Central Administrative Tribunal - Delhi
Rakesh Mohan S/O Rajeshwar Nath vs Union Of India Through on 7 March, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.380 of 2012 Judgment reserved on : 27th February, 2012 Pronounced on : 7th March, 2012 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) Rakesh Mohan S/o Rajeshwar Nath, R/o C-II/50, Shahjahan Road, New Delhi-110011. Applicant ( By Shri P. P. Khurana, Sr. Advocate and with him Shri H. K. Bajpai, Advocate ) Versus Union of India through Secretary, Ministry of Home Affairs, Government of India, North Block, New Delhi-110001. Respondent ( By Shri R. N. Singh, Advocate ) O R D E R Justice V. K. Bali, Chairman:
This is the second round of litigation for the same relief. Earlier in point of time, the applicant, a 1978-batch IAS officer, at that time working as Principal Secretary (Education), Government of NCT of Delhi, took exception to his being overlooked in the matter of promotion to the grade and scale of Secretary in preference to one of his juniors. He sought quashing or order dated 13.04.2011, whereby he was denied promotion, and in consequence thereof, to issue direction to the respondents to consider him for promotion to the cadre and scale of Secretary with effect from the date his junior was promoted. All aspects of the case in all their minute details have been threadbare referred to, discussed and adjudicated upon. There would be no need to reiterate the same in this order. This order be read in continuation of our judgment recorded in the earlier Original Application of the applicant bearing OA No.3379 of 2011 decided on 15.11.2011. We may, however, reiterate that there is no dispute on facts that the meeting of the screening committee was held on 30.03.2011 to consider promotion of officers of AGMUT cadre belonging to 1978 and 1979 batches. Promotion orders of others, consequent upon recommendations of the screening committee, came to be issued on 13.04.2011. There were four vacancies, three of which belonged to 1978 batch, whereas one belonged to 1979 batch, against which one Shri Shakti Sinha was promoted, who was admittedly junior to the applicant. Further, order sanctioning prosecution of the applicant was issued on 29.08.2011, and the report under Section 173 Cr.PC was filed in the concerned criminal court on 24.09.2011. The facts leading to registration of the criminal case against the applicant, have already been given in our order dated 15.11.2011. It was an admitted position and the records summoned by us, as mentioned in para 6 of the judgment, had also revealed that while considering the case of the applicant with 1978 batch officers, the matter was deferred for seeking clarification from DOP&T. The committee did not even consider as to whether the applicant was fit or unfit for promotion, nor was his case put in a sealed cover. It further revealed from the records that the MHA had sought opinion of DOP&T on the issue, which, in turn, mentioned that sealed cover procedure in case of the applicant could not be adopted. We had reproduced note dated 07.06.2011 prepared by Under Secretary (AVD.I) in paragraph 6 of our judgment. On the facts as mentioned above, we held as follows:
We need not comment upon the issue aforesaid at this stage. The Original Application came to be filed when the applicant, as per the case set up by him, had wrongly been not considered for promotion and his case was simply deferred to seek opinion, and even when the said opinion came in favour of the applicant, he was not promoted. There was a dispute as to whether, the charge having been framed against the applicant after the meeting of the screening committee took place, promotion orders were issued and persons junior to him were promoted, in view of paragraph 7 of office memorandum dated 14.09.1992, his case could be considered for promotion. We may reproduce para 12 of the judgment, where respective contentions of the learned counsel representing the parties have been mentioned, thus:
12. Learned counsel defending the respondents at the fag end of his arguments would mildly contend that the criminal court by now has framed the charge against the applicant and, therefore, in view of paragraph no.7 of the same very Memorandum, the applicant cannot seek promotion. Mr. Khurana joins serious issues with the learned counsel for the respondents and would contend that the colleagues of the applicant, who were junior to him, came to be promoted on 13.04.2011, by which date the charge had not been framed against the applicant and, therefore, he could not have been superseded in the matter of promotion by his junior. We need not comment upon the issue aforesaid at this stage. The Original Application came to be filed when the applicant, as the case set up by him, had wrongly been not considered for promotion and his case was simply deferred to seek opinion, and even when the said opinion came in favour of the applicant, he was not promoted. The operative part of our order reads as follows:
13. In the facts and circumstances of the case, as mentioned above, we dispose of this Original Application directing the respondents to convene a review DPC and consider the case of the applicant for promotion from the date when the screening committee met, and, if he is found fit as per the records, to recommend his case to the concerned authorities, which authorities would pass a final order and, at that stage, it will be looked into as to whether paragraph 7 of the instructions would be applicable or not. Surely, it will be open for the applicant to plead before the authorities concerned that the said paragraph would not be applicable, and at that stage, if any adverse order may be passed against him, it will always be open for him to seek appropriate remedy in accordance with law.
