Central Administrative Tribunal - Delhi
Praveen Jain vs Union Of India Through on 10 August, 2015
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.802/2015 Order Reserved on 19.05.2015 Order pronounced on 10.08.2015 Honble Shri Justice Syed Rafat Alam, Chairman Honble Dr. B. K. Sinha, Member (A) Praveen Jain Aged 57 years S/o Late Sh. A.K.Jain Commissioner (Appeal) Central Excise, Customs & Service Tax Saurabh Bungalow, Next to Adarsh Hospital Race Course, Gotri Road Vadodara. Applicant (By Advocate: Mr. Vinay Kumar Jain with Sh. Shailendra Paul) Versus Union of India through The Secretary Department of Revenue Ministry of Finance, North Block New Delhi 110 001. Respondent (By Advocate: Mr. Gyanender Singh with Sh. Yogesh Mathur) O R D E R By Dr. B. K. Sinha, Member (A):
The instant OA raises a question of law as to whether the Government of India Instructions regarding deemed sealed cover procedure, as contained in DoPTs OM dated 14.09.1992 in paragraphs 2 and 7 and also as supplemented by para 3 of DoPTs OM dated 23.01.2014 are in derogation of the statutes of Indian Revenue Service (Customs & Central Exercise) Group A Rules of 2012, and hence, in violation of Articles 14 and 16 of the Constitution of India.
2. The applicant, in the instant case, is aggrieved by the letter dated 14.01.2015 (Annexure A1) intimating the decision to put his promotion to the rank of Chief Commissioner in the Central Board of Excise and Customs recommended by Review Departmental Promotion Committee (DPC) meeting held on 26.08.2014 in terms of order of this Tribunal dated 15.04.2014 in OA No.993/2014 under `deemed sealed cover.
3. What further aggrieves the applicant is that there are no rules in force which mandate the concept of the `Deemed Sealed Cover communicated to him by the aforesaid letter dated 14.01.2015.
4. The applicant, by means of the instant OA, has prayed for the following reliefs:
a) Direct the respondent to promote the applicant henceforth w.e.f. 01.11.2013 with all consequential benefits.
b) Declare the impugned order/letter dated 14.01.2015 communicating the decision to place the name of the applicant under deemed seal cover as ultra vires, non-est, arbitrary & discriminatory, and consequently quash the same.
c) Inquiry be ordered to be conducted under the directions and supervision of this Honble Court to ascertain the denial of due promotion to the applicant by colourable exercise of power by the public servants.
d) Application be allowed with costs.
e) Any other order as this Honble Court deems just, fit and appropriate be also passed in favour of the applicant and against the respondent.
5. The facts of the case, in brief, are that the applicant admittedly belongs to the Indian Revenue Service (Customs & Central Excise) Group `A Service (hereinafter called as `IRS). The Department of Revenue (respondent department) is the Cadre Controlling Authority for the service of the applicant in terms of the Indian Revenue Service Rules, 1961. The statutory Recruitment Rules of 2012 provide that the post of Commissioner of Customs & Central Excise (Grade I) [HAG Gr.I] is to be filled by promotion from amongst officers in the Senior Administrative Grade-II (SAG Grade-II) in Pay Band 4 of Rs.37400-67000 plus Grade Pay of Rs.10000/- with three years of regular service in the grade or officers with 25 years of regular service in Group `A posts, out of which, at least one year regular service is to be in the Senior Administrative Grade (Grade II).
6. The applicant admittedly fulfilled the eligibility criteria. However, the DPC held on 21.06.2013, primarily due to the machinations of one Shri Joseph Antony, Under Secretary [who issued a false certificate dated 06.03.2013 by not including the name of the applicant in Delhi Staff Officer whose APARs had been upgraded], as a consequence of which the relevant upgraded the APARs were not placed before the DPC. The DPC, therefore, considered his case on the basis of the APARs which had not been upgraded and assessed him `Good, i.e., below the bench mark. The relevant part of the proceeding is reproduced below for clarity [Page 56 para 8.4 of the paper book]:
8.4 While going through the APAR for the year 2010-11(01.04.2010 to 30.06.2010 and 01.11.2010 to 31.03.2011) in r/o Shri Praveen Jain (S.No.17), the Committee observed that the Reporting Officer awarded him the numerical grading of 10. However, disagreeing with the Reporting Officer, the Reviewing Officer while recording his comments applied his judicious mind and had given a numerical grading of 5.0. The Reviewing Officer did not record any adverse remarks. Therefore, the Committee decided to agree with the Reviewing Officer and assessed him as `Good only. As a consequence, while the applicant was declared `Unfit for promotion, three of his juniors were promoted to the rank of Chief Commissioner (HAG) vide order dated 01.11.2013 (Annexure A5).
7. The applicant submits that in order to legitimize his acts of omission and commission, the said Joseph Antony, Under Secretary [who had earlier issued a false certificate dated 06.03.2013 by not including the name of the applicant in the list of officers whose APARs had been upgraded]got a false and concocted charge memo. dated 10.09.2013 (Annexure A6) issued against the applicant under Rule 14 of the CCS (CCA) Rules, 1965. This charge memo pertains to the reporting year of the APAR-2011-2012 (Annexure A7), where the applicant had been graded as `honest and assessed at a numerical grading of `9/10. The applicant had already been accorded vigilance clearance certificate and on the date of the original DPC dated 21.06.2013 he was neither under suspension nor was he facing any departmental or criminal proceedings, and, therefore, as per the applicable statutory rules/law in vogue, he was entitled to have his name included in the panel of officers for promotion to HAG and ought to have been granted his due promotion, which was not done. The applicant approached this Tribunal vide OA No.993/2014 vide Judgement dated 15.04.2014, which was allowed vide order dated 15.04.2014 (Annexure A8) with the direction to the respondents to hold a review DPC within a period of 2 months.
8. When the aforesaid order of this Tribunal dated 15.04.2014 was not complied with, the applicant filed CP No.294/2014 in OA No.993/2014, which was disposed of by the Tribunal vide order dated 15.01.2015 (Annexure A9) wherein, the impugned letter dated 14.01.2015 was placed before this Tribunal singed by the said Joseph Antony, US. Accordingly, the CP was closed on 15.01.2015. Hence, the present OA has been filed by the applicant challenging the aforesaid impugned order. In the meantime, the applicant had filed CS(OS) No.3724/2014 before the Honble High Court of Delhi for recovery of damages of Rs.2,05,00,000 with interest from the said Joseph Antony, Under Secretary, which is a separate issue and, therefore, it is not necessary to comment on it in the present proceedings.
