Central Administrative Tribunal - Delhi
Randhir Kumar Sinha vs Department Of Defence Production on 14 August, 2024
1
Item No. 02/C-5
O.A. No. 2427/2024
Central Administrative Tribunal
Principal Bench, New Delhi
(Nainital Circuit Sitting)
O.A. No. 2427/2024
Reserved (Interim Relief) on: 09.08.2024
Pronounced on:14.08.2024
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
Randhir Kumar Sinha,
Aged 57 Years,
S/o Late Shri Ishwar Dayal Sinha,
Indian Ordnance Factory Service (1990 Batch),
Chief General Manager,
Indian Optel Limited,
Department of Defence Production,
Ministry of Defence,
Raipur Road,
Dehradun - 248008.
...Applicant
(By Advocate : Mr. Tushar Ranjan Mohanty with Ms. Yogita
Sharma)
Versus
1. Union of Inida,
The Secretary,
Department of Defence Production,
Ministry of Defence, South Block,
New Delhi - 110011.
2. The Chief Vigilance Officer,
Department of Ordanance (Coordination and Service),
Department of Defence Production,
Ministry of Defence, 10-A, S. K. Bose Road,
Kolkata - 700001.
...Respondents
(By Advocate : Mr. Thakur Virender Pratap Singh, Mr. T. C.
Aggarwal)
2
Item No. 02/C-5
O.A. No. 2427/2024
ORDER
Hon'ble Mr. Manish Garg, Member (J):
In the instant OA, the applicant challenges the order dated 14.05.2024 whereby his representation for grant of vigilance clearance has been rejected by respondent no.2.
2. Learned counsel for the applicant presses for grant of interim relief as set forth in para 9 of the OA, which reads as under:-
"9.1 The Applicant respectfully prays that this Hon'ble Tribunal may be graciously pleased to stay the operation of the impugned Letter dated 14.05.2024 of Respondent No. 2 [Annexure : A-1] and the impugned Letter dated 12.02.2024 of Respondent No. 2 [Annexure : A-2] till the disposal of the OA;
9.2. The Applicant respectfully prays that this Hon'ble Tribunal may be graciously pleased to direct the Respondents to grant the Vigilance Clearance of the Applicant and ensure that that the Applicant is permitted appear for the Interviews for the Posts of Director (Operations) in Advanced Weapons and Equipment India Limited (AWEIL); Chairman & Managing Director in Advanced Weapons and Equipment India Limited (AWEIL); Chairman & Managing Director in Armoured Vehicles Nigam Limited (AVNL); Chairman & Managing Director in India Optel Limited; and Chairman & Managing Director in Troop Comforts Limited, if otherwise eligible for the posts; and 9.3. The Applicant respectfully prays that this Hon'ble Tribunal may be graciously pleased to direct that the Respondents to place on record the File Noting where the case of Vigilance Clearance of the Applicant has been examined."
2.1 During the course of arguments, it emerges that there is an order of stay dated 26.04.2024 passed by the Hon'ble High Court of Patna, which reads as under:-
3Item No. 02/C-5 O.A. No. 2427/2024
"3. In the meantime, the operation of the order dated 27.04.2023 passed by learned Additional Chief Judicial Magistrate-VI, Patna City, Patna, in connection with Gaurichak P.S. Case No. 275 of 2022 shall remain stayed, till further orders."
2.2 Learned counsel for the applicant further states that the impugned order dated 14.05.2024 is bad in law and not passed by the Competent Authority, the Minister concerned is the Competent Authority to grant vigilance clearance on basis of comments received from the Vigilance Department.
3. The Learned Standing Counsel vehemently opposing the grant of interim reliefs relies upon the preliminary objections taken in the counter affidavit. He would argue and support that the impugned orders have been passed in right prospective in accordance with law.
