Central Administrative Tribunal - Chandigarh
Dr. Sonu Goel S/O Sh. Narendra Kumar Goel vs Postgraduate Institute Of Medical ... on 14 August, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
O.A No. 060/00097/2015 Decided on 14.08.2015
Reserved on -07.08.2015
CORAM: HONBLE MR. SANJEEV KAUSHIK, MEMBER (J)
HONBLE MS. RAJWANT SANDHU, MEMBER (A)
1. Dr. Sonu Goel S/o Sh. Narendra Kumar Goel, Assistant Professor of Health Management, School of Public Health, Postgraduate Institute of Medical Education and Research, Chandigarh R/o Flat No. 5128/2, Modern Housing Complex, Manimajra, Chandigarh.
2. Dr. Pramod Kumar Gupta S/o Sh. Nirmal Kumar Gupta, Assistant Professor, Department of Biostatistics, Postgraduate Institute of Medical Education and Research, Chandigarh R/o House No. 2892, First Floor, Sector 38-C, Chandigarh.
..APPLICANTS
BY ADVOCATE: Sh. Karan Singla.
VERSUS
1. Postgraduate Institute of Medical Education & Research, Sector-12, Chandigarh through its Director.
2. Governing Body of Postgraduate Institute of Medical Education & Research, Sector-12, Chandigarh through its President.
3. The Standing Selection Committee of Postgraduate Institute of Medical Education & Research, Sector-12, Chandigarh through its Chairman.
4. Prof. YK Chawla, Director, Postgraduate Institute of Medical Education & Research, Sector-12, Chandigarh.
..RESPONDENTS
BY ADVOCATE: Sh. Kshitij Sharma, Advocate proxy for Sh. Vijay Pal, counsel for the respondents.
ORDER (ORAL)
HONBLE MR. SANJEEV KAUSHIK, MEMBER (J):-
The present Original Application under Section 19 of the Administrative Tribunals Act, 1985, is directed against order dated 16.10.2014 (Annexure A-5) whereby faculty/colleagues junior to the applicants have been promoted as Associate Professor under time bound Career Progression Scheme on the recommendation made by the Standing Selection Committee whereas cases of the applicants have been kept in sealed cover. The applicants have sought issuance of direction to the respondents to open the seal cover in terms of the judgment passed by the Honble Supreme Court in Union of India Vs. K.V.Jankiraman (1991(3) SCT) read with instructions dated 14.09.1992 and subsequently, O.M dated 21.07.2006 and O.M. 02.11.2012 issued by the DoPT and grant them the consequential benefits arising therefrom.
2. The facts which led to filing of the present case are that the applicant no. 1 i.e. Dr. Sonu Goel was appointed as Assistant Professor of Health Management in the School of Public Health, Postgraduate Institute of Medical Education & Research ( in short PGIMER) Chandigarh on 01.09.2008. Similarly, the applicant no. 2 i.e. Dr. Pramod Kumar Gupta was appointed as Assistant Professor of Biostatistics, in the Department of Biostatics, PGIMER, on 01.08.2008. For rationalization of pay structure and career prospects in respect of Faculty members of the respondent institute and AIIMS, New Delhi, Respondent no. 1 framed Assessment Promotion Scheme, on the basis of recommendations of Committee headed by Dr. M.L. Dhar, vide letter dated 28.05.1983. Various amendments were carried out in above scheme. Latest amendment was done vide order dated 12.01.2010. The Assessment Promotion Scheme ( in short APS) has been revised as Career Progression Scheme ( in short CPS) which was made applicable w.e.f. 31.12.2008 ( later on preponed to 01.07.2008). As per the said scheme, an Assistant Professor, with three years of regular service in the grade at the respondent Institute, becomes entitled for upgradation/promotion to higher level.