9. The applicant has adopted the following grounds in this OA:
10. In the first instance, there is no provision for deemed sealed cover procedure in IRS Rules of 2012. Therefore, applicants condition of service cannot be regulated by the DoPTs OM dated 14.09.1992, as the Rules of 2012 have been issued under Article 309 of the Constitution of India, even though Clause 10 of the said Rules provides that residuary matters pertaining to the matters not specifically covered by these rules, or instructions or orders made or issued thereunder or by special orders, the members of the Service shall be governed by the rules, instructions and orders applicable to the officers of Central Civil Services in general. DoPTs OM as defined in Office Procedure Manual means a mode of communication inter-se departments and is not issued under Article 309 of the Constitution of India. It cannot, therefore, the applicant argues have any amending effect upon the IRS Rules of 2012. It has been further argued by the applicants counsel that the `deemed sealed cover is not a legal concept; that the DPC did not recommend to adopt the deemed sealed cover procedure, in respect of the applicants case; and further that the applicants victimization is on account of the animus the said Joseph Antony, Under Secretary harbors for the applicant.
11. The applicant has relied upon the following decisions in support of his contentions raised in the OA:
1. Union of India v. Maya Sinha, 105(2003) DLT 694(DB) of the Delhi High Court of Delhi.
2. Union of India & Anr. v. Vineet Ohri (WP(C) No.7914/2009 of Delhi High Court).
3. Union of India v. Dr. Sudha Salhan (Smt.), (1998) 3 SCC 394.
4. St. of Haryana v. Shamsher Jang Bahadur, (1972) 2 SCC 188.
5. K. Kuppusamy & Anr. v. State of Tamil Nadu & Others, (1998) 8 SCC 469.
6. P.D.Aggarwal & Others v. State of U.P. & Others, (1987) 3 SCC 622.
7. Union of India & Anr. v. Sudhir Kumar Jaiswal, (1994) 4 SCC 212.
8. Union of India v. Majji Jangamayya (1997) 1 SCC 606.
9. Union of India v. Ashok Kumar Aggarwal, (2013) 16 SCC 147.
12. The respondents have filed a short reply but have not followed it up with a detailed reply in this regard. It has been submitted on behalf of the respondents that the minutes of the review DPC had been submitted to the Honble Finance Minister, who had agreed with the recommendations of the DPC to treat it as deemed sealed cover proceedings. For the sake of clarity, the relevant paras of the counter affidavit are reproduced below:
3. The Minutes of the Review DPC was submitted to the Honble FM along with the position of the vigilance status that a Charge Memo was issued to Shri Praveen Jain on 10.09.2013. Honble FM has agreed with the recommendations of the Review DPC to treat the case as deemed sealed cover.
4. Thereafter, the proposal was sent to DOP&T seeking approval of the Competent Authority to the recommendations of the Review DPC. DOP&T vide their communication dated 06.01.2014 intimated that Competent Authority has approved the proposal for treating the recommendations of the Review DPC held on 26.08.2014 for empanelment of Shri Praveen Jain for promotion to the grade of Chief Commissioner in the Central Board of Excise and Customs for the vacancy year 201314 as deemed to have been kept in `sealed cover.
13. The respondents submit that in terms of DoPTs OM dated 23.01.2014 in the case of a review DPC, where a junior has been promoted on the recommendations of the original DPC, the official would be considered for promotion if he/she is clear from vigilance angle on the date of promotion of the junior, even if the provisions of para 2 of DoPTs OM dated 14.09.1992 get attracted on the date the actual promotion concerned. In terms of Para 7 of the said OM dated 14.09.1992, it is stated that even after the recommendations of the DPC for promoting the officer but before appointment of the officer, if any of the three circumstances arises, i.e.,
a) Government servant is placed under suspension or
b) A chargesheet has been issued against him and the disciplinary proceedings are pending or
c) A prosecution for a criminal charge is pending against him, the case of the concerned officer would be deemed to have been kept in a sealed cover vide para 7 of the OM dated 14.09.1992. As per the vigilance status at the time of review DPC, a charge memo against major penalty was issued against the applicant on 10.09.2013, and the same was served on 12.09.2013 under acknowledgement, and again on 13.09.2013 personally upon him, the provisions of the aforesaid OM of 1992 would be attracted upon the applicant. The approval of the competent authority has also been obtained for following the deemed sealed cover procedure.
14. The applicant has filed a rejoinder more or less reiterating the same averments already made in the OA and given an extract of the note of the DPC wherein the minutes of the meeting dated 21.06.2013 had been modified, and the Review DPC, held on 26.08.2014, had recommended the applicant for promotion, which is clearly mentioned in para 6 of the review DPC note. For the sake of clarity, para 6 is reproduced below:
6. On the basis of the above assessment, the Committee recommend that the name of Shri Praveen Jain may be included in the Main Panel for promotion to the post of Chief Commissioner of Customs and Central Excise {Group `A scale of pay of Rs.67,000-79,000 (Rs.22,400-24,500 (pre-revised)} in the Department of Revenue, Ministry of Finance in the year 2013-14 at S.No.10-A, below Shri Chander Bhan (S.No.10) and above Shri Ashok Kumar Gupta (S.No.11). Subsequently, the respondents have filed sur rejoinder (reply to the rejoinder) reiterating the contentions already taken in their short reply, and further informed that as the chargesheet had been issued on 10.09.2013, prior to issuance of promotion order on 01.11.2013, the competent authority had decided to treat the recommendations of the review DPC held on 26.08.2014 for empanelment of the applicant as Chief Commissioner in Central Board of Excise and Customs for the vacancy year 2013-2014 as kept in a sealed cover.
15. We have heard the arguments of both the learned counsel patiently and also perused the pleadings on record. The respondents have relied upon the order in OA No.3703/2014 (Vinod Kumar Goel v. Union of India & Others), decided by this Tribunal vide order dated 28.04.2015, wherein the Tribunal had rejected a similar plea made by the applicant therein. We have already spelt out the issue, which is to be decided, is purely on legal matrix, and, therefore, we take it up for consideration, in the manner as discussed hereinafter.
16. Admittedly, the Department of Revenue, Ministry of Finance is the designated Cadre Controlling Authority in respect of the applicant, and the Indian Revenue Service (Customs and Central Excise) Group `A is a branch and the same is governed by Rules of 2012. Rule 4 of the Rules of 2012 provides for authorized strength of the service and its review; Rule 5 provides details of the manner in which the vacancies in the service are to be filled, i.e., 50% of the vacancies of the service in JTA are to be filled by direct recruitment, and Rule 6 provides for confirmation on completion of the probation period. The seniority of persons appointed to various grades of service is to be determined under Rule 7 of the Indian Revenue Service (Customs and Central Excise) Group `A Rules, 2012, in accordance with the general orders/instructions on seniority issued by the Central Government from time to time. Rule 9 of the said Rules provides regarding conditions of service, and sub-Rule (2) of this Rule provides as under:
(2) The conditions of service of the officer of the Service in respect of matters for which no provision has been made under these rules shall be the same as are applicable from time to time, to the officers of Central Civil Services in general.