3.1 It has been stressed that the applicant had applied for the Post of Director (Operations) in Armoured Vehicles Nigam Limited (AVNL) and Advanced Weapons and Equipment India Limited (AWEIL) and also for the Post of Chairman & Managing Director in Advanced Weapons and Equipment India Limited (AWEIL) and Chairman and Managing Director in Armoured Vehicles Nigam Limited (AVNL). Accordingly, Group-A Division under Directorate of Ordnance (Coordination & Services), New Delhi sought vigilance status of the applicant from Vigilance Division, 4 Item No. 02/C-5 O.A. No. 2427/2024 DoO (C&S), Kolkata. After examining the documents/records (made available to the Vigilance Division) and vigilance data base, it had emerged that a case (P.S. Case No. 275 year 2022) against the applicant and others is pending before the Hon'ble ACJM-VI, Patna City. The applicant and other co-accused in the said case had applied for anticipatory bail petitions vide A.B.P. NO.
4420/22, Α.Β.Ρ No. 4875/22 and A.B.P. No. 5178/22.
Accordingly, same was rejected by the Hon'ble Additional Chief Judicial Magistrate-VI Patna City, Patna vide order dated 18.8.2022. The operative part of the said order is as follows-
"Again I perused the certified copy of FIR as well as all the material available on record and considering the entire facts and circumstances of the case, I find that this case is not a fit case for anticipatory bail because anticipatory bail is not a blanket to cover the guilt of the society breakers. Obviously, there is tremendous increase in this type of offences in the society. After looking to the case with photocopy of the case diary having para nos. 1-14, all the witnesses of Section 161 of Cr.P.C. supported the prosecution case in to-to in para 1-4, 5 and 6 of the case diary.
Therefore, considering the facts and circumstances as well as material available on record, I am not inclined to enlarge the petitioners on anticipatory bail. Accordingly, the anticipatory bail petition filed by the petitioners is hereby rejected."
3.2. Learned counsel states that subsequently, the Hon'ble ACJM-VI, Patna City vide Order dated 27.04.2023 has recorded and directed as under:
5Item No. 02/C-5 O.A. No. 2427/2024 "Perused the case record, case diary and the final report. I find that the case is of civil nature but after perusal of para-1. 4 & 5 of the case diary: I find that there is sufficient material on record to make out a prima facie case against the accused persons namely, Deepak Kumar Sinha, Pradeep Kumar Sinha, Pyare Mohan Sahay and Randhir Kumar Sinha under Section 406/420/467/468/471/34 of IPC Olc is directed to issue summon against the accused persons. Put up on 16.09.23 for appearance of the accused persons."
3.3. Learned counsel for the respondents further draws attention of this Bench to para 8 of the short reply/additional affidavit filed on behalf of the respondents.
The said para reads as under:
"8. Preliminary Objections regarding maintainability of the instant OA and grant of interim relief: It has emerged from the aforesaid facts of the case that-
(i) Based on the sufficient material on record to make out a prima facie case, cognizance has been taken by the Additional Chief Judicial Magistrate-VI Patna City, Patna in connection with Gaurichak PS Case No. 275 of 2022 against the accused persons (including the applicant) under the following Section 406/420/467/468/471/34 of IPC which deal with criminal offence carrying provisions for imprisonment and directed O/c to issue summon against the accused persons:
IPC Sections Heading Contents of the Section 406 Punishment for Whoever criminal breach commits of trust criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
420 Cheating and Whoever
dishonestly cheats and
inducing thereby
delivery of dishonestly
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Item No. 02/C-5
O.A. No. 2427/2024
property induces the
person
deceived to
deliver any
property to
any person, or
to make, alter
or destroy the
whole or any
part of a
valuable
security, or
anything
which is
signed or
sealed. and
which is
capable of
being
converted into
a valuable
security, shall
be punished
with
imprisonment
of either
description for
a term which
may extend to
seven years,
and shall also
be liable to
fine
467 Forgery of Whoever
valuable forges a
security, will, document
etc. which
purports to be
a valuable
security or a
will, or an
authority to
adopt a son,
or which
purports to
give authority
to any person
to make or
transfer any
valuable
security, or to
receive the
principal,
interest or
dividends
thereon, or to
7
Item No. 02/C-5
O.A. No. 2427/2024
receive or
deliver any
money,
movable
property, or
valuable
security, or
any document
purporting to
be an
acquittance or
receipt
acknowledging
the payment
of money, or
an
acquittance or
receipt for the
delivery of any
movable
property or
valuable
security, shall
be punished
with
imprisonment
for life, or with
imprisonment
of either
description for
a term which
may extend to
ten years, and
shall also be
liable to fine.