14. Let the exercise, as ordained above, be completed as expeditiously as possible, and preferably within a period of four weeks from the date of receipt of a certified copy of this order. The applicant on consideration, as mentioned above, if at all, has to be promoted, it is desirable that he gets the relief before his superannuation. There shall, however, be no orders as to costs.
2. Notice in this case was issued on 03.02.2012 for 13.02.2012. The order on the adjourned date, i.e., 13.02.2012, would show that even though service was complete, but no one had chosen to appear on behalf of the respondents. Shri R. N. Singh, who is on the panel of the Union of India, and was present in the Court, was asked to take instructions in the matter and file reply within three days. When the matter came up before us for hearing on 17.02.2012, we passed the following order:
Order dated 13.02.2012 reads as follows:-
Though service is stated to be complete in this case but none is present on behalf of the respondents. We have requested Shri R.N. Singh, who is on the panel of Union of India and is present in the Court to take instructions in the matter and file reply within three days.
List this case on 17.02.2012. Issue Dasti. Mr. Khurana, learned senior counsel for the applicant in the context of earlier litigation between the parties would state that the relief flows from undisputed facts, whereas Mr. Singh, counsel defending the respondents, would express his inability in arguing the matter as he does not have proper instructions.
We adjourn this case to 22.02.2012 upto which date learned counsel for the respondents would certainly go through the present Original Application so as to enable him to make at least a statement that there is no dispute on facts, and if that be so, we will proceed to dispose of the matter. On the adjourned date, i.e., 22.02.2012, after hearing arguments of the learned counsel representing the parties, we reserved the judgment. The respondents had filed a short reply. While preparing the judgment, however, we found some dispute on facts, which was not earlier there, and, therefore, recorded the following order on 23.02.2012 seeking clarification:
Arguments in this case were heard on 22.02.2012 when judgment was reserved. We proceeded with the matter, as during the course of arguments the facts were not in dispute, and the only question to be determined was as to whether on the admitted facts, para 7 of the memorandum dealing with sealed cover procedure would be applicable. However, while preparing the judgment, we find that in the earlier OA No.3379/2011 of the applicant wherein all the facts had been mentioned in details, a finding has come to be recorded that challan in the criminal case against the applicant u/s 173 Cr.PC was filed in the concerned criminal court on 24.09.2011. In the short reply filed on behalf of the respondents, in para 1 of the preliminary submissions, it has been mentioned as follows:
1. That the CBI has filed two charge sheets against the applicant, Shri Rakesh Mohan, IAS (AGMU:78) in the Court of Ld. Spl. Judge for CBI cases, Patiala House in RC No.1(A)/2007-ACUIX/VIII registered by CBI on 23.04.2007. Perusal of the earlier judgment would show that the respondents had accorded sanction for registration of regular case under the Prevention of Corruption Act, 1988 to CBI on 13.04.2007 on the basis of the investigation report. There is no mention in the order aforesaid as regards the date as 23.04.2007 when CBI may have filed two charge-sheets against the applicant before the learned Special Judge for CBI cases.
