Central Administrative Tribunal - Allahabad
Dr Rakesh Shankar vs Home Affairs on 1 June, 2023
RESERVED ON 29.05.2023
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH ALLAHABAD
Dated: This the 01st of JUNE 2023
PRESENT:
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Original Application No. 330/00591/2022
Dr. Rakesh Shankar a/a 59 years, pre-mature retired, DIG
(Karmik/Establishment), S/o Late Lakshmi Shankar, R/o Makan No. 778/2F,
Neh Nikunj, Baghambari Road, Allahpur, Allahabad District
Prayagraj/Allahabad.
. . . Applicant
By Adv: Ms. Atipriya Gautam/Shri Devesh Mishra/Shri Ambarish Chatterji)
VERSUS
1. The Union of India through the Secretary/Under Secretary, Home
Ministry of Home Affairs, Government of India, North Block, Central
Secretariat, New Delhi.
2. The Secretary, Department of Personnel and Training Ministry of
Personnel, Grievances and Pensions North Block, New Delhi.
3. The Chief Secretary, Government of Uttar Pradesh, Civil Secetariat,
Uttar Pradesh Shashan, Lucknow.
4. The State of U.P through Additional Chief Secretary/Principal
Secretary, Department of Home, Home (Police Services) Anubhag-2,
Government of Uttar Pradesh, Civil Secretariat, Lucknow.
5. The Director General of Police, Uttar Pradesh, DGP, Headquarters,
Police Bhawan, Shaheed Path, Signature Building Gomti Nagar
Extension UP Lucknow.
6. The Additional Director General of Police, Karmik/Establishment
DGP, Headquarters Police Bhawan, Shaheed Path, Signature
Building Gomti Nagar Extension UP Lucknow.
. . .Respondents
By Adv: Shri M.K. Sharma for R No.1 and 2
Shri K.P Singh for R No. 3 to 6
2
ORDER
Hon'ble Mr. Justice Om Prakash VII, Member (J) The present Original Application has been filed by the applicant under section 19 of Administrative Tribunals Act, 1985 seeking following reliefs:-
"(i) Issue an order or direction, quashing the impugned order dated 05.08.2021, passed by the respondent No.5, by which the claim of the applicant for promotion from the post of Deputy Inspector General of Police to the post of Inspector General of Police has been rejected, enclosed as Annexure A-1 to the compilation 1 to the application.
(ii) An order or direction directing the respondents to reconsider the applicant notional promotion from the post of Deputy Inspector General of Police (DIG) to the post of Inspector General of Police (IG) with all consequential benefits.
(iii) An order or direction directing the respondents to grant the notional promotion to the applicant from the post of Deputy Inspector General of Police (DIG) to the post of Inspector General of Police (IG) on the date when the juniors to the applicant have been granted promotion, with all consequential benefits.
(iv) Issue any other, order or direction which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case, if any may also be granted.
(v) Award cost of the applicant".
2. The brief facts of the case are that applicant was pre mature retired from the post of Deputy Inspector General of Police by order dated 21.3.2021. Applicant stated in the OA that Departmental Promotion Committee (in short DPC) was held on 31.12.2019 and promotion order has been issued on 01.01.2020. It is specifically stated that on that day when the DPC was held on 31.12.2019, the applicant was not placed under suspension neither any criminal case has been pending against the applicant nor any article of chargesheet has been served upon the applicant and the applicant was under the zone of consideration and he had fulfilled all the criteria and requirement which has been prescribed under the Rules.
The case of the applicant is that the he had to be considered for promotion on the post of Inspector General of Police in accordance with Rules as the applicant was under the zone of consideration and the question of keeping his result in a sealed cover is nothing but flimsy pretext.
33. We have heard Shri Vijay Gautam, learned Senior Advocate assisted by Shri Madhav Pandey, Shri Harsh Kumar Anand, Ms. Atipriya Gautam learned counsel for the applicant and Shri M.K. Sharma, learned counsel for the respondent Nos. 1 and 2, Shri K.P Singh, learned counsel for the respondent Nos. 3 to 6 and perused the record.
