Central Administrative Tribunal - Delhi
Kavita vs Gnctd on 27 November, 2024
1
OA No.1210/2024
(Ct-4) item 106
Central Administrative Tribunal
Principal Bench
New Delhi
OA No.1210/2024
Order reserved on 18.11.2024
Order pronounced on 27.11.2024
Hon'ble Mrs. Harvinder Kaur Oberoi, Member (J)
Hon'ble Dr. Sumeet Jerath, Member(A)
Kavita
D/o Late Sh. Hari Ram
R/o AG-617, Ground Floor
Shalimar Bagh
Delhi - 110 088.
Aged about 55 years
Group 'B'
Statistical Assistant. ...Applicant
(By Advocate: Mr. 4Ajesh Luthra)
Versus
1. Govt. of NCT of Delhi
Through its Chief Secretary
Delhi Sachivalaya, Players Building
I.P. Estate, New Delhi.
2. Planning Department
(GNCT of Delhi)
Through its Principal Secretary
Level 6, Wing-B
Delhi Secretariat
I.P. Estate
New Delhi - 110 002.
3. Directorate of Vigilance
Through its Director
4th Floor, C Wing
Delhi Sachivalaya, Players Building
I.P. Estate, New Delhi.
4. Transport Department
Principal Secretary Cum-Commissioner
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OA No.1210/2024
(Ct-4) item 106
(GNCT of Delhi)
5/9, Under Hill Road
Delhi -110 054.
5. Union Public Service Commission
Through its Secretary
Dholpur House, Shahjahan Road
New Delhi - 110 002. ...Respondents
(By Advocate: Mr. A.S. Singh)
ORDER
Hon'ble Mrs. Harvinder Kaur Oberoi, Member(J) The present Original Application has been filed by the applicant seeking the following relief(s) :-
"(a) quash and set aside impugned orders dated 30.01.2024 (Annexure A/1) and direct restoration of applicant's promotion as Statistical Officer and
(b) consequently, direct the respondents to further consider and promote the applicant to the post of Assistant Director w.e.f. the date due i.e. 01.01.2023.
(c) accord all consequential benefits
(d) award costs of the proceedings
(e) Any other relief which this Hon'ble Tribunal deems fit and proper in favour of the applicant."
2. The facts in brief are that the applicant was appointed as Statistical Investigator, by way of direct recruitment on 18.04.1996.On 1st December 2006, upon cadre restructuring, the applicant was assigned to the post of Statistical 3 OA No.1210/2024 (Ct-4) item 106 Assistant(Statistical Investigator re-designated). She was subsequently promoted to the next higher post of Statistical Officer w.e.f. 01.01.2020. She joined the promotional post and has been discharging her duties since then.
The next promotional post is that of Assistant Director (Grp A). The applicant became eligible for the same on completing three years regular service as a Statistical Officerw.e.f. 01.01.2023. The process for promotion was initiated by respondents in March, 2023. Applicant was required to submit a proforma for issuance of vigilance clearance. She has submitted the relevant proforma on 05.02.2023. It would be pertinent to mention that Smt. Kajal w/o Shri Rajiv Suhag, (younger brother of the applicant) had got registered a false FIR under Section 498 (A) 406/34 IPC on 06.03.2016 against her husband (i.e. brother of the applicant) due to a marital discord. Infact, Smt. Kajal isthe sister-in-law of the applicant and is presently residing in her matrimonial home along with her son born out of the wed lock with the brother of the applicant.
3. The applicant was also mentioned as a 4 OA No.1210/2024 (Ct-4) item 106 proforma partyaccusedin the said FIR. The applicant, while submitting her proforma for vigilance clearance for her next promotion, had intimated the pendency of this FIR. As such did not mislead or conceal any information.
4. On 30.01.2024, the applicant was shocked to receive the impugned order whereby the applicant has been reverted from the post of Statistical Officer to the lower feeder cadre post of Statistical Assistant, cancelling the promotion of the applicant dated 01.01.2020. The applicant has not only been reverted by cancelling the promotion order but she also lost her chance to next higher post to the post of Assistant Director which is a Group 'A' post, leading to a huge loss to the applicant. Hence, this OA.
5. Counter reply has been filed on behalf of the respondents. In the counter it has been stated that the applicant, Ms. Kavita was recommended for promotion to the post of Statistical Officer by the DPC dated 31.12.2019 based on clear vigilance report submitted by her then administrative department i.e. Deep Chand Bandhu Hospital, 5 OA No.1210/2024 (Ct-4) item 106 GNCTD vide letter dated 05.07.2019.