2. List the matter for clarification on the facts as mentioned above, on 27.02.2012. Meanwhile, the applicant has filed rejoinder to the short reply filed on behalf of the respondents. The matter is now clarified and the facts as stated by us in our order dated 15.11.2011, and as have been briefly mentioned above, we reiterate, are not in dispute. The only question, therefore, on the facts aforesaid would be as to whether para 7 of office memorandum dated 14.09.1992 would be applicable. Para 2 of OM aforesaid, in our view, has to be read with para 7 thereof, which read as follows:
2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-
(i) Government servants under suspension;
(ii) Government servants in respect of whom a charge-sheet has been issued and the disciplinary proceedings are pending; and
(iii) Government servants in respect of whom prosecution for a criminal charge is pending. Sealed cover procedure applicable to officers coming under cloud after holding of DPC but before promotion:
7. A Government servant, who is recommended for promotion by the Departmental Promotion Committee but in whose case any of the circumstances mentioned in para 2 above arise after the recommendations of the DPC, are received but before he is actually promoted, will be considered as if his case had been placed in a sealed cover by the DPC. He shall not be promoted until he is completely exonerated or the charges against him and the provisions contained in this OM will be applicable in his case also. Perusal of para 7 would clearly manifest that even where a Government servant, who may have been recommended for promotion by the DPC, but in whose case any of the circumstances mentioned in para 2 of the OM aforesaid arise after the recommendations of the DPC are received, but before he is actually promoted, it will be considered as if his case had been placed in a sealed cover by the DPC. In the present case, no circumstances, as mentioned in paragraph 2 of the OM aforesaid were available before persons junior to the applicant were actually promoted. Only a report under Section 173 Cr.PC had been filed in the concerned criminal court on 24.09.2011, which was taken note of by us in our order dated 15.11.2011. The applicant seeks initiation of criminal contempt proceedings against the respondents for deliberately filing a false affidavit with a view to mislead this Tribunal and to deny the applicant what would be legitimately due to him. It is further the case of the applicant that insofar as the second FIR is concerned, four and a half years have gone by, and CBI has not even completed the investigations and has drawn a complete blank. Clarifications on instructions dated 14.09.1992 came about vide office memorandum dated 21.11.2002, which reads as follows:
Sub: Instructions on sealed cover procedure Applicability to review DPC clarification regarding.
The undersigned is directed to refer to the instructions on sealed cover procedure as contained in this Departments OM No.222011/4/91-Estt.(A) dated 14.09.1992 and to say that a question whether the sealed cover procedure is to be followed by a Review DPC has been under consideration of this Department in the light of the decision of the Central Administrative Tribunal in certain cases. The matter has been considered in consultation with the Ministry of Law and it has been decided that the sealed cover procedure as contained in the OM dated 14.09.1992 cannot be resorted to by the Review DPC if no departmental proceedings or criminal prosecution was pending against the Government servant concerned or he/she was not under suspension at the time of meeting of the original DPC or before promotion of his junior on the basis of the recommendations of the original DPC.
2. Insofar as the persons serving in the Indian Audit and Accounts Department are concerned these instructions are issued after consultation with the Comptroller and Auditor General of India. Perusal of the instructions aforesaid would manifest that the same are as regards para 7 of OM dated 14.09.1992 only. Present is a case of review DPC, which met pursuant to directions of the Tribunal, and put the case of the applicant in sealed cover. The review DPC could not do so as per clarification dated 21.11.2002, as the original DPC had promoted juniors of the applicant far before the challan came to be presented against the applicant, or for that matter, charge might have been framed against the applicant in the criminal court. As regards seriousness of the case, as adverted to by the learned counsel representing the respondents, it is only a repeat performance on his part, as the said issue too has been dealt with by us in our order dated 15.11.2011.
3. Before we may part with this order, we may mention that there is absolutely no dispute on facts, except a wrong affidavit that came to be filed on behalf of the respondents, which required clarification. Learned counsel representing the respondents on both occasions when the arguments were heard, wanted adjournment by stating that in terms of the order passed by this Tribunal, it may be possible that the respondents might have considered the case of the applicant, and some order may have been passed in his case as well, and, therefore, the matter be adjourned. We found no justification for adjourning the matter on ground as mentioned above. It was a pure and simple case of interpretation of para 7 of OM dated 14.09.1992 and its applicability in the facts of the present case, and nothing more and nothing less. We may, however, mention that it is the positive case of the applicant, so specifically pleaded in the OA, that before putting his case in sealed cover, he was not heard in the matter. Further, if there was any order, learned counsel could certainly get instructions in that regard and produce the same before us, but he would only state that he had instructions to take adjournment, which could not be appreciated.
4. For the reasons mentioned above, this Original Application is allowed. Direction is issued to the respondents to open the sealed cover within a period of two weeks from today and give effect to it, and if in consideration thereof, the applicant is found fit for promotion, he be promoted from the date persons junior to him were promoted. The applicant has superannuated on 31.01.2012. In consideration of the case of the applicant, if he is promoted, the same would be from the date his juniors were promoted, even though no back-wages would be given to the applicant as arrears of pay, but surely, his pension and post-retiral dues be calculated on the basis of the pay that he would have drawn if promoted from the date when persons junior to him were promoted. There shall, however, be no order as to costs.
( Dr. Ramesh Chandra Panda ) ( V. K. Bali )
Member (A) Chairman
/as/