Central Administrative Tribunal - Delhi
Shri Ashok Kumar Handa vs Govt. Of Nct Of Delhi on 1 September, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI O.A. No.910/2010 M.A. No.305/2011 New Delhi, this the 1st day of September, 2011 HONBLE MRS. MEERA CHHIBBER, MEMBER (J) HONBLE DR. A.K. MISHRA, MEMBER (A) Shri Ashok Kumar Handa, S/o Sh. C.L. Handa, R/o J-2/3, Krishan Nagar, Delhi-110051. ..Applicant (By Advocate: Shri Ajesh Luthra) Versus 1. Govt. of NCT of Delhi, Through the Chief Secretary, 5th Floor, Delhi Sachivalaya, New Delhi. 2. The Secretary, (Services), GNCT of Delhi, B Wing, 7th Level, Delhi Secretariat, New Delhi. 3. The Deputy Director General, (NCC Department), GNCT of Delhi, Old Secretariat, Delhi-110054. ..Respondents (By Advocate : Shri Vijay Pandita) O R D E R
Mrs. Meera Chhibber, Member (J) Applicant has sought a direction to the respondents to promote him to the next higher grade, i.e., Grade-II, Delhi Administration Subordinate Services (hereinafter referred to as DASS) with effect from the date his immediate junior was promoted with all consequential benefits.
2. It is submitted by the applicant that he was appointed as Grade-IV (DASS) in the year 1981 and was promoted as Grade-III (DASS) on 31.12.1991. He was working as UDC/Grade-III in DASS with seniority No.6205. The Services Department initiated the process of promotion vide notification dated 30.1.2008 to the post of Grade-II (DASS) by calling particulars of Grade-III officers of DASS cadre wherein applicants name figured at Sl.No.475 (page 17 at 27).
3. The DPC was convened on 27.7.2009 and vide order dated 31.8.2009 (page 9), 81 persons were promoted to the post of Grade-II (DASS). All the persons below Sl.No.20 in the said order are junior to him as he was having seniority No.6205 but he has been denied promotion for the reasons best known to the respondents. When he made queries, he came to know that his case had been deferred for promotion as he was not clear from vigilance angle as prosecution sanction had been obtained for launching prosecution by CBI.
4. It is submitted by the counsel for the applicant that applicant was never placed under suspension nor any charge sheet has been issued to him in any departmental enquiry nor any charge was framed in the criminal case nor he was ever arrested, therefore, he could not have been denied promotion as none of the conditions mentioned in the OM dated 14.9.1992 existed in this case. He has thus prayed that the OA may be allowed.
5. Respondents on the other hand have opposed this OA. They have stated sanction orders under Section 19(1) of Prevention of Corruption Act 1988 for the prosecution of the applicant under Section 120-B read with 420, 467, 468, 471, IPC and Section 13(2), read with 13(1) of PC Act, 1988 etc. etc. has been issued in 5 cases by the Competent Disciplinary Authority as back as on 21.8.2007, 26.11.2007, 4.6.2008, 6.6.2008, 1.8.2008 respectively. Moreover, the CBI, Economic Offences Unit-I, New Delhi has informed vide letter dated 9.6.2010 that case No.RCEOU-126E0011 is pending before Special Judge, Rohini Court and the next date of hearing was 14.7.2010. Similarly other cases bearing No.RC 15(A)/2006 SCU.V/SC-II, Shahnaaz CGHS case is pending before Special Judge of CBI, Rohini Court and the next date of hearing was 24.5.2010 and RC9(S)/2006-SCR-III/MDMA/CBI/N.D is pending before Special Judge (CBI), Patiala House Court, New Delhi and the next date of hearing was 26.5.2010. Therefore, applicant cannot be promoted to the next higher grade, as there are serious charges of corruption/dereliction of duties mentioned in the investigation report of SP, CBI.
