Allahabad High Court
Raj Karan Yadav vs High Court Of Judicature At Allahabad ... on 14 August, 2018
Bench: Manoj Misra, Bachchoo Lal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 33 Case :- WRIT - A No. - 2967 of 2018 Petitioner :- Raj Karan Yadav Respondent :- High Court Of Judicature At Allahabad Through Its Registrar General Counsel for Petitioner :- Mr Udai Bhanu Singh Counsel for Respondent :- Mr Manish Goyal Hon'ble Manoj Misra, J.
Hon'ble Bachchoo Lal, J.
1. The instant petition, inter alia, raises a question as to whether the Department Promotion/ Selection Committee of the High Court (in short DPC), which met on 11.12.2014 to consider the promotion of Review Officers (in short R.O.) of the High Court Establishment (in short establishment) to the post of Section Officer (in short S.O.), was justified in adopting the sealed cover procedure in respect of its recommendation for promotion of the petitioner. If not. To what relief the petitioner is entitled to.
2. To understand the controversy better, it would be apposite to have a brief narration of facts as well as the relevant provisions concerning the issue.
3. Promotion /appointment in the establishment is governed by Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976 (in short Rules, 1976). The Appointing Authority as per Rule 2(n) of the Rules, 1976, for each category of posts is the Chief Justice of the High Court or such other Judge or Officer as he may direct. Rule 16 provides for source of recruitment to various Class-II posts which includes the post of S.O. Rule 16 (a) provides that recruitment to the post of S.O. (General Office) shall be by promotion from amongst permanent R.O. and Translators/Urdu Translators. Rule 18 provides for the method of selection for all promotion posts. Rule 18 (i) provides that selection for promotion to posts mentioned in Rule 16 shall be made by a Selection Committee appointed by the Chief Justice. Rule 18 (ii) provides the criteria for selection. It says the criteria for selection shall be seniority subject to rejection of 'unfit'.
4. The petitioner was appointed on the post of Routine Grade Clerk on 13.04.1992 and was promoted to the post of Lower Division Assistant with effect from 12th June, 1992. Subsequently, the petitioner was promoted to the post of Upper Division Assistant (re-designated as R.O.) vide order dated 04.06.2003. On 20th January, 2014, a complaint was received from one Sri Sanjay Senger, Advocate, regarding non-availability/missing record of Civil Misc. Writ Petition No. 2976 of 1994 (Harpal Singh v. DDC and others). A Preliminary enquiry was conducted under the order dated 12.02.2014 of the Registrar General of the High Court (in short R.G.) by one Sri Virendra Kumar Srivastava, O.S.D. On 04.04.2014, the preliminary enquiry report was submitted. According to which, Sri Chandrika Prasad Chauhan, S.O., Second Appeal Section and the petitioner, R.O., Writ B Section, were, prima facie, responsible for loss. On 10.07.2014, under order of Hon'ble Chief Justice, a decision was taken to initiate formal departmental enquiry.
5. From the report of the R.G. dated 18.11.2016, which has been brought on record as Annexure No.8 to the petition, at page 77 to 88 of the paper book, it appears that after order of Hon'ble Chief Justice dated 10.07.2014, the departmental enquiry against the petitioner was assigned to Sri R.K. Upadhyay, the then Registrar (Selection and Appointment). The order of Hon'ble Chief Justice was served upon the Enquiry Officer on 11.07.2014. Thereafter, on 22.08.2014, a charge-sheet was framed by the Enquiry Officer and was submitted for approval. By order of Hon'ble Chief Justice dated 12.09.2014, the draft charge-sheet was required to be vetted by the Litigation Committee. Pursuant thereto, the Litigation Committee vetted/approved the charge-sheet, under its resolution dated 16.09.2014, and the charge-sheet was thereafter placed before Hon'ble Chief Justice with report of the R.G., dated 20.09.2014, upon which, the charge-sheet was approved by Hon'ble Chief Justice on 02.12.2014. Thereafter the charge-sheet was served upon the petitioner on 08.01.2015.
6. As by the date 11.12.2014, when the DPC met for consideration of promotion of Review Officers to the post of Section Officer, charge sheet had already been drawn and approved to departmentally proceed against the petitioner, the DPC resolved and recommended as follows:-
"TO BE KEPT IN A SEALED COVER"
Sri Raj Karan Yadav, (EMP No. 3436), Review Officer, has been considered for promotion to the post of Section Officer but since a departmental enquiry is pending against him, the recommendation in his matter is being kept in a sealed cover and shall be subject to the result of departmental enquiry.
