District Jaunpur on 05.06.1999, in
which
petitioner
was
not
named.
Ultimately, charge sheet was submitted in
the year 1999, in which petitioner was also
charge sheeted under section 217, 218, 201
& 120-B IPC whereas against other
accused, charge sheet has been submitted
under sections 302, 201, 506, 217, 218 IPC.
Feeling aggrieved by the said charge sheet,
petitioner
has
filed
Criminal
Misc.
Application No. 6323/2003 (U/s 482
Cr.P.C.), in which this Court vide order
dated 10.09.2003 was pleased to stay the
further proceedings, which continued upto
year 2020.

5. It is further submitted that during
the
pendency
of
the
said
criminal
proceeding, petitioner was given out of turn
promotion on 14.09.2006 on the post of
Inspector, till then he is performing his
duty to the full satisfaction of the
authorities and no other disciplinary or
criminal proceeding has ever been initiated
against him. It is next submitted that
meeting
of
Departmental
Promotion
Committee (in short, ''DPC') was held on
01.01.2018 for promotion on the post of
Deputy Superintendent of Police, in which
case of petitioner was also considered, but
due to pendency of criminal proceeding, his
name was kept in a sealed cover envelop
and juniors to petitioner were granted
promotion. Thereafter, meeting of DPC
10 All. Umesh Pratap Singh Vs. State of U.P. & Ors.
47
was also held in the years 2020 & 2021 and
other juniors to petitioner have also been
promoted.

6. It is next submitted that when the
name of petitioner was kept in a sealed
cover envelop, petitioner has filed Writ
Petition No. 7758 of 2019, which was
disposed of by this Court vide order dated
07.02.2020 directing respondent No. 1 to
decide the representation of petitioner.
Thereafter, comments were called from the
Additional Director General of Police,
Administration (hereinafter referred to as
"ADGP,
Administration")
and
vide
communication
dated
20.08.2020,
comments were sent to Secretary Home
(Police
Services),
Secretariat
U.P.,
Lucknow and in the comments, it is
mentioned that since last ten years,
petitioner was awarded excellent entries
and never been penalized either major or
minor penalty. It was also stated in the
comments that character role of petitioner
is excellent and after promotion on the post
of Inspector, upto 17 years, petitioner has
never misused his post, but without
considering the comments, impugned order
has been passed rejecting the claim of
petitioner on two grounds; first of all,
petitioner has helped the accused and
secondly, offence against the petitioner is
serious in nature. It is also stated in the
impugned
order
that
petitioner
was
chargesheeted in Case Crime No. 172 of
1999, under Sections 217, 218 & 120-B
IPC.

7. He firmly submitted that comments
so given by ADGP, Administration had not
been
considered
while
passing
the
impugned order. He further submitted that
trial of main accused has been concluded
and ultimately, they have been convicted
vide order dated 02.09.2014 passed by
Additional Session Judge, Court No. 2,
Jaunpur under section 304 IPC, which itself
shows that petitioner is not guilty for any
charges coupled with this fact that
petitioner has excellent service record and
also he has been promoted on the post of
Inspector during the pendency of criminal
proceeding. He further placed reliance
upon the Government Order No. 13/21/89Ka-1-1997,
dated
28.05.1997
and
submitted that para-10 is having specific
provision
that
after
considering
the
promotion of first time charged employee
and keeping his name in a sealed cover
envelop, after completion of one year, the
same shall be considered for ad hoc
promotion. Again in Government Order
No. 1/2018-13(6)/2017/Ka-1-2018, dated
09.01.2018, it is stated that in case of
pendency of criminal case in different
courts, cases has to be examined for further
proceeding subject to final decision of the
cases pending before the Court. After
examination, if it is found proper, further
proceeding should have been ensured. In
support of his contention, he has placed
reliance upon the judgment of this Court
passed in Neeraj Kumar Pandey vs. The
State of U.P. and 5 others ( Writ-A No.
8151 of 2022) and submitted that on the
similar set of facts where the name of
petitioner was kept in a sealed cover
envelop,
Court
after
considering
the
Government Orders dated 28.5.1997 &
9.1.2018 directed to open the same to grant
promotion. Therefore, under such facts of
the case, Court may please to quash the
impugned order and issue necessary
direction for promotion of petitioner.

8. Learned standing counsel, on the
basis of counter affidavit, has vehemently
opposed the submissions made by learned
counsel for petitioner, but could not dispute
the factual as well as legal submissions
48 INDIAN LAW REPORTS ALLAHABAD SERIES
made by learned Senior Counsel appearing
on behalf of petitioner.

9. I have considered rival submissions
advanced by learned counsels for parties
and perused the records.

10. Facts of the case are undisputed.
Petitioner was appointed on the post of SubInspector in Civil Police Department in the
year1990 and chargesheet was submitted
against him in the year 1999. Thereafter, he
was promoted on the post of Inspector in the
year 2006 and first DPC for promotion on the
post of Deputy Superintendent of Police was
also held on 01.01.2018, in which name of
petitioner was considered, but due to
pendency of criminal proceeding, his name
was kept in a sealed cover envelop and
juniors to him have been granted promotion.
Further, as per comments of ADGP,
Administration dated 20.08.2020, several
excellent entries were given to the petitioner
in last ten years of his service coupled with
this fact that no punishment, either minor or
major was awarded to the petitioner and after
promotion, he has never misused his post in
any way.