3. It is the case of the applicants that they became eligible for consideration as Associate Professor under CPS w.e.f. 01.07.2012. The applicants were called for interview by the Standing Selection Committee, which conducted its meeting from 23.02.2014 to 04.03.2014. Both the applicants attended the same as they were eligible. Their name for promotion to the said post under above scheme was recommended by the committee as there was nothing against them. The recommendation of Standing Selection Committee was placed before respondent no. 2 in its meeting dated 15.10.2014 which was approved vide order dated 16.10.2014 by respondent no. 1 (Annexure A-5) where various faculty member from Assistant Professor to Associate Professor, Associate Professor to Additional Professor and from Additional Professor to Professor were to be promoted. The names of the applicants were not found in order dated 16.10.2014 as impugned herein which led to filing of representations dated 20.10.2014 supplemented with 05.11.2014, 13.11.2014 & 01.12.2014. When they did not receive any answer from the respondents, they sought information under the RTI Act, 2005 about approval of recommendation of the standing selection committee dated 16.10.2014, upon which they came to know that their cases were kept in seal cover. Hence, the present O.A.
4. Pursuant to notice, the respondents contested the claim of the applicant by filing detailed written statement wherein they have taken a preliminary objection to the effect that the applicants are not having the unblemished record as suggested in O.A rather the respondent institute decided to initiate disciplinary proceedings against them under Agenda Item E-3 dated 15.10.2014 of the Governing Body and in view of the above, when the case of the applicants were considered for promotion under CPS by the Standing Selection Committee, their cases were kept in seal cover as decided by the Governing body in terms of the DoPT instructions also as they were under cloud.
5. The applicants have also filed a rejoinder wherein apart from contradicting the averments made in written statement, it is pleaded that in terms of the judgment rendered in case of K.V. Jankiraman (supra) by the Honble Supreme Court, the cases of the applicants cannot be kept in seal cover. The applicants also placed reliance upon two circulars issued by the Nodal Ministry on 21.07.2006 & 02.11.2012. Their claim is that mere decision to initiate disciplinary proceedings cannot be used as ground to adopt sealed cover procedure unless a charge sheet is issued.
6. We have heard Sh. Karan Singla, learned counsel for the applicants and Sh. Kishitij Sharma, Advocate vice Sh. Vijay Pal, counsel for the respondents.
7. Sh. Karan Singla, learned counsel for applicants vehemently argued that action of the respondents in placing the recommendation in favour of the applicants made by the Standing Selection Committee in a Sealed Cover, is totally illegal, arbitrary and against the instructions issued by the DoPT which are applicable to the PGIMER and thus, the action of the respondents be set-aside and direction may be issued to the authorities open the sealed cover and give effect to the recommendation made therein. To buttress his submission, he placed reliance upon the judgment passed in case of Union of India Vs. K.V. Jankiraman, 1991(3), SCT 317 by the Honble Supreme Court; Diwakar Singh Vs. State of U.P, 2013(6) SLR 511 by the Honble High Court of Allahabad; Union of India Vs. Doly Loyi, 2013(7) AD (Delhi) 559 and Nirmal Singh Vs. Food Corporation of India, 2000 (4) S.C.T. 1009 by the Honble jurisdictional High Court.
8. Per contra, Sh. Kshitij Sharma, learned proxy counsel for the respondents vehemently opposed the prayer of the applicants and submitted that since, there was an approval by the governing body to initiate disciplinary proceedings against the applicants as approved on 15.10.2014, therefore, recommendation made by the Standing Selection Committee for their promotion under CPS, was kept in a sealed cover. To buttress his submission, he placed reliance upon the judgment passed in case of Union of India Vs. Kewal Kumar, 1993(2) SLR 554.
9. We have given our thoughtful consideration to the entire matter and perused the pleadings of the parties available on record, with the able assistance of the counsel for the parties.
10. The moot question that arises for our consideration is as to whether the case of an employee can be kept in sealed cover in terms of the DoPT instructions dated 14.09.1992 and subsequent O.M dated 21.07.2006 and 02.11.2012 as the respondents have only decided to initiate departmental proceedings against him/her and have not yet issued a charge memo?