If Sri Raj Karan Yadav, (EMP No. 3436), Review Officer is exonerated, he be given promotion to the post of Section Officer from the date his juniors have been promoted with all consequential benefits, otherwise he shall not be entitled for promotion."
7. The departmental enquiry against the petitioner initiated under the said charge-sheet was concluded. The Enquiry Officer in his report, which was submitted on 12.10.2015, found Chandrika Prasad Chauhan and Raj Karan Yadav (the petitioner) equally responsible/guilty for the loss of record and, as such, they were held guilty of misconduct as per U.P. Government Servant Conduct Rules, 1956. On the basis of the enquiry report, the then Hon'ble Acting Chief Justice, vide order dated 02.06.2016, imposed punishment of withholding of one increment for one year upon the petitioner.
8. In the meantime, pursuant to the recommendation of the DPC, under order of Hon'ble Chief Justice, vide Notification dated 24th December, 2014, 17 Review Officers were promoted on the post of Section Officer. Few amongst them were junior to the petitioner.
9. Aggrieved by promotion of his juniors, on 07.02.2015 the petitioner submitted a representation claiming that as by the date the DPC met, no charge-sheet was served upon the petitioner, there was no justification to adopt 'sealed cover procedure' and therefore the recommendation of the DPC be opened and the petitioner be promoted from the date his juniors were promoted.
10. It is the case of the petitioner that when no action was taken on the representation dated 07.02.2015, he submitted a fresh representation on 22.08.2016.
11. The representations of the petitioner dated 07.02.2015 and 22.08.2016 were placed before the Promotion Committee. The Committee, in its meeting dated 03.10.2016, resolved as follows:-
"Representations in the cadre of Review Officer:
1. Representation dated 07.02.2015 and 22.08.2016 of Sri Raj Karan Yadav (Emp No. 3436), Review Officer, requesting for promotion to the post of Section Officer in light of G.O. Dated 12.03.1987 and judgment of Supreme Court.
Representationist was considered for promotion to the post of Section Officer by Selection Committee in the meeting dated 11.12.2014 and 16.12.2015. Result of representationist was kept in sealed cover on the ground that a departmental enquiry is pending, but we find that on the date when Selection Committee considered representationist for promotion, no departmental enquiry was pending. In fact, it was proposed/contemplated. Charge-sheet was served on representationist on 08.01.2015.
In Union of India Vs. S. K. V. Jankiraman : 1991 SCC (4) 109 = JT 1991 (3) 527, Supreme Court has considered this aspect and held that departmental enquiry can be said to be initiated only when charge-sheet has been issued. In this case, charge-sheet was issued to the representationist in January 2015 and served on 08.01.2015. Therefore, on the date of consideration, no departmental enquiry was pending. Procedure of sealed cover was not applicable in the case of representationist. His matter was wrongly placed in sealed cover. We recommend that sealed cover of representationist be opened and if he was selected, it should be given due effect from the date, others selected in the same selection, have been promoted."
12. The above resolution of the Promotion Committee was placed before Hon'ble Chief Justice under forwarding note of the R.G. dated 17.10.2016. The report was thereafter seen by Hon'ble Chief Justice on 18.10.2016 and endorsement to that effect was made. Pursuant thereto, the S.O. (Establishment) on 02.11.2016 submitted a report to the Deputy Registrar (Establishment) for being placed before the R.G. with following proposals:
"(A). The sealed cover envelope (at flag 'C') containing recommendation of the Hon'ble Committee in respect of promotion of Sri Raj Karan Yadav (Emp. No. 3436), Review Officer, to the post of Section Officer may be opened and further, office may be directed to take appropriate steps as per recommendation of the Hon'ble Committee.
OR (B). Any other order as deemed fit by his goodself."
13. The aforesaid proposal of the S.O. (Establishment) was forwarded by the Registrar (J.) (Selection & Appointment)/E to the R.G. The R.G., thereafter, approved the proposal marked 'A' ( as above) under his order dated 08.11.2016.