Rule 10 of the said Rules, further provides regarding residuary matters as under:
10. Residuary matters- In regard to matters not specifically covered by these rules, or instructions or orders made or issued thereunder or by special orders, the members of the Service shall be governed by the rules, instructions and orders applicable to the officers of Central Civil Services in general. Schedule-I under Rule 3(3) and Rule 4(1) provides various Grades of Service, Number of posts and its Pay Band, Grade Pay and Pay Scales. It includes the post of Chief Commissioner of Customs and Central Excise under Grade I (HAG) and also Commissioner of Customs and Central Excise (Grade II), etc. Schedule II under Rule 5(2) provides the minimum educational qualifications and age-limit for direct recruitment to posts in Grade VI (JTS) of the Service on the results of the examination.
Schedule III under Rule 5 provides method of recruitment, field of promotion and minimum qualifying service in the next lower grade for appointment of officers on promotion to the posts included in the various grades of the Indian Revenue Service (Customs and Central Excise) Group `A. For the sake of clarity, the relevant portions are extracted below:[Pages 35 and 36 of the paper book]:
S.No. Name of post Method of Recruitment Field of Selection Grade and the minimum qualifying service for promotion 1 Chief Commissioner of Customs and Central Excise (Grade-I) (Higher Administrative Grade) Promotion Officers in the Senior Administrative Grade (Grade II) in the Pay Band-4, Rs.37400-67000 plus Grade Pay of Rs.10,000 with three years regular service in the grade or Officers with twenty five years regular service in Group `A posts in the service out of which at least one year regular service should be in the Senior Administrative Grade (Grade II).2
Commissioner of Customs and Central Excise (Grade-II) (Senior Administrative Grade) Promotion Officers in the Junior Administrative Grade (Grade III), in the Pay Band-4, Rs.37000-67000 Plus Grade Pay of Rs.8700 with eight years regular service in the grade including Non-Functional Selection Grade or Officers with seventeen years regular service in Group `A posts in the service out of which at least four years regular service should be in the Junior Administrative Grade (including service rendered in the Non Functional Selection Grade of the Junior Administrative Grade).3
Xxxxxx Xxxxxx Xxxxxxx 4 Joint Commissioner of Customs and Central Excise (Grade-IV) (Junior Administrative Grade) Promotion Officers in the Pay Band-3, Rs.15600-39100 plus Grade Pay of Rs.6600 with a minimum of five years regular service in the Grade V, failing which nine years combined regular service in the Grades V and VI taken together.
Schedule IV under Rule 5(6) provides Composition of Departmental Promotion Committee for considering cases of promotion and confirmation to the posts included in the various grades of the service. The relevant part of the said Schedule is extracted below: [Page 37 of the paper book] Sl.No. Grade Departmental Promotion Committee for considering Promotion Departmental Promotion Committee for considering Confirmation Departmental Screening Committee for considering Non-Functional Upgradation (1) (2) (3) (4) (5) 1 Chief Commissioner of Customs and Central Excise (Grade-I) (Higher Administrative Grade)
1. Chairman or Member, Union Public Service Commission Chairman.
2. Secretary (Revenue) Member
3. Chairman, Central Board of Excise and Customs Member
4. Member, Central Board of Excise and Customs Member
1. Secretary (Revenue) - Chairman
2. Chairman, Central Board of Excise and Customs Member
3. Member*, Central Board of Excise and Customs Member *to be nomi-nated by Chairman, CBEC
17. The impugned Order dated 14.01.2015 (Annexure A1) [stated to be wrongly dated as 14.01.2014] issued by the said Joseph Antony, Under Secretary, addressed to the Chief Commissioner of Central Excise (Delhi Zone), in compliance of the Contempt Petition No.284/2014 in OA No.993/2014, filed by the applicant, has been extracted below:
I am directed to refer to Member (P&V)s D.O. Letter of even number dated 26th November, 2014 on the subject cited above and to say that the Appointments Committee of Cabinet (ACC) has approved the proposal for treating the recommendations of the Review DPC held on 26.08.2014 for empanelment of Shri Praveen Jain for promotion to the grade of Chief Commissioner in the Central Board of Excise and Customs for the vacancy year 2013-2014 as deemed to have been kept in `Sealed Cover.
2. No such para.
3. The Honble CAT, PB, New Delhi may kindly be apprised the above position in consultation with Government Counsel, with the request for closure of the Contempt Petition.
4. Action taken in the matter may please be intimated to Board at an early date, duly indicating the present status of the case and next date of hearing.
5. This may please be accorded on TOP PRIORITY.
18. The arguments of the parties have already been taken note of in this order. It is an admitted position that the aforesaid rules do not provide, even speak about, the term deemed sealed cover proceeding. For that matter, they do not also use the term deemed sealed cover proceeding. It follows by use of converse logic that this term has not been included in any of the Rules framed under Article 309 of the Constitution of India. At that, it has been introduced in exercise of executive powers subsequently by the Government.
19. The executive powers of the Government are provided under Articles 74 and 77 of the Constitution. Article 74 of the Constitution provides for the Council of Ministers to aid and advise President, as also issues like the constitutional requirement to act according to the advice of some other authority, the veto power, appointment of Governors, etc., take effect from this Article. This Article also further bars the jurisdiction of the Courts in certain matters. For the sake of clarity, the Article 74 is extracted below:
74. Council of Ministers to aid and advise President.-
[(1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice:] 3[Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.] (2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.
20. Article 77, on the other hand, is related to regulating the conduct of business of the Government of India. For the sake of clarity, Article 77 is extracted below:
77. Conduct of business of the Government of India:
(1) All executive action of the Government of India shall be expressed to be taken in the name of the President.
(2) Orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in rules1 to be made by the President, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President.
(3) The President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business.
