Ashim Kumar Benerjee, J. - (1.) The writ petitioner was placed under suspension because of pendency of criminal case. The order of suspension was subsequently revoked. He was given ad hoc promotion in E-3 grade in 1986. However such promotion could not be regularised in absence of vigilance clearance which was withheld due to pendency of the said criminal case. In 1991 the writ petitioner retired from service. In 1996 he was exonerated from the charges by the Criminal Court. The judgment of the Criminal Court has been annexed to the writ petition . I find that there was an honourable acquittal on merit . The writ petitioner now claims back-wages during the period of suspension as also the promotional benefits both in E-3 Grade as also in E-4 and E-5 grade which he could have otherwise availed had there been no such criminal case pending against him.
(2.) Mr. Chaturvedi, learned counsel appearing for the petitioner relying on the Apex Court decision in the case of Sudha Shrivastava v. Comptroller and Auditor General of India reported in 1996(1) SCC 63 : [1996(l) SLR 293 (SC)] submits that since the writ petitioner was already given ad-hoc promotion in E-3 grade he is entitled to be regularise in such post with retrospective effect and he is also entitled to get the differences of the higher salary after the acquittal by the Criminal Court. Paragraph 11 of the said judgment is relevant herein and is quoted belows: 11. The claim of the appellant was rejected by the Tribunal primarily on the ground that the right to promotion was a personal right and the heirs of the deceased have no right to make any claim in regard thereto The Tribunal fell in error inasmuch as the process for promotion to the post of Accountant General (Grade lI) regarding late S.S. Shrivastava had already been under taken and the "sealed cover" procedure followed. Whatever the rights the deceased 'had, as a result of this " sealed cover" the procedure having been followed , stood established as on that date. Along with the right to work in the higher post, if he was to be promoted, he would have also got a right to salary in the higher scale. The effect of the acquittal of the appellant's husband must be regarded as if he he had been wrongly convicted . He, therefore, would have had a right to have been placed in the higher scale of pay, if he had been selected for promotion and this is a right which would devolve on the legal heirs, if during the pendency of the proceedings. the said employee expired". In the case before the Apex court referred to (supra ) the delinquents was considered for promotion and was recommended for promotion. However such recommendation was kept in a sealed cover because of the pendency of the criminal case. The Apex Court gave the benefit of the said sealed cover procedure to the,widow of the deceased delinquent who could not be promoted with retrospective effect because of his death during the pendency of the proceeding. In the instant case, the writ petitioner retired and the honourable acquittal came after his superannuation. Applying the ratio decided in the said Apex Court judgment I hold that the writ petitioner should be given benefit of E-3 grade and the respondent authority is liable to give him the differences of the salary in E-3 grade from the date of his ad hoc promotion until his superannuation.
(3.) On the question of subsequent promotions to E-4 and E-5 grade I am not inclined to accept the contention of Mr. Chaturvedi, learned counsel for the writ petitioner. It is true that the writ petitioner could not be considered for further promotion because of the pendency of the criminal case. Promotion is not a matter of right. Since the acquittal came at a stage when the writ petitioner had already been superannuated, he was not considered for promotion. There is nothing before me which would show that the writ petitioner could have been recommended in E-4 and E-5 grades had there been no criminal case pending against him. Hence the contention of the writ petitioner to that extent is not tenable and the Apex Court judgment in the case of Sudha Shrivastava (supra) cannot be applied herein to the said extent. Hence I reject the contention of the writ petitioner on that score.;