14. Thereafter, the Registrar General submitted a fresh report dated 18.11.2016 (Annexure No. 8 to the petition) for consideration and orders of Hon'ble Chief Justice. In this report it was disclosed in detail that decision to hold enquiry against the petitioner was taken by Hon'ble Chief Justice on 10.07.2014; on 22.08.2014 charge-sheet was framed by the Enquiry Officer; the draft charge-sheet was placed before Hon'ble Chief Justice, which was directed to be placed before the Litigation Committee, under His Lordship's order dated 12.09.2014; that charge-sheet was vetted/ approved by the Litigation Committee vide resolution dated 16.09.2014; that report in that regard was placed before Hon'ble Chief Justice by R.G. on 20.09.2014; and that Hon'ble Chief Justice approved the same on 02.12.2014, pursuant to which charge-sheet was served upon the petitioner on 08.01.2015. The report further indicated that the petitioner had been found guilty in the departmental enquiry and, vide order dated 02.06.2016 of the then Hon'ble Acting Chief Justice, was punished with punishment of withholding of one increment for one year. After disclosing the above position, the report was placed before Hon'ble Chief Justice with following two proposals:
"(1) whether in compliance with the resolution of Hon'ble Promotion Committee dated 03.10.2016, the said employee be promoted;
OR (2) Any other order which your Lordship may deem fit and proper"
15. On the aforesaid report, Hon'ble Chief Justice, by his order dated 21.11.2016, directed that the matter be placed before the Administrative Committee. The Administrative Committee, in its meeting held on 23.11.2016, resolved as follows:-
"Resolved that the resolution dated 03.10.2016 of the Committee comprising Hon'ble Mr. Justice Arun Tandon, Hon'ble Mr. Justice Dilip Gupta and Hon'ble Mr. Justice Sudhir Agarwal need not be accepted."
16. Thereafter, a fresh representation was submitted by the petitioner on 02.01.2017 with a prayer that his representations dated 07.02.2015 and 22.08.2016 be decided and his promotion be considered on the same footing as promotion of Sri Khursheed Ahmad, the then Section Officer, was considered for the post of Assistant Registrar. Upon which, R.G., vide dated 14.01.2017, observed that as already the Administrative Committee had taken decision on 23.11.2016 that the resolution of the Promotion Committee, dated 03.10.2016, need not be accepted, petitioner's representation cannot be accepted. Consequently, by communication dated 10th May, 2017, the petitioner was informed that his representations have been rejected as per resolution of the Administrative Committee dated 23.11.2016.
17. Assailing the resolution of the Administrative Committee dated 23.11.2016 as also the decision of the Registrar General of the High Court, dated 14.01.2017, and the communication letters dated 10.05.2017 and 18.01.2017, the instant petition has been filed.
18. We have heard Sri U.B. Singh for the petitioner; Sri Sameer Sharma for the High Court; and have perused the record carefully.
19. The learned counsel for the petitioner has submitted that promotion of a Review Officer to the post of Section Officer is governed by Rules, 1976. Rule 40 (2) thereof specifically provides that:
"In respect of all matters (not provided for in these rules) regarding the conditions of service of officers and servants of the Court including matters relating to their conduct, control and discipline, the rules and orders for the time being in force and applicable to Government servants holding corresponding posts in the Government of Uttar Pradesh shall apply to the officers and servants of the Court subject to such modifications, variations and exceptions, if any, as the Chief Justice may, from time to time, specify:
Provided that no order containing modifications, variations or exceptions in rules or orders relating to salaries, allowances, leave or pensions shall be made by the Chief Justice except with the approval of the Governor:
Provided further that the said powers exercisable under rules and orders of Government of Uttar Pradesh by the Governor shall be exercised by the Chief Justice or by such officer as he may, by general or special order, direct."
It has been submitted that by virtue of the aforesaid provision, Government Orders in respect of adoption of 'sealed cover procedure', as applicable to State Government employees, would, ipso facto, apply in matters pertaining to promotion of employees of the High Court Establishment.
20. Attention of the Court has been invited to Government Orders dated 12th March, 1987 and 28th May, 1997 which have been issued by the Government of U.P. detailing modalities in respect of adoption of 'sealed cover procedure' concerning promotion of government employees. It has been contended that the Government Order dated 28th May, 1997 provides that 'sealed cover procedure' is to be adopted on existence of any one or more of the following three situations: (a) where employee is under suspension; (b) where disciplinary or administrative enquiry is pending against the employee for which charge-sheet has been issued; and (c) where, on a charge relating to criminal offence, prosecution of the employee is pending or a charge-sheet has been submitted in court.