21. Article 77 also speaks of the executive action of the Government of India, which is taken in the name of the President of India. This again has to be taken by the Minister/Officer under whom the said business is allocated by the rule of business made under Clause (3) of Article 77 of the Constitution of India for the more convenient transaction of business of the Government of India. All orders issued and the instrument executed relatable to the executive action of the Government of India, have to be authenticated in the manner and by the officer empowered in that behalf in the name of President. All the business of the Government of India is transacted by the Minister or other officer(s) empowered in that behalf, of course, in the name of the President. The orders/instruments issued are executed and other acts done by various ministries and officers, none of which may reach the President or may be placed before him for consideration. There is no occasion in such cases for any aid or advice being considered to be President by the Council of Ministers. The Honble Supreme Court specifically provided this in S.R.Bommai & Others v. Union of India, (1994) 3 SCC 1 that these are the acts of the Government of India and they are distinct from the acts of the President in the exercise of his function contemplated under Article 74. In the case of Union of India vs. Sripati, (1976) 1 SCWR 173 it has come to be conclusively decided, that the President under the Constitution is not, in all respects, a constitutional head of the executive like the British Crown, and this has been placed beyond any controversy, by the 1976 amendment of Article 74(1). In the case of State of Uttar Pradesh v. Pradhan Sangh Kshetra Samiti, AIR 1995 SC 1512, the Honble Supreme Court had further held that it is not necessary for the President to be personally satisfied in exercising the executive power. Whenever the Constitution requires the satisfaction of the President for exercising any administrative power or functions, it is not his personal satisfaction, but in the Constitutional sense, the satisfaction of his council of ministers on whose aid and advice Presidents opinion, satisfaction or decision is constitutionally secured when his ministers arrive at such opinion, satisfaction or decision. It has also to be seen that whether the validity of executive action depends upon prior legislation [ H.C.Mehta v. Union of India, (2004) 12 SCC 118] and where, the Constitution does not require legislation, and there is no contrary law in force on the subject-matter, it is open to the Executive to issue administrative orders or instructions and even to confer rights and duties thereby [See: Raghunandan v. State of Orissa, (1975) 1 SCC 106]. It has been further held in Union of India v. Naveen Jindal, AIR 2004 SC 1559 that executive instructions are not law under Article 13 though such instructions might have the force of law for some other purposes, as for example those instructions which are issued as a supplement to legislative power under Article 77(1) of the Constitution.
22. It has been further held in Chairman of L.I.C. of India v. Kalangi Samuel Prabakar, AIR 1997 AP 304 that the executive circulars, directions and instructions, regulations are issued under appropriate laws and below statutory rules. They are not policy decisions, but means of implementation of predetermined policies. In H.C.Mehta v. Union of India, (2004) 12 SCC 118, the Honble Supreme Court further made it clear that a statutory notification cannot be notified by issue of a circular. This position is further fortified by the Honble Supreme Court in a series of cases - Nagendra v. Commissioner, AIR 1958 SC 398 (413); Sant Ram v. State of Rajasthan, AIR 1967 SC 1910, Union of India v. Joseph, AIR 1973 SC 303.
23. It has been held in SR Bommai vs Union of India 1994(3) SCC 1 that in a sense Articles 74 and 77 are complementary to each other, though they operate in different fields. Article 74(1) deals with acts of the President done in exercise of his functions whereas Article 77 speaks of the executive action of the Government of India which is taken in the name of the Government of India. In so far as the executive action of the Government of India is concerned it has to be taken by the Minister/officer to whom the business is allocated by the rule of business made under clause (3) of Article 77 for more convenient transaction of the Government of India. All orders issued and the instrument executed relatable to the executive action of the Government of India have to be authenticated in the manner and the officer empowered in that behalf. The President does not really come to the picture in so far as Article 77 is concerned. All business of the Government of India is transacted by the Minister or other officer empowered in that behalf, of course, in the name of the President. Orders are issued, instruments are executed and other acts done by various Ministries and officers, none of which reach the President or be placed before him for consideration. There is no occasion for such cases being for any aid or advice being considered to the President by the Council of Ministers, though expressed in the name of the President they are the acts of the Government of India. In this regard we seek it necessary to extract the relevant part of the judgment in Shamsher Singh (supra):
31. Further the rules of business and allocation of business among the Ministers are relatable to the provisions contained in Article 53 in the case of the President and Article 154 in the case of the Governor, that the executive power shall be exercised by the President or the Governor directly or through the officers subordinate. The provisions contained in Article 74 in the case of the President and Article 163 in the case of the Governor that there shall be a Council of Ministers to aid and advise the President or the Governor, as the case may be, are sources of the rules of business. These provisions are for the discharge of the executive powers and functions of the Government in the name of the President or the Governor. Where functions entrusted to a Minister are performed by an official employed in the Minister's Department there is in law no delegation because constitutionally the act or decision of the official is that of the Minister. The official is merely the machinery for the discharge of the functions entrusted to a Minister (See Halsbury's Laws of England 4th Edn. Vol. I, paragraph 748 at p. 170 and Carltona Ltd. v. Works Commrs., (1943) 2 All ER 560 (CA)).
39. This Court in Bejoy Lakshmi Cotton Mills Ltd. v. State of West Bengal, reported in (1967) 2 SCR 406 = (AIR 1967 SC 1145) considered the validity of a notification signed by the Assistant Secretary in the Land and Revenue Department of the State Government. It was contended that the executive power of the State is vested in the Governor under Article 154(1) of the Constitution, and, therefore, the satisfaction of the Governor was contemplated under Sections 4 and 6 of the Land Development and Planning Act under which the notification would be made. Under the Rules of Business made by the Governor under Art.166 (3), the Governor allocated to the Minister certain matters. The Minister-in-charge issued a Standing Order specifying the matters which were required to be referred to him.
40. The Rules of Business in the Bejoy Lakshmi Cotton Mills case (1967) 2 SCR 406 = (AIR 1967 SC 1145) (supra) indicated that the business of the Government was to be transacted in various departments specified in the Schedules. Land and Land Revenue was allocated as the business of the Department of the Minister with that portfolio. The Minister-in-charge had power to make standing order regarding disposal of cases. This Court held that the decision of any Minister or officer under Rules of Business is a decision of the President or the Governor respectively. The Governor means, the Governor aided and advised by the Ministers. Neither Article 77 (3) nor Article 166 (3) provides for any delegation of power. Although the executive power of the State is vested in the Governor actually it is carried on by Ministers under Rules of Business made under Article 166 (3). The allocation of business of the Government is the decision of the President or the Governor on the aid and advice of Ministers.
41. This Court in Jayantilal Amritlal Shodhan v. F. N. Rana, (1964) 5 SCR 294 = (AIR 1964 SC 648) considered the validity of a notification issued by the President under Article 258 (1) of the Constitution entrusting with the consent of the Government of Bombay to the Commissioners of Divisions in the State of Bombay the functions of the Central Government under the Land Acquisition Act in relation to the acquisition of land for the purposes of the Union within the Territorial jurisdiction of the Commissioners. The notification issued by the President was dated 24 July, 1959. The Commissioner of Baroda Division, State of Gujarat by notification published on 1 September, 1960, exercising functions under the notification issued by the President notified under Section 4(1) of the Land Acquisition Act that certain land belonging to the appellant was needed for a public purpose. On 1 May, 1960 under the Bombay Reorganisation Act, 1960 two States were carved out, viz., Maharashtra and Gujarat. The appellant contended that the notification issued by the President under Article 258 (1) was ineffective without the consent of the Government of the newly formed State of Gujarat.