11. The above poser, to our mind, is no more res-integra, and stands answered by the Honble Supreme Court in the celebrated case of Union of India and Others vs. K.V. Jankiraman and others, (1991) 4 SCC 109, where their Lordships of the Honble Supreme Court have held as under:
(1) What is the date from which it can be said that disciplinary/criminal proceedings are pending against an employee? (2) What is the course to be adopted when the employee is held guilty in such proceedings if the guilt merits punishment other than that of dismissal? and (3) To what benefits an employee who is completely or partially exonerated is entitled to and from which date?. Among the three questions, we are concerned about question No.1. As per the rules applicable, the sealed cover procedure is adopted when an employee is due for promotion, increment etc. but disciplinary/criminal proceedings are pending against him at the relevant time and hence, the findings of his entitlement to the benefit are kept in a sealed cover to be opened after the proceedings in question are over. Inasmuch as we are concerned about the first question, the dictum laid down by this Court relating to the said issue is as follows:-
16. On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant- authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/charge- sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy.
In para 17, this Court further held:
17. The conclusion No. 1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant time pending at the stage when charge-memo/charge-sheet has already been issued to the employee. After finding so, in the light of the fact that no charge sheet was served on the respondent-employee when the DPC met to consider his promotion, yet the sealed cover procedure was adopted. In such circumstances, this Court held that the Tribunal has rightly directed the authorities to open the sealed cover and if the respondent was found fit for promotion by the DPC, to give him the promotion from the date of his immediate junior Shri M. Raja Rao was promoted pursuant to the order dated April 30, 1986. The Tribunal has also directed the authorities to grant to the respondent all the consequential benefits..We see no reason to interfere with this order. The appeal, therefore, stands dismissed. The principles laid down with reference to similar office memorandum are applicable to the case on hand and the contrary argument raised by the appellant-Union of India is liable to be rejected.
12. Following aforesaid proposition, in the case of Coal India Ltd. V. Saroj Kumar Mishra, AIR 2007 SC 1706, their Lordships of the Honble Supreme Court in para-22 have held that a departmental proceeding is ordinarily said to be initiated only when a charge-sheet is issued and not when only a decision to initiate disciplinary proceedings is taken.
13. In Chairman-cun-Managing Director, Coal India Ltd. and others v. Ananta Saha and others, (2011) 5 SCC 142 in para-27 their Lordships of the Honble Supreme Court after relying upon various judgments, including the judgment in the case K.V. Jankiraman (supra) have held that There can be no quarrel with the settled legal proposition that the disciplinary proceedings commence only when a charge-sheet is issued to the delinquent employee.
14. Recently in the case of Union of India and others v. Anil Kumar Sarkar, (2013) 4 SCC 161, their Lordships of the Honble Supreme Court have reiterated what has already been held in the case of K.V. Jankiraman (supra), as enumerated above. In this case their Lordships have considered OM dated 14.09.1992 issued by the nodal Ministry-DoP&T with regard to Procedure and Guidelines to be followed for promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation. They have considered clauses 2 and 7 of the OM and thereafter they arrived at a conclusion, which is recorded in para-9 and ultimately recorded a finding in paragraph-17, which read as under:
9. It is not in dispute that the respondent had joined the Northern Railways as a Junior Clerk on 04.11.1977, and got promoted time and again. While he was working as a Group B Officer, his case was taken up for promotion to Group A (Junior Scale) of the Indian Railways Accounts Service (IRAS). It is also not in dispute that in the meetings of the DPC conducted on 26.02.2002 and 27.02.2002, the respondents name was considered and he was placed in the extended select panel. It is further seen that up to 21.04.2003, the date on which the respondents batch mates were promoted to IRAS, neither any criminal proceedings was initiated against him nor any departmental enquiry was initiated, nor any charge sheet was served upon him and nor he was placed under suspension. Aggrieved by the non-consideration of