21. The other Government Order which has been cited is dated 12th March, 1987 which appears to be an order issued by the Government to harmonize the earlier two Government Orders operating on the field, namely, G.O. No. 3633/2B-55-1958, dated 23rd October 1958, and G.O. No. 13/12/85-Karmik-1, dated 20th May, 1985.
22. The Government Order dated 12th March, 1987 which has been brought on record as Annexure no. 13 to the petition reveals that under Government Order dated 23rd October, 1958, the departmental enquiry is deemed to commence on issuance of charge-sheet whereas under Government Order dated 28th May, 1985, the departmental enquiry is said to commence on the date a decision is taken to hold an enquiry. To harmonize the two Government orders, by Government Order dated 12th March, 1987, it was provided that the Government Order dated 23rd October, 1958 dealt with a question as to whether on a mere complaint, upon which explanation is called from the government servant, enquiry could be said to have commenced. In which context, it was clarified by Government Order dated 23rd October, 1958 that departmental enquiry would commence on issuance of charge-sheet; whereas the Government Order dated 28th May, 1985 dealt with the issue as to when departmental enquiry would deem to have commenced. In that context, it was clarified that departmental enquiry would deem to have commenced from the date a decision is taken to hold a disciplinary enquiry. Accordingly, in the Government Order dated 12th March, 1987, it was specifically provided that both the said government orders would have to be understood in the context in which they were issued.
23. Learned counsel for the petitioner by placing reliance on the Government Order dated 28.05.1997 has submitted that the same was issued later, pursuant to the decision of the Apex Court in Union of India Vs. K.V. Jankiraman : 1991 (4) SCC 109, hence it would now govern the field and, therefore, unless and until charge-sheet has been issued, no departmental enquiry would be deemed pending. And since the charge sheet was served upon the petitioner after the date the DPC met, there was no justification to adopt the 'sealed cover procedure'. It has been pointed out that the charge-sheet was served on 08.01.2015 whereas the DPC met on 11.12.2014, therefore adoption of sealed cover procedure was not justified and, in such a situation, the DPC ought to have recommended promotion of the petitioner by taking note of previous Annual Confidential Remarks (in short ACRs). It has been submitted that since the DPC was of the view that the petitioner was otherwise entitled for promotion, subject to exoneration in the alleged departmental enquiry, the petitioner ought to have been promoted as by that date there was no departmental enquiry pending. It was thus argued that the decision of the Administrative Committee deserves to be quashed. It was also argued, in the alternative, that since only a minor punishment has been imposed upon the petitioner, promotion should not be denied to the petitioner, inasmuch as denial of promotion, in the given situation, would amount to a double punishment upon the petitioner. It has been contended that such action of the respondents is wholly arbitrary and not legally justified.
24. In addition to above, the learned counsel for the petitioner has contended that one Khursheed Ahmad, who was a Section Officer, and against whom an enquiry was pending but no charge-sheet was issued to him by the date the Departmental Promotion Committee met, was promoted on the post of Assistant Registrar whereas, in a similar situation, the petitioner has been denied promotion. As such, the petitioner has been discriminated.
25. In support of his contention that 'sealed cover procedure' could not be resorted to unless the charge-sheet has been issued, reliance has been placed on decision of the Apex Court in Union of India Vs. K.V. Jankiraman (supra). In addition thereto, reliance has been placed on another decision of the Apex Court in the case of Union of India and others Vs. Anil Kumar Sarkar : 2013 (4) SCC 161 to contend that in absence of suspension of the incumbent or service of charge-sheet upon him or pendency of any judicial enquiry against him, there should be no impediment in promoting the incumbent in view of the law laid down in Union of India Vs. K.V. Jankiraman's case (supra). Another decision of the Apex Court in the case of Union of India & Ors. Vs. Sangram Keshari Nayak : 2007 (4) Supreme 246 has been relied upon, which follows the decision of the Apex Court in Union of India Vs. K.V. Jankiraman's case (supra). Reliance has also been placed on a Division Bench decision of this Court in Dineshwar Shukla Vs. State of U.P. and others : 2018 (1) All LJ 783. In addition to above, reliance has also been placed on decision of the Apex Court in S.B. Bhattacharjee Vs. S.D. Majumdar : 2007 (10) SCC 513 so as to contend that only those Annual Confidential Remarks of the preceding five years that have attained finality, and not such matters that have not attained finality, should be considered while ascertaining whether a person is fit / unfit for promotion.