468 Forgery for Whoever
purpose of commits
cheating forgery,
intending that
the document
or electronic
record forged
shall be used
for the
purpose of
cheating, shall
be punished
with
imprisonment
of either
description for
a term which
may extend to
seven years,
and shall also
be liable to
8
Item No. 02/C-5
O.A. No. 2427/2024
fine.
471 Using as Whoever
genuine a fraudulently
forged or dishonestly
document or uses as
electronic genuine any
record document or
electronic
record which
he knows or
has reason to
believe to be a
forged
document or
electronic
record, shall
be punished
in the same
manner as if
he had forged
such
document or
electronic
record.
34 Acts done by When a
several persons criminal act is
in furtherance done by
of common several
intention persons in
furtherance of
the common
intention of
all, each of
such persons
is liable for
that act in the
same manner
as if it were
done by him
alone.
(iii) DoPT vide aforesaid OM dated 28.9.2022, has enjoined upon the Competent Authority to decide the Vigilance clearance on a case-by-case basis keeping in view the sensitivity of the purpose, the gravity of the charges and the facts and circumstances where the investigating agency has found no substance in the allegation but the Court refuses to permit closure of the FIR. So, it is evident, there is no blanket coverage granted by DoPT to those government servants who are prima facie found to be accused by the Judicial Magistrate under various sections of IPC which deals with criminal offence.
(ii) In terms of Judgements passed by Hon'ble Supreme Court in similar cases, it has emerged that the 'order of 9 Item No. 02/C-5 O.A. No. 2427/2024 stay' 26.04.2024 passed by the Hon'ble High Court, Patna in Criminal Miscellaneous No. 10510 of 2024 (arising out of P.S. Case No. 275 year 2022) does not automatically render the original order dated 27.4.2023 (passed by the Hon'ble Additional Chief Judicial Magistrate-VI Patna City, Patna in connection with Gaurichak PS Case No. 275 of 2022) non-existent but only non-operative.
(iv) Regarding the contention of the applicant that Vigilance Status was not issued by the competent authority- It is submitted that CVO, DoO(C&S) issues vigilance status in respect of Group-A Officers to the Cadre Controlling Authority and accordingly, the Cadre Controlling Authority processes the cases further and issue cadre clearance. Same procedure was followed in the instant case.
The letter dated 14.5.2024 referred to by the applicant was issued by the Vigilance Division, DoO(C&S), Kolkata to the applicant in respect of his representation preferred by him to Vigilance Division against his vigilance clearance. It was merely reiterated in the aforesaid letter dated 14.5.2024 of the Vigilance Division that the vigilance status of the applicant did not merit any changes in context of the order of stay" 26.04.2024 passed by the Hon'ble High Court, Patna in Criminal Miscellaneous No. 10510 of 2024 (arising out of P.S. Case No. 275 year 2022) as it does not automatically render the original order dated 27.4.2023 (passed by the Hon'ble Additional Chief Judicial Magistrate-VI Patna City. Patna in connection with Gaurichak PS Case No. 275 of 2022) non-existent but only non-operative in terms of Judgements passed by Hon'ble Supreme Court in similar cases.
(v) False submission by the applicant before this Hon'ble Tribunal The applicant has claimed in the instant OA (para-4.4 & 4.5) that he was not aware that his cousin brother had filed a suit regarding certain parental property at Patna and the Court of Additional Chief Judicial Magistrate-VI Patna City, Patna vide order dated 27.4.2023 had taken cognizance against the applicant and his brothers under certain sections of IPC and he came to know about the said criminal case when he tried to find out the reasons why his applications (for outside employment) were not forwarded and he was told that vigilance clearance could not be granted to him due to a criminal case pending against him.
In this regard, it is pertinent to submit here that the applicant was well aware about the case pending before the Hon'ble Additional Chief Judicial Magistrate-VI Patna City. Patna in connection with Gaurichak PS Case No. 275 of 2022 as he had applied for anticipatory bail petition vide A.B.P No. 4875/22 and accordingly, same 10 Item No. 02/C-5 O.A. No. 2427/2024 was rejected by the Hon'ble Additional Chief Judicial Magistrate-VI Patna City, Patna vide order dated 18.8.2022 as mentioned at para-6(iii) above.
