Central Administrative Tribunal - Delhi
Shri Amresh Jain vs Union Of India Through on 24 December, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 1937/2010 New Delhi this the 24th day of December, 2010 Honble Mr. Justice V.K. Bali, Chairman Honble Mr. L.K.Joshi, Vice Chairman (A) Shri Amresh Jain, S/o Shri B.C. Jain, R/o 6055/2, D-6, Vasant Kunj, New Delhi-110070. Applicant (By Advocate Shri A.K.Behera ) VERSUS Union of India Through: 1. The Secretary (Revenue), Ministry of Finance, Department of Revenue, Central Board of Excise &Customs, Govt. of India, North Block, New Delhi-110001 2. The Chairman, Central Board of Excise & Customs, Department of Revenue, Ministry of Finance, North Block, New Delhi. Respondents (By Advocate Shri R.N.Singh) O R D E R Mr. L.K. Joshi, Vice Chairman (A):
Sh. Amresh Jain, an officer of the Indian Revenue Service (IRS), Customs and Central Excise, of 1992 batch, was reinstated from suspension, after seven long years on 12.09.2010. He missed his promotions to the Junior Administrative Grade (JAG) in 2002 and Non- Functional Selection Grade (NFSG) in 2005, when his juniors were promoted to these grades. Charge has been framed against the Applicant in a criminal case involving possession of disproportionate assets in the court of the Special Judge, Patiala at Punjab. The Applicant is before us seeking direction to the Respondents to promote him to the JAG and NFSG on an ad hoc basis with effect from the date he was reinstated from suspension, i.e., 12.10.2009 on the basis of the instructions of the Government contained in the Office Memorandum number 22011/4/91-Estt.(A) dated 14.09.1992 issued by the Department of Personnel and Training (DOP&T).
2. The facts, in brief, are that the Applicant is an IRS (C&CE) officer of 1992 batch. He was promoted to the Senior Time Scale in 1996. The next promotion due to him was Joint Commissioner in the JAG. An FIR dated 21.02.2002 under Section 109 IPC and Section 13 (1) (e) read with Section 13 (2) of the Prevention of Corruption Act, 1988 was lodged by the CBI, Chandigarh against the Applicant in respect of his alleged assets disproportionate to his income. The Applicant was detained in custody by the CBI on 23.02.2002 in connection with the aforementioned case. The Applicant was placed under deemed suspension from 23.02.2002 under Rule 10 (2) under the CCS (CCA) Rules, 1965 by order dated 15.03.2002. A meeting of the Departmental Promotion Committee (DPC) was held in July-August 2002 and on its recommendation, batch mates of the Applicant, including persons junior to him, were promoted to JAG by order dated 24.09.2002. As per the information received by the Applicant through the Right to Information Act, 2005, the Central Board of Excise and Customs (CBEC) recommended for revocation of suspension of the Applicant through the note dated 18.02.2003. The Secretary, Department of Revenue, also noted that the Applicant should be reinstated in view of the fact that the CBI had failed to file the charge sheet within one year of the registration of the FIR. The Chairman of CBEC recorded in his note that:
"From the representation of Shri Amresh Jain, I find that there is reason to believe that there is a close personal relationship between Sh. Satish Goel, tenant of Shri Amresh Jain's wife's property and the DIG of CBI, Chandigarh."
The Minister of State (Revenue), inter alia, recorded in his note that:
"b) the bias of DIG CBI has been Exposed & he has been shifted out of this investigation."
The above note is dated 24.12.2003. The file, thereafter, seems to have gone in hibernation as no action on the above notes was taken till 2009. However, a review committee was constituted to review the suspension of the Applicant, pursuant to the amendment to Rule 10 of the CCS (CCA) Rules, 1965. This committee submitted its recommendations to the disciplinary authority on 30.09.2009. The order of suspension was revoked on 12.10.2009. Meanwhile, the Applicant had been making representations to the Respondents for considering him for promotion and granting him consequential benefits. His representations dated 11.11.2009, 11.01.2010, 25.01.2010 and 16.02.2010 did not elicit any response from the Respondents.
3. The learned counsel for the Applicant argued that the Department of Personnel and Training (DOP&T), by its Office Memorandum number 22011/4/91-Estt. (A) dated 14.09.1992 had provided for periodical review of sealed cover cases. The said Office Memorandum, inter alia, provides that:
"Six Monthly review of 'Sealed Cover' cases.
4. It is necessary to ensure that the disciplinary case/criminal prosecution instituted against any Government servant is not unduly prolonged and all efforts to finalize, expeditiously the proceedings should be taken so that the need for keeping the case of Government servant in a sealed cover is limited to the barest minimum. It has, therefore, been decided that the appointing authorities concerned should review comprehensively the cases of Government servants whose suitability for promotion to a higher grade has been kept in a sealed cover in the expiry of 6 months from the date of covering the first Departmental Promotion Committee which had adjudged his suitability and kept its findings in the sealed cover. Such a review should be done subsequently also very six months. The review should, inter alia, cover the progress made in the disciplinary proceedings/criminal prosecution and the further measures to be taken to expedite their completion.