26. Sri Sameer Sharma, learned counsel for the High Court, in response to the submissions of the learned counsel for the petitioner, submitted that by the date the DPC met, pursuant to a preliminary enquiry report dated 12.02.2014, already a decision had been taken by Hon'ble Chief Justice on 10.07.2014 to initiate a departmental enquiry against the petitioner and, in pursuance thereof, a charge-sheet had been drafted on 22.08.2014, which, after approval of the Litigation Committee, dated 16.09.2014, and of Hon'ble Chief Justice, dated 02.12.2014, was served on the petitioner on 08.01.2015. It has been submitted that as already a decision to hold departmental enquiry had been taken in respect of misconduct pertaining to the previous year 2013-14, and charge-sheet had already been drawn and framed, the DPC was fully justified in adopting the 'sealed cover procedure'. It has been contended that since the recommendation of the DPC for promotion of the petitioner was subject to his exoneration in the enquiry and in the enquiry the petitioner has been found guilty, the petitioner is not entitled to be promoted in terms of the DPC recommendation. It has also been contended that when entire background facts were brought to the notice of Hon'ble Chief Justice, the matter was placed before the Administrative Committee and, after deliberation, it was resolved that resolution dated 3.10.2016 need not be accepted.
27. Sri Sharma contended that in Delhi Development Authority vs H.C. Khurana : 1993 SCC (3) 196, the Apex Court had the occasion to consider the issue as to when it can be said, that 'a decision has been taken to initiate disciplinary proceedings'. It has been submitted that while answering the said issue, the Apex Court had observed that the delay, if any, in service of the charge-sheet on the incumbent, after it has been framed and dispatched, does not have the effect of delaying initiation of the disciplinary proceedings, inasmuch as information to the government servant of the charges framed against him, by service of the charge-sheet, is not a part of the decision making process of the authorities for initiating the disciplinary proceedings. It has been contended that since in the instant case, a decision had already been taken to initiate departmental enquiry and the charge-sheet had been framed and approved before the date when the DPC had met, it would be deemed that on the date when the DPC had met, the charge-sheet had been issued and, as such, on mere delay in serving the charge-sheet, which was, admittedly, served later, the petitioner cannot claim that no charge sheet was issued to him by the date the DPC had met. Sri Sharma pointed out that the decision of the Apex Court in H.C. Khurana's case (supra), was followed by the Apex Court in Union of India Vs. Kewal Kumar : (1993) 3 SCC 204.
28. It has been contended by Sri Sharma that under Rule 18 of the Rules, 1976, the criteria for selection is seniority subject to rejection of 'unfit'. It has been submitted that since the DPC was apprised about the decision to initiate enquiry as well as drawing of charge sheet against the petitioner, a conscious decision was taken by it to make its recommendation for promotion subject to exoneration in the enquiry and since, admittedly, the petitioner has been found guilty in the enquiry and has later been punished, the recommendation cannot be acted upon. Hence, the prayer of the petitioner to promote him with effect from the date his juniors were promoted is liable to be rejected.
29. In support of his contentions, Sri Sharma had also placed reliance on a three judges Bench decision of the Apex Court in State of Madhya Pradesh and another Vs. Syed Naseem Zahir and others : 1993 Supp (2) SCC 225 in which, the Apex Court, in paragraph 7 of the report, after considering the decision in Union of India Vs. K.V. Jankiraman's case (supra), had taken the view that even if the DPC was not justified in keeping the recommendation pertaining to the incumbent in a sealed cover, it would not be appropriate to ignore glaring facts in a given case and act mechanically. Sri Sharma submitted that since the petitioner has been held guilty in the enquiry and has, thereafter, been punished, the petition is liable to be dismissed.
30. We have given our anxious consideration to the rival submissions. Before we proceed to address the issue as to whether adoption of sealed cover procedure was justified in the facts of the case, if not, its consequences, it would be useful to first notice as to what purpose adoption of sealed cover procedure serves in matters relating to departmental promotion. The object of adopting a sealed cover procedure is to ensure that a person against whom a decision is taken to proceed departmentally or judicially on a charge constituting misconduct is not left out of consideration for promotion merely because an enquiry is pending against him, therefore to balance the interest of the Establishment, which is that an unworthy person is not promoted, and that of the incumbent, so that upon exoneration in enquiry he is not deprived of the fruits of promotion from the date his fellow collegues would enjoy, the candidature of the incumbent for promotion is considered but recommendation is kept in a sealed cover to be opened and implemented upon exoneration in the inquiry.