11. I have also perused the judgment of
this Court passed in Neeraj Kumar Pandey
(Supra). In the said judgment, after DPC,
name of petitioner was kept in sealed cover
envelop denying the promotion. Court has
considered this fact that even after pendency
of
criminal
proceeding,
petitioner
has
continued in service, directed the State to
open the envelop to grant promotion. While
allowing the petition, Court has also
considered the Government Orders dated
28.5.1997 & 9.1.2018.

12. So far as case of petitioner is
concerned, it is on better footing than the
case of Neeraj Kumar Pandey (Supra).
Undisputedly, even after initiation of
criminal proceeding, petitioner was granted
promotion on the post of Inspector on
14.09.2006 upon which he is still working
without any misuse of post. Further,
petitioner was granted excellent entries for
last 10 years as mentioned in the comments
of
ADGP,
Administration
dated
20.08.2020. Not only this, even the
criminal proceeding so initiated against the
petitioner along with other co-accused, trial
of
co-accused
was
completed
and
Additional Session Judge vide order dated
2.9.2014 awarded the punishment under
Section 304 IPC for seven years only,
which also shows that petitioner was not at
fault in the said criminal proceeding so
initiated against him. Relevant paragraphs
of judgment passed in Neeraj Kumar
Pandey (Supra) is quoted below:-

"17. Having heard the learned
counsel for petitioner, the learned standing
counsel for State-respondents and upon
perusal of record, the Court finds that it is an
undisputed fact that irrespective of pendency
of criminal case, petitioner has been allowed
to continue. Therefore, mere pendency of a
criminal case, prima-facie, cannot be taken as
a ground to deny promotion of petitioner. The
Competent Authority cannot withhold the
claim of petitioner indefinitely on the ground
of having adopted Sealed Cover Procedure,
due to the pendency of criminal case.

18. In view of the discussion made
above this writ petition is disposed of finally
with a direction to the Competent Authority
to consider the claim of petitioner for opening
the Sealed Cover within a period of two
months from the date of production of a
certified copy of this order in the light of
observations made herein-above."

13. After considering the entire facts
of the case as well as law laid down by this
10 All. Virendra Kumar Srivastava Vs. State of U.P. & Ors.
49
Court in Neeraj Kumar Pandey (Supra),
this Court is of the firm view that mere
pendency of a criminal case coupled with
this fact that petitioner has been permitted
to continue in service and also granted
promotion, cannot be a ground for denying
promotion. Further, additional fact may be
taken into consideration i.e. subsequent
service record of petitioner while opening
the sealed cover envelop and in case
subsequent service record of petitioner is
found excellent, unblemished, without any
punishment, the same should have been an
additional ground to grant him promotion.

14. Therefore, under such facts and
circumstances,
impugned
order
dated
12.8.2021 passed by respondent No. 1 is
contrary to the provisions of Government
Orders dated 28.05.1997 & 09.01.2018 as
well as law laid down by this Court in the
matter of Neeraj Kumar Pandey (Supra),
which is not sustainable and hereby set
aside.

15. Accordingly, the writ petition is
allowed. No order as to costs.

16. Respondent No. 1 is directed to
take necessary action to open the sealed
cover envelop and grant promotion to the
petitioner maximum within six weeks from
the date of production of certified copy of
this order with all consequential benefits.
----------
(2022) 10 ILRA 49
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.10.2022

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-A No. 10156 of 2020

Virendra Kumar Srivastava ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Mohd. Ghayasuddin Khan

Counsel for the Respondents:
C.S.C.

A. Service Law - Pension and Gratuity -
Civil Services Regulations - Article 351-A,
Regulation 919A - During the pendency of
disciplinary proceedings the government
servant is not entitled to gratuity but is
entitled
only
to
provisional
pension.
Pendency of departmental/judicial proceedings
or any inquiry or enquiry to be instituted after
retirement would not empower the state
government
to
withhold
pension,
but
Government
servant
maybe
sanctioned
provisional pension, computed as per rules. It
follows that the full pension has to be computed
on conclusion of proceedings/inquiry as the case
may be. (Para 13, 15, 16)

Article 351-A empowers the governor to
withhold or withdraw pension or a part
of it permanently off a specified period
and order recovery from pension for
pecuniary loss caused to the government
because of the pensioner in departmental
proceedings or Judicial proceedings where he
has been found (i) guilty of grave misconduct
or (ii) do of course back in early loss to the
government by misconduct or negligence
during his service period. The proviso to the
article spells out the circumstances/conditions
in
which
the
departmental
proceedings/Judicial proceedings are required
to
be
instituted
for
the
purpose
of
withholding/withdrawing pension. (Para 11)

The State Governments/Governor reserves to
itself the power and right to withhold or
withdraw pension or part thereof, whether
permanently or for specified period or to order
recovery from pension or part thereof, whether
permanently or for a specified. Or to order
recovery from pension of the whole or part of
any pecuniary loss caused to the government
upon conclusion of the disciplinary/judicial
proceedings. (Para 12)