6. They have further explained that the applicant worked as UDC in the office of Registrar, Co-op. Society, Govt. of NCT of Delhi. During his tenure in that Department, he committed act of misconduct of grave nature to the extent that his role was questioned during investigation by CBI for reviving Defunct Five Group Housing Societies. The scam of revival of Defunct Five Group Housing Societies was ordered by Honble High Court of Delhi to be investigated by CBI (vide order dated 13.02.2006 passed in CWP (C) 10066/04). Prosecution sanctions for criminal charges in 5 cases against the applicant were issued by the Competent Disciplinary Authorities after his transfer in NCC Department from Trade & Taxes Department w.e.f. 30.11.2007. Prosecution Sanctions were given to CBI by the Disciplinary Authorities in about 3 matters. They have thus stated that applicants case was rightly put in the sealed cover in view of above facts. They have thus prayed that the OA may be dismissed.
7. Subsequently, respondents filed additional affidavit wherein it was further stated that charge sheet has been filed against the applicant by the CBI under Section 173 Cr.P.C. in the following cases:-
Sl.No. Case No. Date of filing of Charge Sheet
1. RC EOU-I 2006 AOO11 (Lucky Friends CGHS Case) 31.8.2007 (Annexure R-1)
2. RC EOU-I 2006 E0015 (Anshika CGHS Ltd.) 11.12.2007 (Annexure R-2)
3. 58/2008 (Bhagwat CGHS Ltd.) 20.6.2008 (Annexure R-3)
4. RC 9 (S)/2006-SCR-III/MDMA/CI/ND (IDC, CGHS Ltd.) 16.12.2008 (Annexure R-4) 8 They have thus submitted that applicant has rightly been denied promotion as he is under a cloud. They have also annexed the sanction for prosecution orders as well as the charge sheets filed by them along with additional affidavit. They have thus prayed that the OA may be dismissed.
9. Counsel for the applicant has placed reliance on the following judgments:-
(i) B.S. Bola, IPS Vs. U.O.I. (OA No.1919/2008) decided on 11.8.2009.
(ii) OA No. 1185/2007 entitled as Om Prakash Vs. U.O.I. & Another decided on 3.6.2008.
(iii) O.A. 1604/2009 entitled as R.P. Singh Vs. Govt. of NCT of Delhi and Others decided on 23.12.2009.
(iv) OA No.2540/2010 entitled as Satish Singh Aswal Vs. Govt. of NCT of Delhi and Others.
while counsel for the respondents has placed reliance on the following judgments:-
(i) U.O.I. & Others Vs. K.V. Jankiraman and Others reported in 1991 (4) SCC 109.
(ii) U.O.I. Vs. Dr. Sudha Salhan reported in 1998 (3) SCC 394.
(iii) Bank of India Vs. Degala Suryanarayana reported in 1995 (5) SCC 762.
(iv) U.O.I. and Another Vs. R.S. Sharma reported in 200 (4) SCC 394.
(iv) Delhi Development Authority Vs. H.C. Khurana reported in 1993 (3) SCC 196.
(v) Union of India Vs. Kewal Kumar reported in 1993 (3) SCC 204.
10. We have heard both the counsel and perused the pleadings as well.
11. The issue raised in this case has already been discussed and adjudicated upon in detail by a co-ordinate bench of this Tribunal in OA No. 1185/2007 titled as Om Prakash Vs. U.O.I. & Another decided on 3.6.2008 upheld by Honble High Court of Delhi. It would be pertinent to quote the relevant passages, which for ready reference read as under:-
7. Procedure and guidelines for promotion of government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigations, was earlier dealt with in DOP&T OM No.22011/2/86-Est.(A) dated 12.1.1988. This OM along with all other OMs earlier issued on the subject has been superseded by DOP&T OM No.22011/4/91-Estt.(A) dated 14.9.1992. The procedure, insofar as the same is relevant, laid down in OM dated 12.1.1988 is as follows:
2. Cases of Government servants to whom Sealed Cover Procedure will be applicable. 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 disciplinary proceedings are pending or a decision has been taken to initiate disciplinary proceedings;
(iii) Government servants in respect of whom prosecution for a criminal charge is pending or sanction for prosecution has been issued or a decision has been taken to accord sanction for prosecution;
(iv) Government servants against whom an investigation on serious allegations of corruption, bribery or similar grave misconduct is in progress either by the C.B.I. or any other agency, departmental or otherwise.