24. The question of allocation of the business amongst the ministers arises out of the fact that the President being a constitutional head is to act on the advice of the Council of Ministers. It is physically impossible that each and every decision must be taken by the Council of Ministers personally. The Honble Supreme Court has observed candidly in Shamsher Singh vs Union of India AIR 1974 SC 2192 that the wheels of the Government will come to a grinding halt if every decision is required to be taken by the Council of Ministers. Hence, in order to in exercise of the powers conferred by clause (3) of article 77 of the Constitution Government of India (Allocation of Business) Rules, 1961 for the allocation of the business of the Government of India had to be framed referred hereinafter as the Allocation of Business Rules, 1961. Rule 2 of the business of the Government of India shall be transacted in the Ministries, Departments, Secretariats and Offices specified in the First Schedule to these rules (all of which are hereinafter referred to as "departments"). For sake of greater clarity the Rule 3 of the Allocation of Business Rules, 1961 is extracted as below:
3. Distribution of Subjects -
1. The distribution of subjects among the departments shall be as specified in the Second Schedule to these Rules and shall include all attached and subordinate offices or other organisations including Public Sector Undertakings concerned with their subjects and Sub-rules (2), (3) and (4) of this Rule.
2. The compiling of the accounts of each Department shall stand allocated to that Department with effect from the date from which the President relieves, by order made under the first proviso to sub-section (1) of Section 10 of the Comptroller and Auditor General's (Duties, Powers and Conditions of Service) Act, 1971; the Comptroller and Auditor General from the responsibility for compiling the accounts of that Department.
3. Where sanction for the prosecution of any person for any offence is required to be accorded-
a. If he is a Government servant, by the Department which is the Cadre Controlling authority for the service of which he is a member, and in any other case, by the Department in which he was working at the time of commission of the alleged offence;
b. If he is a public servant other than a Government servant, appointed by the Central Government, by the Department administratively concerned with the organisation in which he was working at the time of commission of the alleged offence; and c. In any other case, by the Department which administers the Act under which the alleged offence is committed;
Provided that where, for offences alleged to have been committed, sanction is required under more than one Act, it shall be competent for the Department which administers any of such Acts to accord sanction under all such Acts.
4. Notwithstanding anything contained in sub-rule (3), the President may, by general or special order, direct that in any case or class of cases, the sanction shall be by the Department of Personnel and Training.
25. It is not possible for even the most hardworking of the Ministers to attend to every business of his Ministry personally nor is he expected to burden himself with the day-to-day administration, his primary function being to lay down policies and programmes of his Ministry while the Council of Ministers settles the major policies of the Government. Hence arises the need for making provisions for more convenient transaction of business with each Ministry. This is done by the Rules of Business by designating particular civil servants or officials within the Ministry who shall be competent to take decisions or dispose of business of the Government subject to the control of the Minister-in-charge or directions issued by him through the standing orders [Sanjeevi vs State of Madras, 1970(1) SCC 443]. The Honble Supreme Court has further held in Shamsher Singh (supra) that any action taken by the specified officials designated by the Rules of Business is an action of the Government because the officials designated by the Rules of Business are limbs of Government, not its delegates. The rules of business and allocation of business rules among ministers of the said business all indicate that the decision of the minister or the officer under Article 77(3) is the decision of the President. Where functions entrusted to a Minister are performed by an official deployed in the ministers department, this is in law no delegation because constitutionally the act or the decision of the official is that of the Minister. The decision in Shamsher Singh (supra) is further supported by a decision of the Honble Supreme Court in Municipal Corporation of Delhi vs Birla Cotton and Spinning and Weaving Mills AIR 1968 SC 1232 that the official is merely machinery for discharge of the functions entrusted to the Minister. In short, by the Rules of Business made by the Government on advice of the Council of Ministers the President cannot only allocate the various subjects amongst particular Ministers but may go further and designate a particular official to discharge any particular function.
26. In Union of India and Others v. K. V. Jankiraman & Others, (1991) 4 SCC 109, a three Judges bench, the Honble Supreme Court has gone into the issue of `deemed sealed cover procedure and has spelt out the condition under which it has to be applied. In other words, the Honble Supreme Court has sanctified the deemed sealed cover proceedings and has established it as `law under Article 141 of the Constitution of India. The binding effect of the decisions of the Honble Supreme Court while acting under Article 141 or its law laying powers have never been under an iota of doubt [1. Bihar State Secondary Teachers Association vs Bihar Education Service Association & Others , [JT 2012 (11) SC 539 , UoI & Ors vs Major SP Sharma &Ors 2014(6) SCC 351].
27. It has, therefore, come to be sanctified as `a seal of approval, and the same shall be binding on all Courts/Tribunals within the territory of India, notwithstanding the fact that it is not mentioned anywhere under the formal statutes of the IRS Rules of 2012, framed under Article 309 of the Constitution of India.
28. The Government of India, Department of Personnel & Training (in short `DoPT) had issued an Office Memorandum No.22011/1/79-Estt.(A) dated 30.01.1982 on the subject of promotion of officers in whose cases the sealed cover procedure had been followed but against whom disciplinary/court proceedings were pending for a long time. The Memorandum speaks that according to the existing instructions, cases of officers (a) who are under suspension or (b) against whom disciplinary proceedings are pending or a decision has been taken by the competent authority, i.e., the disciplinary authority, to initiate the disciplinary proceedings or (c) against whom prosecution has been launched in a court of law or sanction for prosecution has been issued, are considered for promotion by the Departmental Promotion Committee (in short `DPC) at the appropriate time but the finding of the Committee are to be kept in a sealed cover to be opened after the conclusion of the disciplinary/Court proceedings. In K. V. Jankiraman (supra), as already quoted hereinbefore, the Honble Apex Court has gone deep into and dealt the matter of sealed cover proceedings extensively and sanctified the rational for sealed cover procedure. For the sake of clarity, the relevant paras of the said Judgement are extracted below:
26. We are, therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/ criminal proceedings. 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. In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does the extent to which he deserves it. Life being complex, it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary. To ignore, however, such circumstances when they exist and lay down an inflexible rule that in every case when an employee is exonerated from disciplinary/ criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the, administration and jeopardise public interests. We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal. While, therefore, we do not approve of the said last sentence in the first sub-paragraph after clause (iii) of paragraph 3 of the said Memorandum, viz., "but no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion", we direct that in place of the said sentence the following sentence be read in the Memorandum:
"However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, and if so to what extent will be decided by the concerned 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 reasons for doing so."