The anticipatory bail petition was rejected by the Hon'ble Additional Chief Judicial Magistrate-VI Patna City, Patna on 18.08.2022, whereas, the vigilance status was issued to the cadre controlling authority with respect to the applicant on 13.12.2023.
Further, when the applicant was officially asked about the aforesaid Case No. 275 of 2022 (pending at Hon'ble Additional Chief Judicial Magistrate-VI Patna City, Patna) by India Optel Limited vide letter dated 15.9.2023 (i.e., prior to date of issuance of Vigilance status), the applicant himself acknowledged about the said criminal case vide his letter dated 13.10.2023 addressed to the General Manger/HR, India Optel Limited. As evident, the letter dated 13.10.2023 of the applicant was prior to date of issuance of the Vigilance status on 13.12.2023.
(Copy of letter dated 13.10.2023 of the applicant is enclosed as R-4) This shows that the applicant was well aware about the criminal case prior to issuance of the Vigilance Status on 13.12.2023 but still he has tried to mislead this Hon'ble Tribunal at para-4.4 & 4.5 of his instant OA.
(vi) As the criminal case (Gaurichak PS Case No. 275 of 2022) is still pending before Hon'ble Additional Chief Judicial Magistrate- VI Patna City, Patna and the stay order passed by the Hon'ble High Court Patna has only stayed the operation of the order dated 27.4.2023 but it does not make the original criminal case non- existent. Hence, in view of above submission made in thepreceding paragraphs, it is respectfully prayed that no interim relief be granted to the applicant. As the instant OA has no cause of action, the deponent humbly submits this prayer before this Hon'ble Tribunal that no relaxation be granted for admission of the case and for grant of the Vigilance Clearance to him and the instant OA be dismissed summarily."
4. Having gone through the pleadings on record and submissions made by the learned counsel for the parties, we would draw the following analysis.
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5. ANALYSIS 5.1 The Hon'ble Supreme Court in its judgment dated 27.08.1991 in Union of India Vs. K.V. Jankiraman etc.(AIR 1991 SC 2010) has held as under:
"5. An employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. An employee found guilty of misconduct cannot be placed on par with the other employees and his case has to be treated differently. There is therefore, no discrimination when in the matter of promotion, he is treated differently".
5.2. It is also pertinent to note the DoP&T OM dated 02.11.2012 on the subject comprehensive review of instructions pertaining to vigilance clearance for promotion. The same reads as under:
"Instructions issued vide O.M. No. 22012/1/99-Estt. (D) dated 25.10.2004 based on the O.M. No. 22011/4/1991- Estt. (A) dated 14.09.1992 (issued on the basis of procedure laid down by Supreme Court in K.V. Jankiraman case AIR 1991 SC 2010) makes it clear that vigilance clearance for promotion may be denied only in the following three circumstances:-
(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
(ii) Government servants in respect of whom prosecution for a criminal charge is pending.
Withholding of vigilance clearance to a Government servant who is not under suspension or who has not been issued a charge sheet and the disciplinary proceedings are pending or against whom prosecution for criminal charge is not pending may not be legally 12 Item No. 02/C-5 O.A. No. 2427/2024 tenable in view of the procedure laid down in the aforesaid O.Ms.
2. Existing instructions provide for processing the cases of disciplinary proceedings in a time bound manner. A number of cases have however, come to notice where initiation of disciplinary proceedings/issue of chargesheet/ processing of the case is considerably delayed by the administrative Ministries/Departments. Such delays allow an officer whose conduct is under cloud, to be considered for promotion. It becomes essential in respect of officer(s) in whose case disciplinary proceedings are contemplated or pending and are included in consideration zone for promotion, necessary action be taken for placing the proposal before the DPC so that vigilance clearance is not allowed as per conditions mentioned in para 1 above.
3. The Hon'ble Supreme Court in its judgment dated 27.08.1991 in Union of India Vs. K.V. Jankiraman etc.(AIR 1991 SC 2010) has held :
"5. An employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. An employee found guilty of misconduct cannot be placed on par with the other employees and his case has to be treated differently. There is therefore, no discrimination when in the matter of promotion, he is treated differently".