his representations for promotion, the respondent filed O.A. before the Central Administrative Tribunal. Learned counsel for the Railways, by placing reliance on the Office Memorandum dated 14.09.1992, contended before the Tribunal that a Government servant who is recommended for promotion by the DPC and in whose case the circumstances mentioned in paragraph 2 are in existence, he shall not be promoted. Accepting the above stand of the Railways, the Tribunal rejected the petition filed by the respondent herein. (Emphasis ours) 11 As per paragraph 2 of the said memorandum, at the time of consideration of the Government servants for promotion, the following details of Government servants in the consideration zone for promotion falling in the categories mentioned should be specifically brought to the notice of the DPC, viz., (i) Government servant is under suspension; (ii) Government servant has been served with a charge sheet and the disciplinary proceedings are pending; and (iii) Government servant is facing prosecution for a criminal charge and the said proceedings are pending. As rightly observed by the High Court, if the above conditions are available, even one of them, then the DPC has to apply the sealed cover process. In the case on hand, it is not in dispute that the relevant date is 21.04.2003, when the respondents batch mates were promoted, admittedly on that date the respondent was not under suspension, no charge sheet was served upon him nor he was facing any criminal prosecution. In such circumstances, in terms of paragraph 2 referred to above, the recommendation of the DPC has to be honored and there is no question of applying sealed cover process. (Emphasis ours) xxx xxx xxx xxx 17. In the light of the above discussion and in view of factual position as highlighted in the earlier paras, we hold that the ratio laid down in Jankiramans case (supra) are fully applicable to the case on hand, hence we are in agreement with the ultimate decision of the High Court. Consequently, the appeal filed by the Union of India fails and the same is dismissed. However, there will be no order as to costs.
15. Based upon the observations made by their Lordships in the case of Anil Kumar Sarkar (supra) a coordinate Bench of this Tribunal in which one of us (Mr. Sanjeev Kaushik, Member (J)) was a Member, considered similar issue in OA No.645/HR/2013 in the case of Ramesh Chand v. Union of India & Others, decided on 18.09.2014, which was affirmed by the Honble jurisdictional High Court by dismissing the Writ Petition No.12418 of 2015 (CAT) filed at the hands of BSNL, where the Honble High Court held that the eligibility is to be seen on the date when the matter is considered for promotion or for grant of any financial upgradation. Subsequent event after the entitlement or from the date of DPC cannot take away the right of a person for promotion/upgradation based upon ACR/APAR.
16. A circular was issued by the Government of India, Central Vigilance Commission on 21.07.2006 on the basis of DoPT instruction dated 14.09.1992 and in the light of the judgment passed by the Honble Supreme Court in case of K.V. Jankiraman (supra), it was reiterated what has been stated in the judgment and acceptance has been given for adopting the sealed cover procedure only in the circumstances warranting therefor. Thereafter also another O.M dated 02.11.2012 was issued by the Nodal Ministry under the subject Comprehensive review of instructions pertaining to vigilance clearance for promotion reiterated their earlier circular dated 14.09.1992 and recorded the findings as in case of K.V. Jankiraman (supra) and there is no change and original circular dated 14.09.1992 still holds the field which has been considered recently by the Honble Supreme Court in the case of Anil Kumar Sarkar (supra) where case was identical to that of the present case. In that case, procedure was given to adopt seal cover and their lordships held that there is no necessity to adopt sealed cover procedure when there is nothing against an employee on the date of consideration for grant of promotion.
17. In the light of the above authoritative judicial pronouncement and instructions issued by the DoPT, we now proceed to examine the facts of the case. Concededly, on the date of consideration for promotion under CPS by the Standing Selection Committee i.e. respondent no. 3 on 15.10.2014, there was nothing against the applicants. Only on 15.10.2014, the Governing Body of the PGIMER in their Minutes of the 119th meeting under Agenda Item No. E-3 after considering the report of the vigilance cell approved soliciting first stage advice of the Central Vigilance Commission, to initiate disciplinary proceedings. Same reads as under-
Agenda Item No.E-3.