4. Learned counsel for the applicant argued that the action of the respondents for recommendation of the DPC kept under the sealed cover is wholly illegal, arbitrary and totally in violation of judgment of Hon'ble Supreme Court in the case of Union of India Vs. K.V. Jankiraman and others reported in AIR 1991 Supreme Court page 2010. Learned counsel further argued that at the time of convening of meeting for promotion to the post of Inspector General of Police, applicant was not placed under suspension and neither any criminal case had been pending against the applicant nor any article of charges had been served upon the applicant. He contended that the administrative authorities were also bound to record reasons as no reasons have been recorded while rejecting the claim of the applicant, therefore, it will be presumed that the order has been passed without application of mind and without assigning any reason. It is well settled that an order having civil consequence even though passed by the administrative authority must contains reasons as to enable the aggrieved party to challenge the reasoning of the administrative authority. It is the case of applicant that no charge sheet on basis of any enquiry had been filed against him, hence, he cannot be denied for promotion, and so the respondents are bound to open the sealed cover and promote him to the post of Inspector General of Police.
5. Per contra, learned counsel for the respondent Nos. 3 to 6 submitted that applicant has wrongly mentioned in the OA that no disciplinary proceedings was pending against the applicant although two disciplinary proceedings was going on under Rule 8 of All India Services (Discipline and Appeal) Rules, 1969. Learned counsel further submitted that chargesheet was issued vide office memorandum No. 613/DG/ dated 10.09.2018, which was received by the applicant on 14.09.2018. He contended that representation of the applicant was disposed of by passing reasoned and speaking order by the U.P Government. It has been submitted that against 4 the applicant, Government has closed the departmental proceeding not on the basis of merit but since he was compulsorily retired from service hence there is no basis to impose penalty. Learned counsel further contended that against the applicant, one departmental proceeding is still going on.
6. We have considered the rival submissions advanced by the learned counsel for the parties and gone through the material on record.
7. From perusal of record, it is evident that DPC for promotion to the post of Inspector General of Police was held on 31.12.2019 and at the time of DPC, no charge sheet was pending against the applicant, as has been stated in para 4.30 of the OA. Vide the impugned order dated 05.08.2021, which was passed in compliance of the direction of the Tribunal passed in OA No. 330/796/2020, the representation of the applicant has been rejected. It has been mentioned in the aforesaid order that due to pendency of disciplinary proceedings against the applicant, there was no opportunity to open the sealed envelope containing the recommendations of the Departmental Selection Committee constituted on the Post of Inspector General of Police so the request made is not considered for speeding up the departmental proceedings, hence there is no need to accept the request of the applicant. It is admitted fact that after duly considering the case of a Government servant for promotion by the DPC, the result thereof may be kept in a sealed cover only in cases where Government servant is under suspension or a charge-sheet has been issued and the disciplinary proceedings are pending; or prosecution for criminal charge is pending. In the absence of these three circumstances, the Government servant cannot be denied for promotion.
8. In Union of India v. K.V. Jankiraman (supra), it has been observed by Hon'ble Apex Court that:
"16. On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the 5 Tribunal on this point. The contention advanced by the learned counsel for the appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy. It was then contended on behalf of the authorities that conclusions Nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Those conclusions are as follows: (ATC p. 196, para 39) "(1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official;
(2) * * *
(3) * * *
(4) the sealed cover procedure can be resorted to only after a charge memo is served on the concerned official or the charge-sheet filed before the criminal court and not before;"
17. There is no doubt that there is a seeming contradiction between the two conclusions. But read harmoniously, and that is what the Full Bench has intended, the two conclusions can be reconciled with each other. The conclusion No. 1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant time pending at the stage when charge-memo/charge-sheet has already been issued to the employee. Thus read, there is no inconsistency in the two conclusions."
9. In the case of Union of India and others Vs. Dr. Sudha Salhan (Smt.) (1998) 3 SCC 394, Hon'ble Apex Court has held as under:-
"The question, however, stands concluded by a Three Judge decision of this Court in Union of India and Ors. Vs. K.B.Jankiraman & Ors. (1991 (4) SCC 109 in which the same view has been taken. We are in respectful agreement with the above decision. We are also of the opinion that if on the date on which the name of a person is considered by the Departmental Promotion Committee for promotion to the higher post, such 6 person is neither under suspension nor has any departmental proceedings been initiated against him, his name, if he is found meritorious and suitable, has to be brought on the select list and the "sealed cover" procedure cannot be adopted. The recommendation of the Departmental Promotion Committee can be placed in a "sealed cover' only if on the date of consideration of the name for promotion, the departmental proceedings had been initiated or were pending or on its conclusion, final orders had not been passed by the appropriate authority. It is obvious that if the officers, against whom the departmental proceedings were initiated, is ultimately exonerated, the sealed cover containing the recommendation of the Departmental Promotion Committee would be opened, and the recommendation would be given effect to."