6. Accordingly, promotion order dated 01.01.2020 was issued. However, now it has come to notice that a criminal case u/s 498A/406/34 was pending against the brother of Ms. Kavita (husband of the complainant and family members including Ms. Kavita) at the time of DPC dated 31.12.2019.
7. In the process of promotion of eligible Statistical Officers to the post of Assistant Director, the office sought IC/VC/WC of the officers from the concerned administrative departments.
8. In this context, the present administrative department, viz. Transport Department, GNCTD of the applicant has conveyed vide letter dated 26.04.2023 that as per the details provided by the officer, an FIR No. 238/2016 is pending u/s 498A/406/34 in the family court against her brother (husband of the complainant and family members).
9. The current status of the case was obtained by Transport Department from Police Station ShalimarBagh and forwarded vide letter dated 11.09.2023. As per status provided by the Police 6 OA No.1210/2024 (Ct-4) item 106 Station dated 08.09.2023, it is known that the case pertaining to FIR No. 238/2016 lodged against Ms. Kavita @ Ruby on 06.03.2016 U/S 498A/406/34 in PS Shalimar Bagh, has been filed in Hon'ble Rohini Court on 14.11.2018 and currently pending in the Hon'ble court.
10. As may be observed from above para, a criminal case u/s 498A/406/34 had already been filed on 14.11.2018 before the Metropolitan Magistrate, against brother of Ms. Kavita (husband of the complainant and family members) including Ms. Kavita well before convening of the DPC dated 31.12.2019. However, due to non-reporting by Ms.Kavita and further non-entry of the same in the service records of the officer, it could not be reflected in the Vigilance Status provided by the Deep Chand Bandhu Hospital, GNCTD, then administrative department of Ms. Kavita, vide letter dated 05.07.2019.
11. In this regard, the DoPT OM dated 02.11.2022 stipulates that vigilance clearance for promotion may be denied only in the following three conditions:
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(Ct-4) item 106
(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 (ili) Government servants in respect of whom prosecution for a criminal charge is pending.
12. Para 8 of the said OM further clarifies that in case of criminal proceedings, the prosecution for a criminal charge can be stated to be pending on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made.
13. In the instant case, the Metropolitan Magistrate had taken cognizance of the case against brother of Ms. Kavita& family members (including the applicant) on 14 November 2018 prior to convening of the DPC dated 31.12.2019. If the matter had been brought to notice of authorities & entered in the service records of Ms. Kavita in time, then Ms. Kavita could not have the necessary vigilance clearance for promotion, as stated above and accordingly, her case of promotion would have gone into the sealed cover. Therefore, the matter of promotion of Ms. Kavita needed review. 8 OA No.1210/2024 (Ct-4) item 106
14. Considering the factual position and rule position contained in DOPT OM dated 02.11.2022, Planning Department convened the Review DPC on 09.01.2024 and brought the fact that Hon'ble Court has already taken the cognizance in the FIR no 238/2016 u/s 498A/406/34 against the applicant before the meeting of the DPC dated 31.12.2019 i.e. prior to the date of promotion. Review DPC has recommended to cancel thepromotion of the applicant and further, to revert her, to the post of Statistical Assistant. Also, that the name of the applicant should be kept in a sealed cover.
15. Appointing Authority i.e. the Worthy Chief Secretary, GNCTD, before according the final approval to the recommendations of Review DPC, sought opinion of Services Department, GNCTD. Services Department opined that the recommendations of Review DPC seem to be in order. Further, they have quoted another DOPT OM dated 27.03.2023 regarding Guidelines on Departmental Promotion Committee, which states that Review DPCs that the proceedings of any DPC may be reviewed only if the DPC has not taken all 9 OA No.1210/2024 (Ct-4) item 106 material facts into consideration or if material facts have not been brought to the notice of the DPC or if there have been grave errors in the procedure followed by the DPC. Thus, it may be necessary to convene Review DPCs to rectify certain unintentional mistakes.
16. Counsel for the applicant, at the outset, submitted that applicant was asked to fill in the proforma for issuance of vigilance clearance. The applicant, without concealing anything, has filled out all the details of the pending FIR. He further stated that the applicant has not even been named asa main accusedrather, she is in Khana No.12 as a proforma only. Further, he submitted that even in the said FIR, the proceedings are at nascent stage since charges have not been framed till date.