xxx xxx xxx xxx Sealed cover applicable to officers coming under cloud before promotion. 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 D.P.C. are received but before he is actually promoted, will be considered as if his case had been placed in a sealed cover by the D.P.C. He shall not be promoted until he is completely exonerated of the charges against him and the provisions contained in this O.M. will be applicable in his case also. Admittedly, the case of the applicant, if at all, would be covered by clause (iii) of para 2, as concededly, by the time the applicant could be actually promoted sanction to prosecute him was issued. This OM, however, as mentioned, has since been superseded by OM dated 14.9.1992. The very first paragraph of the OM aforesaid clearly mentions that the instructions contained therein have come into being as a result of review and in supersession of all earlier instructions on the subject. The said para reads as follows:
The undersigned is directed to refer to Department of Personnel and Training, O.M. No.22011/2/86-Estt.(A), dated the 12th January, 1988 (Sl. No.67 of Swamys Annual, 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 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. Janakiraman, etc. (AIR 1991 SC 2010). As a result of the review and in supersession of all the earlier instructions on the subject*, the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance. In the footnote, against *, mention is of following instructions:
O.M. No.39/3/59-Estt.A, dated 31.8.1960; 7/28/63-Estt.A, dated 22.12.1974; 22011/3/77-Estt.A, dated 14.7.1977; 22011/1/79-Estt.A, dated 30.1.1982; 22011/2/86-Estt.A, dated 12.1.1988; and 22011/1/91-Estt.A, dated 31.7.1991. It is pertinent to mention that instructions referred to above include the instructions dated 12.1.1988 and 31.7.1991. The instructions in vogue since 14.9.1992, insofar as the same are relevant, read 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) 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. Sealed cover procedure applicable to officers coming under cloud after holding of DPC but before promotion:
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 or the charges against him and the provisions contained in this OM will be applicable in his case also.
8. It could not be disputed during the course of arguments that the promotion/confirmation of employees against whom disciplinary/court proceedings are pending or whose conduct is under investigation, is now governed by instructions contained in OM dated 14.9.1992. That being so, in our considered view, sealed cover procedure can be adopted in case where a government servant may be under suspension, or in respect of whom a charge-sheet has been issued and the disciplinary proceedings are pending, or in respect of whom prosecution for a criminal charge is pending. Whereas clause (i) of para 2 of instructions of 1988 and 1992 is the same, there is a marked difference between clause (ii) of para 2 of instructions of 1988 and that of 1992. Whereas, as per clause (ii) of para 2 of the 1988 instructions, sealed cover procedure could be adopted in respect of government servant against whom disciplinary proceedings were pending or a decision had been taken to initiate disciplinary proceedings, such procedure can be adopted as per clause (ii) of para 2 of the 1992 instructions only in respect of government servant against whom charge-sheet has been issued and the disciplinary proceedings are pending. Reading of clause (ii) of para 2 of the 1992 instructions would make it absolutely clear that disciplinary proceedings would be considered to be pending only if the charge-sheet has been issued, as the words whom a charge-sheet has been issued precede the words and the disciplinary proceedings are pending. This meaning of clause (ii) of para 2 can be gathered from the fact that the word and has been used between the words Government servants in respect of whom a charge-sheet has been issued and the disciplinary proceedings are pending. If perhaps, instead of the word and, or was mentioned, it could mean that in either case, i.e., when disciplinary proceedings are pending, or a charge sheet was framed, the sealed cover procedure could be adopted. We need not further delve into clause (ii) of para 2 of instructions of 1988 or 1992 as it is not the case of the respondents that sealed cover procedure has been adopted in the case of the applicant because of circumstances obtainable in clause (ii) of para 2 of the instructions