10. In the case of UOI Vs. Anil Kumar Sarkar 2013 (1) GLH 792 (Civil Appeal No. 2537 of 2013 decided on 15.3.2013, the Hon'ble Apex Court has held as under:-
"15) In Chairman-cum-Managing Director, Coal India Limited and Others vs. Ananta Saha and Others, (2011) 5 SCC 142, this Court held as under:
"27. There can be no quarrel with the settled legal proposition that the disciplinary proceedings commence only when a charge-sheet is issued to the delinquent employee. (Vide Union of India v. K.V.Jankiraman, (1991) 4 SCC 109 and UCO Bank v. Rajinder Lal Capoor, (2007) 6 SCC 694)" We also reiterate that the disciplinary proceedings commence only when a charge sheet is issued. Departmental proceeding is normally said to be initiated only when a charge sheet is issued."
11. In the case of Dineshwar Shukla Vs. State of U.P. 2018 (1) ADJ 602 (DB)(LB) Allahabad High Court (Civil Misc. Writ Petition (S/B) No. 23751 of 2017 decided on 4th December, 2017), Hon'ble High Court of Allahabad, Lucknow Bench has held as under:-
"In the case of Union of India and others Vs. Dr. Sudha Salhan (Smt.); (1998) 3 SCC 394 the Apex Court after considering the observation made by a Three Judge decision in Union of India and Ors. Vs. K.B. Jankiraman & Ors. (1991 (4) SCC 109, held that if on the date on which the name of a person is considered by the Departmental Promotion Committee for promotion to the higher post, such person is neither under suspension nor has any departmental proceedings been initiated against him, his name, if he is found meritorious and suitable, has to be brought on the select list and the "sealed cover" procedure cannot be adopted. The recommendation of the Departmental Promotion Committee can be placed in a "sealed cover" only if on the date of consideration of the name for promotion, the departmental proceedings had been initiated or were pending or on its conclusion, final orders had not been passed by the appropriate authority. It is obvious that if the officers, against whom the departmental proceedings were initiated, is ultimately exonerated, the sealed cover containing the 7 recommendation of the Departmental Promotion Committee would be opened, and the recommendation would be given effect to. Admittedly, at the time of considering the candidature of the petitioner i.e. on 07.09.2016, for promotion to the post of Chief Engineer Level-II nothing adverse was existing on record against the petitioner as the charge-sheet dated 28.09.2016 was served upon him vide letter dated 17.10.2016 of the Inquiry Officer. As a matter of fact, the Departmental Promotion Committee in its meeting dated 07.09.2016 had already considered and recommended the name of the petitioner for promotion. Subsequent issuance of charge-sheet and punishment has no relation with the recommendation of the Departmental Promotion Committee for promotion to the post in question and, therefore, there is no justifiable reason for denying promotion to the petitioner. For the reasons stated above, the State Government is directed to examine the claim of the petitioner for promotion to the post of Chief Engineer, Level-II in the light of the observation made hereinabove together with the recommendation of the Departmental Promotion Committee dated 07.09.2016 and if any person junior to the petitioner has been promoted on the post of Chief Engineer, Level- II, the petitioner shall also be promoted to the said post from the same date. The exercise in this regard shall be completed within a fortnight from the date of production of certified copy of this order."
12. In Union of India Vs. Sangram Keshari Nayak (2007 (6) SCC 704), it has been held by Hon'ble Supreme Court that the right to be considered for promotion is a fundamental right and it involves effective, purposeful and meaningful consideration and the promotion can be denied only on the basis of valid rules. The relevant part of the said judgment reads as under:
"11. Promotion is not a fundamental right. Right to be considered for promotion, however, is a fundamental right. Such a right brings within its purview an effective, purposeful and meaningful consideration. Suitability or otherwise of the candidate concerned, however, must be left at the hands of the DPC, but the same has to be determined in terms of the rules applicable therefor. Indisputably, the DPC recommended the case of the respondent for promotion. On the day on which, it is accepted at the bar, the DPC held its meeting, no vigilance enquiry was pending. No decision was also taken by the employer that a departmental proceeding should be initiated against him".
