Central Administrative Tribunal - Delhi
Shri Rakesh Srivastava vs Union Of India And Ors. Through on 13 February, 2012
Central Administrative Tribunal Principal Bench New Delhi OA No.4080/2011 Reserved on 09.02.2012 Pronounced on 13.02.2012 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Shri Rakesh Srivastava, S/o B.B. Srivastava, C-II/108, Moti Bagh-I, New Delhi-110021. . Applicant. (By Advocate : Shri Parag P. Tripathi, Sr. Advocate with Shri Buddy A. Ranganathan) Versus Union of India and Ors. through 1. The Cabinet Secretary, Cabinet Secretariat, Rashtrapati Bhawan, New Delhi. 2. The Secretary, Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions, North Block, New Delhi. 3. The Chairman, Central Vigilance Commission, Satarkta Bhawan, New Delhi. .. Respondents. (By Advocate : Mr. K.R. Sachdeva) ORDER
Dr. Ramesh Chandra Panda, Member (A) Shri Rakesh Srivastava, belonging to the Indian Administrative Service (IAS) of 1981 batch of Rajasthan Cadre is aggrieved by the impugned action of the respondents in not empanelling him for promotion to the grade of Additional Secretary to the Government of India and has approached the Tribunal under Section 19 of the Administrative Tribunals Act, 1985 with following prayers :-
a) To call for the records of the case;
b) to pass an order or direction to the respondents that the empanelment process of the applicant should proceed without the vigilance clearance since the same is deemed to have been granted/not required vide DoPT OM dated 29.10.2007; AND 29.10.2007; and
d) to grant any other relief as may be deem fit and proper under the circumstances of the case;
2. We heard Shri Parag P. Tripathi, learned Senior Counsel along with Shri B.A. Ranganathan, learned counsel for the applicant and Shri K.R. Sachdeva, learned counsel for the respondents.
3. The applicant has been deprived of his empanelment as Additional Secretary in the Government of India mainly due to non receipt of vigilance clearance from the Central Vigilance Commission. It is his case that the applicant had been cleared from vigilance angle and has been included for empanelment as Additional Secretary in the Government of India or equivalent post as the panel of Eminent Persons in the Central Government have cleared him but for the fact that the Vigilance Clearance Certificate was not received from the CVC, the Appointments Committee of the Cabinet (ACC) did not consider the case of the applicant. But his colleagues and juniors have been not only empanelled but have also been granted the rank of Additional Secretary in the Government of India. In this regard, he has enclosed the information dated 09.08.2011 which has been marked as Annexure-P1 in the OA. It is stated that the Department of Personnel & Training (DOP&T) vide its OM dated 29.10.2007 pertaining to the guidelines regarding grant of vigilance clearance to the All India Service Officers which inter alia envisages in para 2(b) that the vigilance clearance would not be withheld if a preliminary enquiry (PE) mentioned in para 2(a) of the said OM takes more than three months to be completed. It is the case of the applicant that a false Preliminary Enquiry (PE) was filed by Central Bureau of Investigation (CBI) in June, 2010 in which twelve persons including the applicant were shown as suspect persons. It is contended that though period of more than 16 months have elapsed, CBI has not come to any conclusion against the applicant. Shri Tripathi, therefore, pleaded that in view of the DOP&T guidelines pertaining to the grant of vigilance clearance, more than three months period had already elapsed and as such the CVC should have granted vigilance clearance in case of the applicant. It is further contended that the PE has to be taken up only after the prior approval / permission of the Government of India but in case of the applicant no such permission was taken and as such the Preliminary Enquiry being conducted by CBI is void ab initio. Shri Tripathi would highlight that applicant having an excellent service record throughout his career, when he had not been visited with any penalty so far and even a charge sheet had not been filed for any misconduct during his entire service career, when he was due for empanelment as Additional Secretary, the Preliminary Enquiry being conducted by CBI had become an impediment against him. In these circumstances, it has been pleaded that the applicant has been prejudiced by non grant of the vigilance clearance by the Competent Authority which has denied the empanelment of the applicant as Additional Secretary to the Government of India.