of 1988 or 1992. Once again, there is significant change in clause (iii) of para 2 of the 1988 instructions and the one contained in 1992 instructions. Whereas, as per clause (iii) of para 2 of the 1988 instructions sealed cover procedure could be adopted with regard to a government servant in respect of whom prosecution for a criminal charge was pending or sanction for prosecution had been issued or a decision had been taken to accord sanction for prosecution, as per clause (iii) of para 2 in the 1992 instructions such procedure can be adopted only if the prosecution for a criminal charge is pending against a government servant. Pendency of sanction for prosecution or even a decision that might have been taken to accord sanction for prosecution, have been consciously deleted from clause (ii) of para 2 of the later instructions. Insofar as clause (iv) of para 2 in the 1988 instructions is concerned, the same has been deleted from the 1992 instructions. Para 7 of the instructions, be it the instructions of 1988 or of 1992, would be applicable only with regard to circumstances enumerated in para 2, and no others. We are of the firm view that sealed cover procedure can be adopted only in circumstances enumerated in para 2 of instructions of 1992, and even if the circumstances as mentioned therein may surface after the DPC might have cleared a government servant for promotion, he may yet not be promoted, as in that event it has to be considered to be a case of deemed sealed cover procedure. In the present case, it is apparent that none of the circumstances enumerated in para 2 of the instructions of 1992 were in existence. The same did not come into existence by sanctioning prosecution of the applicant. The contention of Shri Bhardwaj, learned counsel representing the respondents, to incorporate the circumstance of sanction for prosecution enumerated in the instructions of 1988 justifying non-promotion of the applicant, in our view, has to be repelled. The learned counsel would, however, while contesting the cause of the applicant, rely upon a judgment of the Honble Supreme Court in Union of India & Another v R. S. Sharma [JT 2000 (4) SC 649], and a Division Bench decision of the Delhi High Court in Union of India & Others v R. C. Sehgal [WP(C) No.10541-43/2006 decided on 17.11.2006]. We may first refer to the Division Bench judgment of the Delhi High Court in R. C. Sehgal (supra). The facts of the said case reveal that the respondent Shri Sehgal had joined the Military Engineering Service as an Assistant Engineer after selection through UPSC in 1967. He progressed in his career and eventually on 2.2.2001 he was appointed as Chief Engineer. On 31.10.2003 he was posted as Joint Director General. On 31.3.2005 he was empanelled along with three others for promotion to the post of Additional Director General. In view of the contents of the empanelment letter, he was to be promoted on superannuation of one Shri Narender Kumar who was shown in the panel at serial number 3, and was to superannuate on 31.12.2005. The applicant, even though thus having been empanelled on 31.3.2005, could not be promoted before 1.1.2006. It is further made out from the records that actual appointment of officers included in the panel would be made in the order shown therein subject to availability of vacancies and issue of orders for appointment. Shri Sehgal, when not promoted, raked up the issue before this Tribunal. It was his case that when Shri Narender Kumar was due to retire on 31.12.2005, he was entitled to be promoted w.e.f. 1.1.2006, by which time the disciplinary proceedings had not been initiated against him. It was based upon an anonymous complaint that the Central Vigilance Commission (CVC) permitted investigation of the same in June, 2005, which was completed by 1.10.2005, and the decision to initiate disciplinary proceedings against him was taken by the Engineer-in-Chief on 26.10.2005, and pursuant thereto a show cause notice was issued to him on 4.1.2006. Shri Sehgal responded to the show cause, but a charge memo came to be issued against him on 26.5.2006. We need not go into any other aspect of the case, but for to note that Shri Sehgal, before he could be promoted, was charge-sheeted. In paragraph 20 of the judgment, the Honble Division Bench observed as follows:
20. The question which emerges for our consideration, in deciding the writ petition, is the interpretation of the OM dated 14.9.1992 in so far as it provides in para 7, for a legal fiction of a deemed sealed cover procedure. The language employed is 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. It is apparent that the respondent has not been actually promoted, though he was due to be promoted on 1.1.2006. Thus in the absence of his actually being promoted to the post of Additional Director General, the deemed legal fiction as mentioned above will come into operation. His case will be deemed to have been placed in a sealed cover and therefore he cannot be promoted.. In R. C. Sehgal (supra) relied upon by the learned counsel representing the respondents, the employee came to be covered under one of the circumstances mentioned in para 2 of the 1992 instructions. The case of the applicant, as mentioned in the preceding paragraphs of the judgment, would not be covered in any of the circumstances enumerated in para 2 of the 1992 instructions. The deemed sealed cover procedure envisaged in para 7 would be relatable to the only circumstances mentioned in para 2 of the 1992 instructions. In the matter before the Division Bench of the Delhi High Court, the employee came to be covered under clause (ii) of para 2 of the 1992 instructions. The circumstance of an employee being charge-sheeted was one envisaged in the instructions of 1988 and continues to be so in the instructions of 1992 as well. Insofar as the present case is concerned, the circumstance of sanction for prosecution having been issued or a decision having been taken to accord sanction for prosecution, has been deleted in the instructions of 1992. We are thus of the firm view that the mere sanction for prosecution, a ground not enumerated in para 2 of the instructions of 1992, could not be taken to apply para 7 of the instructions pertaining to deemed sealed cover procedure.
9. The facts in R. S. Sharma (supra) relied upon by learned counsel representing the respondents, reveal that respondent R.S.Sharma was appointed in the Telecom Department during 1986. Within two years of service, allegations came to be made against him that he had purchased sub-standard materials for the Department at very high prices. An FIR was registered against him by CBI. On 10.3.1988 he was suspended, which order was revoked within six months. CBI, however, continued with the investigation and on completion thereof, applied to the government for according sanction to prosecute him. In the meanwhile, the DPC considered cases of other persons for promotion, but deferred the case of R.S.Sharma on account of pendency of investigation of the allegations leveled against him. Aggrieved of his non-promotion, Sharma approached the Tribunal, which passed an interim direction that the DPC should consider his case for promotion in the event of considering the claims of any of his juniors. Pursuant thereto, the DPC considered his case on 3.4.1991 and adopted a decision, which was, however, not communicated to any one and instead the DPC put its recommendations in a sealed cover, in view of the instructions dated 12.1.1988. It remained undisputed before the Honble Supreme Court that on 3.4.1991 when DPC decided to put the recommendations concerning R.S.Sharma in sealed cover, investigation into the case in the aforesaid FIR was pending. That being so, the sealed cover procedure was adopted as his case fell within the purview of clause (iv) of para 2 of the 1988 instructions. On 31.7.1991, however, a new development took place. As per Office Memorandum of the said date, the restriction imposed as per clause (iv) was deleted from the 2nd paragraph of the Sealed Cover Procedure. However, three counts of clarifications were made by the government through the same O.M. The same were as follows:
(i) All cases kept in sealed cover on date of this O.M. on account of conditions obtainable in para 2(iv) of the O.M. dated 12.1.1988 will be opened. If the official had been found fit and recommended by DPC, he will be notionally promoted, from the date his immediate junior had been promoted. The pay of the higher post would of course, be admissible only on assumption of actual charge in view of provisions of FR 17(1). (Since only officiating arrangements could be made against the vacancies available because of cases of senior officials being in sealed cover, there may not be any difficulty in terminating some officiating arrangements if necessary and giving promotion in such cases).
(ii) If any case is in a sealed cover on account of any of the other conditions mentioned in para 2(i) to 2(iii) of the O.M. dated 12.1.88, the case will continue to be in the sealed cover.
