Central Administrative Tribunal - Delhi
Ramesh Prasad Singh vs Nation Highways Authority Of India on 11 December, 2013
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 1073/2012
Order reserved on 15. 02. 2013
Order pronounced on 11.12.2013
Honble Mr. Sudhir Kumar, Member (A)
Honble Mr. V. Ajay Kumar, Member (J)
Ramesh Prasad Singh,
S/o Late Shri Munshi Singh
NHAI Complex, NH-60, Near Chowrangee,
PO India, Kharagpur,
Distt. Paschim Medinipur-721305. Applicant.
(By Advocates: Shri K.K.Rai, senior counsel with Shri R.N.Singh)
Versus
Nation Highways Authority of India
G-5 & 6, Sector-10,
Dwarka, New Delhi-110075
(Through its Chairman) Respondent.
(By Advocates: Sh.V.K.Rao, senior counsel with Ms.Tanu Priya Gupta)
ORDER
By Mr.Sudhir Kumar, Member (A):
The applicant of this OA is before us challenging the action of the respondent in not issuing the order of his promotion to the post of Chief General Manager (Technical), in spite of the fact that he has been eligible for the post, was considered for the same post, and his claim is that his name was even recommended by the Screening Committee also, but subsequently, the respondent appointed a Search-cum-Selection Committee, and the respondents have issued the appointment and promotion orders in respect other candidates, recommended by the same Committee. He is, therefore, aggrieved that even when there was no legal & administrative impediment in his promotion, and neither has he been placed under suspension, nor any charge-sheet has been issued to him, and nor any disciplinary proceedings were pending, nor any prosecution for criminal charge has been pending, yet the respondent has erred by way of withholding his order of promotion. He has, therefore, sought a declaration from this Tribunal that the actions of the respondent are illegal, arbitrary and discriminatory, and has also sought a declaration that he is so entitled for promotion to the post of Chief General Manager (Technical) with effect from 03.10.2011, the date when another departmental candidate, namely Shri K. Venkata Ramana, was promoted, along with all consequential benefits, and arrears of pay, seniority in the post, etc. In the result, he has prayed for the following reliefs:
(a) Call for the original file(s)/record (s) of the respondent dealing with the present case;
(b) declare the action of the respondent in withholding of the order of promotion of the applicant to the post of Chief General Manager (Tech) as illegal, arbitrary and discriminatory and accordingly quash the same;
(c) declare that the applicant is entitled for being given the promotion to the post of Chief General Manager (Tech) w.e.f. 3.10.2011 when another departmental candidate namely Shri K.Venkata Ramana has been promoted vide order dated 3.10.2011 with all consequential benefits viz., arrears of pay, seniority in the post, etc.
(d) Award cost of this application and proceedings against the Respondent and favour of the Applicant.
2. The applicant joined the service with the respondent as Manager (Technical) with effect from 26.12.1996. In less than four years thereafter, he was promoted as Deputy General Manager (Technical) under the respondent with effect from 13.11.2000. Luck favoured him once again and in less than four years he was further promoted to the post of General Manager (Technical) with effect from 03.08.2004. His next promotional post from this post is Chief General Manager (Technical), which is the post in question. In November 2010, the respondent had advertised for filling up six posts of Chief General Manager (Technical) with last date of submission of applications being 03.12.2010. The applicant considered himself to be eligible, meeting all the prescribed criteria, and he applied for the said post through proper channel vide letter dated 10.12.2010 at Annexure A-1 (colly), through which his immediate supervisory officer had forwarded his application with a recommendation that his application may be verified, and accepted, as a candidate for the post of Chief General Manager (Technical).
3. Having received 53 such applications for the post of Chief General Manager (Technical), the respondent constituted a Screening Committee to scrutinize them, which Screening Committee met on a number of occasions, and sent its Minutes through noting dated 02.09.2011 through Annexure A-2, which noting has been filed by the applicant without explaining as to how he came to acquire a copy of that noting. The applicant has also annexed a copy of the confidential noting on the respondents file No.NHAI/11012/162/2010-HR.I, as well the Minutes of the meetings of the Screening Committee constituted to scrutinize the applications for the post of Chief General Manager (Technical), in the National Highways Authority of India (NHAI for short), at pages 24 to 29 of the Paper Book, again without explaining as to how he came in possession of these confidential documents.