13. In UCO Bank vs Rajinder Lal Capoor decided by the Hon'ble Apex Court on 18 May, 2007, it was held that:
"The departmental proceeding, it is trite law, is not initiated merely by issuance of a show cause notice. It is initiated only when a chargesheet is issued (See Union of India etc. etc. v. K.V. Jankiraman, etc. etc. reported in AIR 1991 SC 2010). This aspect of the matter has also been considered by this Court recently in Coal India Limited & others v. Saroj Kumar Mishra [2007 (5) SCALE 724] 8 wherein it was held that date of application of mind on the allegations levelled against an officer by the Competent Authority as a result whereof a chargesheet is issued would be the date on which the disciplinary proceedings said to have been initiated and not prior thereto. Pendency of a preliminary enquiry, therefore, by itself cannot be a ground for invoking Clause 20 of the Regulations. Albeit in a different fact situation but involving a similar question of law in Coal India Ltd. (supra) this Court held :
"13. It is not the case of the appellants that pursuant to or in furtherance of the complaint received by the vigilance department, the competent authority had arrived at a satisfaction as is required in terms of the said circulars that a chargesheet was likely to be issued on the basis of a preliminary enquiry held in that behalf or otherwise.
14. The circular letters issued by the appellants put restrictions on a valuable right of an employee. They, therefore, are required to be construed strictly. So construed there cannot be any doubt whatsoever that the conditions precedent contained therein must be satisfied before any action can be taken in that regard."
It was further more observed that :
"20. A departmental proceeding is ordinarily said to be initiated only when a chargesheet is issued."
14. In the case of Yogendra Singh Yadav Vs. State of U.P and others reported in 2023 (2) ESC 629 (All), the Hon'ble Allahabad High Court has held as under:-
"11. The Supreme Court considered the question as to when for the purpose of Sealed Cover Procedure, the disciplinary / criminal proceedings can be said to have commenced, and the Court observed that it is only when Charge Memo is issued in disciplinary proceedings or a Charge Sheet is filed in a Criminal Court it could be said that disciplinary proceedings / criminal proceedings are pending against the employee concerned. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authority to adopt the Sealed Cover Procedure. The Court also considered the contentions raised by the Counsel for the appellant (Union of India) that where there are serious allegations it takes time to collect necessary evidence and to prepare and issue a Charge Memo/ Charge Sheet and it would not be in the interest of purity of Administration to award the employee with the promotion, increment etc., but observed that such argument did not impress their Lordships. It was observed as follows:-
"..........The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary 9 Investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge- memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employees under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy......."
15. In the instant case, DPC was held on 31.12.2019 and promotion order has been issued on 01.01.2020, at the time of DPC applicant was not placed under suspension, neither any criminal case had been pending against the applicant nor any article of charge-sheet had been served upon the applicant and the applicant was under the zone of consideration. It is surprising fact that applicant has received the letter on 02.01.2020 issued by the Inspector General of Police, Lucknow Range, Lucknow along with the article of charges dated 01.01.2020. Hence, it is clear that at the time of DPC, applicant was not served any chargesheet. It is also relevant to mention here that sealed cover procedure has been adopted in this case and respondents have also submitted in the impugned order that before opening the sealed envelope, applicant had been compulsorily retired from service.
16. It is pertinent to mention here that on the date of DPC, no criminal prosecution or departmental proceedings was pending against the applicant as is clear from the pleadings of the parties as well as speaking order said to have been passed by the respondents. There was no occasion to withhold the promotion of the applicant adopting the sealed cover procedure. Ratio laid down in the aforementioned cases is that sealed cover proceedings could only be adopted when the charge memo is issued in disciplinary proceeding or charge-sheet is filed in a criminal court. In absence of aforesaid fact, procedure adopted by the respondents is a colourable exercise of power. The applicant was compulsorily retired in the year 2021, DPC was held on 31.12.2019, promotion order was issued on 01.01.2020, charge-sheet was served upon the applicant on 2.1.2020, thus, on close analysis of entire facts and circumstances of the case and comparing the same with the ratio laid down in the aforementioned cases, we are of the view that withholding of the promotion of the applicant keeping 10 the recommendation in sealed envelope is illegal and against the settled principle of law. Since the applicant was compulsorily retired in the year 2021, thus it could not be connected with the sealed cover procedure held in the year 2019.
17. In the light of the above discussion and keeping in view the facts of the case, we are of the opinion that applicant is entitled for the reliefs sought in the OA. Accordingly, OA is allowed and impugned order dated 05.08.2021 is quashed. Respondents are directed to consider the case of applicant for grant for notional promotion to the post of Inspector General of Police w.e.f. the date, it became due. This exercise shall be completed within a period of 3 months from the date of receipt of certified copy of this order. All associated MAs stand disposed of. No order as to costs.
(Mohan Pyare) (Justice Om Prakash -VII)
MEMBER (A) Member (J)
Manish/-