31. In Union of India Vs. K.V. Jankiraman's case (supra), on which reliance has been placed by the learned counsel for the petitioner, a three-judges bench of the Apex Court was dealing with three questions: (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? (3) To what benefits an employee who is completely or partially exonerated is entitled to and from which date? On the first question, the apex court observed and held as under:
"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."
On the second and third questions posed by it, the apex court first considered whether on complete exoneration the incumbent could be denied the benefits of the post on the principle of no work no pay. On this, the apex court held/ observed as follows:
"The normal rule of "no work no pay" is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him."
It may be observed that in K.V. Janakiraman's case (supra), the Tribunal had struck down that part of the departmental instructions which provided that "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". The Tribunal had reasoned that it would amount to a double penalty. The Tribunal had held that when an employee is visited with a penalty as a result of the disciplinary proceedings there should be a Review DPC meeting, with reference to the date on which earlier DPC meeting was held and the sealed cover procedure was adopted, and the Review DPC should consider the findings in the sealed cover as also the penalty imposed. Upon this the apex court held as follows:
"According to us, the Tribunal has erred in holding that when an officer is found guilty in the discharge of his duties, an imposition of penalty is all that is necessary to improve his conduct and to enforce discipline and ensure purity in the administration. In the first instance, the penalty short of dismissal will vary from reduction in rank to censure. We are sure that the Tribunal has not intended that the promotion should be given to the officer from the original date even when the penalty imparted is of reduction in rank. On principle, for the same reasons, the officer cannot be rewarded by promotion as a matter of course even if the penalty is other than that of the reduction in rank. An employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. An employee found guilty of a misconduct cannot be placed on par with the other employees and his case has to be treated differently. There is, therefore, no discrimination when in the matter of promotion, he is treated differently. The least that is expected of any administration is that it does not reward an employee with promotion retrospectively from a date when for his conduct before that date he is penalised in praesenti. When an employee is held guilty and penalised and is, therefore, not promoted at least till the date on which he is penalised, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct. In fact, while considering an employee for promotion his whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified. If, further, the promoting authority can take into consideration the penalty or penalties awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it cannot take the penalty into consideration when it is imposed at a later date because of the pendency of the proceedings, although it is for conduct prior to the date the authority considers the promotion. For these reasons, we are of the view that the Tribunal is not right in striking down the said portion of the second sub-paragraph after clause (iii) of paragraph 3 of the said Memorandum. We, therefore, set aside the said findings of the Tribunal.
(Emphasis Supplied)"
The ratio that emerges from the decision of the apex court in K.V. Janakiraman's case (supra) is that sealed cover procedure is to be adopted when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee; that benefit of the recommendation put in the sealed cover is available when there is complete exoneration; and that if departmental enquiry results in finding the incumbent guilty of misconduct, which is followed by punishment, denial of promotion would not amount to double punishment.
32. Though in K.V. Janakiraman's case (supra) the apex court had found adoption of sealed cover procedure where charge sheet was not served to be unjustified but while finding so it did not deal with a situation as to whether adoption of sealed cover procedure would be justified if a decision to hold departmental enquiry has been taken and a charge-sheet has been framed and drawn, though not served, as is in the present case. We find that in Delhi Development Authority vs H.C. Khurana's case (supra) the apex court, while considering the true import of clause (ii) of para 2 of O.M. dated January 12, 1988, which provided that sealed cover procedure could be adopted in respect of whom disciplinary proceedings are pending or a decision has been taken to initiate disciplinary proceedings, had the occasion to deal with a similar situation as has arisen here. In H.C. Khurana's case (supra), after examining the law laid down in Janakiraman's case (supra), in the context of the concerned O.M., the apex court held / observed, in paragraphs 8 to 11 of the report, as follows:
"8. These words clearly indicate that the sealed cover procedure was applicable, in cases where the ''disciplinary proceedings are pending' in respect of the government servant; or ''a decision has been taken to initiate disciplinary proceedings'. Thus, on a decision being taken to initiate disciplinary proceedings, the guidelines attract the sealed cover procedure. The reason is obvious. Where a decision has been taken to initiate the disciplinary proceedings against a government servant, his promotion, even if he is found otherwise suitable, would be incongrous, because a government servant under such a cloud should not be promoted till he is cleared of the allegations against him, into which an inquiry has to be made according to the decision taken. In such a situation, the correctness of the allegation being dependent on the final outcome of the disciplinary proceedings, it would not be fair to exclude him from consideration for promotion till conclusion of the disciplinary proceedings, even though it would be improper to promote him, if found otherwise suitable, unless exonerated. To reconcile these conflicting interests, of the government servant and public administration, the only fair and just course is, to consider his case for promotion and to determine if he is otherwise suitable for promotion, and keep the result in abeyance in sealed cover to be implemented on conclusion of the disciplinary proceedings; and in case he is exonerated therein, to promote him with all consequential benefits, if found otherwise suitable by the Selection Committee. On the other hand, giving him promotion after taking the decision to initiate disciplinary proceedings, would be incongrous and against public policy and principles of good administration. This is the rationale behind the guideline to follow the sealed cover procedure in such cases, to prevent the possibility of any injustice or arbitrariness.