4. However, it is seen that the Screening Committee had recommended for consideration by the Search-cum-Selection Committee of 12 candidates, along with the name of the applicant before us appearing at Sl. No.10. The Search-cum-Selection Committee for the post of Chief General Manager (Technical) in the NHAI was to be chaired by the Secretary to the Government of India, Ministry of Road Transport & Highways, who was requested thereafter to fix a meeting of the Search-cum-Selection Committee. The applicant has also produced as Annexure A-3, at pages 30 & 31 of the Paper Book, the Minutes of the Meeting of the Search-cum-Selection Committee for various posts in the NHAI, held under the chairmanship of the Secretary to the Government of India, Ministry of Road Transport & Highways, and including the Chairman of the NHAI, held on 29.09.2011, once again without explaining as to how he came to acquire this document in his possession.
5. It is seen that the Search-cum-Selection Committee noted that the Screening Committee had found only 12 persons eligible for consideration, out of 53 applications. The Committee perused the recommendations of the Screening Committee in detail, and considered the 12 short-listed candidates, and then recommended the name of seven persons against 9 vacancies of the Chief General Manager (Technical), including the name of the applicant, whose name appears at Sl.No.7, but with a rider that it was subject to the Vigilance clearance, which rider was not there in respect of the first six names, as recommended by the Screening Committee. The Search-cum-Selection Committee had further given reasons for rejecting the cases of the 5 remaining candidates also, out of 12 short-listed candidates, as recommended by the Screening Committee. Within a couple of days, thereafter, an office order dated 03.10.2011 was issued in respect of Shri K. Venkata Ramana, (whose name appeared at Sl.No.6), who is above the applicant in the list, as recommended by the Search-cum-Selection Committee, and he was promoted as Chief General Manager (Technical) in the scale of pay of PB-4 (Rs.37, 400-67000) + Grade Pay of Rs.10,000/-.
6. Feeling aggrieved at his being left out, the applicant addressed a representation on 18.10.2011 to the Chairman, NHAI, through Annexure A-5 (colly), seeking an order to be issued for his promotion also, as the order in respect of one of the officers of the same Batch had already been issued on 03.10.2011, and that he was not able to comprehend the reasons for withholding his order of promotion. Therefore, he had also sought promotion with retrospective effect from 03.10.2011. He reiterated the same grievance on the next day, i.e. on 19.10.2011, through another representation annexed at Annexure A-6, in which he had sought shelter behind the DoP&T Circular No.22011/4/91-Estt. (A) dated 14th September, 1992, which was issued by the Government of India after having accepted the ratio of the Honble Apex Court judgment in Union of India vs. K.V.Jankiraman (AIR 1991 SC 2010). In this OA, he has reproduced a copy of the said OM dated 14.09.1992, along with a copy of the DoP&T OM dated 25.10.2004 relating to the cases of persons whose conduct is under investigation, and against them a Memorandum of Charges has been issued, and the disciplinary proceedings are pending, and the Government servants in respect of whom prosecution for a criminal charge is pending. Through Annexure A-8, the applicant had produced a copy of notings of the NHAI, Vigilance Division, from 11.10.2011 to 13.10.2011, once again without explaining the source as to how he came to be in possession of these documents lawfully. The Vigilance Division noting of the NHAI dated 11.10.2011 reads as follows:
PUC is a note No.Misc.NHAI/11012/162/2010-HR.I dated 03.10.2011 received from the Administration Division regarding vigilance status in respect of following officers who had applied for the post of CGM(Tech.) which was placed before the Competent Authority.
(i) Shri R.P.Singh, GM(Tech), NHAI
(ii) Shri I.K.Pandey, SE, MoRT&H [earlier on deputation to NHAI as GM(Tech)] 2.1 Based on the information collected from the officers of the Vigilance Division; neither any vigilance enquiry is pending nor contemplated against the following officers and the vigilance status are as follows:-
(i) In respect of Shri R.P.Singh, GM (Tech) Investigation conducted by a Committee headed by Shri K.Venkata Ramana, GM (Tech) and subsequent investigation conducted by Vigilance Division disclosed serious lapses having possible vigilance overtones.
7. In para 4 (x) of the OA, the applicant has himself pointed out that in spite of the recommendations of the Search-cum-Selection Committee recommending seven names, the respondent had appointed five candidates, except the applicant (whose name appeared at Sl.No.7 in the said list) and one Shri I.K.Pandey, whose name appeared at Sr.No. 3. Even though in para 4 (xii) of the OA, the applicant has submitted that he had obtained a copy of the notings of the Vigilance Branch of the respondent, but he had not disclosed as to how he could obtain such copy from the Vigilance Branch, and other confidential documents, and the file notings copies of which have been produced along with the OA. Though the applicant had claimed that he had obtained the documents under the RTI Act, but these documents and notings were produced without any covering note in respect of his having received them under the RTI Act.