4. The issue of promotion of an officer who may be technically cleared from vigilance angle but in whose case it may not be appropriate to promote him/her in view of doubtful integrity or where a charge-sheet is under consideration etc has been under examination in this Department.
5. The O.M. No. 22012/1/99-Estt. (D) dated 25th October, 2004 further provides that a DPC shall assess the suitability of the Government servant coming within the purview of the circumstances mentioned in para 2 of the Office Memorandum No.22011/4/91-Estt. (A) dated 14.09.1992, along with other eligible candidates, without taking into consideration the disciplinary case/criminal prosecution pending. No promotion can be with eld merely on the basis of suspicion or doubt or where the matter is under preliminary investigation and has not reached the stage of issue of charge sheet etc. If in the matter of corruption/ dereliction of duty etc., there is a serious complaint and the matter is still under investigation, the Government is within its right to suspend the official. In 13 Item No. 02/C-5 O.A. No. 2427/2024 that case, the officer's case for promotion would automatically be required to be placed in the sealed cover.
6. When a Government servant comes under a cloud, he may pass through three stages, namely, investigation, issue of charge sheet in Departmental Proceedings and/or prosecution for a criminal charge followed by either penal- 671 conviction or exoneration/ acquittal. During the stage of in prior to issue of charge sheet in disciplinary proceedings or prosecution, if the Government is of the view that the charges are serious and the officer should not be promoted, it is open to the Government to suspend the officer which will lead to the DPC recommendation to be kept in sealed cover. The sealed cover procedure is to be resorted to only after the charge memo/charge sheet is issued or the officer is placed under suspension. The pendency of preliminary investigations prior to that stage is not sufficient to adopt the sealed cover procedure.
7. The law on sealed cover based on the judgment of the Apex Court in Union of India vs. K.V. Janakiraman etc. (AIR 1991 SC 2010), is by now well settled. The O.M. dated 14.9.92 confined the circumstances for adopting sealed cover to the three situations mentioned in para 2 of the said O.M. Even after recommendation of the DPC, but before appointment of the officer if any of the three situations arise, the case is deemed to have been kept in sealed cover by virtue of para 7 of the O.M. dated 14.9.92.
8. As regards the stage when prosecution for a criminal charge can be stated to be pending, the said O.M. dated 14.9.92 does not specify the same and hence the definition of pendency of judicial proceedings in criminal cases given in Rule 9 (6)(b)(i) of CCS (Pension) Rules, 1972 is adopted for the purpose. The Rule 9 (6)(b)(i) of CCS (Pension) Rules, 1972 provides as under:-
"(b) judicial proceedings shall be deemed to be instituted
- (i) in the case of criminal proceedings, on the date on which the complaint or report of a Police Officer, of which the Magistrate takes cognizance, is made".
9. For the purpose of vigilance clearance for review DPC, instructions exist in O.M. No. 22011/2 /99-Estt.(A) dated 21.11.2002 that review DPC will take into consideration the circumstances obtaining at the time of original DPC and any subsequent situation arising thereafter will not stand in the way of vigilance clearance for review DPC. However, before the officer is actually promoted it needs to be ensured that he / she is clear from vigilance angle and the provision of para 7 of O.M. No. 22011 / 4 / 91-Estt. (A) dated 14.09.1992 are not attracted.
10. Opening of sealed cover on conclusion of proceedings, is covered in the instructions in para 3 of the O.M. dated 14.9.92. In cases where by the time the Departmental 14 Item No. 02/C-5 O.A. No. 2427/2024 Proceedings are concluded and the officer is fully exonerated but another charge sheet has been issued, the second charge sheet will not come in the way of opening of sealed cover and granting promotion notionally from the date of promotion of the junior and para 7 of O.M. dated 14.9.92 will not apply as clarified in the O.M. No. 22011/2 / 2002-Estt.(A) dated 24.2.2003. After the disciplinary proceedings are concluded and penalty is imposed, vigilance clearance will not be denied. The details of the penalty imposed are to be conveyed to the DPC.
