PURSHOTTAM K MAKWANA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner who is serving as Assistant Commissioner of Commercial Tax has filed this petition under Article 226/277 of the Constitution of India praying to issue direction to the respondents to consider his case for promotion to the post of Deputy Commissioner of Commercial Tax on the basis of the recommendation of the Departmental Promotion Committee (DPC) dated 19.10.2011.

(2.) The case put up by the petitioner in his petition is that one FIR came to be lodged, being C.R. No. I -6 of 2004, before Bhuj ACB Police Station against 27 persons, including the petitioner for the offences under Sections 120(B), 406, 409, 420, 465, 468, 471, 34, 114, 201 of the Indian Penal Code and Sections, 7,12, 13(1)(C)(D) and 13(2) of the Prevention of Corruption Act. The petitioner has averred in the petition that even after lodgment of the FIR in the year 2004, he came to be promoted to the post of Assistant Commissioner of Commercial Tax on 20.12.2006 from the post of Sales Tax Officer. It is his further case that the police has not filed charge -sheet in connection with the aforesaid FIR. It is averred by the petitioner that the DPC met on 19.10.2011 for considering the cases of eligible employees for promotion to the post of Deputy Commissioner of Commercial Tax and the DPC found him fit for promotion and recommended his name for promotion. It is further averred that even the Gujarat Public Service Commission (GPSC) also cleared his name for promotion. The petitioner has further averred that on the basis of the recommendation of the DPC, all eligible employees were issued promotion orders on 10.7.2012, however, the petitioner was denied the benefit of such order on the ground that the department could get sanction to prosecute him in respect of the offences alleged in the FIR. The petitioner has raised contention in the petition that since there was no charge -sheet filed by the police when the DPC considered his case with other employees, he could not have been denied promotion to the higher post. In support of such contention, the petitioner has placed reliance on a decision of the Hon'ble Supreme Court in the case of Union of India and others v. K.V. Jankiraman and others. reported in AIR 1991 SC 2010.

(3.) The petition is opposed by affidavit -in -reply on behalf of respondent No. 1 stating that the DPC had considered 58 Assistant Commissioners, including the petitioner, for promotion and the petitioner was found fit for promotion. It is further stated that even the GPSC agreed with the opinion of the DPC vide its communication dated 31.1.2012, however since the department granted sanction to prosecute the petitioner, the name of the petitioner was dropped for promotion given vide order dated 10.7.2012 as per the provisions of para 3(3) of the Government Resolution dated 4.8.2007. It is stated that the Vigilance Commission had recommended for giving sanction to prosecute the petitioner and the Government after due consideration granted approval on 2.7.2012 for prosecution of the petitioner. It is further stated that the petitioner was given promotion to the post of Assistant Commissioner even after lodging of the FIR in 2004 because at the relevant time, there was no sanction granted by the Government to prosecute the petitioner. In further affidavit -in -reply, it is stated that the Anti Corruption Bureau had written a letter for sanction of the prosecution on 18.2.2011 and on the basis of such letter, the Vigilance Commission recommended for prosecution by its letter dated 29.3.2011 and it was, thereafter, the DPC met on 19.10.2011. Therefore, since the procedure for sanction was going on and since charge -sheet could be filed subsequently on 10.10.2012, the case of the petitioner for promotion could not be considered on account of such sanction given for prosecution of the petitioner. It is also stated that though the Anti Corruption Bureau had recommended to the department to suspend the petitioner, however instead of suspending the petitioner, the department transferred him.