(iii) On opening the sealed cover because of deletion of para 2(iv) if an officer is found to have been recommended as unfit by the DPC no further action would be necessary. In the meanwhile, CBI completed and submitted a report to the government on 7.5.1991 and sought for sanction to be accorded to launch prosecution against R.S.Sharma. On 9.7.1991 the Minister of State concerned gave his approval and referred the matter for advice of CVC. When the advice was given by the CVC the Minister of State gave further approval on 10.9.1991 for adopting follow-up actions on the report. However, formal order granting sanction to prosecute the respondent was made by the President only on 30.9.1991. On the facts as mentioned above, it was observed by the Honble Supreme Court that Normally the case of respondent should have succeeded if the situation which happened on 31.7.1991 was confined to deletion of clause (iv) from second paragraph of the Sealed Cover Procedure. But when the same O.M. made specific mention of a clarification that the case will continue to be in the sealed cover on account of existence of any one of the remaining three conditions specified in clauses (i) to (iii) of the first O.M. the matter has to be considered from those angles also. The contention raised before the Honble Supreme Court was that as the Minister concerned accorded approval for granting sanction to prosecute the respondent as early as 9.7.1991, the recommendations of the DPC must remain under sealed cover by virtue of the conditions specified in clause (iii) of the second paragraph of the Sealed Cover Procedure, because in such an event deletion of clause (iv) on 31.7.1991 by itself had no consequence. An alternative contention on paragraph 7 of the Sealed Cover Procedure was raised. The contention based upon paragraph 7 was accepted on admitted facts that the respondent had not actually been promoted and that formal sanction had been accorded to prosecute him. It was observed by the Apex Court that in the admitted position, as mentioned above, paragraph 7 would entirely apply and the recommendations made by DPC in respect of the respondent had to remain under sealed cover until he is completely exonerated of the charges against him. It is apparent that the case of R.S.Sharma, if not covered under clause (iv) which was deleted on 31.7.1991, then came to be covered by clause (iii). There cannot be any manner of doubt that when case of an employee may be covered under any of the circumstances mentioned in paragraph 2 of the 1992 instructions by the time he is not promoted, even though the DPC might have cleared him for promotion, paragraph 7 of the instructions may be attracted. As mentioned above, if the case of R.S.Sharma was not covered under clause (iv), the same having been deleted, it came to be covered under clause (iii). Nonetheless, he was covered in one of the clauses of para 2 and, therefore, in his case paragraph 7 of the instructions would be applicable, be it of 1988 or 1992 instructions. The case of the applicant, as mentioned above, is not covered by any of the clauses contained in para 2 of the instructions of 1992. The judgments relied upon by the learned counsel representing the respondents, if properly examined, in our considered view, would run counter to the plea raised by Shri Bhardwaj. In both the judicial precedents, the law laid down is that even if the DPC might have cleared the case of an employee for promotion, but before he is actually promoted, if his case is covered in any of the clauses in paragraph 2, the deemed procedure of sealed cover may be adopted as mentioned in paragraph 7. If that be so, it has to follow that if the case of an employee may not be covered in any of the circumstances in paragraph 2 of the 1992 instructions, he has to be promoted.
