Delhi High Court
Union Of India (Uoi), Ministry Of ... vs Mrs. Maya Sinha, Financial Adviser & ... on 2 June, 2003
Equivalent citations: 2003VAD(DELHI)316, 105(2003)DLT694, 2003(71)DRJ716, 2004(1)SLJ165(DELHI)
Author: Madan B. Lokur
Bench: D.K. Jain, Madan B. Lokur
JUDGMENT Madan B. Lokur, J.
1. The Petitioners are aggrieved by an order dated 2nd April, 2003 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as the Tribunal).
2. By the impugned order, the Tribunal concluded that the grounds taken by the Petitioners in denying promotion to the Respondent to the Higher Administrative Grade were not justified.
3. The Respondent is working as a Financial Adviser and Chief Accounts Officer in the Northern Railways. She is entitled to be considered for empanelment and promotion to the Higher Administrative Grade.
4. Sometime in June-July, 2001, the Respondent, being the Finance Member of a Tender Committee, was concerned with the procurement of optical fiber armoured cable. It appears that there were some irregularities in the procurement which allegedly resulted in a loss of approximately Rs. 1 crore to the Government. Since the irregularities were fairly serious and involving a huge amount, vigilance investigations were started by the Vigilance Department of the Railways sometime in March, 2002.
5. While the vigilance investigations were going on, the Respondent was required to be considered for promotion to the Higher Administrative Grade. In June, 2002, she was granted vigilance clearance by the Vigilance Department of the Railways and her case was put up along with others before the Departmental Promotion Committee in July, 2002. She was recommended for promotion.
6. It appears that on or about 10th September, 2002, the Government granted approval for empanelment of the Respondent to the Higher Administrative Grade. Thereafter, the vigilance investigations which had begun in March, 2002 culminated on 13th November, 2002 and the Vigilance Department of the Railways was of the view that there was a prima facie case made out against the Respondent involving serious irregularities, being the Finance Member of the Tender Committee.
7. Notwithstanding these developments, the Department of Personnel & Training conveyed its approval to the Ministry of Railways on 5th December, 2002 for the empanelment of the Respondent to the Higher Administrative Grade. In other words, approval was granted to the select list prepared by the Departmental Promotion Committee which had met in July, 2002.
8. The position, therefore, towards the end of 2002 was that the Respondent had been recommended and approved for empanelment to the Higher Administrative Grade and for promotion to the rank of Additional Secretary. At the same time, the Vigilance Department of the Railways found that there was a prima facie case against the Respondent in respect of irregularities said to have been committed by the Tender Committee in the procurement of optical fiber armoured cable.
9. In view of these facts, on 4th January, 2003 the Petitioners resorted to putting the name of the Respondent in what they call "deemed sealed cover". It is not clear what this expression means or how it has originated. In any case, the result of this was that the Respondent was not placed in the Higher Administrative Grade.
10. Feeling aggrieved by the failure of the Petitioners to empanel her in the Higher Administrative Grade, the Respondent filed O.A. No. 42 of 2003 in the Tribunal sometime in January, 2003. As mentioned above, by the impugned order dated 2nd April, 2003, the Tribunal allowed the O.A. filed by the Respondent.
11. During the pendency of the O.A. on or about 13th February, 2003, the Petitioners made a reference to the Chief Vigilance Commissioner (for short the CVC) in respect of the case of the Respondent. On 25th February, 2003, the CVC recommended the holding of disciplinary proceedings against the Respondent for the imposition of a major penalty. When this matter was placed before the Railway Board sometime in March, 2003, it appears that some doubt was cast by one of the Members of the Board on the correctness of the view of the CVC with the result that a reference was again made to the CVC on 30th April, 2003 for its opinion.
12. The position as it stands today is this:
(a) The Respondent has been approved for empanelment and promotion to the Higher Administrative Grade.
(b) The Vigilance Department of the Railways is of the view that a prima facie case has been made out against the Respondent of some serious irregularities pertaining to the procurement of optical fiber armoured cable.
(c) The CVC is of the view that steps should be taken against the Respondent for the imposition of a major penalty.
(d) Some doubt has been raised about the correctness of the opinion of the CVC by a Member of the Railway Board.
(e) The matter is now pending before the CVC for reconsideration of the issue whether any disciplinary proceedings should be taken against the Respondent for the alleged serious irregularities.
13. In other words, the position today is that no disciplinary proceedings have been initiated against the Respondent nor has any decision been taken to initiate any disciplinary proceedings against the Respondent. The decision making process is still on and has not yet been concluded and the matter is still pending with the CVC. The question that has, therefore, arisen for our consideration is whether on these facts the Petitioners are right in denying promotion to the Respondent.
14. We heard learned counsel for the parties on 28th, 29th and 30th May, 2003 when we reserved orders.
15. Our attention has been drawn to the Office Memoranda regarding the adoption of the sealed cover procedure.
16. The first Office Memorandum (OM) dated 12th January, 1988 is on the subject of promotion of Government servants against whom disciplinary/Court proceedings are pending or whose conduct is under investigation.
17. Paragraph 2 of the OM dated 12th January, 1988, to the extent that it is relevant for our purposes, reads 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) xxx xxx xxx II) Government servants in respect of whom disciplinary proceedings are pending or a decision has been taken to initiate disciplinary proceedings; III) xxx xxx xxx IV) xxx xxx xxx"
18. Paragraph 7 of the OM dated 12th January, 1988 reads as follows:-
"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 of the charges against him and the provisions contained in this OM will be applicable in his case also."