11. This Department has issued separate instructions for accordance of vigilance clearance to a member of Central Civil Services/holder of Central Civil post with respect to
(a) empanelment (b) deputation (c) appointments to sensitive posts and assignments to training programmes (except mandatory training) vide O.M. No. 11012/ 11/ 2007-(Estt. A) dated 14.12.2007. It has been further clarified in the O.M. No.11012/6/ 2008-Estt. (A) dated 07.07.2008 that these instructions do not apply to promotions. While consideration for promotion is a right of an employee but empanelment, deputation, posting and assignment for training (except mandatory training) is not a right of an employee and is decided keeping in view the suitability of the officer and administrative exigencies.
12. It may thus be noted that vigilance clearance cannot be denied on the grounds of pending disciplinary/criminal/court case against a Government servant, if the three conditions mentioned in Para 2 of this Department's O.M. dated 14.09.1992 are not satisfied. The legally tenable and objective procedure in such cases would be to strengthen the administrative vigilance in each Department and to provide for processing the disciplinary cases in a time bound manner. If the charges against a Government servant are grave enough and whom Government does not wish to promote, it is open to the Government to suspend such an officer and expedite the disciplinary proceedings.
13. All Ministries/Departments are, therefore, requested to keep in view the above guidelines while dealing with cases of vigilance clearance for promotion of the Government servants."
5.3 The Office Memorandum dated 28.09.2022 lays down the consolidated guidelines regarding grant of 'Vigilance Clearance" to AIS Officers and Central Services/Central Civil Posts, and Paragraph-2(ii) of the same provides as under: -
15Item No. 02/C-5 O.A. No. 2427/2024 "2. Part A-Grant of Vigilance Clearance to AIS
(ii) The circumstances under which vigilance clearance shall not be withheld shall be as under:
a. Vigilance clearance shall not be withheld due to the filing of a complaint, unless it is established on the basis of at least a preliminary inquiry or on the basis of any information that the concerned Government may already have in its possession, that there is, prima facie, substance to verifiable allegations regarding (i) Corruption (ii) Possession of assets disproportionate to known sources of income (iii) Moral turpitude (iv) violation of AIS Conduct Rules.
b. Vigilance clearance shall not be withheld if a preliminary inquiry mentioned in 2(ii)(a) above takes more than three months to be completed.
c. Vigilance clearance shall not be withheld unless (i) the officer is under suspension (ii) the officer is on the Agreed List, provided that in all such cases the position shall be mandatorily revisited after a period of one year (iii) a chargesheet has been issued against the officer in a disciplinary proceeding and the proceeding is pending (iv) orders for instituting disciplinary proceeding against the officer have been issued by the Disciplinary Authority, provided that the chargesheet is served within three months from the date of passing such order (v) chargesheet has been filed in a Court by the Investigating Agency in a criminal case and the case is pending (vi) orders for instituting a criminal case against the officer have been issued by the Disciplinary Authority, provided that the chargesheet is served within three months from the date of initiating proceedings (vii) sanction for investigation or prosecution has been granted by the Competent Authority in a case under the PC Act or any other criminal matter (viii) an FIR has been filed or a case registered by the concerned Government against the officer, provided that the chargesheet is served within three months from the date of filing/registering the FIR/case (ix) the officer is involved in a 16 Item No. 02/C-5 O.A. No. 2427/2024 trap/raid case on charges of corruption and investigation is pending.
d. Vigilance clearance shall not be withheld due to an FIR filed on the basis of a private complaint unless a chargesheet has been filed by the investigating agency, provided that there are no directions to the contrary by a competent court of law.
e. Vigilance clearance shall not be withheld even after sanction for prosecution if the investigating agency has not been able to complete its investigations and file charges even after a period of two years. However, such vigilance clearance will entitle the officer to be considered only to be appointed to non-sensitive posts and premature repatriation to the cadre and not for any other dispensation listed in Para 2(i) above.
f. Vigilance clearance shall be denied to an officer if he fails to submit his annual Immovable Property Return of the previous year latest by 31st January of the following year, as required under Government of India decisions under Rule 16 of the All India Services (Conduct) Rule, 1968."
5.4. It is not in dispute that the Preliminary Enquiry has not been completed, and there is no prima facie view against the applicant regarding allegations against him as mentioned in Office Memorandum dated 28.09.2022.
