The Gauhati High Court has reaffirmed a foundational principle in public service law: promotion cannot be denied to a government employee merely because a criminal investigation is pending, especially when no charge sheet has been filed. This judgment provides critical clarity for public sector employees facing prolonged investigations and offers a doctrinal anchor for challenging arbitrary denial of career advancement.
Background & Facts
The Dispute
The petitioner, Smt. Dipali Baruah, a serving officer in the Assam Police, sought judicial intervention after her name was excluded from the list of confirmed Sub-Inspectors (UB) despite meeting all service criteria. Her promotion to Inspector (UB) was also stalled, while junior officers in similar circumstances were promoted. The sole ground for withholding her promotion was a pending criminal case, despite the absence of a charge sheet and subsequent withdrawal of the complaint.
Key Facts
The petitioner was appointed as a Constable on 12.09.1990.
She was promoted to Havildar w.e.f. 31.10.2003.
She was promoted to Sub-Inspector (UB) w.e.f. 23.10.2013.
An FIR (Garchuk P.S. Case No. 191/2017) was lodged on 15.05.2017 under Sections 384/34 IPC, alleging extortion of Rs. 4,00,000.
The petitioner was suspended from 02.06.2017 to 04.12.2017.
On 18.09.2021, the suspension period was regularised and treated as on-duty service by the Superintendent of Police, South Salmara-Mankachar.
The complainant, Shri Biren Haloi, withdrew the FIR on 29.11.2023, stating it was filed due to misunderstanding and undue influence by police personnel.
The petitioner was included in the nominal list of departmental promotees for confirmation as SI (UB) for the years 2013 - 2016, at Serial No. 91.
She successfully completed the 59th Batch Pre-Promotion Cadre Course at Lachit Barphukan Police Academy, Dergaon, commencing 29.01.2024.
Despite this, her name was omitted from the final confirmation list, while juniors such as Shri Ramjan Ali Sheikh and Smti Depali Deka Borah were promoted to Inspector (UB).
Procedural History
15.05.2017: FIR registered against petitioner.
02.06.2017: Petitioner placed under suspension.
04.12.2017: Suspension period ended.
18.09.2021: Suspension regularised as on-duty service.
29.11.2023: FIR withdrawn by complainant.
2024: Petitioner completed Pre-Promotion Cadre Course.
2024: Final confirmation list published excluding petitioner.
2024: Writ Petition (WP(C)/331/2024) filed before Gauhati High Court.
23.04.2026: Hearing held.
30.04.2026: Judgment pronounced.
The Parties' Positions
For the Petitioner: Argued that denial of promotion was arbitrary, violative of Article 14 and 16 of the Constitution, and contrary to the binding Office Memorandum dated 09.05.2006 and the Supreme Court’s decision in Union of India v. K.V. Janakiraman. Emphasised that no charge sheet had been filed, the complaint was withdrawn, and suspension had been regularised.
For the Respondents: Did not contest the legal principles cited but sought to justify non-consideration on grounds of pendency of investigation. However, the Government Advocate, on instruction, conceded that the matter should be remanded for reconsideration.
Relief Sought
The petitioner sought:
Recall and cancellation of the decision excluding her from confirmation as SI (UB);
Consideration of her case for confirmation in the rank of SI (UB);
Consideration of her case for pre-promotion cadre course training for promotion to Inspector (UB).
The Legal Issue
Can the promotion of a government employee be withheld solely on the ground of a pending criminal investigation, in the absence of a charge sheet, where the complaint has been withdrawn and suspension has been regularised?
Arguments Presented
For the Petitioner
The petitioner relied on Office Memorandum No. ABP 29/2006/38 dated 09.05.2006, issued by the Government of Assam, which explicitly prohibits withholding promotion merely due to pending preliminary inquiry or investigation. She further cited Union of India v. K.V. Janakiraman (AIR 1991 SC 2010), where the Supreme Court held: "no promotion can be withheld merely on the basis of suspicion or doubt, or where the matter is under preliminary investigation and has not reached the stage of issuance of a charge sheet." She argued that since no charge sheet had been filed, and the complaint was withdrawn, the denial of promotion was legally unsustainable. She also highlighted that junior officers involved in the same case had been promoted, violating the principle of equality.
For the Respondent
The Government Advocate did not dispute the legal position advanced by the petitioner. On instruction, the Advocate conceded that the matter should be remanded to the competent authority for reconsideration in light of the applicable law and the Office Memorandum.
The Court's Analysis
The Court examined the interplay between administrative discipline and the rights of public servants under Articles 14 and 16 of the Constitution. It noted that while the state has a legitimate interest in maintaining integrity in public service, such interest cannot override the procedural safeguards established by law and precedent.
The Court observed that the petitioner’s suspension had been regularised as on-duty service, effectively negating any adverse inference from the period of suspension. Further, the withdrawal of the FIR by the complainant significantly undermined the factual basis of the allegations. The absence of a charge sheet was decisive: the Supreme Court in Union of India v. K.V. Janakiraman had clearly drawn a line between preliminary investigation and formal prosecution, holding that the former cannot justify denial of promotion.
"no promotion can be withheld merely on the basis of suspicion or doubt, or where the matter is under preliminary investigation and has not reached the stage of issuance of a charge sheet."
The Court also noted that similarly situated officers, involved in the same case, had been promoted, raising a strong prima facie case of arbitrariness and unequal treatment. The Court rejected the notion that administrative convenience or perceived risk could override statutory and judicially established norms.
The Court held that the Departmental Selection Board had failed to apply the binding Office Memorandum and the Supreme Court precedent. The denial of promotion was not based on any adjudicated finding of misconduct, but on mere pendency - a ground explicitly barred by law.
The Verdict
The writ petition was allowed. The Court directed the respondent authorities to reconsider the petitioner’s case for confirmation in the rank of Sub-Inspector (UB) and for promotion to the rank of Inspector (UB), strictly in accordance with law. The authorities must take into account: (i) the Office Memorandum dated 09.05.2006; (ii) the judgment in Union of India v. K.V. Janakiraman; (iii) the fact that no charge sheet has been filed; and (iv) the treatment accorded to similarly placed officers. The exercise must be completed within three months from the date of receipt of a certified copy of this order.
What This Means For Similar Cases
Promotion Cannot Be Delayed Indefinitely on Suspicion Alone
Practitioners must challenge any denial of promotion based solely on pending investigation without a charge sheet.
The burden shifts to the employer to prove that the case has progressed beyond preliminary inquiry before withholding promotion.
Regularisation of suspension as on-duty service nullifies any adverse impact on service record for promotion purposes.
Withdrawal of Complaint Strengthens the Employee’s Position
Withdrawal of complaint by the informant, especially if voluntary and documented, must be treated as a material factor in administrative decisions.
Authorities cannot continue to treat withdrawn allegations as valid grounds for denial of service benefits.
Equal Treatment of Similarly Situated Officers Is Mandatory
Where junior officers in identical circumstances are promoted, failure to consider senior officers constitutes discrimination under Article 14.
Petitioners should be encouraged to compile comparative lists of promoted colleagues to establish arbitrariness.
Procedural Compliance Is Non-Negotiable
Government departments must strictly adhere to internal guidelines like the 09.05.2006 OM.
Non-application of such circulars renders administrative decisions liable to judicial review.
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