SHAM LAL GUPTA vs POWER DEVELOPMENT DEPARTMENT

:: 1 :: O.A. No. 61/437/2025


Reserved on 24.09.2026
Central Administrative Tribunal
Jammu Bench, Jammu

Hearing through video conferencing

Original Application No. 61/437/2025


Pronounced on :- This the 21st day of October 2026
Hon’ble Mr. Sanjeev Gupta, Judicial Member
Hon’ble Ms. Pragya Sahay Saksena, Administrative Member

Sham Lal Gupta, Age 76 years, S/o Shiv Ram Gupta, R/o H. No. 70,
D/C Gandhi Nagar, Jammu

...Applicant

(Through Advocate: Mr. Abhinav Sharma, Sr. Advocate assisted by Mr.
Vishal Sharma)

Versus

1. UT of J&K through Principal Secretary to Govt. Power Development
Department, Civil Secretariat, Jammu.
2. Commissioner-cum-Secretary, General Administration Department,
Civil Secretariat, Jammu.
3. Gul Ayaz
4. Shahnaz Goni
5. Mushtaq Ahmed Shah
6. Noor-ud-din Teeli
7. Ajay Kumar Gupta
8. Khurshid Ahmed Untoo, C/o Proforma respondent No. 3 to 8 i.e.
Principal Secretary to Govt. PDD Civil Secretariat, jammu.
…Respondents

(Through Advocate: Hunar Gupta, D.A.G. for Respondent No. 1/Mr. Sudesh
Magotra, A.A.G. for Respondent No. 2 )





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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
Superintending 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
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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 Superintending 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
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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
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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.
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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.”
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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.
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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…
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