5.5 Applying the aforesaid legal position as well as the OM to the facts of the case, we observe that even though a closure report was filed by IO but the Learned ACJM rejected the said report and took cognizance of the offences and issued summons in the case. The said order dated 27.4.2023 passed by the Learned ACJM reads as under :-
"Perused the case record, case diary and the final report. I find that the case is of civil nature but after perusal of para-1. 4 & 5 of the case diary: I find that there is 17 Item No. 02/C-5 O.A. No. 2427/2024 sufficient material on record to make out a prima facie case against the accused persons namely, Deepak Kumar Sinha, Pradeep Kumar Sinha, Pyare Mohan Sahay and Randhir Kumar Sinha under Section 406/420/467/468/471/34 of IPC Olc is directed to issue summon against the accused persons. Put up on 16.09.23 for appearance of the accused persons."
5.6. Needless to state there is an order of stay dated 26.04.2024 passed by the Hon'ble High Court of Patna.
5.7. There is not even an iota of records or whisper mentioning in the reply filed by the respondents that any preliminary or departmental enquiry is pending or even contemplated and there is no prima facie view against the applicant regarding allegations levelled against him as mentioned in the DoP&T Office Memorandum dated 28.09.2022. The rejection of vigilance clearance on premises of order of learned ACJM cannot be the sole ground to arrive at a conclusion which would establish the guilt of the applicant. Moreso, it is yet to be put trial.
5.8. The wording expressed in para 2 of the impugned order dated 14.05.2024 of the Respondent No. 2 [Annexure : A-1] are as under:
"2. In this regard, It is stated that the effect of aforesaid Stay Order dated 26.04.2024 passed by the Hon'ble High Court, Patna against the operation of the Order dated 27.04.2023 passed by the Hon'ble Additional Chief Judicial Magistrate-VI Patna City, Patna has been examined by this office vis-à-vis Judgements passed by Hon'ble Supreme Court in similar cases.18
Item No. 02/C-5 O.A. No. 2427/2024 In Shree Chamundi Mopeds Ltd v. Church of South India Trust, the Hon'ble Supreme Court in where, it was held that "an order of Interim stay does not result in quashing of the Impugned order. It only means that the order will not be operative from the date of the order of the stay. It is only when the appeal is finally heard and the order is set aside, that the judgment will no longer be operative".
Further, the Hon'ble Supreme Court In Ravikant S.Patil Vs. Sarvabhouma Bagall (2007) 1 SCC 673) has held that- "It deserves to be clarified that an order granting stay of conviction is not the rule but is an exception to be resorted to in rare cases depending upon the facts of a case. Where the execution of the sentence Is stayed, the conviction continues to operate. But where the conviction itself is stayed, the effect is that the conviction will not be operative from the date of stay. An order of stay, of course, does not render the conviction non-existent, but only non-operative".
So as emerged, the 'order of stay' 26.04.2024 passed by the Hon'ble High Court, Patna in Criminal Miscellaneous No. 10510 of 2024 (arising out of P.S. Case No. 275 year 2022) does not automatically render the original order dated 27.4.2023 (passed by the Hon'ble Additional Chief Judicial Magistrate-VI Patna City, Patna in connection with Gaurichak PS Case No. 275 of 2022) non-existent but only non- operative.
The aforesaid wordings by itself are over-reaching the order of stay granted by Hon'ble High Court.
5.9 The impugned order dated 14.05.2024 of Respondent No. 2 [Annexure : A-1] has been passed, which cannot be pre judged on the basis of nature or gravity of offence(s) which are alleged against applicant even without conclusive proof. Hence, the impugned order prima facie has been passed dehors the OM dated 28.09.2022.
6. Conclusion In view of the above, we dispose of the prayer for interim relief(s) in terms of prayer clause 9.1 of the OA by 19 Item No. 02/C-5 O.A. No. 2427/2024 granting stay on the operation of the impugned Letter dated 14.05.2024 of Respondent No. 2 [Annexure : A-1] and the impugned Letter dated 12.02.2024 (sic.15.02.2024) of Respondent No. 2 [Annexure : A-2] till the disposal of the OA.
Liberty is granted to respondents to file a detailed reply affidavit within four weeks and rejoinder, if any, within two weeks thereafter.
List the matter for final disposal on 14.10.2024..
(Dr. Anand S. Khati) (Manish Garg) Member (A) Member (J) /as/