8. The applicant is aggrieved that even when his case has been recommended for promotion, subject to Vigilance clearance, and even when no such circumstances had arisen to withhold his Vigilance clearance after the orders of promotion of similarly placed candidates had been issued, but in his case, the actions of the respondent have been arbitrary, discriminatory and bad in law. He has, therefore, taken the following grounds, and had prayed that the O.A. deserves to be allowed, with the reliefs as already mentioned above:-
(i) The actions of the respondent are violative of Articles 14, 16 and 21 of the Constitution of India;
(ii) They are against the law, as laid down by the Apex Court in Union of India vs. K.V.Jankiraman (supra) and also in Delhi Jal Board vs. Mahinder Singh, (JT 2010 SC 158);
(iii) All the actions of the respondent are against the DoP&T OMs dated 14.09.1992 and 25.10.2004;
(iv) Because the actions of the respondent are against the law as declared by the Honble Delhi High Court vide order/judgment dated 27.11. 2008 in WP(C) No.7810/2008 in the case of Union of India vs. Om Prakash, which has since been followed by this Tribunal also in its order dated 10.12.2010 in OA 2756/2008 in the case of Sh.S.K.S. Yadav vs. Union of India & Anr. and subsequently in a series of other cases;
(v) Because the impugned actions of the respondent have been issued without any application of mind, and thus they are bad, and not sustainable, being against the principles of legitimate expectation of the applicant from a model employer, and unsustainable in the eyes of law in view of the principles of equity, justice and good conscience; and
(vi) Because till date, no facts or circumstances are available to the respondent to withhold the Vigilance clearance of the applicant, and to deny him promotion on the ground of lack of Vigilance clearance.
9. The respondents filed their counter reply on 05.07.2012. Apart from admitting the various facts, the respondents had taken the ground that the Screening Committee had recommended that the candidature of the applicant was only provisionally eligible subject to receipt of disciplinary clearance from the NHAI.
10. The respondents had further submitted that when they advertised for the post of Chief General Manager (Technical) on 16.11.2010, they had simultaneously constituted a Screening Committee to scrutinize the 53 applications received for the post of Chief General Manager (Technical), including the application of the applicant, which Committee had recommended the candidature of the applicant as provisionally eligible, subject to receipt of disciplinary clearance from NHAI, as mentioned above, and the Search-cum-Selection Committee had then later recommended the candidature of the applicant on promotion basis, subject to Vigilance clearance, which is as it is a mandatory requirement for such promotion exercises. They have pointed out that the applicant was not granted Vigilance clearance, as the investigation on a complaint regarding allegations of grave nature was pending against him, because of which the order of promotion in respect of the applicant had not been issued. They have justified their action as having been taken on the basis of Para-7 of the OM dated 14.09.1992 issued by the DoP&T, which states that when a Government servant, who is recommended for promotion by the DPC, but in whose case in any of the circumstances mentioned in Para-2 of that O.M. arise after the recommendations of the DPC are received, but before he is actually promoted, will be considered, as his case has been placed in a sealed cover by the DPC, and that he shall not be promoted until he is completely exonerated of the charges against him, and the provisions contained in this OM will be applicable in the present applicants case also.
11. They have further submitted that the applicants adverse conduct had come to light way back in March, 2011, and the decision to initiate disciplinary proceedings for major penalty against the applicant was taken on 28.10.2011. Because of this, they had justified having taken a decision on 20.12.2011, with the approval of the Chairman of the Respondent Authority, to consider the recommendations of the Search-cum-Selection Committee on 29.01.2012 to have been placed in a sealed cover. They had, therefore, submitted that in view of this factual matrix, the present application is not maintainable in the eyes of law, since the Respondent Authority is not bound to promote each and every applicant, and also the promotion of officers requires exhaustive exercise, such as, Vigilance clearance, and assessment of the Annual Confidential Reports, and the contribution of the officer to the organization etc.
12. They had submitted that the order of the applicants promotion could not have been issued as Vigilance clearance had not been granted in his case, and, thereafter, issues are being examined threadbare to come to a logical conclusion about those complaints. It was denied that the action of the Vigilance Branch of the Respondent Authority is illegal, arbitrary, and discriminatory, and result of non-application of mind. It was submitted that the applicant has wrongly placed reliance upon the judgment of Union of India etc vs. K.V.Jankiraman (supra), submitting that the law cannot be applied mechanically. The respondent had relied upon the Honble Delhi High Courts judgment in R.R.Sahay vs. Union of India in Writ Petition (Civil) No.6536/2010, and in the case of Mohammad Raffique Hussain vs. Union of India in Writ Petition (Civil) No.2124/2010. They had also placed reliance upon the Honble Apex Courts judgment in the case of State of MP and Another vs. Sayed Naseem Zahir and Others (AIR 1993 SC 1165), in which the Honble Apex Court had held that the recommendations pertaining to the promotion of the Government servant could be kept in sealed cover even after the charge-sheet was issued. They had also submitted that in the cases of R.R.Sahay (supra), and Mohmmad Raffique Hussain (supra) also it had been held that applying the law that no charge-sheet existed on the day when an official was considered for promotion was not a right approach.
