A.S. Qureshi, J.
1. The petitioner herein joined the service on 3rd September, 1973 as a Junior Clerk in the office of the Inspector General of Police. The petitioner was promoted as a Senior Clerk by the order dated 31st August 1984 and was posted in the office of the Commissioner of Police, Ahmedabad City. On the very next day, i.e. on 1st September 1984, she was transferred as a Senior Clerk to the office of Special Inspector General of Police, C.I.D. (Intelligence) Ahmedabad. However, the Director of Finger Print, Ahmedabad, did not relieve her to join her promotional post as Senior Clerk on the ground that there was a departmental inquiry pending against her. The petitioner challenges the act of the department in preventing her from joining her promotional post. By an earlier order of this court, interim relief was granted on condition that she proceeded on leave. She continues to be on leave till this date.
2. Mr. H.L. Patel, the learned Counsel for the petitioner submits that it is not open to the respondent to prevent the petitioner from performing her duties in her promotional post. Mr. Patel has urged that such an act on the part of the respondent would be tantamount to reverting the petitioner from the post of senior clerk to that of the junior clerk.
3. Mr. M.M. Jadeja, the learned Counsel for the respondent submits that there is Government Resolution No. SLT-1080-895-2, dated 23rd September 1981, wherein Clause 7 states as under:
A Government servant whose name is included in the select list but who is subsequently placed under suspension or against whom criminal proceedings/departmental proceedings have been initiated should not be promoted on the basis of his inclusion in the select list until he is completely exonerated of the charges against him. If the Government servant is completely exonerated of the charges, he will be promoted on the basis of his position in the select list, to the post which has been filled on a temporary basis pending disposal of the charges against him. If the exoneration is not complete, the question of his suitability for promotion will have to be adjudged afresh as mentioned in para-5 above.
Relying on the above Clause 7 of the aforesaid Government Resolution, Mr. Jadeja has urged that when there is a departmental proceedings pending before a Government servant, his promotion could be withheld, if such a person is included in the select list. In this case, Mr. Jadeja has urged that the order dated 31st August 1984 was passed through mistake and that the promotion should not have been given to the petitioner. According to him, as won as the Government came to know that there was a pending proceeding before the petitioner, they withheld the promotion. This submission of Mr. Jadeja is obviously wrong. Clause 7 of the aforesaid Government Resolution refers to the withholding of promotion which means that the promotion may be withheld only when it is not yet given. But once the promotion is given it cannot be cancelled even though it turns out subsequently that such a promotion could have been withheld. The respondent should have considered the position before passing the order of promotion. The promotion cannot be cancelled subsequently on the ground that it was passed in ignorance of a pending departmental inquiry. The provision of Clause 7 of the aforesaid Government Resolution does not apply to a case where the promotion is already given, in this case the petitioner has been prevented from taking charge of her promotional post on the ground that the order of promotion was passed in ignorance of the pending departmental inquiry. This action of the respondent is obviously wrong and untenable in law. Once the promotion order is passed, the respondent has no power to delay or withhold the implementation of the order and the same must be given effect to immediately.
4. As regards the taking action against her on the basis of the finding of the departmental inquiry, it would be open to the respondent to take such action against the petitioner as is open to them in law. But her promotion cannot be cancelled or withheld on the grounds of the pending departmental inquiry. Mr. Patel has filed die affidavit-in-rejoinder pointing out that in several case high police officials against whom not only the departmental inquiry was pending but against some of whom criminal cases were pending in courts have been prcmoted.
5. According to Mr. Patel, Clause 7 of the aforesaid Government Resolution has not been given effect to in respect of the cases of high police officials set out in the affidavit-in-rejoinder, which is discriminatory against the petitioner and hence also according to him, the respondent is not justified in preventing the petitioner from joining her service in the promotional post. Mr. Jadeja has not been able to rebut the statements made in the rejoinder because according to him, most of the police officers concerned are busy with the ensuing election and other work and therefore it would take a considerable time to file a reply to the rejoinder. It is not necessary to wait for the reply to the rejoinder. It is also not necessary to go into the question of discrimination. The petition, as it stands, can be disposed of on the ground that Clause 7 of the aforesaid Government Resolution does not apply to the facts of this case and therefore the respondent is not justified in preventing me petitioner from joining her service in the promotional post.
6. In the result, the petition is allowed. A writ of mandamus shall issue directing the respondent to allow the petitioner to join her service in her promotional post forthwith. The period for which the petitioner has been on leave, will be adjusted against the leave which may be due to her now or that may become due in future. Rule made absolute. In the circumstances of the case, there shall be no order as to costs.