27. To this extent we set aside the conclusion of the Tribunal on the said point.
28. The Tribunal has also struck down the following portion in the second sub-paragraph after clause (iii) of paragraph 3 which reads as follows: "If any penalty is imposed on the officer as a result of the disciplinary proceedings or if he is found guilty in the court proceedings against him, the findings in the sealed cover/covers shall not be acted upon" and has directed that if the proceedings result in a penalty, the person concerned should be considered for promotion in a Review DPC as on the original date in the light of the results of the sealed cover as also the imposition of penalty, and his claim for promotion cannot be deferred for the subsequent DPCs as provided in the instructions. It may be pointed out that the said subparagraph directs that "the officer's case for promotion may be considered in the usual manner by the next DPC which meets in the normal course after the conclusion of the disciplinary/court proceedings". The Tribunal has given the direction in question on the ground that such deferment of the claim for promotion to the subsequent DPCs amounts to a double penalty. According to the Tribunal, "it not only violates Articles 14 and 16 of the Constitution compared with other employees who are not at the verge of promotion when the disciplinary proceedings are initiated against them but also offends the rule against double jeopardy contained in Article 20(2) of the Constitution". The Tribunal has, therefore, held that when an employee is visited with a penalty as a result of the disciplinary proceedings there should be a Review DPC as on the date when the sealed cover procedure was followed and the review DPC should consider the findings in the sealed cover as also the penalty imposed. It is not clear to us as to why the Tribunal wants the review DPC to consider the penalty imposed while considering the findings in the sealed cover if, according to the Tribunal, not giving effect to the findings in the sealed cover when a penalty is imposed amounts to double jeopardy. However, as we read the findings of the Tribunal, it appears that the Tribunal in no case wants the promotion of the officer to be deferred once the officer is visited with a penalty in the disciplinary proceedings and the Tribunal desires that the officer should be given promotion as per the findings in the sealed cover.
29. Now, we come to the provisions of the deemed sealed cover procedure. Here the applicant has thrown a challenge to contents of the DoPT OM No.22011/4/91-Estt.(A) dated 14.09.1992. This OM was issued on the basis of KV Jankiramans case (supra) and though lengthy, the contents of this OM need to be reproduced in full in order to develop full clarity:
No.22011/4/91-Estt.(A) Government of India Ministry of Personnel, Public Grievances and Pensions Department of Personnel & Training North Block, New Delhi-110001 Dated, the 14th Sept., 1992 OFFICE MEMORANDUM Subject: Promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation Procedure and guidelines to be followed.
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 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 DoP&Ts O.M. No.20011/1/2008-Estt.(D) Dated 11th November 2010 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.
2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental 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 the 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 of 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 reasons 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 nonavailability 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.
3.2 It is also clarified that in a case where disciplinary proceedings have been hold under the relevant disciplinary rules, warning should not be issued as a result of such proceedings. If it is found as a result of the proceedings, that some blame attached to the Government servant; at least the penalty of `censure should be imposed.
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 DoP&Ts O.M. No.20011/1/2008-Estt.(D) Dated 11th November 2010 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.
5. In spite of the six monthly review referred to in para 4 above, there may be some cases, where the disciplinary case/criminal prosecution against the Government servant is not concluded even after the expiry of two years from the date of the meeting of the first DPC, which kepts its findings in respect of the Government servant in a sealed cover. In such a situation the appointing authority may review the case of the Government servant, provided he is not under suspension, to consider the desirability of given him ad-hoc promotion keeping in view the following aspects:-
a) Whether the promotion of the officer will be against the public interest;
b) Whether the charge are grave enough to warrant continued denial of promotion;
c) Whether there is any likelihood of the case coming to a conclusion in the near future;
d) Whether the delay in the finalization of proceedings, departmental or in a court of law, is not directly or indirectly attributable to the Government servant concerned; and
e) Whether there is any likelihood of misuse of official position which the Government servant may occupy after adhoc promotion, which may adversely affect the conduct of the departmental case/criminal prosecution.
The appointing authority should also consult the Central Bureau of Investigation and take their views into account where the departmental proceedings or criminal prosecution arose out of the investigations conducted by the Bureau.
5.1 In case the appointing authority comes to a conclusion that it would not be against the public interest to allow ad-hoc promotion to the Government servant, his case should be placed before the next DPC hold in the normal course after the expiry of the two year period to decide whether the officer is suitable for promotion on ad-hoc basis. Where the Government servant is considered for ad-hoc promotion, the Departmental Promotion Committee should make its assessment on the basis of the totality of the individuals record of service without taking into account the pending disciplinary case/criminal prosecutions against him.
5.2 After a decision is taken to promote a Government servant on an ad-hoc basis, an order of promotion may be issued making it clear in the order itself that:-
i) the promotion is being made on purely ad-hoc basis and the ad-hoc promotion will not confer any right for regular promotion; and DoP&Ts O.M. No.20011/1/2008-Estt.(D) Dated 11th November 2010
ii) the promotion shall be until further orders. It should also be indicated in the orders that the Government reserve the right to cancel the adhoc promotion and revert at any time the Government servant to the post from which he was promoted.
5.3 If the Government servant concerned is acquitted in the criminal prosecutions on the merits of the case or is fully exonerated in the departmental proceeding, the ad-hoc promotion already made may be confirmed and the promotion treated as a regular one from the date of the ad-hoc promotion will all attendant benefits. In case the Government servant could have normally got his regular promotion from a date prior to the date of his ad-hoc promotion with reference to his placements in the DPC proceedings kept in the sealed cover(s) and the actual date of promotion of the person ranked immediately junior to him by the same DPC. He would also be allowed his due seniority and benefit of notional promotion as envisaged in para 3 above.
5.4 If the Government servant is not acquitted on merits in the criminal prosecution but purely on technical grounds and Government either proposes to take up the matter to a higher court or to proceed against him departmentally or if the Government servant is not exonerated in the departmental proceedings, the ad-hoc promotion granted to him should be brought to an end.
6. The procedure outlined in the preceding paras should also be followed in considering the claim for confirmation of an officer under suspension, etc. A permanent vacancy should be reserved for such an officer when his case is placed in sealed cover by the DPC.
7. A Government servant, who is recommended for promotion by the Departmental Promotion Committee but in whose case any of the circumstances mentioned in para 2 above arise after the recommendations of the DPC are received but before he is actually promoted, will be considered as if his case had been placed in a sealed cover by the DPC. He shall not be promoted until he is completely exonerated of the charges against him and the provisions contained in this O.M. will be applicable in his case also.
8. In so far as the personnel serving in the Indian Audit and Accounts Department are concerned, these instructions have been issued after consultation with the Comptroller and Auditor General of India.
9. Hindi version will follow.
Sd/-
(M.S. Bali) Director
30. This OA is based, as discussed, on the lines of the views of the Honble Supreme Court in K. V. Jankiraman (supra). This Judgement provides, as seen, the only three conditions where the sealed cover proceedings could be resorted to, which are as under:
a) Government servant is under suspension;
b) Government servant in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and
c) Government servant in respect of whom prosecution for criminal charge is pending.
