Sohelur Rahman vs DEPARTMENT OF POSTS

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CENTRAL ADMINISTRATIVE TRIBUNAL
GUWAHATI BENCH
[Reserved]

Original Application No. 40/112/2024


Reserved on: 19.08.2026

Pronounced on: 22.09.2026

Coram:-

HON’BLE MR. RAJINDER SINGH DOGRA, JUDICAL MEMBER
HON’BLE MS. MALLIKA ARYA, ADMINISTRATIVE MEMBER


Between

Sohelur Rahman
S/o Habibar Rahman,
Postman, Bidyapara Pt-II,
AM Co- Road, Bhatigaon, Dhubri,
Assam- 783323.

R/o Bidyapara Pt-II, P.O. A.M.C. Road,
P.S. Dist: Dhubri, Assam-783323.

......Applicant


[By Advocate: Mr. M. Chanda, Mrs. U. Dutta, Mr. K. Abhinaba]


-AND-

1. The Union of India,
Represented by the Secretary
to the Govt. of India
Ministry of Communications & IT,
Department of Posts, New Delhi- 110001.

2. The Chief Postmaster General
Assam Circle, Meghdoot Bhawan,
Panbazar, Guwahati-781001.
OA No. 40/112/2024
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SOURABH
SOURABH
KUMAR
KUMAR

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3. The Director of Postal Services (HQ)
Assam Circle, Meghdoot Bhawan
Panbazar, Guwahati- 781001.

4. The Senior Superintendent of
Post Offices Guwahati Division,
Meghdoot Bhawan Panbazar, Guwahati- 781001.

5. The Superintendent of Post Offices,
Goalpara Division, Dist- Dhubri,
Assam, Pin-783301.

6. Shri Kailash Choudhury
Postal Assistant Abhayapuri SO
PO:- Abhayapuri PS:- Abhayapuri
District:- Bongaigaon, Assam Pin-783384



......Respondents


[By Advocate: Mr. P. Saikia, Addl. CGSC
]

OA No. 40/112/2024
Digitally signed by
SOURABH
SOURABH
KUMAR
KUMAR

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ORDER
PER R.S. DOGRA, MEMBER (J):

The instant OA has been filed by the applicant praying for
the following relief(s):-
“8.1. The Hon'ble Tribunal be pleased to direct the respondents
to grant promotion to the applicant to the post of Postal Assistant
w.e.f. the date of promotion of the next junior promoted candidate,
Sri Kailash Choudhury on 19.09.2016 with all consequential
benefits including seniority, fixation of pay, etc.
8.2. The Hon'ble Tribunal be pleased to direct the respondents to
consider the case of the applicant for grant of arrear salary in the
promotional post of Postal Assistant w.e.f. 19.09.2016 in terms
of paragraph 3 of the DOPT OM dated 14.09.1992 and decision
of the Hon'ble Supreme Court in UOI & Ors v. K.V. Jankiraman &
Ors[1991 SCC (4) 109], with interest @ 12% p.a.
8.3. Any other relief or reliefs as the Hon'ble Tribunal may deem
fit and proper, including the cost of the case.”

2. The facts of the case are that the applicant was recruited
as Postman at Basugaon Sub Post Office by order dated
29.08.2011. He appeared in the Lower Grade Official
Examination, 2016 for promotion to the post of Postal Assistant
and qualified on 04.08.2016. The juniors of the applicant, Sri
Rahul Dev Borah and Sri Kailash Choudhury were promoted
and sent for induction training w.e.f. 01.09.2016 and
19.09.2016 respectively. But due to pending criminal case vide
Gauripur P.S. Charge Sheet No. 194 dated 19.08.2016, the
promotion of the applicant was withheld. Now he has been
acquitted in the said criminal case vide order dated 06.07.2023
OA No. 40/112/2024
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SOURABH
SOURABH
KUMAR
KUMAR