4. The learned Senior Counsel drew our attention to the copy of the letter attached to the additional affidavit filed by the applicant on 06.01.2012 wherein Central Vigilance Commission letter dated 30.12.2011 and 03.01.2012 have been enclosed. As per the said letters, it is noted that the letter of the CVC dated 03.01.2012 clearly indicates that the vigilance clearance in favour of the applicant has been granted for the stated purpose. In view of the above vigilance clearance received from the CVC which has been addressed to DOP&T, the concerned authorities need to be directed appropriately by the Tribunal.
5. In this regard, the learned Senior counsel places reliance on the judgment of Honble Supreme Court in Union of India Versus K.V. Janakiraman [1991-4-SCC-109], Collector of Thanjavur District & Ors. Vs. S. Rajagopalan & Ors. [2000-9-SCC-145] and New Bank of India Versus N.P. Sehgal [1991-2-SCC-280]. It is, therefore, urged that appropriate directions should be issued to the respondents for convening the Committee to consider the applicants case for empanelment to the rank of Additional Secretary to the Government of India.
6. Shri K.R. Sachdeva, learned Sr. Central Government Standing counsel informed us that he has been instructed by Shri Chetan Prakash Jain, Director in the office of the Establishment Officer of DOP&T vide his letter dated 08.02.2012 to say that the Cabinet Secretariat vide its letter dated 08.02.2012 has informed that DOP&T has been requested to furnish the latest vigilance status of the applicant and once the latest vigilance status of the applicant is received, the same would be considered as per the extant rules by the Competent Authority.
7. Having heard the contentions of the rival parties, we have perused the pleadings. The controversy is in narrow compass. The issue is whether the vigilance clearance as forwarded by the CVC for the applicant would be sufficient for processing the applicants case further for consideration for empanelment to the post of Additional Secretary in the Government of India.
8. There is no dispute with regard to the letter dated 3.01.2012 issued by the Central Vigilance Commission to the Under Secretary, DOP&T which indicates that the vigilance clearance in respect of the applicant is available from CVC. The said letter reads as follows :-
To Shri Kabindra Joshi, Under Secretary, Department of Personnel & Training, North Block, New Delhi.
Sub: Vigilance Clearance in respect of IAS officers of 1975 to 1981 batches. Sir, Please refer to your OM No.104/09/2011-AVD-I dated 26.12.2011 on the subject cited above.
2. The Commission has now advised issue of vigilance clearance to Shri Rakesh Srivastava, IAS (RJ:81) for the stated purpose.
Yours faithfully, ( P.K. Mohanty) Section Officer
9. A close scrutiny of the letter placed before us during the hearing and addressed to the Senior Central Government Standing Counsel (Shri K.R. Sachdeva) by the Director, DOP&T reveals the following :-
..3. In response, the Cabinet Secretariat, vide its letter dated 8.2.2012, has informed that DOPT (Administrative Vigilance Division) has been requested to furnish the latest vigilance status in respect of the Shri Rakesh Srivastava, IAS (RJ:81). The case of the officer would be placed before the Special Committee of Secretaries along with the latest vigilance position in due course.
4. In view of the above, you are requested to argue the case before the CAT, accordingly and also keep this Deptt. and the Cabinet Secretariat apprised of development in the above referred case in time.
10. In view of the admitted facts that the Central Vigilance Commission has given the vigilance clearance in favour of the applicant as on 03.01.2012, which is latest vigilance status and said vigilance clearance should be considered by the Special Committee of Secretaries to consider the applicants case for empanelment to the rank of Additional Secretary to the Government of India.
11. Considering the above admitted facts and circumstances of the case, we direct the respondents to consider the available vigilance clearance given by the CVC in the letter dated 03.01.2012 in favour of the applicant and consider the applicants case for empanelment to the rank of Additional Secretary and if he is found suitable, as per the extant rules and guidelines, he may be empanelled alongwith his other colleagues of the same batch already included in the panel of Additional Secretary. Let the exercise as ordained above be completed within a period of three months from the date of receipt of a certified copy of this order.
12. In terms of our above orders and directions, the Original Application having merits is allowed, however, leaving the parties to bear their respective costs.
( Dr. Ramesh Chandra Panda ) ( V.K. Bali )
Member Chairman
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