17. Mere registration of FIR in matrimonial/personal dispute is not significant in the matter of promotion. Counsel further argued that the unilateral decision of the respondents in cancelling the promotion order is bad in law. Applicant has relied upon FR 31A which states that, a promotion order, if issued erroneously, can be 10 OA No.1210/2024 (Ct-4) item 106 withdrawn only when the authority is higher to the authority which ordered promotion. Thus the promotion order having been issued by the Appointing Authority i.e. Chief Secretary could only have been withdrawn by the Lieutenant Governor. This was not the case herein. In the present case, the respondents have constituted a review DPC.Therefore,he submits that the action of the respondents is bad on this aspect as well.
18. He has relied on the decision of the Hon'ble Delhi High Court in its judgment dated 12.01.2023 in CC(C) 529/2020. Relying upon judgment in WP (C)No.6391/2016, has held that sealed cover procedure in respect of promotion, where FIR is due to matrimonial dispute, is not applicable.
19. On the other hand, counsel for the respondents stated that the FIR has been pending since 2016. In fact, if the same had been brought to the notice of the respondents, theapplicant would not have been promotedrather her case would have been considered and kept under sealed cover. He, therefore, stated that the action of the respondents is absolutely legal.
11OA No.1210/2024 (Ct-4) item 106
20. Heard the parties at length and considered the relevant documents.
21. The main thrust of the argument of the applicant was on the two decisions of the Hon'ble Delhi High Court. In the case of Dr. Naresh Kumar Vs. Shri Ajay Kumar Bhalla &Ors, dated 12.01.2023, it has been held asunder:-
"3. Learned counsel for the Petitioner states that it is an admitted fact that the criminal case before the CJM No. 3 Bikaner (Raj) as referred in compliance affidavit is a case arising out of matrimonial dispute between the Petitioner and his now divorced wife. He states that the divorce between the Petitioner and his then wife has attained finality in 2019. He states that there is no co- relation or basis for withholding the DPC on account of the said criminal case which is a personal matter.
4. He states that in identical facts, this Court vide judgment dated 22.03.2017 in Himanshu Gupta v. Engineers India Limited, W.P.(C) No. 6391/2016 clarified that OM dated 14.03.1992 would only deal with a criminal case, which arises on account of misdemeanour or misconduct or violation of service rules by an employee while performing his services with the employer. The relevant portion of the judgment read as under:
"2. The only defence urged by the respondent/employer is that against the petitioner, his wife had filed a criminal case under Sections488A/323/504/506/327/420/467/4 68/471 of the Indian Penal Code, 1860, with Sections 3 and 4 of the Dowry Prohibition Act, 1961, and therefore, the respondent/employer in accordance with the directions contained in the government Circular dated 14.9.1992 has not granted promotion to the petitioner.
7. In view of the above discussion, it is held that respondent/employer cannot rely upon the OM dated 14.9.1992 to deny promotion to the petitioner by not declaring the result by resorting 12 OA No.1210/2024 (Ct-4) item 106 to the sealed cover procedure pursuant to the decision of the DPC, and for which results were declared on 30.6.2014, inasmuch as, the OM dated 14.9.1992 would only deal with a criminal case which arises on account of misdemeanour or misconduct or violation of the service rules by an employee while performing his services with the employer.
(Emphasis supplied)
8. In view of the aforesaid discussion, this writ petition is allowed and the respondent's procedure of putting the promotion of the petitioner in a sealed cover of the DPC with respect to promotion of the petitioner to the post of Deputy Manager is quashed. The result of the petitioner's promotion in terms of the DPC for which results were to be declared on 30.6.2014 will now be declared within a period of two weeks and such results will be taken as having been declared as regards the petitioner on 30.6.2014. Petitioner will be entitled to appropriate consequential reliefs."
5. He states that in view of the said judgment, the reliance placed by the Respondents in the office memorandum dated 14.09.2022 is incorrect and the same would amount to wilful non-compliance of the order of the Court which is a subject matter of the contempt petition."
22. Further, the applicant has also relied upon the decision of Principal Bench of this Tribunal in OA No.2411/2007 titled Jogeshwar Mahanta Vs. Union of India dated 19.12.2008.The relevant paras 1, 13 & 14 read as under:-
"Matrimonial discord between the applicant, who happened to be a Government employee and against whom his wife made allegations on all conceivable matrimonial aspects, culminated into a charge memo dated 30.8.1993 against him. He was departmentally proceeded under rule 14 of the CCS(CCA) Rules, 1965. The applicant, a Reader in Psychology (since retired) in the National Institute of Criminology and Forensic Science (NICFS), Ministry of Home Affairs, takes strong exception to proceed against him departmentally with regard to imputation of misconduct on the ground that 13 OA No.1210/2024 (Ct-4) item 106 the allegations in the memorandum of charge have no nexus with the duties to be performed by him and, therefore, the very initiation of the proceedings is illegal and void ab initio.