Disciplinary action against Dr. Sonu Goel, Assistant Professor, School of Public Health and Dr. Parmod Gupta, Assistant Professor, Department of Biostatistics, PGIMER, Chandigarh-Inquiry Report on TA Bills submitted by Chief Vigilance Officer, PGIMER, Chandigarh.
The Governing Body after considering report of the Vigilance Cell approved soliciting first stage advice of the Central Vigilance Commission for Initiation of disciplinary proceedings as per necessary guidelines/rules in the matter against Dr. Sonu Goel, Assistant Professor, School of Public Health and Dr. Parmod Gupta, Assistant Professor, Department of Biostatistics, PGIMER, Chandigarh. In the same very meeting, their cases were considered under Agenda Item No. C-1 for promotion of faculty members under Assessment Promotion Scheme and their cases were kept in sealed cover with due approval under Agenda Item No. E-3 for initiation of disciplinary proceedings. Same reads as under:-
Agenda Item No.C-1.
Consideration of the Minutes of the meetings of the Standing Selection Committee held on 23rd Feb, 2nd, 3rd and 4th March, 2014 for promotion of faculty members under Assessment Promotion Scheme.
During February-March 2014, Assessment Promotion Scheme interviews w.e.f. July, 2011 to July 2013 for 120 faculty members were held and minutes of the Standing Selection Committee were placed before the Governing Body. Dr. Yogesh Chawla, Member-Secretary, Standing Selection Committee apprised the Governing Body about the brief facts and procedure adopted in conducting the Assessment Promotion Scheme.
Besides this the minutes of the Standing Selection Committee for the review of promotion cases under Assessment Promotion Scheme held on 23.02.2014, 03.03.2014 and 04.03.2014 in accordance to the decision of the Governing Body as per Agenda Item No.C-2 in its meeting on 06.07.2013 were also placed.
The Governing Body considered and approved the recommendations of the Standing Selection Committee meetings held on 23rd Feb, 2nd, 3rd and 4th March, 2014 in respect of promotions of faculty members under Assessment Promotion Scheme. The Governing Body also considered and approved the recommendations of the review of six remaining faculty members under APS subject to the final outcome of CWP No. 25771 of 2013 pending in Honble High Court of Punjab and Haryana. The copy of the recommendations of the meetings of the said Standing Selection Committee is placed as Annexure-I and Annexure-II.
The Governing Body further observed that as the disciplinary proceedings against two faculty members namely Dr. Sonu Goel, Assistant Professor, School of Public Health and Dr. Parmod Gupta, Assistant Professor, Department of Biostatistics are being initiated as per Agenda Item No.E-3 of the Governing Body dated 15.10.2014, hence the Governing Body decided that the promotion cases under APS of these two above mentioned faculty members may be kept under sealed cover and further necessary action may be taken as per relevant rules/guidelines of the DOPT.
18. Perusal of the above extraction abundantly makes it clear that on the date, cases of the applicants were considered, the respondents had not issued any charge sheet to them and only there was an approval for initiation of disciplinary proceeding against them. The judgments as relied by the respondents in case of Kewal Krishan (supra), is also not applicable to the facts and circumstance of the present case and also to the effect that subsequently, in case of Anil Sarkar (supra), their lordship have considered the OM dated 14.09.1992 giving the procedure for adopting the seal cover and held that the same cannot be applied where only intention has been shown to initiate the departmental proceeding , therefore, the cases of the applicants do not come within the three exceptions under clause 2 of the said circular.
19. In the light of the above, we are left with no other option but to quash the proceeding dated 16.10.2014 under Agenda Item No. C-1 to the effect where they have decided to keep the matter in sealed cover due to initiation of disciplinary proceedings. The authorities are directed to open the sealed cover and honour the recommendations made by the Standing Selection Committee. The above exercise be carried out within a period of one month from the date of receipt of a certified copy of this order.
20. No costs.
(SANJEEV KAUSHIK) MEMBER (J) (RAJWANT SANDHU) MEMBER (A) Dated: 14.08.2015.
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1O.A No. 060/00097/2015 (Sonu Goel & Ors. Vs. U.O.I & Ors.)