Jharkhand HC Orders 3 Engineers’ Assistant Engineer Promotions From 2012 Despite CBI Probe With No FIR Or Chargesheet

The petitioners, Junior Engineers (Mechanical) appointed in 2007, claimed they became eligible for promotion to Assistant Engineers after completing the prescribed five-year qualifying period and should have been promoted from November 2012.

They were promoted only on 20 November 2018.

After an earlier writ petition led to a direction to decide their claim by a reasoned order, the Department rejected retrospective promotion, citing a pending CBI enquiry, the Jharkhand Engineering Service Appointment Rules, 2016, and Rule 58 of the Jharkhand Service Code and Rule 74 of the Jharkhand Finance Rules.

The State’s Resolution/Circular dated 20 November 2008 permitted withholding promotion where the employee was under suspension, a departmental charge had been framed, or a criminal charge-sheet had been submitted.

The Court applied the principle that rules are not given retrospective effect unless so provided, and held that the 2016 Rules could not govern an asserted promotion entitlement arising in 2012.

It further held that Rule 58 of the Jharkhand Service Code and Rule 74 of the Jharkhand Finance Rules did not prevent retrospective promotion where the delay was caused by the employer.

In support, it relied on Dr. Parasnath Prasad v. State of Bihar, 1990 (2) PLJR 248; Satyendra Tiwari v. State of Jharkhand, 2021 (2) JLJR 195, upheld in L.P.A. No. 274 of 2021; and other cited decisions concerning relief for delayed promotion.

The Court also recognised an employee’s right to consideration for promotion as a fundamental right.

The respondents had not shown that, when the petitioners’ claim arose, they were suspended, faced a departmental charge memorandum, or had a criminal charge-sheet filed against them; the Court noted that no FIR had been lodged against them.

The pending preliminary enquiry therefore did not satisfy the grounds in the 2008 Circular for withholding promotion.

Because the claimed promotion date preceded the 2016 Rules by several years, those Rules could not retrospectively defeat the claim.

Nor could the Service Code and Finance Rules bar relief where the delay was attributable to the respondents.

The Court found that the petitioners’ right to consideration for promotion in November 2012 had been violated.

It further directed that, after giving effect to that promotion, the petitioners’ cases be considered for promotion to Executive Engineer from the dates they completed the prescribed qualifying period under the applicable rules; it did not itself order promotion to that post.

The formal order was to be issued within 12 weeks, and the writ petition was allowed.