13. They had also submitted that the adverse conduct of the applicant had come to the light way back in March, 2011, and the Search-cum-Selection Committee meeting held on 29.09.2012 had recommended the candidature of the applicant for promotion subject to Vigilance clearance, and the decision to initiate disciplinary proceedings for major penalty against him was taken on 28.10.2011, and, thereafter, on 20.12.2011, it was decided to consider the recommendations of the Search-cum-Selection Committee dated 29.09.2012 to have been placed in a sealed cover in respect of the applicant. They had, therefore, stoutly defended their actions, saying that no case has been made out by the applicant for any intervention by this Tribunal, and had submitted that the reliance placed by the applicant upon the Apex Courts judgments in Union of India etc vs. K.V.Jankiraman (supra) and Delhi Jal Board vs. Mahinder Singh (supra) are totally misplaced and unfounded, as the applicant was already under a cloud as on the date of the meeting of the Search-cum-Selection Committee, which had met on 29.09.2011, and even though the charge-sheet to the applicant had not been issued till that date.
14. It was submitted that the promotion is not a fundamental right, and cannot be asked as a matter of right. The suitability and eligibility of the candidate concerned is best left at the hands of the Departmental Promotion Committee or the Search-cum-Selection Committee. It was submitted that due procedure had been followed in this case, and the respondents had relied upon the cases, namely, Union of India & Anr. vs. R.S.Sharma [(2000) 4 SCC 394]; Delhi Development Authority v. H.C.Khurana [(1993) 3 SCC 195]; Union of India v. Kewal Kumar [(1993) 3 SCC 204] & Union of India & Ors. V. Sangram Keshari Nayak [(Appeal (Civil) 3691 of 2005]. Other grounds taken by the applicant were vehemently denied and it was prayed that the OA is not maintainable either on facts or in law.
15. The applicant thereafter filed a rejoinder on 26.09.2012. Through his rejoinder, the applicant had again assailed the actions of the respondent, and had submitted that the respondent had in their written statement more or less admitted the averments made in the OA in view of the settled principles of law, in view of any specific denial to any of the pleadings. It was also submitted that none of the conditions incorporated in the DoP&T OM dated 14.09.1992 was available to the respondent to withhold the Vigilance clearance, or to withhold the order of promotion in his case, when his colleague Shri K. Venkata Ramana, who had been recommended in the same panel, had been issued the order of promotion on 03.10.2011. It was further submitted that as on the date of the Search-cum-Selection Committee meeting, the Disciplinary Authority had not taken a decision to initiate any departmental inquiry against the applicant, nor was any criminal case pending against him, and, therefore, reliance could not have been placed on the DoP&T OM dated 14.09.1992, and even the judgments cited are misconceived and out of context.
16. It was submitted that the Vigilance Branch of the Respondent-Organization has illegally and arbitrarily withheld the Vigilance clearance of the applicant, because of which the respondent, being an Appointing Authority of the applicant, had not issued the order of promotion, since there was no application of mind, and the action was taken merely on the reporting of its Vigilance Branch. It was submitted that no portion of the DOP&T OM dated 14.09.1992 has been pointed out by the respondent as having been followed correctly, and that the judgments referred to and relied upon by the respondent are out of context, and are not applicable in view of the facts and circumstances of the present case, and the respondent has also failed to point out the rules and regulations under which they have followed the sealed cover procedure in the facts and circumstance of the applicants case. It was, therefore, again prayed that the OA may be allowed.
17. An additional affidavit dated 21.12.2012 was filed on behalf of respondent, explaining the facts and circumstances of the case in which another officer, Shri I.K.Pandey had been appointed as Chief General Manager (Technical) in NHAI on deputation basis. In reply to this, the applicant had also filed an affidavit on 28.01.2013, reiterating his contentions, as already discussed above, and assailing the appointment of said Shri I.K.Pandey, who is not party before us in this case. The applicant had also filed a copy of Government of India OM dated 02.11.2012 (Annexure AR-2), which is comprehensive review of the instructions in regard to the Vigilance clearance for promotion on the subject.