31. It can be deduced from above that sealed cover procedure is not denial of promotion but only suspension of the claim of promotion, till the conclusion of the proceedings, taking cognizance of the fact that the officer was otherwise considered for promotion but for the pendency of the proceedings, result of the DPC could not be declared. The OM dated 14.09.1992 ibid provides for a six monthly review but where the promotion of the officer would be against public interest; where the proceedings are not concluded even after the expiry of two years from the date of the meeting of the first DPC which kept the findings of the Government servant in a sealed cover, in such a situation, a review has to be carried but by the appointing authority, provided he is not under suspension, to consider the desirability of given him ad-hoc promotion except where the promotion of the officer is not against public interest; where the charges are grave enough to warrant continued denial of promotion; where there is no likelihood of the case coming to a conclusion in the near future; where the delay in finalization of proceedings, i.e., departmental or in a court of law, is not directly or indirectly attributable to the Government servant concerned; and where there is no likelihood of misuse of the official position by the Government servant, etc., under para 5 of the OM ibid, the appointing authority may proceed to open a sealed cover and grant him ad hoc promotion if so recommended by the DPC.
Para 5.2 of the said OM states that it should be so clarified in the order itself that the promotion is purely on ad hoc basis until further orders and would not confer any right for regular promotion. It should also be indicated that the Government reserves the right to cancel the ad hoc promotion and revert him/her at any time from which he/she was promoted. In the case of Government servant, whether acquitted in the criminal prosecution on the merits of the case or is fully exonerated in the departmental proceeding, his/her ad hoc promotion, already made, may be confirmed as regular from the date of the ad hoc promotion, which had been made, or from the date the person immediately junior to him/her was promoted. Where he/she is not acquitted on merits in the criminal prosecution but purely on technical grounds, the Government proposes either to take up the matter before a higher court or to proceed against him/her departmentally or if the Government servant is not exonerated in the departmental proceedings, the ad hoc promotion granted to him/her is to be brought to an end. These are all conditions attending the opening of the sealed.
32. Para 7 of the said OM, introduces, another condition that even after the DPC recommends the case of a Government servant for promotion, but before he/she is actually promoted, any of the conditions under which the deemed sealed cover proceedings is to be resorted to arise, it will be considered as if his/her case has been placed under a sealed cover by the DPC, he/she shall not be promoted unless he/she is completely exonerated on all the charges against him/her and the provisions contained in this OM also would be applicable to his/her case. Thus, Para 7 of the said OM, referred to hereinbefore, is an additional condition, which has been added to Clause No.2 of the said OM, derived from the case of K. V. Jankiraman (supra).
33. The DoPTs OM dated 23.1.2014 issued under clarification, on a comprehensive review of instructions pertaining to vigilance clearance for promotion. For the sake of clarity, the OM is reproduced below (Page 228 of the paper book):
No. 22034/4/2012-Estt (D-II) Government of India Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) North Block, New Delhi Dated the 23rd January, 2014 OFFICE MEMORANDUM Subject: Comprehensive review of instructions pertaining to vigilance clearance for promotionclarifications - regarding The undersigned is directed to refer to the Department of Personnel & Training O.M. of even number dated 2.11.2012 on 'Comprehensive review of instructions pertaining to vigilance clearance for promotion', wherein, inter alia, it has been laid down in Para 9, as under:
"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".
2. This Department has been receiving references seeking clarification on grant of promotion in case of review DPC with regard to the official who is clear from vigilance angle on the date of promotion of the junior in the original DPC but subsequently attracts the provisions contained in para 2 of DoPT OM dated 14.09.92.
3. The matter has been examined in consultation with the Department of Legal Affairs and it is further clarified that, in the case of a review DPC, where a junior has been promoted on the recommendations of the original DPC, the official would be considered for promotion if he/she is clear from vigilance angle on the date of promotion of the junior, even if the provisions of para 2 of DoPT OM dated 14.9.92 get attracted on the date the actual promotion is considered, as provided in DoPT O.M. No.22011/2/99-Estt (A) dated 21.11.2002.
4. In cases, where the junior is not promoted, it is to be ensured that the provisions of para 7 of OM dated 14.9.1992 are not attracted on the date the official is being actually promoted.
Sd/ (Arunoday Goswami) Under Secretary to the Govt. of India This is nothing but a reconsideration of the earlier OMs dated 2.11.2012, 21.11.2002 and 14.09.1992.
34. From the above, position it is clear that the sealed cover proceeding has been examined and sanctified by the Honble Supreme Court Judgement in K. V. Jankiraman (supra) and Para 7 of the OM dated 14.01.1992 is a continuation of its Para 2 and cannot be seen either contradiction or in contra distinction.
35. We now take up the cases, relied upon by the applicant in support of his case. We find that the case of the Maya Sinha (supra), of the Honble High Court of Delhi, is not applicable to the present case as it is distinguished on facts. The Government, in this case, had approved empanelment of the respondent-Maya Sinha to the Higher Administrative Grade on 10.09.2002 whereas the vigilance investigation which has begun in March, 2002 culminated on 13.11.2002 where the Vigilance Department was of the view that there was a prima facie case being made out against the respondent therein involving serious irregularities in capacity of Finance Member of the Tender Committee. However, no departmental proceedings had been initiated nor any decision had been taken to initiate any disciplinary proceedings against the respondent. Here, in the instant OA departmental proceedings have been ordered and have withstood the scrutiny of this Tribunal.
36. In Vineet Ohri (supra), the issue is one of pseudonymous complaint, being filed by somebody, and also that there was a delay in initiation/conclusion of the proceedings. Therefore, the said case would not help the applicant.
37. In Dr. Sudha Salam (Smt.)s case (supra), once again, in view of the facts of that case, the Honble Supreme Court put a seal to their view taken in K.V.Jankiramans case for adopting a deemed sealed cover proceedings. For the sake of clarity, the para 6 of the said Judgement is extracted below:
6. The question, however, stands concluded by a Three Judge decision of this Court in Union of India v. K. V. Jankiraman, (1991) 4 SCC 109 : (1991 AIR SCW 2276), 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 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 on 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.
38. In the case of K. Kuppuswamy (supra), we find that it deals with prospective or retrospective application of the statutory rules, and more over, after putting some observations by the Honble Supreme Court, remitted the matter back to the Tribunal for disposal, which, in our opinion, may not be used as precedent. Hence, it also would not help the case of the applicant.
39. The case of P.D.Aggarwal (supra) was decided before the Judgement of the K. V. Jankiraman (supra) and therefore, it would not enhance the cause of the applicant.