10. In view of the clear meaning and interpretation of paragraphs 2 and 7 of the 1992 instructions, and the observations that the two judicial precedents relied upon by the learned counsel representing the respondents would not advance his case at all, there may not be any need to refer to judicial precedents cited by the learned counsel representing the applicant. We may, however, make a mention of only one judgment of the Honble Supreme Court, which may be latest in point of time, in the matter of Union of India & Others v Sangram Keshari Nayak [JT 2007 (6) SC 272]. The Honble Supreme Court had an occasion to deal with circular dated 21.1.1993. Paragraph 6 of the circular reads as follows:
6. 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 Departmental Promotion Committee. He shall not be promoted until the conclusion of disciplinary case/criminal proceedings and the provisions contained in this letter will be applicable in his case also. The provisions contained in para 6 reproduced above are pari materia to the provisions contained in para 7 of the instructions of 1992. Shri Nayak, respondent before the Honble Supreme Court, was recruited to Indian Railway Traffic Services on 1.2.1982. He was promoted to the post of Junior Administrative Grade. He was also placed in the selection grade on 1.7.1994. The post of Senior Administrative Grade fell vacant. He was eligible to be considered therefor. A DPC was convened for preparation of a panel for promotion to the said post. Even though, his name was also included therein, but on the premise that a vigilance case was pending against him, sealed cover procedure was adopted by the DPC purported to be in terms of the circular in question providing for the procedure and guidelines to be followed in respect of the officers who are to be promoted from Grade B to Grade A and of Railway officers against whom disciplinary/court proceedings were pending. On 27.8.1999, the immediate junior to the respondent was promoted to the post of Senior Administrative Grade but only on 24.9.1999, a departmental proceeding was initiated against the respondent by issuance of a charge-sheet. On the facts as mentioned above and on consideration of para 6 of the circular dated 21.1.1993 reproduced above, it was held that Whereas paragraph 6 of the said circular letter provides for a sealed cover procedure to be adopted by the DPC, the same has to be taken recourse to only in the event circumstances mentioned in paragraph 2 thereof arise after the recommendations of the DPC. The recommendations of the DPC, therefore, can be refused to be given effect to only inter alia when one or the other conditions mentioned in paragraph 2 of the said circular stand satisfied which in the instant case would mean that as against the respondent a chargesheet had been issued or, in other words, a disciplinary proceeding was pending. Admittedly, a chargesheet was issued against him only on 24.09.1999. The Union of India, appellant in the case aforesaid, had sought to place reliance upon R. S. Sharmas case (supra). The contention based upon the decision aforesaid was repelled by observing that Reliance placed by Mr. Mohan on R. S. Sharma (supra), in our opinion, does not advance the appellants case. In that case, cases where sealed cover procedure were applicable were contained in paragraph 2 of the office memorandum dated 12.01.1988 This is what precisely has been observed by us hereinbefore, and this is in fact the ratio of decisions relied upon by the learned counsel representing the respondents as well. The fact of the matter is that the case of the applicant is not covered in any of the eventualities mentioned in paragraph 2 of the instructions of 1992. Reliance placed upon circumstances mentioned in paragraph 2 of the 1988 instructions by Shri Bhardwaj is totally misplaced. The said circular has been superseded and as mentioned above, the circumstance of sanction for prosecution, available in the 1988 instructions, has been deleted in the instructions of 1992.
From above discussion, it is clear that sanction for prosecution is no longer a ground under 1992 instructions for keeping the result in sealed cover.
12. In above background, if the facts of present case are seen, we find all that the respondents have stated in the present case to deny promotion to the applicant is that sanction for prosecution was issued against the applicant in 5 cases as back as in 2007-2008 respectively and charge sheet has been filed, but in none of the cases cognizance is stated to have been taken by the Learned Magistrate, therefore, the case of applicant would not be covered under any of the clauses of OM dated 14.9.1992. The defence taken by the respondents in this case has already been dealt with by the co-ordinate bench in Om Prakash (Supra) which has been upheld by the Honble High Court of Delhi. It has been clarified that issuance of sanction for prosecution has not been stipulated under OM dated 14.9.1992 for putting the case in sealed cover. Though respondents have stated that charges against the applicant are very serious, but they never placed the applicant under suspension which could have been done by the respondents. We agree with the respondents that charges are very serious but we cannot help the respondents when law is in applicants favour, therefore, it can easily be concluded that none of the grounds, as mentioned under OM dated 14.9.1992 existed on the day when the DPC met in this case to consider the applicant for promotion to Grade-II (DASS). It does not exist even now, therefore, neither para 7 of OM dated 14.9.1992 would be applicable nor judgment in R.S. Sharma (Supra) would apply. We, therefore, hold that applicants case could not have been kept in the sealed cover. The respondents are directed to open the sealed cover of the applicant and in case he is found fit, to give effect to the recommendations made by the DPC from the same date when his junior was so promoted with all consequential benefits in accordance with law.
13. OA stands disposed of with the above directions. No order as to costs.
(DR. A.K. MISHRA) (MRS. MEERA CHHIBBER)
MEMBER (A) MEMBER (J)
Rakesh