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by the Ld. Court of Sub-Divisional Judicial Magistrate, Dhubri
in GR Case no. 165/2015[State of Assam v. Sohelur Rahman].
As per the applicant, this application is basically made for a
direction upon the respondents to grant promotion to him to
the post of Postal Assistant w.e.f. the date of promotion of the
next promoted junior candidate, Sri Kailash Choudhury on
19.09.2016 with all consequential benefits including seniority,
fixation of pay, arrear salary with interest @ 12% p.a., etc. in
terms of DoP&T OM dated 14.09.1992 and decision of the
Hon'ble Supreme Court in UOI & Ors v. K.V. Jankiraman &
Ors[1991 SCC (4) 109], if necessary by reverting the juniormost
promoted candidate. He had also submitted one
Representation dated 05.04.2023 during the pendency of the
criminal case, which was not considered. This Hon'ble Tribunal
by order dated 28.02.2023 has been pleased to dispose of the
O.A. No. 173/2019[Sohelur Rahman v. UOI] holding that "the
applicant is not entitled to get the promotion along with the
other selected candidates unless and until he would be
acquitted from the criminal charge or found fit by the DPC on
merit for such promotion." After his acquittal in the criminal
case, the applicant submitted representation dated 08.08.2023
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SOURABH
KUMAR
KUMAR

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for regular promotion w.e.f. 19.09.2016 which has not yet been
considered. Hence this O.A.

3. Respondents have filed their written statement, wherein
he avers that applicant had earlier approached this Tribunal
by way of O.A. No. 173/2019 raising the same issues which
cannot be permitted to do so in law. The principle of res-
judicata and constructive res judicata would apply in the
instant case. As the issue involves in the instant O.A. has
already been decided by this Tribunal vide order dated
28.02.2023 passed in O.A. No.173/2019 which facts have been
elaborately dealt with by the Hon'ble tribunal in earlier O.A.
No.173/2019. After hearing the counsel for the parties, this
Hon'ble Tribunal was pleased to negate his claim by making
observation that the Applicant is not entitled to get the
promotion along with the other selected candidates unless he
would be acquitted from the criminal charge or found fit by the
DPC on merit for such promotion. Although, the Applicant
claimed that he has been acquitted from the Gauripur Police
Station Case No. 22/2015 under Section(s) 170/419/353/IPC
by the Hon'ble Court of Sub-Divisional Judicial Magistrate,
Dhubri but the Applicant was again arrested by the police on
OA No. 40/112/2024
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SOURABH
SOURABH
KUMAR
KUMAR

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09.10.2021 and forwarded to district Jail, Dhubri in
connection with another offence bearing Dhubri Police Station
Case No. 1627/2021 under section(s)
120(6)/420/209/465/468/471/474/IPC. Initially, the
Applicant filed a bail petition before the Hon'ble Court of Chief
Judicial Magistrate, Dhubri, which was registered as bail
application No. 3801/2021 but the Hon'ble Chief Judicial
Magistrate, Dhubri rejected his bail prayer vide order
09.11.2021. Thereafter, the Applicant again filed another bail
petition before the Session’s Judge, Dhubri, which was
registered as Misc. Criminal Case No. 1930/2021 and the
Session’s Judge, Dhubri vide order dated 14.12.2021 released
the Applicant on bail by making sufficient surety. But this
information has not been disclosed by the Applicant in this O.A
and he is trying to taking advantage by misleading this Court.
It is pertinent to mention herein that the said Dhubri Police
Station Case No. 1627/2021 is still pending before the
Session’s Judge, Dhubri. After going through the aforesaid
information it can be clearly said that a criminal case is still
pending against the Applicant and this information has not
been brought by the Applicant before this Tribunal. This action
of the Applicant clearly amounts to suppression of material
OA No. 40/112/2024
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SOURABH
KUMAR
KUMAR

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facts. Under such circumstances, the Applicant cannot claim
his promotion in the same issue which was already decided by
this Tribunal in the earlier round of litigation. As such, the
instant OA is not maintainable and liable to be dismissed in
limine.
Counsel for the respondents submits that the Applicant
has not been promoted to the Postal Assistant due to the
pendency of criminal case. It is well settled in law that an
employee has no right to claim promotion. He has only a right
to be considered for promotion. The promotion to a post and
moreso, to a selection post, depends upon several
circumstances. An employee found guilty of misconduct cannot
be placed on par with the other employees and his case has to
be treated differently. In the present case, the Applicant has
many criminal records and he has suppressed the Dhubri
Police Station case, which is still pending against him. He was
not given promotion following the guidelines framed in the O.M.
dated 02.11.2012 issued by the Government of India, Ministry
of Personnel, Public Grievances and Pensions (Department of
Personnel & Training). The O.M. dated 02.11.2012 makes it
clear that vigilance clearance for promotion is a mandatory
requirement for a Government servant in respect of whom
OA No. 40/112/2024
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SOURABH
SOURABH
KUMAR
KUMAR

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prosecution for a criminal charge is pending. Under the
aforesaid facts and circumstances, the present OA is liable to
be dismissed.