18. Heard. We have given our anxious consideration to the facts of the case. The claim of the applicant for the purpose of his promotion lies solely on the ground that when the meeting of the Search-cum-Selection Committee was held on 29.09.2010, and that Committee had recommended 7 names for the post of Chief General Manager (Technical) against the 9 available vacancies, including the name of the applicant, which was at Sl.No.7, though it was mentioned to be subject to the Vigilance clearance, but the recommendations had not been placed in a sealed cover by the Search-cum-Selection Committee. His claim is that the Search-cum-Selection Committee was performing the role of the Departmental Promotion Committee, regarding which the law has been laid down by the Apex Court in Union of India v. K.V.Jankiraman (supra), following which findings of the Honble Apex Court, the Government of India had issued the OM dated 14.09.1992, making it clear that the Vigilance clearance in the cases of promotions may be denied only in the following three circumstances:
(i) Government servants under suspension;
(ii) Government servants in respect of whom a charge-sheet has been issued, and the disciplinary proceedings are pending; and
(iii) Government servants in respect of whom prosecution for a criminal charge is pending.
19. Applicants contention is that none of these three conditions were specified in his case and mere observation of the Search-cum-Selection Committee that his promotion was being cleared subject to the Vigilance clearance does not give a handle to the respondent to deny the promotion, which was due to him. On the other hand, the respondent has taken the stand that the applicant was already under a cloud from March 2011, and he was very much under the cloud when the Search-cum-Selection Committee meeting took place on 29.09.2011, because of which, the Committee had added the rider about the recommendations of his promotion being subject to the Vigilance clearance. The respondents case is that they have thereafter acted on the basis of the DoP&T OM dated 14.09.1992, which has followed the law laid down in Union of India v. K.V.Jankiraman (supra), and once the charge-sheet was issued to the applicant, and the disciplinary proceedings had been started against him, and the decision to initiate disciplinary proceedings for major penalty against the applicant was taken on 28.10.2011, they were within their rights to decide the same on 20.12.2011, and to consider the recommendations of the Search-cum-Selection Committee dated 29.09.2011 to have been deemed to have been placed in a sealed cover in this particular case, which decision was taken with the approval of the Chairman of the Respondent Authority.
20. The respondents have placed reliance upon the sequence of events being justified by the law as laid down by the Three Judges Bench of the Honble Apex Court in State of M.P. and Another vs. Syed Nazeem Zahir and Others. In that case, the DPC had met on 28.10.1987, and considered the name of Syed Nazeem Zahir for promotion. At that time, the disciplinary proceedings were only at the stage of contemplation against him, and on the basis of such contemplation itself, the recommendation of the DPC qua him was kept in sealed cover. The said Syed Nazeem Zahir was served with a charge-sheet much later on 15.04.1988, like in the instant case, where the applicant has been served with a major penalty charge-sheet much after the meeting of the Search-cum-Selection Committee. When that case came before a coordinate Bench of this Tribunal, the Tribunal had allowed the application of Syed Nazeem Zahir on the short ground that the DPC, which met on 28.10.1987, had acted illegally in adopting the sealed cover procedure. Relying upon the same judgment in Union of India v. K.V.Jankiraman (supra), the coordinate Bench had come to the conclusion that the sealed cover procedure could have been adopted only after the date of issuance of charge-sheet, that being the date from which the disciplinary proceedings could have been taken to have been initiated. The coordinate Bench of this Tribunal had held that since admittedly on the date when the DPC met the charge-sheet had not been served on Syed Nazeem Zahir, resort could not have been had to the sealed cover procedure. The Honble Apex Court, however, held as follows:
6. It is no doubt correct that in view of Jankiraman's case (AIR 1991 SC 2010) the DPC was not justified in keeping the recommendation pertaining to Syed in a "sealed cover", but it is difficult to ignore glaring facts in a given case and act mechanically. Even in Jankiraman's case while dealing with civil appeals Nos. 51-55 of 1990 this Court observed as under (Para 17 of AIR) In view of the aforesaid peculiar facts of the present case, the DPC which met in July, 1986 was justified in resorting to the sealed cover procedure, notwithstanding the fact that the charge sheet in the departmental proceedings was issued in August/December, 1987. The Tribunal was, therefore, not justified in mechanically applying the decision of the Full Bench to the facts of the present case and also in directing all benefits to be given to the employees including payment of arrears of salary".
Keeping in view the facts of this case we are of the view that the "sealed cover" containing recommendations of the DPC in respect of respondent Syed be not opened till the departmental proceedings against him are concluded. As mentioned above the enquiry report has already been received by Syed and it is matter of days before the disciplinary proceedings would come to an end. In case he is completely exonerated, the "sealed cover" shall be opened and if the recommendation is in his favour, he shall be notionally promoted with effect from the date when a person junior to him was promoted to the post of Chief Engineer. In that event, he shall be entitled to all consequential benefits including backwages. In case, respondent Syed Naseem Zahir is punished in the proceedings, then action would be taken in accordance with the guidelines as laid down by this Court in Jankiraman's case (AIR 1991 SC 2010).