40. In Sudhir Kumar Jaiswals case (supra), the issue related to determination of the crucial date for the eligibility in the matter of age of the candidates for the examination. We, hence, find that this case also would not help the cause of the applicant as it does not squarely cover the issue involved in the present case. In the instant case, we have already quoted hereinbefore that the Honble Supreme Court Judgement in K. V. Jankiraman (supra) and Para 7 of the OM dated 14.01.1992 is a continuation of its Para 2 and cannot be seen either contradiction or in contradistinction.
41. For the same reason, the case of Ashok Kumar Aggarwal (supra), is also not applicable to the facts of the present case.
42. Further, the case of Majji Jangamayya (supra) is altogether in different circumstances, as it deals with the pre requisite of a qualifying service of a Government servant for promotion to higher post.
43. In a nutshell, we would like to express our opinion on the aforesaid cases, relied upon by the applicant, are not directly connected to the issue involved in the present case.
44. On the other hand we place reliance upon a decision of the Honble Supreme Court in State of Madhya Pradesh & Ors. v. Ramanand Pandey (2014) 10 SCC 610 upholding the validity of the sealed cover procedure. In this case the respondent-Ramanand Pandey himself informed, after the order of promotion served upon him, that there were some complaints pending against him and he wanted to go on leave. After receiving the said representation, the applicants-Union of India cancelled the earlier promotion orders passed by them until further orders. For the sake of clarity we extract the pars 14 and 15 of the Judgment:
14. What is to be noticed is that the order of promotion is dated December 23, 2005. No doubt, in para 3 of this order, the Deputy Director of the concerned District was asked to ascertain whether the persons promoted were facing any suspension/prosecution or departmental proceedings. At the same time, it was also mentioned in this para that in case it is so, promotion order shall be deemed to be cancelled and it is not to be given to the concerned employee. Insofar as Deputy Director is concerned, he naturally did not find any such prosecution or departmental proceedings pending against the respondent. Obviously, because of this reason, promotion order was in fact duly served upon the respondent. It was even acted upon by the appellant as the respondent was even relieved from his duty from Bhind Office on July 06, 2006 with instructions to report at Sagar Office. Curiously, it is the respondent who made the representation dated August 14, 2006 stating therein that some farmers had moved a complaint against him and since that complaint was pending, till the same is finalized, he was ready to take earned leave until the inquiry is disposed of. Interestingly, he also stated that he would continue to work on the post of ADO (which is a promotion post), but at District Bhind. So much so, he returned the promotion order, in original, to the authorities. After receiving the said representation, the authorities took the view that the respondent was not interested to join the promotion post at Sagar and, therefore, cancelled the promotion order. The cancellation did not come because of the reason of pendency of any alleged departmental inquiry against the respondent, which was self created reason given by the respondent. No doubt, it would have been better for the appellants to write to the respondent, before canceling the order of promotion, stating that since there was no departmental inquiry, he should report at the Sagar Office or even if such a complaint is pending, that is no reason not to join the office in District Sagar. At the same time, we find in any case the respondent was not interested joining the duties at Sagar and canceling the promotion for that reason cannot be treated as illegal or arbitrary in the facts of the present case. We would like to summaries the circumstantial facts as follows:
15. Even when the respondent was relieved from the office at District Bhind on July 06, 2006, not only he did not join the duties at Sagar, it is more than one month thereafter, i.e. on August 14, 2006, he gave the representation. Further, he returned the promotion order, in original. It is clear that he wanted to remain in District Bhind, where he had continued since 1990, as he was ready to go on leave instead of joining the place of transfer. Moreover, for more than two years from the date of cancellation of the order of promotion, the respondent kept totally mum and maintained stoic silence. There was not even a semblance of protest as to why his promotion order was cancelled or that he wanted to join the promotion post after the alleged inquiry into the so-called complaint was over. He filed the writ petition on October 24, 2008, i.e. almost two years after cancellation of his promotion order. So much so, even before filing of the writ petition, he did not make any representation of any nature whatsoever. It would also be interesting to note that in his writ petition, the respondent alleged that he was orally told that some departmental inquiry is pending against him and, therefore, his promotion order had been cancelled, but no departmental inquiry was ever started against him. This is clearly an afterthought plea. In the first instance, if that is the reason for cancellation of promotion order, it was not at all necessary for him to wait for departmental inquiry to either start or finish, inasmuch as, when he was not served with any charge sheet, there was no question of withholding his promotion, which was the position in law, as laid down in K.V. Janakiraman (supra). Furthermore, this was not the reason stated in the cancellation order. The appellants, in their counter affidavit, had specifically pleaded that there was no departmental inquiry pending and that was not the reason for cancellation of the promotion order and, in fact, it was cancelled as the respondent had refused to accept the promotion order by making representation dated August 14, 2006. As mentioned above, it is this aspect which was to be necessarily looked into, which has not been examined by the High Court.
45. In continuation we can only hold that we have gone deep into the matter and have found that the officials working in Departments/Ministries are acting in exercise of the powers of the President under Article 773(3) and not within the delegated powers; the Service Rules 2012 do not provide for the contingency where a person is recommended by the DPC but before his actual promotion takes place he comes to face criminal/departmental proceedings thereby creating a gap in the provisions; it is the right of the Government to fill up the gaps in the legislation by executive instructions and also to supplement the rules by such instructions under Articles 74 and 77 of the Constitution, as held by the Honble Supreme Court in a catena of Judgments.
46. We have also seen that the validity of sealed cover proceeding has been examined in depth in the land mark judgment, by the Honble Supreme Court, in K. V. Jankiraman and the Honble Supreme Court time and again reiterating their views in a catena of Judgments. Further, the OM of 1992 was issued based on the said Judgement, and it has been followed by all the Departments of Government of India for more than two decades. The contention of the applicant that the same should not be applied to his case as there was no such provision stipulated in the IRS Rules of 2012, is untenable for the afore legal position enunciated and also because it would serve to unsettle settled issues and serve to create chaos in administration. We further find that Para 7 of the OM of 1992 is not new provision but has extension and supplement to the provisions contained in paragraph 2. Therefore, they are not to be seen as something beyond additional one.
47. The contention of the applicant that since the DPC had not recommended his name to be placed in a deemed sealed cover and therefore, the applicant cannot be denied his promotion as he has not been covered under the three conditions prescribed in the 1992 OM ibid, is also untenable, as in view of para 7 of the said OM of 1992 which we have already found lays down good subordinate law.
48. In view of the afore discussions, we are of the opinion that the OA is misplaced in its legal appreciation of the subject and is, therefore, totally devoid of merit. The OA is, hence, dismissed without costs.
(Dr. B. K. Sinha) (Syed Rafat Alam) Member (A) Chairman /nsnrbks/