X X X X
13. In view of the discussion made above, the charges as framed against the applicant in the articles of charge as reproduced above, in our view, cannot become the subject matter of departmental enquiry. That apart, there does not appear to be any justification for continuing the departmental enquiry against the applicant on the charges as mentioned above at this stage, when he has already retired. The applicant insofar as, his service record is concerned, had no blemish. He completed his tenure of service after a long spotless service career. In our view, whereas he may be still embroiled in matrimonial dispute with his wife, there would be no justification to carry on with the departmental proceedings against him.
14. For the reasons mentioned above, charge memo dated 30.8.1993 is quashed. We may mention that no proceedings had been taken after serving of the charge memo dated 30.8.1993, even though, there was no stay granted to the applicant by the court of first instance where he initially filed the suit, or by the appellate court. The applicant, of course obtained stay when he filed RSA before the High Court in 2004."
23. Further, he has relied on the Hon'ble Delhi High Court judgment inWP(C) No.6391/2016Himanshu Gupta Vs. Engineer India Limitedandhas explained the provisions of OM 14.09.1992. Relevant paras are as under:-
"4. The relevant portions of the OM dated 14.9.1992 are paras 1 to 3.1, 4 and 5.4 and these paras read as under:-
"1. The undersigned is directed to refer to Department of Personnel & Training O.M. No. 22011/2/86-Estt.(A) dated 12th January, 1988 and subsequent instructions issued from time to time on the above subject and to say that the procedure and guidelines to be followed in the matter of promotion of Government servants 14 OA No.1210/2024 (Ct-4) item 106 against whom disciplinary/Court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.8.1991 of the Supreme Court in Union of India etc. Vs. K.V.Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in supersession of all the earlier instructions on the subject (referred to in the margin). The procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this O.M. for their guidance.
2. At the time of consideration of the cases of Government servant for promotion details of Government servant in the consideration zone for promotion falling under the following category 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 criminal charge is pending.
2.1 The Departmental Promotion Committee shall assess the suitability of Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC including „unfit for promotion‟ and the grading awarded by it will be kept in a sealed cover. The cover will be superscribed „Findings regarding suitability for promotion to the grade/post of ..... in respect of Shri.....(name of the Government servant). Not to be opened till the terminator of the disciplinary case/criminal prosecution against Shri....‟. The proceeding of the DPC need only contain the note „The findings are contained in the attached sealed cover‟. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover. 15 OA No.1210/2024 (Ct-4) item 106 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Department Promotion Committee convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.
3. On the conclusion of the disciplinary case/criminal prosecution which results in dropping of allegations against the Government servant, the sealed cover or covers shall be opened. In case the Government servant is completely exonerated the due date of his promotion will be determined with reference to the position assigned to him in the findings kept in a sealed cover/covers and with reference to the date of promotion of his next junior on the basis of such position. The Government servant may be promoted, if necessary, by reverting the junior most officiating person. He may be promoted notionally with reference to the date of promotion of his junior. However, whether the officer concerned will be entitled to any arrears to pay for the period of notional promotion preceding the date of actual promotion and if so to what extent, will be decided by the appointing authority by taking into consideration all the facts and circumstances of the disciplinary proceeding/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reason for doing so. It is not possible to anticipate and enunciate exhaustively all the circumstances under which such denials of arrears of salary or part of it may become necessary. However, there may be cases where the proceedings, whether disciplinary or criminal, are, for example delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. These are only some of the circumstances where such denial can be justified.
3.1. If any penalty is imposed on the Government servant as a result of the disciplinary proceedings or if he is found guilty in the criminal prosecution against him, the findings of the sealed cover/covers shall not be acted upon. His case for promotion may be considered by the next DPC in the normal course and having regard to the penalty imposed on him.
xxxxx 16 OA No.1210/2024 (Ct-4) item 106
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 a 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 on the expiry of 6 months from the date of convening 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 every 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 the completion.
Xxxxx 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."