7. We set aside the judgment of the tribunal and allow the appeal in the above terms. No costs.
Ordered accordingly.
21. We find that the facts of the case of Syed Nazeem Zahir (supra) are not fully applicable to the facts of the present case, as in that case it was the DPC, which had put the recommendations for promotion in sealed cover, and the Honble Apex Court came to the conclusion that such sealed cover need not be opened till the departmental proceedings already started against him, in respect of which the enquiry report had already been received by him, are concluded. That was a very specific direction, and cannot be said to have laid down any proposition of law in rem, and the facts of the present case are totally different. In this case, the Search-cum-Selection Committee, had not itself recommended or adopted the sealed cover procedure, but rather the Chairman of the Respondent Authority, who had, three months after the meeting of the Search-cum-Selection Committee held on 29.09.2011, on 20.12.2011 decided to treat the recommendations of the Search-cum-Selection Committee to have been deemed to have been placed in a sealed cover in respect of the applicant. There appears to be no proposition of law or ratio, which allows to treat a recommendation, which had been in the realm of general knowledge for a period of nearly three months, and has been the common knowledge of everybody concerned, including the persons sought to be considered for promotion, such recommendation can, by an order of an individual authority, howsoever high the authority may be, deemed to have been placed in a sealed cover. The concept of sealed cover implies and incorporates within it the aspect of secrecy. What has already been known for nearly three months, cannot, therefore, be deemed to have been placed in a sealed cover and shut out from the knowledge of everybody else.
22. From a perusal of the ratio both in the cases of K.V.Jankiraman (supra) and Syed Nazeem Zahir (supra), it is very clear that the privilege of placing its recommendations in a sealed cover is available only to the Departmental Promotion Committee, acting on the basis of their collective wisdom and intelligence, and no individual authority can thereafter, howsoever high the authority may be, can order or direct to hold the already known recommendations of the DPC to be deemed to have been placed in a sealed cover, and thus having attained the status of being unknown recommendations.
23. The respondents were fully within their rights to have taken any adverse action against the applicant after the decision to initiate the disciplinary proceedings for major penalty against him was taken on 28.10.2011, but in the window of opportunity of the period from 29.09.2011 to 27.10.2011, the day and date prior to the issuance of the major penalty proceedings and the charge-sheet against him, the issue was as to whether the applicant could or could not have been denied promotion, which was recommended to him by way of the decision of the Search-cum-Selection Committee, subject to the Vigilance clearance. The issue remains that pendency of Vigilance clearance in that period of nearly one month had given right to the respondents to deny the applicants promotion, or not.
24. Probity and integrity are the hallmark, and have to be considered as hallmarks of public service. If there were complaints of serious nature against the applicant, and the respondent being a respondent-organization had raised an alarm in this regard way back in March 2011 itself, and the applicant was already under a cloud, the Search-cum-Selection Committee was justified in recommending his promotion subject to Vigilance clearance only, and the respondent was also justified in holding back the order of his promotion, since the applicant had not yet come out of the cloud in that period of nearly one month from 29.09.2011 to 27.10.2011. The applicant cannot be allowed to plead that even though he was under a cloud, and the Vigilance Department of the respondent organization had raised the issue regarding his integrity and probity, and the Search-cum-Selection Committee had taken a notice of such complaints being pending, the respondent was duty bound to promote him. On the other hand, the respondent has also erred in having passed the order dated 20.12.2011, to have made the recommendations of the applicants promotion made by the Search-cum-Selection Committee to be deemed to have been kept in a sealed cover, which sealed cover procedure can be adopted only by the DPC, or its deemed equivalent, the Search-cum-Selection Committee, but not any individual authority, howsoever high it may be placed.
25. It is on record that after the process of selection, the applicants colleague Shri K.Venkata Ramana had been ordered to be promoted through order dated 03.10.2011. Therefore, for the period from 29.09.2011 to 27.10.2011, the applicant was entitled for being promoted, subject to the Vigilance clearance. But such Vigilance clearance was not made available.