19. We are not strictly concerned with the interpretation of the OM dated 12th January, 1988 because quite obviously it is not applicable to the facts of the case since no disciplinary proceedings are pending against the Respondent nor has any decision been taken to initiate disciplinary proceedings against her. Moreover, paragraph 2(II) of the OM dated 12th January, 1988 has since been substituted by OM dated 14th September, 1992.
20. Paragraph 2 of the OM dated 14th September, 1992, to the extent it is relevant for our purposes, reads 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) xxx xxx xxx
ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and
iii) xxx xxx xxx"
21. Paragraph 7 of OM dated 14th September, 1992 is substantially the same as paragraph 7 of OM dated 12th January, 1988 and so is not reproduced here.
22. The Chairman of the Railway Board by a letter dated 23rd March, 2001 referred to the OM dated 14th September, 1992 and drew the attention of the Secretary of the Department of Personnel & Training to the fact that the instructions contained in the OM do not cover certain situations. These were indicated as under:-
"(a) where Vigilance investigation has been completed and the case has been sent to the CVC for advise recommending issue of charge sheet under DAR;
(b) without taking specific clearance from the CBI, when the Officer concerned is borne on the Agreed List;
(c) when a complaint against a person concerned has been referred to CBI for investigation on instructions from PMO/DOP&T/CVC; and
(d) when CBI has registered a regular case (RC) under Section 154 Cr.PC or other criminal law in any designated Court."
23. On 22nd May, 2001, the Secretary, Ministry of Personnel, Public Grievances and Pensions wrote to the Chairman of the Railway Board referring to his letter dated 23rd March, 2001 and it was specifically stated as follows:-
"... ... It is, therefore, not possible to resort to sealed cover procedure in respect of the situations (a) to (d) mentioned in your letter."
24. Later in the letter, it is said as follows:-
"It may also be mentioned that para 7 of the O.M. dated 14th September, 1992 provides for resorting to sealed cover procedure even after receipt of the recommendations of the DPC in case the circumstances for resorting to sealed cover (as provided in para 2 of the O.M.) arise during the period before issue of actual promotion orders."
25. On a review of the above OMs and the above correspondence which has been brought to our notice by the learned Additional Solicitor General and learned counsel for the Respondent, it is quite clear that the case of the Respondent is not at all covered by the situations postulated in paragraph 2(ii) of the OM dated 14th September, 1992 (the relevant clause). Consequently, the Tribunal was right in concluding that the grounds taken by the Petitioners in denying promotion to the Respondent are not justified.
26. The learned Additional Solicitor General submitted that while a few decisions of the Supreme Court have been referred to in the impugned order of the Tribunal, he would really like to strongly rely on the contents of paragraphs 14 to 17 of the Union of India vs. K.V. Jankiraman, where Civil Appeals No.51 to 55 of 1990 have been dealt with by the Supreme Court. The submission of the learned Additional Solicitor General was that in those Civil Appeals, the Supreme Court upheld the resort to the sealed cover procedure even though no formal charge sheet had been issued to the employees in those appeals. However, in paragraph 17 of the Report, the Supreme Court has itself noticed the peculiar facts of those cases wherein disciplinary proceedings as well as criminal prosecutions were launched against the employees therein and they were suspended from service on 15th July, 1983. They admitted their guilt and pleaded for revocation of their suspension on depositing the amount which they had fraudulently claimed. Keeping in view the voluntary deposit of the amount in October, 1983, the employees were reinstated in November, 1983 and the criminal prosecutions against them were dropped in January, 1985, without prejudice to disciplinary proceedings which were subsequently initiated and a formal charge sheet issued in December, 1987. The Departmental Promotion Committee had, in the meanwhile, met in July, 1986 to consider their cases for promotion but resorted to the sealed cover procedure in view of the pendency of the disciplinary proceedings against them. Noticing these peculiar facts, the Supreme Court concluded that the resort to the sealed cover procedure was justified.
27. The facts of the present case are not at all apposite to the facts of Civil Appeals No. 51 to 55 of 1990 relied upon by the learned Additional Solicitor General.
28. The learned Additional Solicitor General contended that the issuance of a charge sheet is not a precondition for resorting to the sealed cover procedure. While this may be so, the facts of the present case show that not only has no charge sheet been issued to the Respondent, but the Petitioners have not even made up their mind whether to proceed against the Respondent for her alleged irregularities. Quite apart from this, the OM dated 12th January, 1988 (which was discussed in Jankiraman) has been superseded by the OM dated 14th September, 1992 which makes it very clear, in so far as we are concerned, that the sealed cover procedure cannot be resorted to in the case of the Respondent unless a charge sheet has been issued against her and disciplinary proceedings are pending. It is nobody's case that as on date any disciplinary proceedings are pending against the Respondent or that any charge sheet has been issued against her. Consequently, the Petitioners could not have resorted to the "deemed sealed cover" procedure to deny promotion to the Respondent.
29. We, therefore, uphold the decision of the Tribunal and dismiss the writ petition filed by the Petitioners.
30. We may note that it was contended by the learned Additional Solicitor General that the post presently occupied by the Respondent and the post to which she may be promoted are very sensitive posts and if there is a cloud on the integrity of the Respondent, she should not be given the promotion to such a senior position. The learned Additional Solicitor General may be right in this regard, but it is equally true that if there is a cloud hovering over the Respondent, who is holding a senior position, the Petitioners should have acted with a greater sense of urgency and with necessary alacrity instead of letting the matter drag on for more than a year. If the Petitioners feel that the matter is grave and urgent, they ought to show it in their deeds and not merely express it in words. In any case, even after the Petitioners comply with the directions of the Tribunal, they are not helpless and can, of course, take appropriate steps to safeguard their interests in accordance with law.