5. It is seen that these aforesaid paras of OM dated 14.9.1992 are with reference to the judgment of the Supreme Court in the case of Union of India and Others vs. K.V. Jankiraman and Others, (1991) 4SCC 109. The judgment of the Supreme Court in Jankiraman's case (supra) dealt with the issue of criminal proceedings against an employee pertaining to service rendered with the employer inasmuch as, the expression „criminal proceedings‟ is used simultaneously with the departmental proceedings against the employee. The judgment of the Supreme Court in Jankiraman's case (supra) does not deal with an issue or that it laid down a ratio that even if a criminal case is pending against an employee which does not pertain to services rendered by the employee with the employer, even then the employee has to be denied promotion for the time being till the decision of the criminal case, and by putting the results of the DPC for promotion in a sealed cover.
6. That Jankiraman's case (supra) deals only a criminal case pertaining to departmental enquiry i.e a criminal case with respect to services rendered by an employee 17 OA No.1210/2024 (Ct-4) item 106 with the employer becomes clear from the subsequent judgment of the Supreme Court in the case of Union of India and Others vs. Dr. Sudha Salhan (Smt) (1998) 3 SCC 394 wherein the Supreme Court with reference to Jankiraman's case (supra) has clarified that the sealed cover procedure is to be adopted only if departmental proceedings were initiated or were pending or on conclusion of the departmental proceedings final orders had not been passed by the appropriate authorities. Para 6 of the judgment in Dr. Sudha Salhan (Smt) (supra) reads as under:-
"6. The question, however, stands concluded by a Three Judge decision of this Court in Union of India v. K.V. Jankiraman, 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 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 own its conclusion, final orders had not been passed by the appropriate authority. It is obvious that if the officer, 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."
7. In view of the above discussion, it is held that respondent/employer cannot rely upon the OM dated 14.9.1992 to deny promotion to the petitioner by not declaring the result by resorting to the sealed cover procedure pursuant to the decision of the DPC, and for which results were declared on 30.6.2014, inasmuch as, the OM dated 14.9.1992 would only deal with a criminal case which arises on account of misdemeanor or misconduct or violation of the service rules by an employee while performing his services with the employer.
8. In view of the aforesaid discussion, this writ petition is allowed and the respondent‟s procedure of putting the 18 OA No.1210/2024 (Ct-4) item 106 promotion of the petitioner in a sealed cover of the DPC with respect to promotion of the petitioner to the post of Deputy Manager is quashed. The result of the petitioner‟s promotion in terms of the DPC for which results were to be declared on 30.6.2014 will now be declared within a period of two weeks and such results will be taken as having been declared as regards the petitioner on 30.6.2014. Petitioner will be entitled to appropriate consequential reliefs."
24. As can be seen from the above decisions, of the High Court, a criminal case not concerning the official duties of the employee can not become the reason to place the employees' case in sealed cover. The case of the applicant isona much better footing than those referred to above. Herein the applicant is not the main accused in the FIR. The allegations made in the FIR are in no way concerned or connected with the official duties of the applicant. Secondly, the applicant has been in government service since her initial joining in the year 1996 and, till date, there is no other allegation against her. Thirdly, the FIR concerns a matrimonial dispute between the complainant and thebrother of the applicant/husband of the complainant. Fourthly, even the charges in the said FIR are yet to be framed.
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25. The applicant had been promoted in her own right by the promotion order of 01.01.2020. She has already served on promotional post for more than three years when she was visited with the reversion order.
26. Hence, we are of the considered opinion that the applicant is being madeto sufferfor no fault of her. Repeatedly, the Hon'ble High Court and this Tribunal have held that disputes such as matrimonial which have no concern with the official duties, should not be allowed to affect the career progress of a government servant. There is no relation between the allegations and duties being rendered by the employee. Also, the allegations of matrimonial nature are purely a personal matter.
27. Given the above legal position and the circumstances of the case, the OA is allowed. The impugned order of 30.01.2024 reverting the applicant to the lower post of Statistical Assistant is quashed and set aside. The respondents are directed to restore the promotion of the applicant as a Statistical Officer. Further since the applicant has already completed the required service on the 20 OA No.1210/2024 (Ct-4) item 106 promotionalpost. She will be deemed fit for consideration for promotion as Assistant Director (Group 'A') w.e.f. the due date when she became eligible that is w.e.f. 01.01.2023. The OA is allowed with the aforesaid directions.
(Dr.Sumeet Jerath) (Harvinder Kaur Oberoi) Member(A) Member(J) /uma/