9. The question now, is : What is the stage, when it can be said, that ''a decision has been taken to initiate disciplinary proceedings'? We have no doubt that the decision to initiate disciplinary proceedings cannot be subsequent to the issuance of the charge-sheet, since issue of the charge-sheet is a consequence of the decision to initiate disciplinary proceedings. Framing the charge-sheet, is the first step taken for holding the enquiry into the allegations, on the decision taken to initiate disciplinary proceedings. The charge-sheet is framed on the basis of the allegations made against the government servant; the charge-sheet is then served on him to enable him to give his explanation; if the explanation is satisfactory, the proceedings are closed, otherwise, an enquiry is held into the charges; if the charges are not proved, the proceedings are closed and the government servant exonerated; but if the charges are proved, the penalty follows. Thus, the service of the charge-sheet on the government servant follows the decision to initiate disciplinary proceedings, and it does not precede or coincide with that decision. The delay, if any, in service of the charge-sheet to the government servant, after it has been framed and despatched, does not have the effect of delaying initiation of the disciplinary proceedings, inasmuch as information to the government servant of the charges framed against him, by service of the charge-sheet, is not a part of the decision-making process of the authorities for initiating the disciplinary proceedings.
10. This plain meaning of the expression used in clause (ii) of para 2 of O.M. dated January 12, 1988, also promotes the object of the provision. The expression refers merely to the decision of the authority, and knowledge of the government servant, thereof, does not form a part of that decision. The change made in clause (ii) of para 2 in O.M. dated September 14, 1992, merely clarifies this position by using the expression ''charge-sheet has been issued' to indicate that service of charge-sheet is not necessary; and issue of the charge-sheet by its despatch indicates beyond doubt that the decision to initiate disciplinary proceedings was taken. In our opinion, Jankiraman takes the same view, and it is not possible to read that decision otherwise, in the manner suggested by learned counsel for the respondent.
11. The decision in Jankiraman is based, inter alia, on O.M. dated January 12, 1988. The facts of the cases dealt with in the decision in Jankiraman do not indicate that the Court took the view, that even though the charge-sheet against the government servant was framed and direction given to despatch the same to the government servant as a result of the decision to initiate disciplinary proceedings taken prior to the meeting of the DPC, that was not sufficient to attract the sealed cover procedure merely because service of the charge-sheet was effected subsequent to the meeting of the DPC............".
(emphasis supplied) Following the decision in Delhi Development Authority vs H.C. Khurana's case (supra), similar view has been taken by the Apex Court in Union of India Vs. Kewal Kumar's case (supra) Even in the decision cited by the learned counsel for the petitioner rendered in the case of Union of India & Ors. Vs. Sangram Keshari Nayak's case (supra), the decisions of the Apex Court in the case of H.C. Khurana's case (supra) and Kewal Kumar's case (supra) were noticed with approval.
33. The Government Order dated 28th May, 1997, on which heavy reliance has been placed by the learned counsel for the petitioner, though provides that 'sealed cover procedure' can be adopted only on existence of any one or more of the following three conditions: (a) where employee is under suspension; or (b) where disciplinary or administrative enquiry is pending against the employee for which charge-sheet has been issued; or (c) where, on the basis of a charge relating to criminal offence, prosecution of the employee is pending or a charge-sheet has been submitted in Court, but it does not specifically deal with a situation where a decision to initiate disciplinary enquiry has been taken and, pursuant to which, a charge-sheet has been drawn and ready to be served though not served. In that kind of a situation, if the DPC to maintain purity and efficiency in the establishment, upon being apprised of the framing of the charge sheet, consequent to taking of decision to draw disciplinary proceeding against the incumbent, takes a decision to adopt the sealed cover procedure and thereby put its recommendation subject to exoneration in the inquiry, no fault can be found with such a decision, particularly where the charge of misconduct relates to the appraisal period.