4. Learned counsel for the Applicant has filed rejoinder,
wherein he avers that the applicant was declared successful for
promotion to the post of Postal Assistant in the limited
departmental competitive examination, 2016; however, he was
denied promotion at the relevant point of time when other
batch mates and juniors were promoted to the post of Postal
Assistant due to pendency of a criminal case which was
registered at Gauripur police station having case no. 22/2015.
It is relevant to mention herein that the respondents
themselves admitted in para 6 of the WS that the said Gauripur
PS case no. 22/2015 has been withdrawn by the Govt. of
Assam, and thereafter applicant was acquitted vide Order
dated 06.07.2023. However, the further contention of the
respondent that the applicant was again arrested on
09.10.2021 in connection with Dhubri PS Case no. 1627/2021
which is still pending before the Learned Session’s Judge,
Dhubri, has no bearing at all with the prayer made in the
instant original application. It is further stated that mere
OA No. 40/112/2024
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SOURABH
SOURABH
KUMAR
KUMAR

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registration of an FIR or pendency of a proceeding before the
learned Session’s Judge, Dhubri cannot stand on the way of
promotion of the applicant which was due and admissible way
back on 19.09.2016; therefore his case for promotion to the
post of Postal Assistant at par with his junior Sri. Kailash
Choudhury may be considered with effect from 19.09.2016. In
the facts and circumstances stated hereinabove, the instant
original application deserves to be allowed.

5. Heard the parties and perused the records.

6. It is an admitted fact that the applicant was found
selected in the Lower Grade Official Examination, 2016;
however, such promotion is subject to vigilance clearance. The
st
1 para of the DoPT’s OM dated 02.11.2012, as relied upon by
the learned counsel for the respondents, is quoted below:
“Instructions issued vide O.M. No. 22012/1/99 ESTT. (D)
dated 25.10.2004 based on the O.M. No. Z2011/4/1991-
Estt. (A) dated 14.09.1992 (íssued on the basis of
procedure laid down by Supreme Court in K.V.
Jankiraman case AIR 1991 SC 2010) makes it clear that
vigilance clearance for promotion may be denied only in
the following three circumstances:
9 (i) Government servants under suspension;
(ii) Government servants in respect of whom a
charge sheet has been issued and the disciplinary
proceedings are pending; and
OA No. 40/112/2024
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SOURABH
KUMAR
KUMAR

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(iii) Government servants in respect of whom
criminal prosecution for charge is pending.
(emphasis supplied)

From the perusal of the above, it is an admitted fact that the
Selection Committee recommended the promotion of the
selected candidates vide order dated 27.09.2016, wherein
applicant’s name was not reflected as charge sheet was
instituted against him on 19.08.2016 in connection with an
offence which was subsequently withdrawn by the State
Government on evidence stage and the applicant was
acquitted. However, the applicant was again arrested by Police
on 09.10.2021 in connection with another criminal offence
bearing Case No. 1627/2021 under Section(s)
120(B)/420/209/465/468/471/474/IPC. Therefore, we do
not find any fault in the action of the respondents in not
granting vigilance clearance since one criminal case bearing
No. 1627/2021 is pending against the applicant. Further, DoPT
vide its OM dated 14.09.1992 had already issued the guidelines
while considering promotion of the Government servant against
whom disciplinary/court proceedings are pending or whose
conduct is under investigation in the light of the decision of the
Hon'ble Supreme Court in the case of Union of India & Ors.
OA No. 40/112/2024
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SOURABH
KUMAR
KUMAR

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Vs K V Jankiraman etc. AIR 1991 SC 2010 (1) , wherein it is
stipulated that while considering the case of any Govt. servant
for promotion against whom prosecution of
disciplinary/criminal case is pending, the findings of the DPC
should be kept in sealed cover.
Therefore, we cannot grant any direction at this stage until
and unless his pending criminal case is not decided or he is
acquitted by the competent authority. In case, applicant gets
acquittal from the Sessions’ Court in the said case No.
1627/2021 which is still pending before the Dhubri Session’s
Court, then, his case may be considered for promotion w.e.f.
the date when his junior i.e. Sri Kailash Choudhury was
granted.

7. For the foregoing reasons and discussions, the instant
OA stands disposed of.

8. Pending M.A.(s), if any, stand disposed of. No costs.

(MALLIKA ARYA) (RAJINDER SINGH DOGRA)
MEMBER (A) MEMBER (J)
/SK/
OA No. 40/112/2024
Digitally signed by
SOURABH
SOURABH
KUMAR
KUMAR