26. Learned counsel for the applicant filed a set of judgments in regard to the case. The cases relied upon by him were the following:
The judgment dated 05.04.2011 in OA No.392/2010 in Mrs.Sumathi Ravichandran vs. Union of India & Another, in which the Bench chaired by the then Chairman, CAT, had held that once there is no distinction as regards seriousness of the criminal case against an employee, the case of the applicant for promotion could not be put under sealed cover. In the DPC held on 27.10.2009, the case of the applicant of that case was, in fact, not even considered, so there was no question of DPC putting the decision on her case under sealed cover. No criminal charge had been framed against the applicant till date, and it was not framed even on the date when persons junior to the applicant of that case were promoted on 11.02.2010. In that context, the respondents were directed to convene a review DPC, to consider the case of the applicant for promotion to the SAG, and if the applicant was found fit on the basis of her service record, it was ordered that she would also be promoted with effect from the date her juniors were promoted, with all consequential benefits. In this case, the applicant before us cannot be allowed to derive any benefits from that judgment, because in that case even though the applicant was involved in three corruption cases, but it was held that none of the circumstances under which the case of the applicant could be put under sealed cover were in existence. In the case of the present applicant, he was only under a cloud. Therefore, he was selected also, without his case being put in a sealed cover. But he cannot claim equivalence with his junior, who was put by the DPC at Sl.No.6 above him, as that person was not under any cloud as on the date of Search-cum-Selection Committee meeting.
27. The next case relied upon by the applicant was that of B.S.Bola, IPS vs.Union of India through the Secretary, Ministry of Home Affairs in OA No.1595/2010 decided on 22.12.2010. In that case, the Bench had considered the case of the applicant relying upon the Honble Apex Courts judgment in Delhi Jal Board vs. Mahinder Singh (supra), and it was held that the principle that promotion cannot be stalled on account of criminal case or disciplinary proceedings initiated later than the date for which the DPC is considering the case of the Government servant, would apply equally in the facts and circumstances of that case, and, therefore, the directions were issued to quash and set aside the impugned order therein and the respondents were directed to open the sealed cover. The applicant before us cannot be allowed to derive any benefits from this judgment also, since his case had not at all been put under sealed cover, but rather it was recommended for selection at Sl.No.7, subject to the Vigilance clearance being obtained.
28. The applicant had also relied upon another judgment in the case of the same individual i.e. B.S.Bola, IPS vs.Union of India through the Secretary, Ministry of Home Affairs in OA No.1919/2008 decided on 11.08.2009, which also related to the issue of a direction to the respondents to open the sealed cover of the applicant with regard to grant of selection grade, and if the recommendation may be in his favour, to grant him the said grade from the date his colleagues, some of whom were junior to him, were given the same, since this is not a case of sealed cover procedure having been adopted, or a DPC, but concerns the proceedings of the Search-cum-Selection Committee meeting, and, therefore, the applicant cannot be allowed to derive any benefits from the ratio of the cited judgment.
29. Learned counsel for the applicant had further relied upon the judgment dated 10.12.2010 in OA No.2756/2008 in Shri S.K.S.Yadav vs. Union of India through Secretary, Ministry of Home Affairs & Another, which case also concerns Departmental Promotion Committee, and not the Search-cum-Selection Committee, and the direction had been issued to open the sealed cover and act on the recommendations of the DPC. Present case before us concerns the process of the Search-cum-Selection Committee which considers the cases of people outside the Department also. The applicant cannot, therefore, be allowed to derive any benefits from the cited judgment.
30. Learned counsel had also filed a copy of the judgment dated 27.11.2008 in Writ Petition (Civil) No.7810/2008 in Union of India through the Secretary, Ministry of Home Affairs & Another vs. Shri Om Prakash delivered by the Honble High Court of Delhi, which also specifically relates to the DPC, which requires to follow the requirement of the sealed cover procedure, and the instant case not being that of DPC, the applicant cannot be allowed to derive any benefits of the cited judgment.
31. Learned counsel for the applicant further sought shelter behind the judgment of the Honble Apex Court in Union of India and Others vs. Sangram Keshari Nayak (2007) 6 SCC 704, which again relates to the Departmental Promotion Committee, and has held that the same has to be taken recourse to the sealed cover procedure. The instant case of the applicant before us was neither concerning to the DPC, nor concerning the sealed cover procedure, and, therefore, the applicant cannot be allowed to derive any benefits from the cited judgment.
32. Learned counsel had further filed the judgment of this Tribunal dated 01.03.2012 in OA No.08/2011 in Mr. Rajesh Gupta vs. NHAI & Others, which related to a Selection Committee procedure, and the Bench had held that illegality had crept in the selection process, when recommendation of the Selection Committee in respect of the applicant had been put in the sealed cover, as on that date, he was not facing any charge in the departmental or criminal proceedings nor was he under suspension. Having noted that such illegality had prevented the applicant from getting his promotion, due to the sealed cover procedure adopted by the Selection Committee, it was noticed that the agony of the applicant was compounded in the sense that the sealed cover was also missing. The Bench had drawn adverse inference against the Respondent No.1, and in favour of the applicant, and had directed Respondent No.1 to convene a review Selection Committee for the post of GM (Finance), as if the Selection process was taking place on the date (21.12.2009) on which the last meeting of the Selection Committee was held. In the instant case before us, the Search-cum-Selection Committee has not placed its recommendation in regard to the applicant in any sealed cover, and the applicant cannot be allowed to derive any benefits out of the cited judgment.