34. The decision of a Division Bench of this Court rendered in the case of Dineshwar Shukla Vs. State of U.P. and other (supra) is distinguishable on the facts of the present case, inasmuch as, in that case the candidature of the incumbent concerned was considered on 07.09.2016 whereas the charge-sheet was drawn on 28.09.2016 and served upon him on 17.10.2016 whereas, here, in the instant case, the charge-sheet, after vetting by the Litigation Committee, was approved by Hon'ble Chief Justice on 02.12.2014 before the date i.e. 11.12.2014 when the Departmental Promotion Committee had met. In fact, in this case, by 11.12.2014 not only decision to initiate departmental enquiry had been taken but even the charge-sheet had been drawn and approved though not served.
35. Under the circumstances, the law laid down by the Apex Court in the case of H.C. Khurana's case (supra) and Kewal Kumar's case (supra), which had considered the Larger Bench decision of the apex court in K.V. Jankiraman's case (supra), would be applicable to the facts of the case. Hence, the DPC was justified in adopting the sealed cover procedure.
36. As the petitioner has been found guilty in the enquiry and the recommendation of the DPC was subject to the petitioner being exonerated in the enquiry, the recommendation cannot be acted upon. We therefore find no justification to interfere with the decision of the Administrative Committee dated 23.11.2016 by which the earlier resolution of the Promotion Committee dated 03.10.2016 was not accepted.
37. The contention of the learned counsel for the petitioner that since the petitioner has already been awarded punishment of withholding of one increment for one year therefore denial of promotion would amount to a double punishment upon the petitioner, is liable to be rejected as similar contention raised in K. V. Janakiraman's case (supra) was outright rejected by apex court. Moreover, the petitioner had no absolute right to be promoted, inasmuch as, as per rule, criteria for promotion was seniority subject to rejection of 'unfit'.
38. The other contention of the learned counsel for the petitioner that for a minor punishment that has been imposed upon him he should not have been denied promotion is also worthy of rejection on the ground that the DPC recommendation for promotion of the petitioner was subject to his exoneration in the enquiry. It was specifically provided that if petitioner is not exonerated in the enquiry then he shall not be promoted. Thus, even though the punishment imposed upon the petitioner, as per Rules, may be minor but since he has been found guilty, the recommendation of the Departmental Promotion Committee for his promotion, being subject to his exoneration, cannot be acted upon. And, therefore, petitioner's candidature for promotion can only be considered in the next exercise for promotion as per the Rules applicable.
39. Another contention of the learned counsel for the petitioner that in similar circumstances, one Khursheed Ahmad was conferred benefit of promotion and no 'sealed cover procedure' was adopted in his case hence the petitioner has been discriminated is also liable to be rejected for two reasons. Firstly, because Khursheed Ahmad was not being considered for the same post as was the petitioner; and secondly, from paragraph 24 of the counter affidavit it appears that the Promotion Committee in respect of Khursheed Ahmed had found that in respect of D.E. No.45/16 the charge sheet was under preparation and in respect of D.E. No.48/16 the charge sheet was pending approval thus on the date of meeting of the DPC there was no duly framed and approved charge sheet as against Khursheed Ahmad as was there against the petitioner.
40. The last contention contention of the learned counsel for the petitioner that the DPC should not have taken notice of the pending departmental enquiry and should have considered only last five years ACRs is also worthy of rejection on the ground that the DPC had met in the month of December 2014 and therefore the appraisal of service record would at least be up to the period ending on 31st March, 2014. As, in the month of January, 2014, complaint in respect of missing record was received and in February, 2014 preliminary enquiry was directed by the Registrar General, pursuant to which, preliminary enquiry report was submitted on 04.04.2014, thereby, finding the petitioner and one Chandrika Prasad Chauhan, prima facie, guilty, the misconduct, if any, related to the period of appraisal. Hence, the DPC was justified in not only directing its recommendation to be kept in 'sealed cover' but also making it subject to exoneration in the enquiry.
41. In view of the reasons recorded above, we are of the considered view that the petition has no merit. The same is accordingly dismissed. There is no order as to costs.
Order Date :- 14.8.2018
Sunil Kr Tiwari
(Bachchoo Lal, J.) (Manoj Misra, J.)