5. In spite of the six monthly review referred to in para 4 above, there may be some cases, where the disciplinary case/criminal prosecution against the Government servant is not concluded even after the expiry of two years from the date of the meeting of the first DPC, which kept its findings in respect of the Government servant in a sealed cover. In such a situation the appointing authority may review the case of the Government servant, provided he is not under suspension, to consider the desirability of giving him ad-hoc promotion keeping in view the following aspects:-
a) Whether the promotion of the officer will be against public interest;
b) Whether the charges are grave enough to warrant continued denial of promotion;
c) Whether there is any likelihood of the case coming to a conclusion in the near future;
d) Whether the delay in the finalization of proceedings, departmental or in a court of law, is not directly or indirectly attributable to the Government servant concerned; and
e) Whether there is any likelihood of misuse of official position which the Government servant may occupy after ad-hoc promotion, which may adversely affect the conduct of the departmental case/criminal prosecution.
The appointing authority should also consult the Central Bureau of Investigation and take their views into account where the departmental proceedings or criminal prosecution arose out of the investigations conducted by the Bureau.
5.1. In case the appointing authority comes to a conclusion that it would not be against the public interest to allow ad-hoc promotion to the Government servant, his case should be placed before the next DPC held in the normal course after the expiry of the two year period to decide whether the officer is suitable for promotion on ad-hoc basis. Where the Government servant is considered for ad-hoc promotion, the Departmental Promotion Committee should make its assessment on the basis of the totality of the individuals record of service without taking into account the pending disciplinary case/criminal prosecution against him.
5.2. After a decision is taken to promote a Government servant on an ad-hoc basis, an order of promotion may be issued making it clear in the order itself that:
i) the promotion is being made on purely ad-hoc basis and the ad-hoc promotion will not confer any right for regular promotion; and
ii) the promotion shall be until further orders. It should also be indicated in the orders that the Government reserve the right to conceal the ad-hoc promotion and revert at any time the Government servant to the post from which he was promoted.
5.3. If the Government servant concerned is acquitted in the criminal prosecution on the merits of the case or is fully exonerated in the departmental proceedings, the ad-hoc promotion already made may be confirmed and the promotion treated as a regular one from the date of the ad-hoc promotion with all attendants benefits. In case the Government servant could have normally got his regular promotion from a date prior to the date of his ad-hoc promotion with reference to his placement in the DPC proceedings kept in the sealed cover (s) and the actual date of promotion of the person ranked immediately junior to him by the same DPC, he would also be allowed his due seniority and benefit of notional promotion as envisaged in para 3 above.
5.4. If the Government servant is not acquitted on merits in the criminal prosecution but purely on technical grounds and Government either proposes to take up the matter to a higher court or to proceed against him departmentally or if the Government servant is not exonerated in the departmental proceedings, the ad-hoc promotion granted to him should be brought to an end.
6. The procedure outlined in the proceeding paras should also be followed in considering the claim for confirmation of an officer under suspension, etc. A permanent vacancy should be reserved for such an officer when his case is placed in sealed cover by the DPC.
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 of the charges against him and the provisions contained in this OM will be applicable in his case also. The learned counsel would contend that this Tribunal in an identical case in OA number 1093/2009, S.Ramu V. Union of India and others, decided on 20.01.2010 had given relief to the similarly placed applicant therein, in terms of the Office Memorandum dated 14.09.1992, quoted above.
4. The learned counsel for the Respondents would, however, contend that the present OA is not covered by the judgement in S.Ramu (supra) because in the latter case the Honourable High Court of Andhra Pradesh had stayed all proceedings in respect of S. Ramu before the Special Judge for CBI cases at Hyderabad, whereas the proceedings in the instant case were going on against the Applicant. The learned counsel for the Respondents, placing reliance on the Office Memorandum dated 14.09.1992, issued by the DOP&T, would contend that the Applicant could not be promoted till the criminal case was pending against him. He has placed reliance on the following paragraph of the aforesaid Office Memorandum:
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.
5. The argument of the learned counsel for the Respondents cannot be accepted because the Office Memorandum dated 14.09.1992 has to be read as a whole and not merely restricted to paragraph 2, quoted above and relied upon by the Respondents. The same Office Memorandum provides for review of the cases under sealed cover and in case the criminal proceedings have been unduly prolonged, consider the Government servant for ad hoc promotion. The S. Ramu case (supra) is of a piece with the instant OA and the distinction sought to be made by Respondents between S.Ramu (supra) and the instant case is artificial.
6. In the light of the above discussion, the OA succeeds. The Respondents are directed to review the case of the Applicant in the light of the Office Memorandum dated 14.09.1992 for considering the opening of the sealed cover and if he has been considered fit for promotion by the DPC(s) for promotion, the Applicant should be promoted on ad hoc basis to JAG and NFSG. If an adverse decision is taken in the review not to consider the Applicant for ad hoc promotion, we expect the Respondents to pass a detailed, cogent and speaking order to justify the decision. These directions would be complied with within two months of the receipt of a certified copy of this order. There will be no orders as to costs.
( L.K.Joshi ) ( V.K.Bali) Vice Chairman (A) Chairman /dkm/