33. The applicant had further sought shelter behind the judgment of the Honble Delhi High Court dated 26.04.2013 in WP(C) No.7960/2012 in Union of India and Others vs. Doly Loyi. In that case, the Honble High Court had considered the clarification/instructions issued by the DoP&T 02.11.2012 in regard to its earlier OM dated 14.09.1992 as to when the pendency of judicial proceedings in criminal case in the context of Rule 9 (6) (b) (i) of CCS (Pension) Rules, 1972, were to be considered, which provided that judicial proceedings shall be deemed to be instituted in a criminal proceedings on the date on which the complaint or report of a Police Officer, of which the Magistrate takes cognizance, is made. In that case, the Honble High Court had held that merely by virtue of the issuance of order sanctioning prosecution, the DPC proceedings could not have been put in a sealed cover, and had held that when the charge-sheet is filed in the Court of law, that date should be treated as the date on which the prosecution for a criminal charge against such person was pending, but that judgment also related to the process of the DPC having put its recommendations in a sealed cover and is not directly applicable to the facts of the instant case, which is the case of a Search-cum-Selection Committee, which considers the cases of outsiders also, and cannot be equated with a DPC at all.
34. All these cited case laws are in the context of the procedure to be followed by the Departmental Promotion Committee (DPC), but it is a moot question of law as to whether all this case law, including the judgment in the case of K.V.Jankiraman (supra), would apply to the case of a Search-cum-Selection Committee, which considers the cases of outsiders also for the process of selection. It appears to us that since in the case of Search-cum-Selection Committee, outsiders other than the people from within the organization are also considered for selection, through a process of search, the principles laid down by the Honble Apex Court in the case of K.V.Jankiraman (supra), as applicable to DPC, would not at all be applicable to cases of Search-cum-Selection Committee.
35. Respondents submitted photocopies of the note-sheet from pages 1 to 26 of the Vigilance Section File from 10.03.2011 to 14.12.2011 in a sealed cover, which have been perused by us. It is seen from pages 1 to 9 of these note-sheets, that the applicant had recorded fake measurements, on the basis of which amounts had been paid, and it was noted that the applicant was posted at the same post since 31.08.2001, for almost 10 years, and two Committees had been constituted to look into the charges received in the complaint. The first Committee which had been constituted, had gone into the actions of the applicant also, and certain actions had been approved, as per the approval accorded by the Chairman on 10.06.2011. The remaining pages show the procedure adopted by the second Committee, and the note-sheets at pages 13 to 18, in particular, had discussed the report of the Committee constituted on 22.07.2011, which had inspected the concerned site from 23.07.2011 to 31.08.2011, and ultimately submitted its report on 21.10.2011. A decision was taken to initiate major departmental proceedings, followed by repatriation of the present applicant to his parent cadre, and till then posting to non-sensitive post in other Regions, or Headquarters, applicable for the applicant and some other officers, had been suggested by the Chief Vigilance Officer of the Organization on 27.07.2011, and was approved by the Chairman on 29.10.2011. It is, therefore, clear that in the context of the two Committees which had been constituted to go into the lapses and misdemeanor of the applicant, along with the others, and had inspected the site from 23.03.2011 onwards, and were in the process of submitting their reports, which was ultimately submitted on 23.07.2011, the Vigilance clearance could not have been accorded for the promotion to the applicant. Therefore, even if the recommendations of the Search-cum-Selection Committee, which met on 29.09.2011, had to be acted upon, the applicant could not have been promoted.
36. Therefore, while the action of the respondents taken on 28.12.2011 in treating the recommendations of the Search-cum-Selection Committee as having been put in a sealed cover was illegal per se, since such a sealed cover procedure can only be adopted by a DPC and not the Search-cum-Selection Committee, which considers the cases of those from outside the organization also, and is, therefore, different from a DPC, it is clear that the applicant was not eligible for Vigilance clearance, and could not have been promoted, even in the absence of the issuance of the charge-sheet against him, since he was under a cloud, and investigations were going on, and the second Committee constituted for this purpose was yet to give its report. Therefore, the applicant could not have been given the promotion, in the absence of the Vigilance clearance, which was essential for giving effect to the recommendations of the Search-cum-Selection Committee.
37. Therefore, there is no merit in the OA, and the same is rejected. However, there shall be no order as to costs.
(V.Ajay Kumar) (Sudhir Kumar) Member (J) Member (A) /kdr/